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Paolino v. JF Realty, LLC

United States District Court, D. Rhode Island

March 26, 2015

LOUIS PAOLINO and MARIE ISSA, Plaintiffs,
v.
JF REALTY, LLC, JOSEPH I. FERREIRA, ROBERT YABROUDY, LKQ ROUTE 16 USED AUTO PARTS, INC., DBA ADVANCED AUTO RECYCLING, JOSEPH I. FERREIRA TRUST, Defendants.

ORDER AND MEMORANDUM

MARY M. LISI, District Judge.

The case is before the Court on the remaining[1] defendants' motion for attorney's fees pursuant to Fed.R.Civ.P. 54(d)(2) and 33 U.S.C. § 1365(d). The pertinent facts underlying this litigation and its lengthy procedural history have been repeatedly detailed in various opinions and orders, most recently in the Memorandum of Decision issued by this Court on November 19, 2014, after the Court conducted a trial without a jury in August and September of that year. Paolino v. JF Realty, LLC, C.A. No. 12-039-ML, 2014 WL 6485842(D.R.I. Nov. 19, 2013). See also Paolino v. JF Realty, 710 F.3d 31, 35-37 (1st Cir. 2013); Paolino v. JF Realty, C.A. No. 12-39-ML, 2012 WL 3061594 (D.R.I. July 26, 2012); LM Nursing Service, Inc. v. Ferreira, No. 09-cv-413-SJM-DLM, 2011 WL 1222894 (D.R.I. Mar. 30, 2011).

I. Factual Background and Procedural Posture

To summarize, the plaintiffs, Louis Paolino ("Paolino") and Marie Issa (together with Paolino, the "Plaintiffs") brought a series of complaints[2] against JF Realty, LLC ("JF Realty") and the other named defendants (together with JF Realty, the "Defendants") related to a large parcel of property (the "Property") owned by JF Realty, which is located adjacent to the Plaintiffs' own, smaller property (the "Paolino Property"). The Property has been operated as an automotive recycling business since 1984 and, like the Paolino Property, it has a long and complicated environmental history that predates ownership of the respective properties by either party.

Since 2006, the Plaintiffs have pursued claims against the Defendants in both state and federal court under various legal theories, including trespass, and claims under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. (1972). The most recent complaint before this Court, limited to a one-count CWA claim, was filed on January 20, 2012. The gravamen of Plaintiffs' CWA claim is that contaminated stormwater runoff from the Property is being discharged into United States waters. The Plaintiffs further alleged that the improper treatment of stormwater led to contamination on the Paolino Property, and that the Defendants lacked a valid RIPDES [Rhode Island Pollutant Discharge Elimination System] permit.[3] In addition to injunctive relief, the Plaintiffs sought an order requiring the Defendants to pay civil penalties of $32, 500 to $37, 500 per day for each alleged violation of the CWA.

The parties presented evidence and the testimony of thirteen witnesses in the course of a seven-day bench trial, after which both sides filed extensive post-trial memoranda. On November 19, 2014, this Court issued a Memorandum of Decision in which it concluded, after considering and evaluating the submitted evidence and testimony, that the Plaintiffs had failed to meet their burden of proof and that the Defendants had prevailed.

On December 3, 2014, the Defendants filed a motion for attorney's fees pursuant to Fed.R.Civ.P. 54(d)(2) and 33 U.S.C. §1365(d). In support of their motion, the Defendants assert that (1) the Plaintiffs proceeded to trial without any credible evidence to support their claims; (2) Paolino[4] himself conceded that RIDEM [Rhode Island Department of Environmental Management] had investigated his numerous complaints about the Property and had found them to be without merit; and (3) neither EPA nor RIDEM decided to intervene in this case after receiving Plaintiffs' notice of intent to sue.[5]

On December 17, 2014, the Plaintiffs filed an objection to the Defendants' motion for attorney's fees. The Plaintiffs took the position that, as long as reasonable minds could differ as to the merits of their ultimately unsuccessful action, the action was not "frivolous or unreasonable" and, accordingly, an award of fees and costs was not warranted. Pltfs.' Mem. at 1 (Dkt. No. 110-1) (citing Simsbury-Avon Pres. Soc'y, LLC v. Metacon Gun Club, Inc., not reported in F.Supp. 2d, 2010 WL 1286812 (D.Conn, March 29, 2010)). The Plaintiffs further suggested that this Court "deferred to the position of [RIDEM] on all matters, " but they maintained that the position of a regulatory agency was not determinative of the question of frivolousness. Pltfs.' Mem. at 1. According to the Plaintiffs, RIDEM "has a long history of special, favorable treatment of Defendants, " and "some RIDEM personnel have effectively acted as advocates for Defendants in squelching Plaintiffs' legitimate complaints." Id. at 33.

The Plaintiffs also pointed out that, in their motion for attorney's fees, the Defendants sought fees related not only to this litigation, but to the two earlier suits the Plaintiffs had pursued against the Defendants in this Court.

In support of their objection to the Defendants' motion, the Plaintiffs offered their own interpretation of the testimony and evidence presented at trial. In addition, the Plaintiffs submitted a number of exhibits that included, inter alia, (1) an affidavit of Paolino that seeks to establish facts that were not admitted at trial, and which appear to be based on unsupported hearsay from an individual who did not testify; (2) a 1995 state court judgment involving Ferreira that appears to have no connection to the instant case; and (3) an affidavit dated June 30, 2014 by Plaintiffs' expert witness, Dr. Roseen, which describes, in some detail, Dr. Roseen's observations during an April 28, 2014 site visit to the Property and his conclusions derived therefrom. As previously explained in open Court and set forth in the November 19, 2014 Memorandum of Decision, such testimony was expressly excluded at trial because the information was not disclosed to the Defendants within the deadline imposed by the Court.

Plaintiffs' objections to the Defendants' request for attorney's fees are numerous. To summarize, the Plaintiffs assert that (1) an award of attorneys' fees is not justified on the merits; (2) Defendants failed to satisfy the requirements of Local Rule 54.1 and/or the Court's December 18, 2014 order; and (3) Defendants have intentionally violated that order. Pltfs.' Response at 1 (Dkt. No. 113). In addition, the Plaintiffs challenge the adequacy of the information provided by the Defendants in support of their motion for attorney's fees. It is noted that Defendants' additional submission of detailed billing information pursuant to the Court's December 18, 2014 order served to supplement the initial motion, which did include the requisite affidavits. Morever, the billing statements[6] enabled the Plaintiffs to identify, with some specificity, any submitted charges they considered inappropriate and the submitted documentation allowed for a thorough review by the Court.

II. Standard of Review

The general rule in the United States-absent statutory or contract provisions stating otherwise-requires litigants to pay their own attorney's fees. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 415, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (citing Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). Although many statutes limit awards to prevailing plaintiffs, the CWA authorizes the award of attorney's fees to either plaintiffs or defendants. Section 1365(d) of the CWA, applicable to citizen suits, provides that "[t]he court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d)(emphasis added). The litigation cost provision in the CWA does not set forth a standard under which requests for attorney's fees are to be considered, nor does it expressly distinguish between the two sides. However, case law indicates that the burden on a prevailing defendant is higher than that imposed on a prevailing plaintiff, reflecting "the general policy set forth by Congress to encourage legitimate private citizen lawsuits in furtherance of policies that Congress considers of the highest priority.'" Atlantic States Legal Found., Inc. v. Onondaga Dept. of Drainage and Sanitation, 899 F.Supp. 84, 87 (N.D.N Y. 1995)(quoting Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)).

Accordingly, a prevailing defendant in a CWA action may only recover attorney's fees if the Court finds that a plaintiff's claims are "frivolous, unreasonable, or groundless, " or if the Court determines that "the plaintiff continued to litigate after [the litigation] clearly became so." Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422, 98 S.Ct. 694. See also, Simsbury-Avon Pres. Soc'y, LLC v. Metacon Gun Club, Inc., 2010 WL 1286812 at *1 n. 2 (listing cases addressing ...


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