Paolino, et al v. JF Realty, LLC, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [15-1498]

Case: 15-1498

Document: 00117030524

Page: 1

Date Filed: 07/18/2016

Entry ID: 6018224

United States Court of Appeals
For the First Circuit
No. 15-1498
LOUIS PAOLINO; MARIE ISSA,
Plaintiffs, Appellants,
v.
JF REALTY, LLC; JOSEPH I. FERREIRA; ROBERT YABROUDY;
LKQ ROUTE 16 USED AUTO PARTS, INC., d/b/a/ Advanced
Auto Recycling; JOSEPH I. FERREIRA, Trustee of the
Joseph I. Ferreira Trust,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
Ronald L. Bonin, with whom Moretti Perlow & Bonin Law Offices,
was on brief, for appellants.
Robert Clark Corrente, with whom Whelan, Corrente, Kinder &
Siket LLP, was on brief, for appellees.

July 18, 2016

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TORRUELLA,

Page: 2

Date Filed: 07/18/2016

Circuit Judge.

Entry ID: 6018224

This citizen enforcement

action under the Federal Water Pollution Control Act, 33 U.S.C.
§ 1251, et seq. ("Clean Water Act" or "CWA"), is the third such
suit brought by Plaintiffs-Appellants Louis Paolino and his wife
Marie Issa (collectively "Paolino-Issa") against the owner of a
neighboring parcel of land and the business operating on it,
Defendants-Appellees.1
series

of

It is only the latest in an inventive

unjustifiable

environmental practices.

efforts

to

indict

their

neighbor's

We affirm the district court's judgment

for Defendants-Appellees and award of attorneys' fees to the same.
I.

The Facts

In 1983, Joseph I. Ferreira bought a thirty-nine-acre
site (the "Property") in Cumberland, Rhode Island.

The Property

"Plaintiffs originally filed suit in Rhode Island state court
in 2006. After plaintiffs amended the complaint to include counts
under the CWA, the Resources Conservation and Recovery Act (RCRA),
42 U.S.C. § 6901 et seq., and the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§ 9601 et seq., defendants removed the case to federal court and
asserted that pre-suit notice was inadequate. On March 30, 2011,
the court dismissed plaintiffs' federal claims without prejudice
for failure to comply with the notice requirements of the various
statutes invoked, and remanded the remaining state claims to the
Rhode Island Superior Court. LM Nursing Serv., Inc. v. Ferreira,
No. 09-CV-413-SJM-DLM, 2011 WL 1222894, at *9 (D.R.I. Mar. 30,
2011). On June 6, 2011, plaintiffs filed a new federal complaint
against the defendants in the District of Rhode Island, which was
dismissed without prejudice by stipulation when notice was
defective." Paolino v. JF Realty, LLC, 710 F.3d 31, 34 n.1 (1st
Cir. 2013).
1

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is currently owned by JF Realty, LLC, ("JF Realty") of which
Ferreira is the sole member, and is home to an automobile recycling
business: LKQ Route 16 Used Auto Parts, Inc., d/b/a Advanced Auto
Recycling ("LKQ").

In December 1985, Paolino bought a six-acre

property (the "Paolino-Issa Property") abutting the Property for
$40,000.

The two properties were previously part of a larger

parcel operated at various points as a pig farm and waste dump.
In the early 2000s, Paolino sold two half-acre parcels
for development.
failing

to

The purchaser subsequently sued Paolino for

disclose

contaminated.

Paolino

that
then

the

Paolino-Issa

sought

a

tax

Property

abatement

"because of the contamination found on his property."

in

was
2003

Paolino was

directed to remediate his property, but has not completed that
process.
In March 2005, also as a result of the contamination
pervading

both

properties,

the

Rhode

Island

Department

of

Environmental Management ("RIDEM") issued a Notice of Intent to
Enforce ("NIE") to the then-operator of the Property, Advanced
Auto Recycling ("Advanced Auto"), requiring it to (1) install
controls to prevent stormwater runoff on the Property and (2) apply
for

a

Rhode

Island

Pollution

Discharge

("RIPDES") permit for the Property.

Elimination

System

Ferreira's business manager,

Robert Yabroudy, subsequently submitted an application to RIDEM
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for the permits required by the NIE, naming the operator as
Advanced Auto and the owner as the Joseph I. Ferreira Trust
("Ferreira Trust") although it appears2 that at that point in time
the Property was owned by JF Realty and operated by LKQ.3

RIDEM

would go on to issue the RIPDES permit to the Joseph I. Ferreira
Trust in July 2007.
The stormwater management system that was installed on
the Property would ultimately consist of two outfall pipes to drain
various of the Property's surface areas, with large detention
basins underneath to collect water and trap contaminants, set in
the headwall facing Curran Road.

The pipes drain into an outfall

channel that eventually leads to Curran Brook.
the system began in October 2007.

During the construction LKQ

received a second NIE on April 14, 2008.
civil

engineering

firm,

Construction of

Commonwealth

Defendants contracted a

Engineers,

to

bring

the

This is one of many points of temporal murkiness. The Complaint
states that the permit request was filed on June 19, 2006, while
the Answer claims the request was filed in June 2005. The Answer
does not refute the claim that at the time of application the owner
was JF Realty and operator was LKQ.
3
Around the same time, in 2006, Paolino communicated to Yabroudy
that he wanted Ferreira to purchase the Paolino-Issa Property for
$250,000; Ferreira refused. Paolino-Issa subsequently filed their
first lawsuit against the Defendants for the contamination of the
Paolino-Issa Property and lodged complaints about the Property
with RIDEM, the Environmental Protection Agency ("EPA"), the U.S.
Attorney's Office, the police department, the Department of
Business Relations, and U.S. Senator Sheldon Whitehouse. To this
considerable barrage, they added a media campaign.
2

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Property into compliance and ultimately completed the construction
in October 2008.
RIDEM investigated numerous of Paolino-Issa's repeated
complaints and notified them that they found all but one without
merit.

Paolino-Issa

were

notified

in

April

2008

that

the

discharge point for stormwater had been relocated and was not
discharging stormwater onto their property.
On March 2, 2010, RIDEM issued a Notice of Violation
("NOV") to JF Realty informing them that an inspection on November
20, 2009, showed that pollutants were being discharged from the
Property to Curran Brook in violation of the Rhode Island Water
Pollution Act and RIDEM Water Quality Regulations.
administrative penalty was imposed.

A $2,500.00

RIDEM issued a letter on

November 19, 2012, confirming the receipt of a check from JF Realty
to pay the penalty and that all issues mentioned in the NOV were
resolved, effectively releasing the NOV.

Subsequent inspections

in April 2014 found no additional violations and resulted in no
additional enforcement actions or fines.
II.
Paolino-Issa

Procedural Background
filed the current claim for injunctive

relief and civil penalties against JF Realty, Ferreira, Yabroudy,
LKQ, Advanced Auto, and Ferreira as trustee of the Ferreira Trust
under the citizen suit enforcement provisions of the CWA on January
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20, 2012, in the U.S. District Court for the District of Rhode
Island, alleging that contaminated stormwater runoff from the
Property

was

contaminating

being
the

discharged

Paolino-Issa

lacked a valid RIPDES permit.

into

United

Property,

and

States
that

waters,

Defendants

While the claim was originally

dismissed on July 26, 2012, due to defective pre-suit notice, this
court reversed the dismissal and remanded except as to claims
against Ferreira's business manager, Yabroudy.

Paolino v. JF

Realty, LLC, 710 F.3d 31, 36, 40-42 (1st Cir. 2013).

The deadline

for Plaintiffs to submit expert disclosures was February 28, 2014.
Although Plaintiffs provided disclosures for two expert witnesses
on that date, Alvin Snyder and Dr. Robert Roseen, the latter's
report was just thirty-two pages, some of which were stamped
"DRAFT."

Paolino-Issa

subsequently

submitted

a

request

to

supplement Roseen's report on June 13, 2014, which was, noted the
district court, "more than three months after the Plaintiffs'
expert disclosures were due, two weeks after expert discovery had
closed, and after the Defendants had filed their motion for summary
judgment, based, in part, on the information disclosed in Dr.
Roseen's expert report."

The second report was seventy pages.

Despite a May deposition, neither Dr. Roseen nor Paolino-Issa had
indicated any intention to revise or supplement the February
report.

The parties proceeded to trial, which took place over
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seven days in August and September 2014, at which the district
court permitted Roseen to testify only to the content of the
initial

report.

The

district

court

issued

a

memorandum

of

decision on November 19, 2014, concluding that Plaintiffs failed
to meet their burden of proof.
On December 3, 2014, Defendants filed a motion for attorney's
fees claiming: (1) that Plaintiffs went to trial without credible
evidence; (2) Paolino conceded that RIDEM had investigated the
Property and found his complaints lacked merit; and (3) neither
RIDEM

nor

the

EPA

chose

objection to this motion,
frivolous

or

to

intervene.

Plaintiffs

filed

an

arguing that their action was not

unreasonable,

that

the

lack

of

action

by

administrative agencies is not definitive, and that Defendants
were seeking fees related to prior suits.

On March 26, 2015, the

district court ordered that the Plaintiffs pay $111,784.50, the
total amount of fees charged by Defendants' counsel from June 30,
2014, the date by which extensive discovery had been completed and
Plaintiffs had reviewed and responded to Defendants' motion for
summary judgment, to October 29, 2014.
III.

The Excluded Expert Testimony

Paolino-Issa

allege

that

the

trial

judge

erred

in

excluding from evidence a portion of the expert testimony of
Dr. Roseen as a result of Paolino-Issa's tardiness in filing Dr.
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Roseen's revised expert report.

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This claim faces a high bar and

falls well short.
When reviewing a district court sanction regarding a
discovery violation, this court will be deferential to the trial
judge.

See Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003).

When "a party aspires to disclose expert evidence out of time and
the trial court opts to exclude it, we review that determination
for abuse of discretion."

Santiago-Díaz v. Laboratorio Clínico y

De Referencia Del Este, 456 F.3d 272, 275 (1st Cir. 2006).

Under

the "abuse of discretion" standard, this court will not substitute
its judgment for that of the district court unless left with a
"definite and firm conviction that the court below committed a
clear error of judgment."

Schubert v. Nissan Motor Corp. in

U.S.A., 148 F.3d 25, 30 (1st Cir. 1998) (quoting In re Josephson,
218 F.2d 174, 182 (1st Cir. 1954)).
Under Federal Rule of Civil Procedure 26(e)(1):
A party who has made a disclosure under Rule
26(a) -- or who has responded to an
interrogatory, request for production, or
request for admission -- must supplement or
correct its disclosure or response: (A) in a
timely manner if the party learns that in some
material respect the disclosure or response is
incomplete or incorrect, and if the additional
or corrective information has not otherwise
been made known to the other parties during
the discovery process or in writing; or (B) as
ordered by the court.

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Fed. R. Civ. P. 26(e)(1).

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Pursuant to Rule 37(c)(1), reports that

are not disclosed in a timely manner are automatically excluded
and may not be used "to supply evidence . . . unless the failure
was substantially justified or is harmless."
37(c)(1).

Fed. R. Civ. P.

In Esposito v. Home Depot U.S.A., Inc., this court

stated that when reviewing a district court's decision to preclude
expert

testimony,

it

will

consider:

"(1) the

history

of

the

litigation; (2) the sanctioned party's need for the precluded
evidence; (3) the sanctioned party's justification . . . for its
late disclosure; (4) the opponent-party's ability to overcome the
late

disclosure's

adverse

effects . . .

;

and

disclosure's impact on the district court's docket."

(5) the

late

590 F.3d 72,

78 (1st Cir. 2009).
We find that, far from an abuse of discretion, the
district court's decision to exclude the untimely supplement to
Dr. Roseen's report passes the five-factor Esposito test easily.
Regarding the history of the litigation, Paolino-Issa repeatedly
missed deadlines for discovery and motions.
F.3d at 79.

See Esposito, 590

While Paolino-Issa contend that the information is

crucial to their case, Paolino-Issa presented numerous other forms
of evidence as well as nine other witnesses; moreover, Dr. Roseen
was allowed to testify -- only the untimely portion of his report
was

excluded.

Paolino-Issa

claim
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their

tardiness

owed

to

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Defendants' refusal to permit them entry onto the property.

But

Paolino-Issa concede that they did not file a motion to obtain an
order to inspect the Property -- as opposed to a request for entry
-- until February 19, 2014, though experts' reports were to be
disclosed by February 28.

Moreover, Paolino-Issa did not retain

Dr. Roseen until early February,

further

undermining

Issa's asserted justification for their tardiness.

Paolino-

As to the

fourth Esposito factor, as the district court noted, PaolinoIssa's motion to "serve a revised expert report [came] months after
the deadline for expert disclosures had passed and only after the
Defendants . . . had filed their motion for summary judgment."
Defendants

had

already

relied

on

the

original

report

Dr. Roseen in drafting their motion for summary judgment.

from
To

grant the request to supplement Dr. Roseen's report on June 13
would

have

substantially

affected

both

Defendants,

who

had

tangibly relied upon that initial disclosure, and the district
court.

See Santiago-Díaz, 456 F.3d at 277; Gagnon v. Teledyne

Princeton, Inc., 437 F.3d 188, 197-99 (1st Cir. 2006).
Paolino-Issa's Esposito-based "fatal sanction" argument
likewise fails.

In Esposito, the plaintiff's "need for the expert

was so great that the magistrate judge's decision to preclude the
expert, although technically not a dismissal of Esposito's case,
effectively amounted to one."

590 F.3d at 78.
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preclusion "carrie[s] the force of a dismissal, the justification
for it must be comparatively more robust."

Id. at 79; see Young

v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003).

But here the

preclusion of a portion of an expert witness's report in this case
following discovery, rather than before a successful motion for
summary

judgment,

Dr. Roseen

was

did

still

not

constitute

allowed

to

a

de

testify,

facto
along

dismissal.
with

other

witnesses, and the dismissal cannot be attributed to the exclusion
of the supplement to Dr. Roseen's tardily tendered report.

We

thus find no abuse of discretion in the district court's decision
to exclude the revised report.
IV.

The Judgment

We next address Paolino-Issa's contention that the trial
judge's judgment for the Appellees was an error in toto and somehow
against the great weight of the evidence presented at trial.
Pursuant to the CWA's citizen suit provision: "[A]ny
citizen

may

commence

a

civil

action

on

his

own

behalf

--

(1) against any person . . . who is alleged to be in violation of
(A) an effluent standard or limitation under this chapter . . . or
(B) an order issued by the Administrator or a State with respect
to such a standard or limitation."
Paolino-Issa

sought

to

prove

33 U.S.C. § 1365(a)(1).

Defendants

violated

the

Here,
CWA

by

discharging pollutants from a point source into navigable waters
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without

Document: 00117030524

a

permit.

33

Page: 12

U.S.C.

Date Filed: 07/18/2016

§§ 1311(a),

1342(a),

Entry ID: 6018224

1362(12).

Specifically, Paolino-Issa had to prove that water discharged from
the stormwater system's outfall pipes into the mingled channel
leading to Curran Brook contained pollutants.4
Upon review, this court may set aside the district
court's findings of fact only if "clearly erroneous" and with due
regard for the opportunity of the trial judge to determine the
credibility of the witnesses.

Fed. R. Civ. P. 52(a); see also

Jackson v. Harvard Univ., 900 F.2d 464, 466 (1st Cir. 1990).
Conversely, this court reviews legal rulings by the district court
on a de novo basis.

United States v. 15 Bosworth St., 236 F.3d

50, 53 (1st Cir. 2001).
In

Anderson

v.

Bessemer

City,

the

Supreme

Court

established that:
[i]f the district court's account of the
evidence is plausible in light of the record
viewed in its entirety, the court of appeals
may not reverse it even though convinced that
had it been sitting as the trier of fact, it
would have weighed the evidence differently.
Where there are two permissible views of the
evidence, the factfinder's choice between them
cannot be clearly erroneous.

Turbidity, as opposed to pollutant levels, does not bear on
whether Defendants were in violation of the CWA or their permit,
thus we do not address the issue of turbidity.
4

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470 U.S. 564, 573-74 (1985).

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Here, the district court's order was

clearly grounded in the record and reflected a more-than-plausible
interpretation
extensive

of

that

procedural

evidence.

history,

That

court

incorporating

recounted

prior

the

decisions;

summarized the pertinent testimony of thirteen witnesses and the
findings of facts corresponding to each5; reviewed the timeline of

The district court reviewed evidence from (1) Christopher Lee,
a
field
technician
employed
by
Rhode
Island
Analytical
Laboratories who took samples at the Paolino-Issa Property on
December 23, 2013, and took a sample from the drainage channel
located partially on the Paolino-Issa Property and no samples from
the Property; (2) Alvin J. Snyder, registered professional
engineer and the principal of Environmental Resource Associates,
a company dedicated to environmental compliance and remediation,
who made various visits to, and took various samples from, the
Paolino-Issa Property between 2009 and 2013; (3) Harold Ellis, a
former supervising environmental scientist with RIDEM, who only
offered testimony relating to events that occurred thirty years or
more before the complaint; (4) Louis R. Maccarone II, senior
sanitary engineer at the RIDEM office of waste management, who
sent a letter of responsibility to the Ferreira Trust on October
5, 2005, requiring the owners of the Property to conduct a full
site investigation and bring the Property into compliance with
regulations; (5) David D. Chopy, RIDEM's Chief of Compliance and
Inspection, who confirmed receiving data from Snyder that appeared
to demonstrate water quality violations but that could not be used
because Snyder was hired by Paolino; (6) Paolino, co-owner of the
Paolino-Issa Property, who saw oil sheen and turbidity in the water
coming from the Property onto his, but also conceded that his
complaints were investigated by RIDEM and were deemed to not have
merit; (7) David Holzinger, operations manager for LKQ, who
described the process of auto recycling at the LKQ facility, his
obligation to collect stormwater samples every quarter, and the
requirements to prevent contamination; (8) Yabroudy, business
manager for Ferreira, who applied for a RIPDES permit on June 15,
2006, that named the Trust as the owner of the Property and
Advanced Auto as the operator although Advanced Auto was dissolved
in 2005 and the Property was conveyed to JF Realty; (9) Ferreira,
5

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events based on testimony and evidence offered by both parties in
relation to the CWA claim; and noted DEM's investigations, actions,
and notifications.
The district court determined that the only evidence
Paolino-Issa

presented

discharging

pollutants

to
was

show

the

overtly

stormwater
flawed.

system
For

was

example,

Dr. Roseen's report significantly misapprehends the stormwater
system's components and their functions.

As Patrick Hogan of

RIDEM noted in his testimony, all of Snyder's samples came from a

who bought the Property in 1983 and serves as LKQ's plant manager
and stated he had no direct involvement with RIDEM although he was
aware of their notices and of how the stormwater management system
was installed; (10) Dr. Roseen, a Ph.D. in civil engineering with
a specialty in water resources engineering, who analyzed data
collected by his staff from the Property in 2014 as to potential
risks of contamination in light of the current system and reviewed
maintenance records from 2007 to 2013; (11) Patrick Hogan, in
charge of supervising the RIDEM Water Pollution and Septic
Enforcement Program, who visited the Property on various occasions
between 2008 and 2014 after receiving complaints from Paolino and
sent an NOI to JF Realty after a March 2008 visit and an NOV
following a November 2009 visit, but affirmed that JF Realty took
the necessary steps to address both and informed Paolino, in
response to continuing complaints, that a multimedia inspection
found no violations; (12) Karen Beck, a Commonwealth Engineering
employee, registered landscape architect, and wetlands scientist,
who worked on the design of the Property's stormwater management
system, obtained the necessary permits, and coordinated efforts by
Commonwealth's engineers; and (13) Richard Lavengood, engineer and
certified toxic use reduction planner, who is the principal of
RELCO Engineering that prepared the stormwater management plan for
LKQ, which included testing, training of personnel and dealing
with incidents.
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mingled water source, not
Property's outfall pipes.

Date Filed: 07/18/2016

directly from

Entry ID: 6018224

the Property or the

As such, it is no stretch to affirm the

district court's finding that Paolino-Issa failed to show the
stormwater system was emitting pollutants.
Further, we note Paolino-Issa's CWA claim failed in
another direction: 33 U.S.C. § 1251(a) exists to "restore and
maintain the chemical, physical, and biological integrity of the
[n]ation's waters."

In the past, we have held that "[d]uplicative

actions aimed at exacting financial penalties in the name of
environmental protection at a time when remedial measures are well
underway do not further this goal" and may be "impediments to
environmental remedy efforts."

N. & S. Rivers Watershed Ass'n,

Inc. v. Town of Scituate, 949 F.2d 552, 556 (1st Cir. 1991).
"[W]hen it appears that governmental action under either the
Federal

or

comparable

State

Clean

Water

Acts

begins

and

is

diligently prosecuted, the need for citizen's suits vanishes."
Id. at 555; see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., Inc., 484 U.S. 49, 60 (1987).

Here, ample evidence

demonstrates RIDEM's ongoing involvement vis-à-vis the Property
and responsiveness to Paolino-Issa's repeated complaints and oftreiterated concerns, vitiating the premise that a citizen suit is
necessary at all.

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Finally, Paolino-Issa's add-on argument that JF Realty
violated the CWA by failing to properly transfer the RIPDES permit
is ill-founded.

Paolino-Issa rely on New Manchester Resort &

Golf, LLC, in which the U.S. District Court for the Northern
District of Georgia established that the "CWA authorizes citizen
suits for the enforcement of all conditions of a . . . permit."
New Manchester Resort & Golf, LLC v. Douglasville Dev., LLC, 734
F. Supp. 2d 1326, 1338 (N.D. Ga. 2010) (quoting Culbertson v. Coats
Am., Inc., 913 F. Supp. 1572, 1581 (N.D. Ga. 1995)).

However, it

is important to distinguish, as JF Realty did, that the permit
violations in dispute in that case were "failing to maintain best
management practices, violating Georgia's in-stream water quality
standards, and ignoring monitoring and reporting requirements."
Id. at 1330.

These substantive violations are hardly equivalent

to a failure to properly notify RIDEM of a transfer of ownership,
especially given that the both the transferor (the Ferreira Trust)
and the recipient (JF Realty) were controlled by the same person,
Ferreira; the identity of the current owner was known to RIDEM;
and the current owner was complying with the relevant regulations.
V.

The Fee Award

At last, we turn to the question of attorney's fees.
The CWA citizen suit provision states that: "The court, in issuing
any final order in any action brought pursuant to this section,
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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).

Attorney's

fees

may

be

awarded

to

a

prevailing defendant if it is found that the "plaintiff's action
was frivolous, unreasonable, or without foundation, even though
not brought in subjective bad faith."

Lamboy-Ortiz v. Ortiz-

Vélez, 630 F.3d 228, 236 (1st Cir. 2010) (quoting Rosselló–González
v. Acevedo–Vilá, 483 F.3d 1, 6 (1st Cir. 2007)).

"Although

determinations

fees

about

whether

to

award

attorney's

are

generally focused on the claims as they existed at the time the
complaint was filed, 'fees also may be awarded on rare occasions
where the plaintiff continued to litigate after [the claims]
clearly

became

[frivolous,

unreasonable,

or

groundless].'"

Torres-Santiago v. Municipality of Adjuntas, 693 F.3d 230, 235
(1st Cir. 2012) (quoting Ortiz-Vélez, 630 F.3d at 241) (alterations
and emphasis in original) (internal citations omitted).

Here,

again, we review for abuse of discretion, "thus we will not lightly
substitute our judgment for that of the district court."

Ortiz-

Vélez, 630 F.3d at 236.
The district court here provided a detailed basis for
awarding attorney's fees that precludes finding "a clear error of
judgment."

Schubert, 148 F.3d at 30 (quoting Josephson, 218 F.2d
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Document: 00117030524

Page: 18

Date Filed: 07/18/2016

at 182); cf. Ortiz-Vélez, 630 F.3d at 237.
reviewed

relevant

brought

the

facts

current

comprehensive

carefully
suit

stormwater

and

after

The district court

noted

that

Defendants

management

Entry ID: 6018224

system

per

Plaintiffs

installed
RIDEM,

a

that

"Paolino had been repeatedly informed by RIDEM that, with one
exception, his complaints about the Property had no merit,"6 and
that Paolino-Issa's complaints generated various "site visits, a
multi-media

inspection,

and

extensive

RIDEM, EPA, and local authorities."

correspondence

between

The district court found that

Paolino-Issa "refused to acknowledge the well-documented efforts
made by RIDEM that caused the Defendants to alleviate environmental
conditions on the Property."
The

district

court

also

noted

Paolino-Issa's

post-

verdict attempt to seek an injunction to return the Property to
its previous condition as a request to "undo beneficial changes to
the Property at great expense to the Defendants" that was "wholly
inconsistent with a citizen plaintiff who legitimately seeks to
prosecute violations of the CWA for the public good."
court

further

detailed

Paolino-Issa's

lack

of

The district
diligence

in

pursuing the suit against Defendants, evidenced by waiting six

The one exception pertained to turbidity and thus did not
justify this suit. See Paolino v. JF Realty, LLC, C.A. No. 12039-ML, 2014 WL 6485842 at *8 (D.R.I. Nov. 19, 2014).
6

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Case: 15-1498

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Date Filed: 07/18/2016

Entry ID: 6018224

months to submit their written discovery requests, failing to
provide adequate water samples on which to base their complaints
despite pre-trial notice by RIDEM of the need to do so, allowing
discovery and motion deadlines to pass, attempting to submit
testimony of events that had occurred decades before relevant
events, and failing to retain a water resources engineering expert
to investigate, make findings, and produce a report on the Property
until two weeks before the deadline for disclosure.
While the court concedes Plaintiffs may have had a
reasonable

claim

considerably.

in

2006,

by

2012

the

facts

had

changed

In essence, the district court concluded, with good

reason, that it is:
abundantly clear that the Plaintiffs continued
to engage in a bitter quarrel with the
Defendants long after the Defendants had taken
appropriate and RIDEM-approved measures to
address any legitimate concerns the Plaintiffs
might have raised in the interest of
protecting public water resources and long
after it became apparent that the Plaintiffs'
case was unsupportable.
Moreover, the district court carefully detailed its reasoning as
to the amount of the award.

Although Defendants requested fees

covering billing hours charged since August 7, 2009, the court
noted that Defendants had failed to request attorney's fees in the
prior two cases and limited its consideration of their request to
the instant case.

The court focused its inquiry on "[when] it
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Case: 15-1498

Document: 00117030524

Page: 20

Date Filed: 07/18/2016

Entry ID: 6018224

became clear that the Plaintiffs' claims against the Defendants
were groundless," granting that "[i]t is not an easy task to
pinpoint the exact moment at which it should have been apparent to
the Plaintiffs that their continuing litigation lacked merit."
Only after reviewing the procedural history and availability and
persuasiveness of evidence and notifications throughout did the
court determine that it was as of June 30, 2014, after the
Plaintiffs had conducted "extensive discovery," engaged experts,
and reviewed and responded to Defendants' motion for summary
judgment, that "it was clear that further litigation against the
Defendants was both unreasonable and groundless."
As the district court carefully detailed its analysis
and the underlying factual basis for its conclusion, we see no
ground for a finding of clear error or any basis under Schubert
for this court to substitute its judgment for that of the district
court.

148 F.3d at 30.
VI.

Conclusion

The judgment of the district court is affirmed.
AFFIRMED.

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