Coldani v. Hamm et al.,
Filing
124
ORDER DENYING DEFENDANTS' MOTION FOR FEES AND COSTS AND DENYING DEFENDANTS' BILL OF COSTS signed by Judge John A. Mendez on 5/31/11 DENYING 114 Motion for Attorneys', Expert Fees, and Costs filed by Jack Hamm, Patricia Hamm, and DENYING 109 Bill of Costs Submitted filed by Jack Hamm, Patricia Hamm. (Meuleman, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RAYMOND COLDANI, an individual,
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Plaintiff,
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v.
JACK HAMM and PATRICIA HAMM,
individually and doing business
as LIMA RANCH/DAIRY,
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Defendants.
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Case No. 2:07-CV-0660-JAM-EFB
ORDER DENYING DEFENDANTS‟
MOTION FOR FEES AND COSTS AND
DENYING DEFENDANTS‟ BILL OF
COSTS
This matter is before the Court on Defendants‟ Jack and
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Patricia Hamm, dba Lima Ranch/Dairy (“Defendants”) Motion for
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Attorney‟s Fees, Expert Fees, and Costs (Doc. #114) against
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Plaintiff Steven Coldani, as Trustee of the Coldani Revocable Trust
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(“Plaintiff”), who was substituted as Plaintiff in place of Raymond
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Coldani.
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before the Court is Defendants‟ Bill of Costs (Doc. #109), to which
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Plaintiff objects (Doc. #112).
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March 9, 2011, but ordered submitted without oral argument.1
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Plaintiff opposes the motion for fees (Doc. #119).
Also
This matter was set for hearing on
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This matter was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g).
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I.
Factual and Procedural Background
This case was originally filed by Raymond Coldani
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(“Coldani”), based on allegations that Defendants were causing
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water pollution via runoff from their dairy.
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Complaint (Doc. #1) brought two federal claims: one claim for
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relief under the Clean Water Act (“CWA”) and one claim for
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relief under the Resource Conservation and Recovery Act
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(“RCRA”).
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waste from Lima Ranch polluted groundwater that discharged into
The original
The CWA claim was premised on allegations that animal
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the White Slough, which in turn empties into the San Joaquin
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River Delta System, which is navigable water.
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brought a motion to dismiss the complaint (Doc. #5) for lack of
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subject matter jurisdiction, on grounds that notice was
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insufficient under the statutory requirements of the CWA and
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RCRA, and therefore the court lacked jurisdiction over these
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claims.
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allege a CWA or RCRA violation, and that Coldani lacked standing
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(and the Court lacked jurisdiction) because of his failure to
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allege an RCRA claim.
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sufficient for both the CWA and RCRA claims, and that Coldani
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had sufficiently alleged a CWA claim and had standing to bring a
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citizen suit.
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with Defendants that the complaint did not allege that Lima
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Ranch discharged “hazardous waste” in violation of the RCRA and
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that the “solid waste” discharge alleged in the complaint was
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“industrial discharge from a point source subject to NPDES
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permits under the CWA.”
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excluded from the definition of solid waste under the RCRA, and
Defendants
Defendants also argued that the complaint did not
The Court found that notice was
(See Order, Doc. #18).
However, the Court agreed
Because of this, the discharge was
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instead regulated by the CWA.
The Court therefore declined to
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exercise jurisdiction over the RCRA claim to avoid duplicative
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regulation.
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Coldani did not appeal the dismissal of the RCRA claim.
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Instead, Coldani filed a motion for leave to amend the complaint
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(Doc. #20), seeking to add a public nuisance claim in order to
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address any pollution that would not fall under the CWA claim,
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and that might have been addressed by the dismissed RCRA claim.
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The Court granted leave to amend, and Coldani filed the Amended
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Complaint (Doc. #24), bringing the CWA claim and a state law
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public nuisance claim.
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groundwater discharging into White Slough, which would require
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the groundwater to flow west.
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regarding the basis for the CWA claim, Coldani filed a motion
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for leave to amend the Complaint (Doc. #62).
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that groundwater flowed east instead of west, and therefore he
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sought to dismiss his CWA claim and re-allege his previously
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dismissed RCRA claim.
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(Doc. #73).
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his CWA claim, with prejudice, pursuant to Federal Rules of
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Civil Procedure 41(a)(2) (Doc. #74).
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Coldani‟s death, and the stay was lifted once Steven Coldani was
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substituted as the plaintiff.
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Court granted the motion for voluntary dismissal (Doc. #87).
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The Court also heard oral argument on a motion for attorneys‟
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fees and sanctions brought by Defendants, against Plaintiff‟s
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counsel, Isola Law Group.
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the motion without prejudice, noting that the motion did not
The CWA claim was again premised on
Following extensive discovery
Coldani alleged
The Court denied this motion to amend
Subsequently, Coldani moved to voluntarily dismiss
The case was stayed due to
After the stay was lifted, the
(See Doc. #100).
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The Court denied
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comply with the Local Rules and a claim remained pending in the
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action.
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dismiss the remaining state law nuisance claim, which had been
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filed before the stay.
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state law claim, Defendants renew their requests for attorneys‟
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and experts‟ fees, costs, and/or sanctions.
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Subsequently, the Court granted Defendants‟ motion to
Now that the Court has dismissed the
Defendants assert that neither Plaintiff nor Plaintiff‟s
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counsel conducted a reasonable inquiry into the direction of
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groundwater flow prior to filing this lawsuit.
Even if
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Plaintiff and his counsel conducted a reasonable inquiry,
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Defendants further argue that Plaintiff should have voluntarily
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dismissed the CWA claim much sooner.
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set forth several theories for recovery.
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that they are the prevailing party on all claims. Alternatively,
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Defendants ask the Court to exercise its inherent power to award
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fees.
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be held jointly and severally liable for fees in the form of
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sanctions.
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or in the alternative, fees for the portion of the litigation
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following Plaintiff‟s discovery that groundwater flowed east not
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west.
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Accordingly, Defendants
Defendants contend
Lastly, Defendants ask that Plaintiff and Isola Law Group
Defendants request fees for the entire litigation,
Plaintiff and his counsel oppose the motion, contending
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that Defendants are not “prevailing parties” under the CWA and
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the RCRA, that Plaintiff and his counsel conducted a reasonable
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inquiry into groundwater flow prior to filing the suit, and that
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at no point in the litigation was groundwater flow determined to
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be exclusively and definitively in a single direction.
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Plaintiff also challenges Defendants‟ use of block billing and
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the amount requested by Defendants in fees and costs.
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II. Opinion
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A.
Legal Standard
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The fee applicant bears the burden of establishing
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entitlement to an award and documenting the appropriate hours
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expended and hourly rates.
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437 (1983).
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calculate an award of attorney‟s fees by first calculating the
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“lodestar.”
Hensley v. Eckerhart, 461 U.S. 424,
The Ninth Circuit requires a district court to
See Caudle v. Bristow Optical Co. Inc., 224 F.3d
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1014, 1028 (9th Cir. 2000).
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multiplying the number of hours the prevailing party reasonably
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expended on the litigation by a reasonable hourly rate.”
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Caudle, 224 F.3d at 1028 (citing Morales v. City of San Rafael,
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96 F.3d 359, 363 (9th Cir. 1996).
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presumed reasonable unless some exceptional circumstance
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justifies deviation.
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(9th Cir. 1998).
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district court should exclude from the lodestar amount hours
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that are not reasonably expended because they are excessive,
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redundant, or otherwise unnecessary.”
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Mutual Life Co., 214 F.3d 1040, 1045 (9th Cir. 2000).
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is under an independent duty to reach its own “lodestar” value.
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Hensley, 461 U.S. at 433.
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“The lodestar is calculated by
The lodestar should be
Quesada v. Thomason, 850 F.2d 537, 539
As the Ninth Circuit has indicated, “a
Van Gerwen v. Guarantee
The Court
After computing the lodestar, the district court is to
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assess whether additional considerations enumerated in Kerr v.
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Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert
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denied, 425 U.S. 951 (1976), require the court to adjust the
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figure.
The Kerr facts are: (1) time and labor required;
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(2) the novelty and difficulty of the questions involved;
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(3) the skill requisite to perform the legal service properly;
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(4) the preclusion of other employment by the attorney due to
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acceptance of the case; (5) the customary fee; (6) whether the
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fee is fixed or contingent; (7) time limitations imposed by the
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client or the circumstances; (8) the amount involved and the
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results obtained; (9) the experience, reputation, and ability of
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the attorneys; (10) the “undesirability” of the case; (11) the
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nature and length of professional relationship with the client;
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and (12) awards in similar cases.
Kerr, 526 F.2d at 70.
Although Raymond Coldani is deceased, fees and costs can be
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recovered from Steven Coldani, as Trustee of the Coldani
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Revocable Trust.
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time of a party‟s death may be continued against the decedent‟s
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successor in interest and all damages are recoverable that might
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have been recovered against the decedent had the decedent lived.
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Cal. Code of Civ. Proc. § 377.42; see also Cal. Code of Civ.
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Proc. §§ 377.20, 377.41 and Cal. Probate Code § 9370.
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case, the Revocable Trust is Coldani‟s successor in interest, as
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Coldani devised the majority of his assets to the Revocable
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Trust.
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be recovered from the Revocable Trust pursuant to California
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Probate Code 19001(a).
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1.
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Under California law, an action pending at the
See Cal. Code of Civ. Proc. § 377.11.
In this
Such damages can
Prevailing Party
Defendants first argue that they are entitled to attorneys‟
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fees, experts‟ fees and costs because they are the prevailing
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party under the CWA.
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granted Plaintiff‟s request for voluntary dismissal under
Defendants argue that when the Court
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Federal Rules of Civil Procedure 41(a)(2), with prejudice, this
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operated as an adjudication on the merits for purposes of
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obtaining fees under the CWA.
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voluntary dismissal under Rule 41(a)(2) does not operate as a
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dismissal on the merits.
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prevailing party, they would not be entitled to fees under the
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CWA.
Plaintiff contends that a
Moreover, even if Defendants were the
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In a CWA citizen suit, the court may award costs of
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litigation (including reasonable attorney and expert witness
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fees, to any prevailing or substantially prevailing party,
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whenever the court determines such award is appropriate.
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U.S.C. 1365(d).
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attorneys‟ fees and experts‟ fees in a CWA or RCRA action is
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appropriate where the plaintiff‟s action was frivolous,
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unreasonable, or without foundation, even though not brought in
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subjective bad faith.
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66 F.3d 236, 240 (9th Cir. 1995).
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prevailing party if it has obtained a court ordered change in
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the legal relationship between the plaintiff and the
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defendants.”
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Abatement Dist., 574 F.3d 1054, 1058-59 (9th Cir. 2009)
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(internal citations omitted).
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parties must have obtained judicially enforceable “actual relief
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on the merits of their claim that materially altered the legal
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relationship between the parties.” St. John‟s Organic Farm,
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supra, quoting Richard S. v. Dep‟t of Dev. Servs. Of Cal., 317
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F.3d 1080, 1087 (9th Cir. 2003).
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An order awarding a prevailing defendant his
Razore v. Tulalip Tribes of Washington,
“A litigant qualifies as a
St John‟s Organic Farm v. Gem County Mosquito
The Ninth Circuit has held that
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Accordingly, the Court will apply these three factors:
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(1) judicial enforcement, (2) material alteration of the legal
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relationship between the parties, and (3) actual relief on the
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merits of plaintiff‟s claims.
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supra at 1059.
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voluntary dismissal of the CWA claim with prejudice, thus the
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matter was resolved in a judicially enforceable manner
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(Plaintiff may not re-allege the CWA claim).
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relationship between the parties has been materially altered,
See St. John‟s Organic Farm,
First, the Court granted Plaintiff‟s motion for
Second, the legal
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because Plaintiff cannot bring the CWA claim again, thus ending
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the CWA legal dispute between the parties.
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never ruled on the merits of the CWA claim, nor Defendants‟
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opposition to the claim.
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a voluntary dismissal with prejudice serves as a dismissal on
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the merits. See, e.g., Baker v. Voith Fabrics U.S. Sales, Inc.,
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2007 WL 1549919 (E.D. Wash. 2007) (citing Stewart v. U.S.
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Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (stating that the
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phrase „final judgment on the merits‟ is often used
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interchangeably with „dismissal with prejudice.‟)).
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Accordingly, Defendants received a judgment on the merits and
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may be considered the prevailing party on the CWA claim.
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Lastly, the Court
However, for purposes of res judicata,
Applying the St. John‟s factors to the RCRA claim,
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Defendant is not entitled to prevailing party status.
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claim was dismissed on jurisdictional grounds, to avoid
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duplication since it was brought together with the CWA claim.
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This jurisdictional dismissal, without prejudice, did not
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materially alter the legal relationship between the parties.
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jurisdictional dismissal is not a judgment on the merits.
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The RCRA
A
Wages
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v. I.R.S., 915 F.2d 1230, 1234 (9th Cir. 1990).
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Having determined that Defendants may be considered the
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prevailing party on the CWA claim, the Court must next determine
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if an award of fees and costs to Defendants is appropriate under
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the “frivolous, unreasonable or without foundation” standard
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articulated in Razore, 66 F.3d at 240.
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Coldani and his counsel had access to publicly available maps
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and information showing that groundwater in the region flowed
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east, prior to filing the lawsuit, thus it was frivolous and
Defendants assert that
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reckless to file the suit in the first place.
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did not know before filing the suit that groundwater flowed
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east, Defendants argue that he knew as early as February 2008,
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gained further information in October 2008, and at a minimum
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knew for certain in July 2009 when Plaintiff distributed a fact
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sheet containing this information.
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until September 2009 to file the motion to amend and substitute
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the RCRA in place of the CWA claim.
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motion to amend, Plaintiff moved to dismiss his CWA claim in
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November 2009.
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reckless for Plaintiff to continue to litigate the CWA claim for
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this length of time.
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Even if Plaintiff
However, Plaintiff waited
After the court denied the
Defendants assert that it was frivolous and
Plaintiff argues that sufficient evidence of occasional
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water flow in a westerly direction exists to justify bringing
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and maintaining the CWA claim.
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decision to abandon the CWA claim and focus on the nuisance
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claim was made after consultation with Plaintiff‟s counsel and
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exchange of expert reports in August 2009.
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concentrate litigation efforts and resources on the nuisance
Plaintiff argues that the
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Plaintiff elected to
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claim, as the groundwater flow direction issue would have been
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an extremely costly issue to prove at trial.
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Accordingly, to the extent that Defendants can be
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considered the prevailing party under the CWA for purposes of
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attorney‟s fees, the Court does not find that an award of fees
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to Defendants is appropriate.
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parties strongly indicate that surface water flows east, not
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west, thus precluding a CWA claim, the Court does not find that
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it was frivolous, unreasonable or without foundation for
While research presented by the
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Plaintiff to bring the suit and continue to litigate it up until
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the point that Plaintiff filed for voluntary dismissal.
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Plaintiff has put forth sufficient reasons for maintaining the
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claim for the period that he maintained it.
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Defendants further argue that they are entitled to costs as
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the prevailing party under Federal Rules of Civil Procedure
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54(d)(1).
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attorneys‟ fees) to the prevailing party, unless a federal
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statute, federal rule, or court order provides otherwise.
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this case, the rules for an award of costs to the prevailing
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party in a CWA claim is governed by the statute, and as
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discussed above, costs to a prevailing defendant are only
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appropriate if the Plaintiff‟s case was frivolous, unreasonable
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or without foundation.
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therefore denies Defendants‟ request for costs under Rule
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54(d)(1).
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This rule provides for an award of costs (other than
2.
The Court does not so find, and
Federal Rules of Civil Procedure 41
Defendants move the Court for an award of fees as a
condition of dismissal of Plaintiff‟s CWA claim under Rule
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In
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41(a)(2).
Ordinarily, a dismissal under Rule 41(a)(2) is
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without prejudice, and the Court may condition the dismissal on
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the payment of attorneys‟ fees, to protect a defendant in case
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the plaintiff brings the case again.
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WL 618192, *1 (E.D. Cal. Feb. 10, 2011).
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correct that a court may condition voluntary dismissal without
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prejudice under Rule 41(a)(2) on the payment of attorneys‟ fees
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and costs, this is not ordinarily done when the dismissal is
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with prejudice.
See Chang v. Pomeroy, 2011
While Defendants are
See Chang, supra. The purpose of conditioning
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voluntary dismissal without prejudice on the payment of fees is
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primarily to protect defendants, in the event that a plaintiff
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brings the claims again.
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voluntary dismissal on the payment of fees, and declines to do
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so now.
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3.
Id.
The Court did not condition
The Court‟s Inherent Power to Award Fees
As an additional basis for seeking fees, Defendants argue
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that Plaintiff should be ordered to pay attorneys‟ fees and
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costs as a sanction under the Court‟s inherent powers.
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Ninth Circuit has found that “sanctions are available if the
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court specifically finds bad faith or conduct tantamount to bad
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faith.
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actions, including recklessness when combined with an additional
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factor such as frivolousness, harassment or an improper
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purpose.”
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The
Sanctions are available for a variety of willful
Fink v. Gomez, 239 F.3d 989, 993-994 (2001).
This case has been aggressively litigated by both parties
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since it was filed in 2007.
Both parties have brought numerous
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motions, and have prevailed on some motions and lost on others.
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Ultimately, the Court has never reached the merits of any of the
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claims.
However, the Court does not find that Plaintiff has
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litigated in bad faith, with recklessness, or for an improper
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purpose.
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amended complaints, the Court notes that Defendants chose to bring
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a motion to join the City of Lodi as a defendant (which was
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denied), violated a discovery order (and were sanctioned), and
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chose to continue litigating this case after Mr. Coldani‟s death in
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2009 (despite notification that none of Mr. Coldani‟s relatives
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wanted to be substituted in to carry on the case as plaintiffs).
While Plaintiff brought the initial suit, and subsequent
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Both parties have been equally aggressive in their litigation
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tactics, and this Court declines to single out Plaintiff as acting
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in bad faith.
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inherent power.
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4.
Accordingly, the Court will not award fees under its
Sanctions
Lastly, Defendants argue that attorneys‟ fees, experts‟ fees
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and costs should be awarded to them as sanctions under 28 U.S.C.
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§ 1927, against the Isola Law Group.
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motion for sanctions against the Isola Law Group, and dismissed it
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without prejudice.
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not award fees because Defendants had not properly documented their
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hours for the Court.
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litigation did not appear to be brought or driven by counsel in bad
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faith.
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The Court previously heard a
At oral argument, the Court noted that it could
Additionally, the Court noted that the
28 U.S.C. § 1927 provides that any attorney who so multiplies
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the proceedings in any case unreasonably and vexatiously may be
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required by the court to satisfy personally the excess costs,
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expenses, and attorneys‟ fees reasonably incurred because of such
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conduct.
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“Attorney fees under section 1927 are appropriate if
any attorney‟s conduct is in bad faith; recklessness
satisfies this standard. The Ninth Circuit has also
required a finding of subjective bad faith, which is
present when an attorney knowingly or recklessly
raises a frivolous argument, or argues a meritorious
claim for the purpose of harassing an opponent.
Moreover, the Ninth Circuit has cautioned that
sanctions should be reserved for the rare and
exceptional case where the action is clearly
frivolous, legally unreasonable or without legal
foundation, or brought for an improper purpose.”
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Gomes v. American Century Companies, Inc., 2010 WL 1980201 at *3
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(E.D. Cal. May 17, 2010) (internal citations omitted).
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The Court will not order sanctions against Isola Law Group
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under 28 U.S.C. § 1927.
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the primary water flow direction was east, there was enough
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evidentiary support for the belief that water might also at times
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flow west.
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the litigation up until August 2009 when Plaintiff and his counsel
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determined that it would be very difficult and costly to prevail on
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the CWA claim.
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in the first place, “The Ninth Circuit has made it clear that the
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filing of a complaint may not be sanctioned pursuant to § 1927
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because § 1927 only addresses the multiplication of proceedings. “
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Gomes, at *4.
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5.
While there was evidence indicating that
Thus, it was reasonable that Plaintiff persisted with
Furthermore, with respect to bringing the CWA claim
Bill of Costs
Defendants filed a Bill of Costs, asking for a total of
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$98,523.90 in costs.
Of this amount, $4,617.62 is sought in
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fees for exemplification and the costs of making copies of
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materials, and $93,906.28 is sought in experts‟ fees.
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the basis for recovery of costs cited by Defendants is that they
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are the prevailing party under the CWA and RCRA.
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However,
As previously
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discussed, the Court does not find that Defendants are the
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prevailing or substantially prevailing party under the RCRA.
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While Defendants may be considered the prevailing party under
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the CWA, the Court does not find that Plaintiff‟s CWA claim was
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frivolous, unreasonable or lacking in foundation.
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Court will not award the costs enumerated in the Bill of Costs
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to Defendants.
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award costs under Rule 54(d)(1).
Thus the
As discussed above, the Court also declines to
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III. Order
Defendants‟ motion for attorneys‟ fees, experts‟ fees and
costs is DENIED.
Defendants‟ Bill of Costs is DENIED.
IT IS SO ORDERED.
Dated: May 31, 2011
____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
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