Woods Knoll, LLC v. City of Lincoln, Alabama, The

Filing 222

MEMORANDUM OPINION AND ORDER DENYING 213 MOTION for Attorney Fees. Signed by Judge Virginia Emerson Hopkins on 1/16/2013. (JLC)

FILED
2013 Jan-16 PM 12:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
WOODS KNOLL, LLC,
Plaintiff,
v.
THE CITY OF LINCOLN,
ALABAMA,
Defendant.

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) Case No.: 1:09-CV-1219-VEH
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MEMORANDUM OPINION AND ORDER
I.

Introduction
This lawsuit arises under the Clean Water Act (the “Act”) and, upon conclusion

of a seven-day bench trial, was decided adversely to Plaintiff in a memorandum of
decision (Doc. 211) and final judgment (Doc. 212) entered by the court on October
29, 2012. Pending before the court is Defendant’s Motion Pursuant to 33 U.S.C. §
1365(d) for an Award of Attorney’s Fees and Expert Witness Fees in Addition to the
Costs Already Taxed Against Plaintiff (the “Motion”) (Doc. 213) filed on November
13, 2012.1 Plaintiff opposed the Motion on November 20, 2012, and Defendant
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The court notes that, although a notice of appeal with the Eleventh Circuit has been filed
by Plaintiff (Doc. 220), neither side has argued that this court lacks jurisdiction to decide this
contested Motion. Further, in light of the prevailing party language utilized under the Act (which
is akin to that which appears in 42 U.S.C. § 1988), and consistent with Supreme Court and Eleventh

elected not to file a reply. For the reasons explained below, the Motion is DENIED.
II.

Standard
Section 1365(d) of the Act sets forth a discretionary standard with respect to

a motion seeking to recover litigation costs and provides:
(d) Litigation costs
The 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. The
court may, if a temporary restraining order or preliminary injunction is
sought, require the filing of a bond or equivalent security in accordance
with the Federal Rules of Civil Procedure.
33 U.S.C. § 1365(d) (emphasis added).
III.

Analysis
In its final judgment order in favor of Defendant, although conventional costs

pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure were taxed against
Plaintiff (Doc. 212 at 1), the court did not speak to the issue of awarding litigation

Circuit precedent, the court independently concludes that it has jurisdiction to rule on the Motion
despite the pending appeal. Cf. White v. New Hampshire Department of Employment Security, 455
U.S. 445, 451, 102 S. Ct. 1162, 1166, 71 L. Ed. 2d 325 (1982) (“By contrast, a request for attorney’s
fees under § 1988 raises legal issues collateral to the main cause of action-issues to which Rule 59(e)
was never intended to apply.”) (footnote omitted); Rothenberg v. Security Management Co., Inc.,
677 F.2d 64, 65 (11th Cir.1982) (“Following from the above, we hold that the request for attorney's
fees in the instant case was a motion for costs which the district court had jurisdiction over despite
the filing of the notice of appeal.”); Rothernberg, 677 F.2d at 65 (“The statute under which attorney's
fees are sought, Ga. Code § 22-615(e), is similar in language to 42 U.S.C. § 1988.”).
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costs under the Act. (Id.). In its Motion, Defendant points out that a number of
courts have construed § 1365(d) to permit a prevailing defendant to recover attorney’s
fees when the plaintiff’s lawsuit is “frivolous, unreasonable, or without foundation.”
(Doc. 213 at 2 ¶ 2).
Importantly, however, nowhere in its Motion does Defendant cite to the
standard that the Eleventh Circuit has followed when interpreting § 1365(d)2 or
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In Friends of the Everglades v. South Florida Water Management District, 678 F.3d 1199
(11th Cir. 2012), the Eleventh Circuit analyzed § 1365(d) from the standpoint of a plaintiff who
sought such an award and stated:
Generally, parties pay their own fees and costs in connection with bringing
a law suit unless some statutory fee-shifting provision permits the court to award fees
to a “prevailing party.” Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); Loggerhead Turtle v. Cnty. Council of
Volusia Cnty., Fla., 307 F.3d 1318, 1322 (11th Cir. 2002). Absent a contrary
legislative directive, a “prevailing party” is one who prevails on “any significant
issue” and thereby achieves some of the benefits sought by bringing suit. Tex. State
Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791–92, 109 S. Ct. 1486,
103 L. Ed. 2d 866 (1989). Here, the Clean Water Act specifically allows the court
to award attorneys’ fees and costs to “any prevailing or substantially prevailing party,
whenever the court determines that such award is appropriate.” 33 U.S.C. § 1365(d).
A prevailing or substantially prevailing party is one who prevailed “in what the
lawsuit originally sought to accomplish.” Hughey v. JMS Dev. Corp., 78 F.3d 1523,
1532 (11th Cir.1996) (citation omitted). In other words, an award of attorneys’ fees
in a Clean Water Act suit is appropriate when the moving party has advanced the
goals of the Act. Chemical Mfrs. Ass'n v. United States Envtl. Prot. Agency, 885 F.2d
1276, 1279 (5th Cir.1989).
In addition to the “prevailing party” requirement, the district court must
determine that the award is “appropriate.” 33 U.S.C. § 1365(d); Loggerhead Turtle,
307 F.3d at 1323 (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S. Ct. 3274,
77 L. Ed. 2d 938 (1983)). As the Supreme Court has explained, “the term
‘appropriate’ modifies but does not completely reject the traditional rule that a fee
claimant must ‘prevail’ before it may recover attorney's fees.” Ruckelshaus, 463 U.S.
at 686, 103 S. Ct. 3274. Thus, “absent some degree of success on the merits by the
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alternatively explain what standard the Eleventh Circuit would likely follow when a
defendant maintains that it is a prevailing party under the Act and why.3 It is
axiomatic that, as the movant, Defendant bears the burden of persuading this court
that it is entitled to the relief sought. Here, on the issue of the appropriate standard
to apply alone, Defendant’s efforts are significantly lacking.
As the United States District Court for the Southern District of Alabama has
observed:
“Judges are not like pigs, hunting for truffles buried in briefs.” Smith v.
Secretary, Department of Corrections, 572 F.3d 1327, 1352 (11th Cir.
2009). An issue must be “fairly presented” in order to trigger
consideration, and a glancing reference without discussion or legal
authority does not meet that standard. Id. As the Court has previously
noted, (Doc. 110 at 2), “[t]here is no burden upon the district court to
distill every potential argument that could be made based upon the

claimant, it is not ‘appropriate’ for a federal court to award attorney's fees.” Id. at
694, 103 S. Ct. 3274; see also id. at 688 n.9, 103 S. Ct. 3274 (“[T]rivial success on
the merits, or purely procedural victories, would [not] justify an award of fees under
statutes setting out the ‘when appropriate’ [sic] standard.”). Thus, “there is
unambiguous evidence that Congress intended the ‘whenever ... appropriate’ fee
provisions of the . . . Clean Water Act to allow fee awards to plaintiffs who do not
obtain court-ordered relief but whose suit has a positive catalytic effect.”
Loggerhead Turtle, 307 F.3d at 1326.
678 F.3d at 1201-02 (footnote omitted) (emphasis added); see also Hughey v. JMS Development
Corp., 78 F.3d 1523, 1532 (11th Cir. 1996) (indicating that under § 1365(d) “[a] prevailing or
substantially prevailing party is one who prevailed ‘in what the lawsuit originally sought to
accomplish’” (citing Washington Public Interest Research Group v. Pendleton Woolen Mills, 11
F.3d 883, 887 (9th Cir.1993))).
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Based upon the court’s independent research, the issue of when a defendant should receive
an award under § 1365(d) appears to be an open question within the Eleventh Circuit.
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materials before it on summary judgment.” Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).
Amazing Grace Bed & Breakfast v. Blackmun, No. 09-0298-WS-N, 2011 WL 606126,
at *3 (S.D. Ala. Feb. 11, 2011). Therefore, akin to Amazing Grace, in omitting any
reference to Friends of the Everglades and otherwise avoiding any discussion of the
Eleventh Circuit’s likely approach for addressing when § 1365(d) relief is
“appropriately” awarded to a defendant, Defendant has not “fairly presented” a legal
platform for analyzing its Motion, and, consequently, Defendant has not even
triggered the court’s consideration of the Motion’s merits.
However, assuming without deciding that the Eleventh Circuit would agree that
a defendant may be entitled to an award of litigation costs under § 1365(d) due to the
frivolous or unreasonable nature of a plaintiff’s lawsuit, the Motion still fails because
the court finds that the merits of Plaintiff’s lawsuit, which were aired during the
bench trial do not meet such a measure. The court alternatively rules that, even if the
court were to conclude a defendant may be entitled to an award of litigation costs
under § 1365(d) due to the frivolous or unreasonable nature of a plaintiff’s lawsuit
and were to decide that Defendant had satisfied the suggested standard of frivolity for
§ 1365(d)’s requests arising in this context, because Defendant has not even
mentioned, much less articulated why, under the circumstances of this case, an award

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to it pursuant to § 1365(d) would be also “appropriate” under the Act, the Motion
misses the second step of the framework set forth in Friends of the Everglades and,
as a result, is independently lacking on account of this deficiency.
IV.

Conclusion
Accordingly, for all the foregoing reasons, the Motion is DENIED.
DONE and ORDERED this the 16th day of January, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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