Richard Bentley v. Bobby Fanguy

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UNPUBLISHED OPINION FILED. [10-30321 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 10/18/2010 [10-30321]

Richard Bentley v. Bobby Fanguy

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Case: 10-30321

Document: 00511245119

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Date Filed: 09/27/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 27, 2010 N o . 10-30321 S u m m a r y Calendar Lyle W. Cayce Clerk

R I C H A R D C. BENTLEY, P la in t iff ­ Appellant v. B O B B Y FANGUY, D e fe n d a n t ­ Appellee

A p p e a l from the United States District Court for the Western District of Louisiana U S D C No. 6:08-CV-600

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* R ic h a r d C. Bentley brought suit against his former neighbor, Bobby F a n g u y for alleged violations of the Clean Water Act (CWA). The district court d is m is s e d the lawsuit pursuant to Rule 12(b)(6) and taxed Bentley with costs. I n a subsequent order, the district court awarded Fanguy $5,976 in attorney's fe e s . On appeal, Bentley does not challenge the dismissal of his complaint, but r a t h e r argues that the district court erred in awarding Fanguy attorney's fees

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5T H CIR. R. 47.5.4.

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Date Filed: 09/27/2010

because he is not a "prevailing or substantially prevailing party" for purposes of t h e Clean Water Act. We review "the district court's award of attorney's fees for abuse of d is c r e t io n ." Gagnon v. United Technisource Inc., 607 F.3d 1036, 1043 (5th Cir. 2 0 1 0 ) (citation omitted). The district court summarily dismissed Bentley's c o m p la in t and subsequently awarded attorney's fees after conducting a hearing in which the court concluded: I don't think this [complaint] complies with the Clean Water Act. I t h in k it is a tremendous stretch of the imagination. This is a ­ this is litigation between two neighbors, who, for whatever reason, can't g e t along. And whatever problems there are, this belongs in state c o u r t where it is firmly rested and I am going to dismiss this action a t plaintiff's cost. B e n t le y argues that the district court erred in awarding Fanguy attorney's fe e s as a prevailing or substantially prevailing party because the dismissal of the la w s u it obtained by Fanguy did not create a material alteration of the parties' le g a l relationship. We disagree. T h e "American Rule" is the starting point for fee awards: Even prevailing lit ig a n t s are ordinarily not entitled to attorney's fees from the losing party. B u c k h a n n o n Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Servs., 5 3 2 U.S. 598, 602 (2001). Under the American Rule, a fee-shift is allowed only i f there is some "specific and explicit" statutory exception. See, e.g., Alyeska P ip e lin e Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 260 (1975). Under the CWA, C o n g r e s s has provided for such a fee-shift in 33 U.S.C. § 1365(d), which, in r e le v a n t part provides: T h e court, in issuing any final order in any action brought pursuant t o this section, may award costs of litigation (including reasonable a t t o r n e y and expert witness fees) to any prevailing or substantially p r e v a ilin g party, whenever the court determines such award is 2

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appropriate. I d . While this court has not specifically addressed whether a defendant who o b ta in s a dismissal with prejudice is a prevailing or substantially prevailing p a r ty for purposes of the CWA, we have considered that question in analogous a rea s. I n Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, the S u p r e m e Court interpreted § 304(d) of the Clean Air Act (CAA), which a u t h o r iz e s an award of attorney's fees to a successful party. 478 U.S. 546, 560 (1 9 8 6 ). Relevant here, the Court interpreted § 304(d) of the CAA in the same m a n n e r as the Civil Rights Attorney's Fee Awards Act of 1976, 42 U.S.C. § 1988, s t a t in g "[g]iven the common purpose of both § 304(d) and § 1988 to promote c it iz e n enforcement of important federal policies, we find no reason not to in t e r p r e t both provisions governing attorney's fees in the same manner." Id. " T h e language of § 304(d) of the CAA is essentially the same as § 1365(d), the a t t o r n e y 's fees provision of the CWA before us today." St. John's Organic Farm v . Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1062-1063 (9th Cir. 2 0 0 9 ). "The only difference is the absence of any `prevailing party' language in § 304(d), but the Supreme Court has read `prevailing party' into § 304(d) and o t h e r attorney's fees provisions in environmental statutes." Id. (citing Penn. v. D e l. Valley Citizens' Council for Clean Air ("Delaware Valley II"), 483 U.S. 711, 7 1 3 (1987); Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 n.1 (1983)). I n Anthony v. Marion County General Hospital, we concluded that a d e fe n d a n t was a prevailing party under § 1988 when a plaintiff's Title VII racial d is c r im in a t io n suit was involuntarily dismissed with prejudice for want of p r o s e c u t io n . 617 F.2d 1164, 1169­70 (5th Cir. 1980). We stated that: A lt h o u g h there has not been an adjudication on the merits in the

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sense of a weighing of facts, there remains the fact that a dismissal w it h prejudice is deemed an adjudication on the merits for the p u r p o s e s of res judicata. As such, the [defendant] has clearly p r e v a ile d in this litigation. Id. (5th Cir. 1980) (emphasis added); see also, e.g., Schwarz v. Folloder, 767 F.2d 1 2 5 , 130 (5th. Cir. 1985) ("[A] dismissal with prejudice gives the defendant the fu ll relief to which he is legally entitled and is tantamount to a judgment on the m e r it s ." ). F a n g u y obtained a dismissal with prejudice of Bentley's CWA claim. This o u t c o m e gave Fanguy "the full relief to which he is legally entitled and is t a n t a m o u n t to a judgment on the merits." Id. As such, Fanguy has "clearly p r e v a ile d in this litigation," Anthony, 617 F.2d at 1170, and, as such, the district c o u r t did not err in awarding him attorney's fees under the CWA as a prevailing p a r ty . T h e judgment of the district court is AFFIRMED.

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