Adkins et al v. Will et al
OPINION AND ORDER GRANTING 216 MOTION for Attorney Fees and Costs by Plaintiffs Carmine Greene, Rob Pedzinski, Robin Pedzinski, Jim Pendergrass, Barbara Stutsman, Wayne Stutsman. Clerk DIRECTED to include in the default judgment that Plaintiffs and Class Members are AWARDED litigation costs in the amount of $273,339.85 against Defendants Kenneth R Will, VIM Recyclcing, Inc. and K.C. Industries, LLC, jointly and severally. Signed by Chief Judge Philip P Simon on 11/24/15. (cc: Kenneth Will). (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CARMINE GREENE, et. al.,
KENNETH R. WILL, et. al.,
OPINION AND ORDER
GRANTING PLAINTIFFS' RULE 54(d)(2) MOTION
FOR ATTORNEY’S FEES AND EXPENSES
This matter comes before me on Plaintiffs’ Motion for Attorney’s Fees and Expenses
pursuant to Fed. R. Civ. P. 54(d)(2) against defaulted Defendants VIM Recycling, Inc., K.C.
Industries, LLC and Kenneth R. Will. Having considered Plaintiffs' motion and the
subsequent briefing on the issue, I now grant Plaintiffs' motion.
This action was filed against Defendants Kenneth R. Will, VIM Recycling, Inc. and
K.C. Industries, LLC (“VIM Defendants”), under the federal Resource Conservation and
Recovery Act (“RCRA”), 42 U.S.C. §6901, et. seq., and state common law for the VIM
Defendants' solid waste activities that caused or contributed to an imminent and
substantial endangerment including repeated fires, toxic smoke, dust, debris, and noxious
odors invading Plaintiffs’ nearby homes and properties. A Plaintiff Class was certified
on April 16, 2013.
The Clerk entered a default against Defendants VIM Recycling and K.C. Industries
for failing to obtain substitute counsel and defend. [DE 126.] Some time later, the Clerk
likewise entered a default against Defendant Kenneth R. Will for failing to defend. [DE
162.] Plaintiffs moved for default judgment against all three VIM Defendants and I held
a hearing on April 16, 2015 and ordered the parties to provide supplemental briefing on
four related issues, which the parties have completed. On today’s date in a separate order,
I have granted default judgment against the VIM Defendants holding that Plaintiffs are
entitled to an award of reasonable attorney’s fees and costs.
Authority for Award of Fees and Expenses
Plaintiffs seek a total of $263,250.00 in attorney’s fees, for which they have
submitted supporting documentation.
RCRA's Attorney’s Fee Provision
Relief available under the RCRA citizen suit provision includes an award of the
“costs of litigation (including reasonable attorney and expert witness fees) to the prevailing
or substantially prevailing party, whenever the court determines such an award is
appropriate.” §6972(e). Both the default judgment against the VIM defendants and the
consent decree obtained against the other defendants represent relief obtained on the
Class’s claims “materially alter[ing] the legal relationship between the parties by modifying
the defendant’s behavior in a way that directly benefits the plaintiff[s].” Lefemine v.
Wideman, 133 S.Ct. 9, 11 (2012), quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). I am
certainly persuaded to exercise my discretion to award attorney’s fees to Plaintiffs as the
Contemplating the appropriate scope of the fee award, I consider that the same
circumstances, conduct and harms underlie all the causes of action asserted in the Class
members’ complaint. That “common core of facts” and “related legal theories” resulted
in counsel’s time being “devoted generally to the litigation as a whole,” warranting a fee
award that does not treat the lawsuit as “a series of discrete claims” but instead focuses “on
the significance of the overall relief obtained...in relation to the hours reasonably expended
in the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). See also Barrow v. Falck, 977
F.2d 1100, 1104 (7th Cir. 1992). In light of the “‘interrelated nature of the lawsuit as a
whole,’” I am not required to attempt to divide counsel’s time between the RCRA and state
law claims, which “‘would be an exercise in futility.’” Munson v. Milwaukee Board of School
Directors, 969 F.2d 266, 272 (7th Cir. 1992), quoting Zabkowicz v. West Bend Co., 789 F.2d 540,
551 (7th Cir. 1986).
Fed. R. Civ. P. 23(h)
In class actions, under Federal Rule of Civil Procedure 23(h), the court is permitted
to award “reasonable attorney's fees and nontaxable costs that are authorized by law.”
This subsection does not create a separate ground for awarding fees, but clarifies that
when fee awards are permitted in non-class-action suits, they are also permissible in class
actions, and provides specific procedures for requesting such awards in the class action
context. See Advisory Committee Notes to Fed. R. Civ. P. 23 (2003). Specifically, class
action plaintiffs must make a motion for a fee award under Fed R. Civ. P. 54(d), and both
class members and the party from whom payment is sought may object to the proposed
award. Fed R. Civ. P. 23(h)(1), (2).
In this case, the requisite legal basis for a fee award under Rule 23(h) is found in 42
U.S.C. § 6972(e), discussed above. Additionally, Plaintiffs have complied with the
requirements of Rule 23(h): they have made the requisite motion under Rule 54(d), and
have also submitted extensive documentation and additional briefing on the question of
attorney’s fees. Therefore, the requirements for a class action fee award have been met if
the requested fees are reasonable.
Plaintiffs’ Claimed Fees and Expenses
Under fee-shifting statutes such as RCRA, a reasonable fee award is calculated
based on the “lodestar,” which is the reasonable market rate for the attorney’s services
multiplied by the number of hours reasonably expended on the case. Hensley v. Eckerhart,
461 U.S. 424, 433 (1983), Blum v. Stenson, 465 U.S. 886, 895 (1984). This calculation is the
“centerpiece” of determining a reasonable attorney’s fee. Blanchard v. Bergeron, 489 U.S. 87,
94 (1989). “There is a strong presumption that the lodestar calculation yields a reasonable
attorneys’ fee award.” Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011).
“Once the petitioning party provides evidence of the proposed fees’ reasonableness,
the burden shifts to the other party to demonstrate the award’s unreasonableness.”
Wachovia Sec., LLC v. Banco Panamericano, Inc., 674 F.3d 743, 759 (7th Cir. 2012). As detailed
below, the Plaintiffs have submitted credible evidence that their fees are reasonable.
Much of the case law on determining appropriate fee awards relates to civil rights
litigation, but the holdings in those cases can be applied to environmental citizen suits
given the similar language of Attorney’s fee provisions in both civil rights and
environmental statutes and their shared goal of implementing “important federal policies.”
Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 560 (1986). As
our Supreme Court has observed, citizens perform an “important public service” by
bringing actions to enforce federal environmental standards, just as they do in bringing
actions to enforce constitutional rights, and the intent of an attorney’s fee provision in both
cases is for citizens to be compensated for performing this public service. Id. Further, the
provisions of the civil rights and RCRA Attorney’s fee provisions are “sufficiently
analogous to use case law in interpreting either statute interchangeably.” Browder v. City
of Moab, 427 F.3d 717, 720 (10th Cir. 2005).
In a civil rights case, a reasonable fee is a “fee that is sufficient to induce a capable
attorney to undertake the representation of a meritorious civil rights case.” Perdue v. Kenny
A. ex rel. Winn, 559 U.S. 542, 552 (2010). Accordingly, the prevailing market rate on which
a reasonable fee is based is “the rate that lawyers of similar ability and experience in the
community charge their paying clients for the type of work in question.” Spegon v. Catholic
Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999). The same principle applies to public
interest environmental litigation: a reasonable fee is one that could induce a capable
attorney to undertake a meritorious environmental citizen suit. See Pennsylvania, 478 U.S.
Ordinarily, this reasonable fee would be determined based on the rate that the
attorney charges to paying clients. But in this case, Plaintiffs’ counsel works for a non-profit
that provides its clients with pro bono legal services, and therefore the market rate must be
determined by other means. An attorney’s non-profit status does not, in any event, prevent
recovery of attorney’s fees at market rates. Blum, 465 U.S. at 895. Awarding market rates
to lawyers providing pro bono representation ensures “that the value of the lawyer’s gift
inures to the favored cause, and not to the adversary in litigation.” Nat'l Rifle Ass'n v.
Village of Oak Park, 871 F. Supp. 2d 781, 787-88 (N.D. Ill. 2012), quoting Barrow v. Falck, 977
F.2d 1100, 1105 (7th Cir. 1992).
Applying these principles here, the proposed rate of $150 per hour is reasonable,
indeed, given the complexity of this matter, it’s a steal. Plaintiffs have submitted evidence
showing that this rate is below the median hourly rate of $188 for practicing attorneys in
“general litigation” as found by a 2007 survey of Indiana State Bar Association members,
and it is also below what environmental litigators charge. In fact, an hourly rate of $150
was approved as reasonable by this Court in a RCRA case — 25 years ago. United States v.
Envtl. Waste Control, Inc., 737 F. Supp. 1485, 1499 (N.D. Ind. 1990).
Plaintiffs’ lead attorney has practiced public interest environmental law exclusively
since 2007, and is now the Senior Staff Attorney with Indiana’s largest environmental
advocacy organization. Plaintiffs have also submitted documentation showing that the
overwhelming majority of attorney time spent on this case was spent by the lead attorney.
The rate of $150 per hour is entirely reasonable in this case.
Once a reasonable hourly rate has been established, it is multiplied by the number
of hours reasonably expended to arrive at the lodestar amount. Hensley, 461 U.S. at 433.
Over the more than five years of this litigation, Class counsel has prepared at least 50 court
filings including complex legal motions and briefs on a successful appeal and in support
of class certification; answered discovery on behalf of the 140 initial Plaintiffs, which
involved the review, organization, and production of tens of thousands of pages of
documents and records; prepared for and attended at least ten court hearings and four allday depositions; and negotiated a complex class action settlement. Furthermore, Class
counsel expended considerable time simply keeping Class members informed about the
case. Overall, Plaintiffs’ lead counsel has estimated the total time she spent prosecuting this
case on behalf of Plaintiffs at 1,755 hours, and has presented a spreadsheet detailing the
time spent. [DE 216-1 at 4-7.] Having duly reviewed the information submitted, I find this
expenditure of time to have been reasonable in view of the length and complexity of the
Plaintiffs’ estimate is additionally reasonable and conservative in that it does not
include time expended on the case prior to filing suit, even though such time is eligible for
reimbursement. See Kovacs v. United States, 739 F.3d 1020, 1025 (7th Cir. 2014). It similarly
does not include any of the time spent on the state litigation that ensued after this case was
dismissed in 2011, even though the discovery and other work done for that state suit were
crucial to the successful completion of this federal suit.
Multiplying this conservative estimate of 1,755 hours by the reasonable rate of $150
per hour results in a lodestar amount of $263,250.00. I find that this amount is reasonable
in view of the considerations above. I also note that the total is less than 5% of the damages
awarded in the default judgment, which further supports the reasonable and proportionate
nature of the attorney’s fees.
In addition to attorney’s fees, costs related to litigation, such as printing, copying,
transcripts, and travel, can be recovered under RCRA, so long as they were reasonable and
necessary. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 946 (7th Cir.1997). Plaintiffs
have submitted documentation of costs related to this litigation in the amount of $10,089.85,
including court reporter fees, expert witness fees, and costs to subpoena records. [DE 216-1
at 9-10.] Having reviewed the submitted documentation, I find that Plaintiffs’ claimed
costs are reasonable and indeed conservative, in that many reasonable and necessary
expenses, such as travel, copying, and postage, are omitted.
Plaintiffs’ requested attorney’s fee award and costs are conservative, reasonable,
and supported by applicable law. Plaintiffs’ attorney’s fee calculation applies an hourly
rate below documented market levels to a number of hours that falls short of the time Class
counsel could have billed in this case. The reasonableness of this award, and the specific
supporting calculations, are firmly supported by Supreme Court and 7th Circuit precedent.
Plaintiffs’ reasonable litigation costs compensable under RCRA therefore consist of
attorney’s fees in the amount of $263,250.00 and costs in the amount of $10,089.85, for a
total of $273,339.85.
Plaintiffs’ Motion for Attorney’s Fees and Expenses against the VIM Defendants
[DE 216] is hereby GRANTED.
The Clerk shall include in the default judgment that Plaintiffs and Class Members
are awarded litigation costs in the amount of $273,339.85 against defendants Kenneth R.
Will, VIM Recycling, Inc., and K.C. Industries, LLC, jointly and severally.
ENTERED this 24th day of November, 2015.
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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