Fitzgibbons et al v. Cook and Thorburn County Drainage Districts et al

Filing 32

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

S H E IL A FITZGIBBONS, RICHARD ELLISON, and AQUATIC SPORTS, LTD., P l a i n t if f s , F ile No. 1:08-CV-165 v. H O N . ROBERT HOLMES BELL T H E COOK AND THORBURN AND HANCOCK COUNTY DRAINAGE DISTRICTS, and the INGHAM COUNTY D R A I N COMMISSIONER PATRICK E. L IN D E M A N N , D e f e n d a n ts . / OPINION T h is matter is before the Court on a motion for attorney's fees pursuant to 33 U.S.C. § 1365(d) and Rule 54(d)(2) of the Federal Rules of Civil Procedure filed by Defendants the In g h a m County Drain Commissioner, the Cook and Thorburn Drainage District, and the H a n c o ck County Drainage District. (Dkt. No. 28.) Plaintiffs oppose the motion. (Dkt. No. 3 0 .) I. Plaintiffs brought this action pursuant to the citizen-suit provision of the Federal C le a n Water Act (CWA), 33 U.S.C. § 1365(a), and also asserted several state-law claims. O n December 8, 2008, the Court granted Defendants' motion to dismiss for lack of subject

m a tte r jurisdiction because Plaintiffs' pre-suit notice letter did not comply with the citizen s u it notice requirements of 33 U.S.C. § 1365(b)(1) and 40 C.F.R. § 135.3. Defendants now m o v e for an award of attorney's fees. For the reasons that follow, Defendants' motion will b e denied. II. U n d e r Rule 54, a party moving for attorney's fees must "specify . . . the statute, rule o r other grounds entitling [it] to the award[.]" Fed. R. Civ. P. 54(d)(2)(A)(ii). Defendants r e l y upon the fee-shifting statute in the CWA, 33 U.S.C. § 1365(d), which provides, in re lev a n t part: T h e court, in issuing any final order in any action brought pursuant to this section, m a y award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such a w a rd is appropriate. Id. Defendants contend that, as the "prevailing or substantially prevailing party" they are e n title d to attorney's fees. Under the American Rule, even "the prevailing litigant is o rd in a rily not entitled to collect a reasonable attorneys' fee from the loser." Ruckelshaus v. S ie rr a Club, 463 U.S. 680, 684 (1983) (quoting Alyeska Pipeline Co. v. Wilderness Society, 4 2 1 U.S. 240, 247 (1975)). Consequently, fee-shifting statutes are to be narrowly construed. S i e rr a Club v. Hamilton County Bd. of County Comm'rs, 504 F.3d 634, 642 (6th Cir. 2007). "[ A ]bse n t some degree of success on the merits by the claimant, it is not `appropriate' for a f e d era l court to award attorney's fees[.]" Ruckelshaus, 463 U.S. at 694.

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In moving for an award of attorney's fees, a prevailing defendant has a higher burden th a n a prevailing plaintiff; a prevailing defendant must show that the action was "frivolous, u n re a s o n a b le , or groundless, or that the plaintiff continued to litigate after it clearly became s o ." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).1 The Supreme Court h a s cautioned that "[i]n applying these criteria, it is important that a district court resist the u n d e rs ta n d a b le temptation to engage in post hoc reasoning by concluding that, because a p la in tif f did not ultimately prevail, his action must have been unreasonable or without f o u n d a tio n ." Id. at 421-22. D e f en d a n ts argue that Plaintiffs' action was groundless because Defendants asserted m u ltip le bases for dismissal of Plaintiffs' claims, including failure to comply with the presu it notice requirement of the CWA, failure to state a claim under the CWA, and immunity w ith respect to Plaintiffs' state law claims. Defendants also argue that Plaintiffs were aware

Though the Court in Christiansburg interpreted the fee-shifting provision in the Civil Rights Act, the Court has consistently held that fee awards under the various "prevailing party" statutes ought to be governed by the same standards. Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983); Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427, 428 (1973). In Pennsylvania v. Delaware Valley Citizen's Counsel for Clean Air, 478 U.S. 546 (1986), the Court held that "Given the common purpose of both § 304(d) [of the Clean Air Act] and § 1988 to promote citizen enforcement of important federal policies, we find no reason not to interpret both provisions governing attorneys fees in the same manner." Id. at 560. In Ruckelshaus v. Sierra Club, 463 U.S. 680, 684 (1983), the Court noted that § 304(d) of the Clean Air Act is "identical" to § 1365(d) and other fee-shifting statutes. Id. at 682 n.1. See also Wolfe v. Perry, 412 F.3d 707, 720 n.5 (6th Cir. 2005) ("We have held . . . that `Congress intended that the standards for awarding fees under section 1988 should be the same as those under Title VII and other acts allowing awards of attorneys fees.") (quoting Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985)). 3

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o f the deficiencies of their pre-suit notice letter2 and nevertheless failed to correct them prior to filing suit. In response, Plaintiffs contend that Defendants were not "prevailing parties" u n d e r 33 U.S.C. § 1365(d) because the Court made no decision on the merits of the claims. P l a in t if f s also contend that Defendants have not shown that their lawsuit was frivolous or th a t Plaintiffs acted in bad faith. In its opinion and order, the Court dismissed the CWA claim for failure to comply w ith the citizen-suit notice provision. (Dkt. Nos. 26, 27, 12/08/2008 Op. & Order.) Though th e Court found that Plaintiffs' notice letter was not sufficient to satisfy the notice re q u ire m e n ts of the CWA, it was not so obviously insufficient as to render Plaintiffs' action f riv o lo u s , unreasonable, and groundless. See Washington Trout v. Scab Rock Feeders, 823 F . Supp. 819, 821 (E.D. Wash. 1993) (denying award of attorney's fees under § 1365(d) w h e re the plaintiff failed to provide sufficient notice, because defendants had not shown "bad f a ith or recklessness" in filing suit). This was not a case where Plaintiffs failed to provide a n y pre-suit notice whatsoever; Plaintiffs argued, albeit unsuccessfully, that their pre-suit n o tic e letter complied with the CWA in accordance with the "substantial" compliance s ta n d a rd set forth in National Wildlife Federation v. Consumers Power Co., 657 F. Supp. 989 (W .D . Mich. 1987), rev'd on other grounds, 862 F.2d 580 (6th Cir. 1988). M o re o v e r, Plaintiffs' failure to comply with the CWA pre-suit notice provision does

The notice letter alleged a violation of the CWA due to failure to obtain a discharge permit. After allegedly receiving notice from Defendants of the issuance of a discharge permit, Plaintiffs later filed suit, in part, on the basis of violation of the permit. 4

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n o t mean that their underlying claims were frivolous, unreasonable, or groundless. Upon f in d in g that it lacked jurisdiction over the CWA claim due to the insufficiency of the pre-suit n o tic e letter, the Court dismissed the CWA claim without prejudice and declined to exercise ju ris d ic tio n over the state law claims. However, Plaintiffs were free to re-file their state-law c la im s in state court, and were free to re-file their CWA claim after complying with the n o tic e requirement. See Hallstrom v. Tillamook County, 493 U.S. 20, 32 (1989) (construing a similar notice provision in 29 U.S.C. § 6972). Plaintiffs' other bases for dismissal were not c o n sid e re d by the Court; however, the Court notes that Defendants' purported immunity d e f en s e applies only to Plaintiffs' state law claims, and the Court specifically requested f u rth e r briefing on Defendants' other asserted basis for dismissal of the CWA claim, i.e. that th e body of water at issue in the case is not part of the "waters of the United States" regulated b y the CWA, under the interpretation set forth in Rapanos v. United States, 547 U.S. 715 ( 2 0 0 6 ) . On this record, Defendants have not shown that Plaintiffs' action was frivolous, u n re a so n a b le , or groundless, and their motion for attorney's fees will be denied. An order w ill be entered that is consistent with this opinion.

Dated: July 21, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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