Idaho Conservation League v. Magar
Filing
89
ORDER granting 82 Motion for Attorney Fees. Plaintiff is awarded $93,905.00 in attorney fees and $6,730.85 in non-taxable litigation expenses pursuant to 33 U.S.C. § 1365(d).Signed by Judge Candy W. Dale. (klw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
IDAHO CONSERVATION LEAGUE
a not−for−profit organization,
Plaintiff,
Case No. 3:12-cv-00337-CWD
MEMORANDUM DECISION AND
ORDER
v.
MAGAR E. MAGAR
doing business as
SYRINGA MOBILE HOME PARK,
Defendant.
INTRODUCTION
Before the Court is Plaintiff Idaho Conservation League’s (ICL) motion for
attorney fees and litigation costs, requesting an award of fees in the amount of
$90,352.50, and $8,573.08 in expenses. (Dkt. 82.) In its reply brief, ICL requested an
additional $3,552.50 in attorney fees for time spent drafting the reply brief and
supporting documents. (Dkt. 87.) The parties have fully briefed the motion and the matter
is ripe for the Court’s consideration.
Having fully reviewed the record herein, the Court finds the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest
MEMORANDUM DECISION AND ORDER - 1
of avoiding delay, and because the Court conclusively finds the decisional process would
not be significantly aided by oral argument, the motion will be decided on the record
before the Court. Dist. Idaho L. Rule 7.1. For the reasons explained, the Court will grant
the motion.
BACKGROUND
In early June of 2014, the Court entered summary judgment against Magar on the
issue of liability under the Clean Water Act (“CWA”). (Dkt. 51.) In particular, the Court
held that Magar, doing business as the Syringa Mobile Home Park, violated 33 U.S.C. §
1311(a) by discharging wastewater from Syringa’s sewage treatment lagoons into the
South Fork Palouse River without the required permit. On February 13, 2015, the Court
entered final judgment in this CWA citizen suit in favor of ICL. The Court’s final
judgment ordered Magar to pay a substantial civil penalty of $100,000.00 by March 1,
2015. (Dkt. 81 at 2.)
Over the course of the litigation, ICL represents that the below listed attorneys and
law clerks spent 499.1 hours achieving the results in this litigation. ICL provided a
summary of the time spent, which included:
• 10.9 hours drafting ICL’s mandatory pre-suit notice letter;
• 12.1 hours drafting ICL’s complaint;
• 6.4 hours briefing ICL’s opposition to Magar’s $1,000 offer of judgment (Dkt. 6);
• 13.3 hours briefing ICL’s opposition to Magar’s unsuccessful motion to file a
third-party complaint against the United States Environmental Protection Agency
(Dkt. 26);
MEMORANDUM DECISION AND ORDER - 2
• 74.9 hours drafting ICL’s successful motion for summary judgment, including the
accompanying memorandum; statement of material fact; declarations; and the
selection and compilation of 27 supporting exhibits.(Dkt. 35–42);
• 12.9 hours drafting ICL’s reply in support of its successful motion for summary
judgment (Dkt. 46);
• 4.3 hours drafting ICL’s response to Magar’s unsuccessful motion for an indefinite
stay (Dkt. 49);
• 48.5 hours drafting ICL’s brief on remedies, including supporting declaration and
compilation of 13 supporting exhibits (Dkt. 52–59);
• 5 hours drafting ICL’s request to file reply brief on the issue of remedies, and 18.6
hours drafting ICL’s reply (including supporting declarations and exhibits) (Dkt.
64, 66);
• 2.8 hours drafting ICL’s supplement to the record (Dkt. 73);
• 20.7 hours drafting ICL’s proposed injunction (Dkt. 79);
• 27.4 hours preparing the instant fee petition and accompanying declarations; and
• 20.3 hours preparing a reply in support of the fee petition, with accompanying
supplemental declarations.
The below chart provides a more complete summary of the time spent by timekeeper,
and the corresponding hourly rates.
MEMORANDUM DECISION AND ORDER - 3
Timekeeper
Time
Rate
Total Fees
David Bricklin
19.7
$300.00
$5,910.00
Rick Eichstaedt
84.46
$250.00
$21,100.00
Bryan Telegin
344.7
$175.00
$60,332.50
Claudia Newman
2
$275.00
$550.00
Law Clerks/Students
32.8
$75.00
$2,460.00
Bryan Telegin
Supplemental
20.3
$175.00
$3,552.50
499.1
$93,905.00
The litigation costs include also the following expenses requested pursuant to
Section 505(d) of the CWA. 33 U.S.C. § 1365(d). 1 First, $815.00 in expert witness fees
is requested for the assistance of David Stasney, a geologist and hydrogeologist. ICL
relied upon Mr. Stasney’s report in support of its brief on remedies. (Dkt. 53-1.) Second,
$5,250.00 in expert witness fees is requested for the assistance of Jonathan Shefftz, an
economist experienced in the application of financial economics to litigation disputes,
regulatory enforcement, and public policy. Mr. Shefftz provided detailed analysis of Mr.
Magar’s economic benefit of noncompliance, which the Court cited and relied upon in its
Memorandum Decision and Order on Remedies. (Dkt. 80 at 11, n. 8.) Finally, ICL
requests reimbursement for a total of $2,508.08 in out-of-pocket costs, which represents
various filing fees, travel expenses, copying costs, and court reporter fees. (Dkt. 82-2.)
1
Section 505(d) permits the court to award “costs of litigation (including reasonable attorney and expert witness
fees)….” 33 U.S.C. § 1365(d).
MEMORANDUM DECISION AND ORDER - 4
DISPOSITION
Section 505(d) of the Clean Water Act allows the Court to “award costs of
litigation . . . to any prevailing or substantially prevailing party, whenever the court
determines such award is appropriate.” 33 U.S.C. § 1365(d). Thus, “to award attorney’s
fees under [Section 505(d)], a district court must make two findings. First, it must find
that the fee applicant is a prevailing or substantially prevailing party. Second, it must find
that an award of attorney fees is appropriate,” or reasonable. Saint John’s Organic Farm
v. Gem County Mosquito Abatement Dist., 574 F.3d 1054, 1058 (9th Cir. 2009) (internal
quotations omitted). Here, Magar does not dispute that ICL prevailed.
The United States court of Appeals for the Ninth Circuit has adopted a two-part
test for calculating a reasonable attorney fee award. See Cunningham v. County of Los
Angeles, 879 F.2d 481, 484 (9th Cir. 1988). First, the Court calculates the “lodestar” by
multiplying the number of hours reasonably expended by a reasonable hourly rate. Id.
(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Next, the Court may exercise its
discretion and “increase or reduce the presumptively reasonable lodestar fee” to account
for additional factors. Id. 2 But, the plaintiff’s degree of success is the most important
factor in determining the reasonableness of the award. “Where a plaintiff has obtained
excellent results, his attorney should recover a fully compensatory fee. Normally, this
2
These factors are listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), and include “(1) the time
and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal
service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the
customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the
attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the
client, and (12) awards in similar cases.” Kerr, 526 F.2d at 69.
MEMORANDUM DECISION AND ORDER - 5
will encompass all hours reasonably expended on the litigation, and indeed in some cases
of exceptional success an enhanced award may be justified. . . . The result is what
matters.” Hensley, 461 U.S. at 435. See also Farrar v. Hobby, 506 U.S. 103, 114 (1992)
(holding that “‘the most critical factor’ in determining the reasonableness of a fee award
‘is the degree of success obtained’”) (quoting Hensley, 461 U.S. at 436).
Magar’s objection to ICL’s attorney fee motion is that the time spent was
generally excessive. Magar challenges also the time spent on internal conferences and the
time spent by legal interns and law students. Notably, Magar does not challenge the
hourly rates or ICL’s litigation costs. ICL in its reply provided a color coded chart
corresponding to the components of ICL’s fee motion Magar challenges.
The reasonableness inquiry is controlled by the overriding consideration of
whether the attorney’s hours were “necessary” under the circumstances. Here, ICL
achieved substantial success in a case of public importance. The public benefit, both to
stream users and to the residents of the Syringa Mobile Home Park, cannot be
overlooked. Further, while Magar characterizes the time spent as excessive, to the Court,
it appears counsel was simply thorough. Moreno v. City of Sacramento, 534 F.3d 1106,
1112 (9th Cir. 2008) (“By and large, the court should defer to the winning lawyer's
professional judgment as to how much time he was required to spend on the case; after
all, he won, and might not have, had he been more of a slacker.”). Finally, the Court finds
counsel exercised appropriate billing judgment by not including some fees, but that
overall, the time spent was not duplicative, unnecessary, or imprudent.
MEMORANDUM DECISION AND ORDER - 6
Magar’s objection, grounded upon his argument that ICL essentially achieved a
default judgment in a case feebly opposed by an elderly man losing his faculties, is
unfounded. Based upon the affidavit of counsel and the summary provided, as well as the
Court’s familiarity with the pleadings, procedural history, and contested motions in this
case, the Court finds to the contrary. ICL employed experts to assist in its prosecution of
this case, which in turn assisted the Court in fashioning a remedy. There were several
contested motions, and contrary to Magar’s assertion, he appeared early in the case,
choosing to defend himself pro se. Magar chose to file a motion seeking to file a third
party complaint, which was opposed by ICL. Magar filed an opposition to ICL’s motion
for summary judgment, and then sought to stay the proceedings, necessitating a response
from ICL. Finally, the remedies portion of this case was complex and difficult, requiring
a hearing to assist the Court. And, while there were conferences between the attorneys
staffing the case, the Court does not find the attorneys billed for an excessive amount of
conference time given the division of labor apparent from the time entries.
Upon review of the individual time entries, especially Mr. Telegin’s time, the
Court cannot say the time spent was excessive. ICL is therefore entitled to a fully
compensable fee.
MEMORANDUM DECISION AND ORDER - 7
CONCLUSION
Based upon the above analysis, the Court will award attorney fees in the amount
of $93,905.00, and litigation expenses in the amount of $6,730.85. The applicable postjudgment interest rate is .39 percent per annum. 3
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)
Plaintiff’s Motion for Attorney’s Fees and Costs (Dkt. 82) is GRANTED.
2)
Plaintiff is awarded $93,905.00 in attorney fees and $6,730.85 in nontaxable litigation expenses pursuant to 33 U.S.C. § 1365(d).
3)
The foregoing amounts shall be paid with interest at the rate of .39 percent
per annum from the date of this Order.
September 17, 2015
3
Bd. of Govs. of the Fed. Res. Sys., September 11, 2015, Selected Interest Rates (Weekly) – H.15, available at
http://www.federalreserve.gov/releases/h15/.
MEMORANDUM DECISION AND ORDER - 8
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