Coldani v. Hamm et al.,, No. 2:2007cv00660 - Document 124 (E.D. Cal. 2011)
Court Description: 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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Coldani v. Hamm et al., Doc. 124 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND COLDANI, an individual, 12 Plaintiff, 13 14 15 v. JACK HAMM and PATRICIA HAMM, individually and doing business as LIMA RANCH/DAIRY, 16 Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) ) 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 18 19 Patricia Hamm, dba Lima Ranch/Dairy (“Defendants”) Motion for 20 Attorney s Fees, Expert Fees, and Costs (Doc. #114) against 21 Plaintiff Steven Coldani, as Trustee of the Coldani Revocable Trust 22 (“Plaintiff”), who was substituted as Plaintiff in place of Raymond 23 Coldani. 24 before the Court is Defendants Bill of Costs (Doc. #109), to which 25 Plaintiff objects (Doc. #112). 26 March 9, 2011, but ordered submitted without oral argument.1 27 28 Plaintiff opposes the motion for fees (Doc. #119). Also This matter was set for hearing on 1 This matter was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). 1 Dockets.Justia.com 1 2 I. Factual and Procedural Background This case was originally filed by Raymond Coldani 3 (“Coldani”), based on allegations that Defendants were causing 4 water pollution via runoff from their dairy. 5 Complaint (Doc. #1) brought two federal claims: one claim for 6 relief under the Clean Water Act (“CWA”) and one claim for 7 relief under the Resource Conservation and Recovery Act 8 (“RCRA”). 9 waste from Lima Ranch polluted groundwater that discharged into The original The CWA claim was premised on allegations that animal 10 the White Slough, which in turn empties into the San Joaquin 11 River Delta System, which is navigable water. 12 brought a motion to dismiss the complaint (Doc. #5) for lack of 13 subject matter jurisdiction, on grounds that notice was 14 insufficient under the statutory requirements of the CWA and 15 RCRA, and therefore the court lacked jurisdiction over these 16 claims. 17 allege a CWA or RCRA violation, and that Coldani lacked standing 18 (and the Court lacked jurisdiction) because of his failure to 19 allege an RCRA claim. 20 sufficient for both the CWA and RCRA claims, and that Coldani 21 had sufficiently alleged a CWA claim and had standing to bring a 22 citizen suit. 23 with Defendants that the complaint did not allege that Lima 24 Ranch discharged “hazardous waste” in violation of the RCRA and 25 that the “solid waste” discharge alleged in the complaint was 26 “industrial discharge from a point source subject to NPDES 27 permits under the CWA.” 28 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 2 1 instead regulated by the CWA. The Court therefore declined to 2 exercise jurisdiction over the RCRA claim to avoid duplicative 3 regulation. 4 Coldani did not appeal the dismissal of the RCRA claim. 5 Instead, Coldani filed a motion for leave to amend the complaint 6 (Doc. #20), seeking to add a public nuisance claim in order to 7 address any pollution that would not fall under the CWA claim, 8 and that might have been addressed by the dismissed RCRA claim. 9 The Court granted leave to amend, and Coldani filed the Amended 10 Complaint (Doc. #24), bringing the CWA claim and a state law 11 public nuisance claim. 12 groundwater discharging into White Slough, which would require 13 the groundwater to flow west. 14 regarding the basis for the CWA claim, Coldani filed a motion 15 for leave to amend the Complaint (Doc. #62). 16 that groundwater flowed east instead of west, and therefore he 17 sought to dismiss his CWA claim and re-allege his previously 18 dismissed RCRA claim. 19 (Doc. #73). 20 his CWA claim, with prejudice, pursuant to Federal Rules of 21 Civil Procedure 41(a)(2) (Doc. #74). 22 Coldani s death, and the stay was lifted once Steven Coldani was 23 substituted as the plaintiff. 24 Court granted the motion for voluntary dismissal (Doc. #87). 25 The Court also heard oral argument on a motion for attorneys 26 fees and sanctions brought by Defendants, against Plaintiff s 27 counsel, Isola Law Group. 28 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). 3 The Court denied 1 comply with the Local Rules and a claim remained pending in the 2 action. 3 dismiss the remaining state law nuisance claim, which had been 4 filed before the stay. 5 state law claim, Defendants renew their requests for attorneys 6 and experts fees, costs, and/or sanctions. 7 Subsequently, the Court granted Defendants motion to Now that the Court has dismissed the Defendants assert that neither Plaintiff nor Plaintiff s 8 counsel conducted a reasonable inquiry into the direction of 9 groundwater flow prior to filing this lawsuit. Even if 10 Plaintiff and his counsel conducted a reasonable inquiry, 11 Defendants further argue that Plaintiff should have voluntarily 12 dismissed the CWA claim much sooner. 13 set forth several theories for recovery. 14 that they are the prevailing party on all claims. Alternatively, 15 Defendants ask the Court to exercise its inherent power to award 16 fees. 17 be held jointly and severally liable for fees in the form of 18 sanctions. 19 or in the alternative, fees for the portion of the litigation 20 following Plaintiff s discovery that groundwater flowed east not 21 west. 22 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 23 that Defendants are not “prevailing parties” under the CWA and 24 the RCRA, that Plaintiff and his counsel conducted a reasonable 25 inquiry into groundwater flow prior to filing the suit, and that 26 at no point in the litigation was groundwater flow determined to 27 be exclusively and definitively in a single direction. 28 Plaintiff also challenges Defendants use of block billing and 4 1 the amount requested by Defendants in fees and costs. 2 II. Opinion 3 A. Legal Standard 4 The fee applicant bears the burden of establishing 5 entitlement to an award and documenting the appropriate hours 6 expended and hourly rates. 7 437 (1983). 8 calculate an award of attorney s fees by first calculating the 9 “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 10 1014, 1028 (9th Cir. 2000). 11 multiplying the number of hours the prevailing party reasonably 12 expended on the litigation by a reasonable hourly rate.” 13 Caudle, 224 F.3d at 1028 (citing Morales v. City of San Rafael, 14 96 F.3d 359, 363 (9th Cir. 1996). 15 presumed reasonable unless some exceptional circumstance 16 justifies deviation. 17 (9th Cir. 1998). 18 district court should exclude from the lodestar amount hours 19 that are not reasonably expended because they are excessive, 20 redundant, or otherwise unnecessary.” 21 Mutual Life Co., 214 F.3d 1040, 1045 (9th Cir. 2000). 22 is under an independent duty to reach its own “lodestar” value. 23 Hensley, 461 U.S. at 433. 24 “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 25 assess whether additional considerations enumerated in Kerr v. 26 Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert 27 denied, 425 U.S. 951 (1976), require the court to adjust the 28 figure. The Kerr facts are: (1) time and labor required; 5 1 (2) the novelty and difficulty of the questions involved; 2 (3) the skill requisite to perform the legal service properly; 3 (4) the preclusion of other employment by the attorney due to 4 acceptance of the case; (5) the customary fee; (6) whether the 5 fee is fixed or contingent; (7) time limitations imposed by the 6 client or the circumstances; (8) the amount involved and the 7 results obtained; (9) the experience, reputation, and ability of 8 the attorneys; (10) the “undesirability” of the case; (11) the 9 nature and length of professional relationship with the client; 10 11 and (12) awards in similar cases. Kerr, 526 F.2d at 70. Although Raymond Coldani is deceased, fees and costs can be 12 recovered from Steven Coldani, as Trustee of the Coldani 13 Revocable Trust. 14 time of a party s death may be continued against the decedent s 15 successor in interest and all damages are recoverable that might 16 have been recovered against the decedent had the decedent lived. 17 Cal. Code of Civ. Proc. § 377.42; see also Cal. Code of Civ. 18 Proc. §§ 377.20, 377.41 and Cal. Probate Code § 9370. 19 case, the Revocable Trust is Coldani s successor in interest, as 20 Coldani devised the majority of his assets to the Revocable 21 Trust. 22 be recovered from the Revocable Trust pursuant to California 23 Probate Code 19001(a). 24 1. 25 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 26 fees, experts fees and costs because they are the prevailing 27 party under the CWA. 28 granted Plaintiff s request for voluntary dismissal under Defendants argue that when the Court 6 1 Federal Rules of Civil Procedure 41(a)(2), with prejudice, this 2 operated as an adjudication on the merits for purposes of 3 obtaining fees under the CWA. 4 voluntary dismissal under Rule 41(a)(2) does not operate as a 5 dismissal on the merits. 6 prevailing party, they would not be entitled to fees under the 7 CWA. Plaintiff contends that a Moreover, even if Defendants were the 8 In a CWA citizen suit, the court may award costs of 9 litigation (including reasonable attorney and expert witness 10 fees, to any prevailing or substantially prevailing party, 11 whenever the court determines such award is appropriate. 12 U.S.C. 1365(d). 13 attorneys fees and experts fees in a CWA or RCRA action is 14 appropriate where the plaintiff s action was frivolous, 15 unreasonable, or without foundation, even though not brought in 16 subjective bad faith. 17 66 F.3d 236, 240 (9th Cir. 1995). 18 prevailing party if it has obtained a court ordered change in 19 the legal relationship between the plaintiff and the 20 defendants.” 21 Abatement Dist., 574 F.3d 1054, 1058-59 (9th Cir. 2009) 22 (internal citations omitted). 23 parties must have obtained judicially enforceable “actual relief 24 on the merits of their claim that materially altered the legal 25 relationship between the parties.” St. John s Organic Farm, 26 supra, quoting Richard S. v. Dep t of Dev. Servs. Of Cal., 317 27 F.3d 1080, 1087 (9th Cir. 2003). 33 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 28 7 1 Accordingly, the Court will apply these three factors: 2 (1) judicial enforcement, (2) material alteration of the legal 3 relationship between the parties, and (3) actual relief on the 4 merits of plaintiff s claims. 5 supra at 1059. 6 voluntary dismissal of the CWA claim with prejudice, thus the 7 matter was resolved in a judicially enforceable manner 8 (Plaintiff may not re-allege the CWA claim). 9 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 10 because Plaintiff cannot bring the CWA claim again, thus ending 11 the CWA legal dispute between the parties. 12 never ruled on the merits of the CWA claim, nor Defendants 13 opposition to the claim. 14 a voluntary dismissal with prejudice serves as a dismissal on 15 the merits. See, e.g., Baker v. Voith Fabrics U.S. Sales, Inc., 16 2007 WL 1549919 (E.D. Wash. 2007) (citing Stewart v. U.S. 17 Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (stating that the 18 phrase „final judgment on the merits is often used 19 interchangeably with „dismissal with prejudice. )). 20 Accordingly, Defendants received a judgment on the merits and 21 may be considered the prevailing party on the CWA claim. 22 Lastly, the Court However, for purposes of res judicata, Applying the St. John s factors to the RCRA claim, 23 Defendant is not entitled to prevailing party status. 24 claim was dismissed on jurisdictional grounds, to avoid 25 duplication since it was brought together with the CWA claim. 26 This jurisdictional dismissal, without prejudice, did not 27 materially alter the legal relationship between the parties. 28 jurisdictional dismissal is not a judgment on the merits. 8 The RCRA A Wages 1 v. I.R.S., 915 F.2d 1230, 1234 (9th Cir. 1990). 2 Having determined that Defendants may be considered the 3 prevailing party on the CWA claim, the Court must next determine 4 if an award of fees and costs to Defendants is appropriate under 5 the “frivolous, unreasonable or without foundation” standard 6 articulated in Razore, 66 F.3d at 240. 7 Coldani and his counsel had access to publicly available maps 8 and information showing that groundwater in the region flowed 9 east, prior to filing the lawsuit, thus it was frivolous and Defendants assert that 10 reckless to file the suit in the first place. 11 did not know before filing the suit that groundwater flowed 12 east, Defendants argue that he knew as early as February 2008, 13 gained further information in October 2008, and at a minimum 14 knew for certain in July 2009 when Plaintiff distributed a fact 15 sheet containing this information. 16 until September 2009 to file the motion to amend and substitute 17 the RCRA in place of the CWA claim. 18 motion to amend, Plaintiff moved to dismiss his CWA claim in 19 November 2009. 20 reckless for Plaintiff to continue to litigate the CWA claim for 21 this length of time. 22 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 23 water flow in a westerly direction exists to justify bringing 24 and maintaining the CWA claim. 25 decision to abandon the CWA claim and focus on the nuisance 26 claim was made after consultation with Plaintiff s counsel and 27 exchange of expert reports in August 2009. 28 concentrate litigation efforts and resources on the nuisance Plaintiff argues that the 9 Plaintiff elected to 1 claim, as the groundwater flow direction issue would have been 2 an extremely costly issue to prove at trial. 3 Accordingly, to the extent that Defendants can be 4 considered the prevailing party under the CWA for purposes of 5 attorney s fees, the Court does not find that an award of fees 6 to Defendants is appropriate. 7 parties strongly indicate that surface water flows east, not 8 west, thus precluding a CWA claim, the Court does not find that 9 it was frivolous, unreasonable or without foundation for While research presented by the 10 Plaintiff to bring the suit and continue to litigate it up until 11 the point that Plaintiff filed for voluntary dismissal. 12 Plaintiff has put forth sufficient reasons for maintaining the 13 claim for the period that he maintained it. 14 Defendants further argue that they are entitled to costs as 15 the prevailing party under Federal Rules of Civil Procedure 16 54(d)(1). 17 attorneys fees) to the prevailing party, unless a federal 18 statute, federal rule, or court order provides otherwise. 19 this case, the rules for an award of costs to the prevailing 20 party in a CWA claim is governed by the statute, and as 21 discussed above, costs to a prevailing defendant are only 22 appropriate if the Plaintiff s case was frivolous, unreasonable 23 or without foundation. 24 therefore denies Defendants request for costs under Rule 25 54(d)(1). 26 27 28 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 10 In 1 41(a)(2). Ordinarily, a dismissal under Rule 41(a)(2) is 2 without prejudice, and the Court may condition the dismissal on 3 the payment of attorneys fees, to protect a defendant in case 4 the plaintiff brings the case again. 5 WL 618192, *1 (E.D. Cal. Feb. 10, 2011). 6 correct that a court may condition voluntary dismissal without 7 prejudice under Rule 41(a)(2) on the payment of attorneys fees 8 and costs, this is not ordinarily done when the dismissal is 9 with prejudice. See Chang v. Pomeroy, 2011 While Defendants are See Chang, supra. The purpose of conditioning 10 voluntary dismissal without prejudice on the payment of fees is 11 primarily to protect defendants, in the event that a plaintiff 12 brings the claims again. 13 voluntary dismissal on the payment of fees, and declines to do 14 so now. 15 16 3. Id. The Court did not condition The Court s Inherent Power to Award Fees As an additional basis for seeking fees, Defendants argue 17 that Plaintiff should be ordered to pay attorneys fees and 18 costs as a sanction under the Court s inherent powers. 19 Ninth Circuit has found that “sanctions are available if the 20 court specifically finds bad faith or conduct tantamount to bad 21 faith. 22 actions, including recklessness when combined with an additional 23 factor such as frivolousness, harassment or an improper 24 purpose.” 25 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 26 since it was filed in 2007. Both parties have brought numerous 27 motions, and have prevailed on some motions and lost on others. 28 Ultimately, the Court has never reached the merits of any of the 11 1 claims. However, the Court does not find that Plaintiff has 2 litigated in bad faith, with recklessness, or for an improper 3 purpose. 4 amended complaints, the Court notes that Defendants chose to bring 5 a motion to join the City of Lodi as a defendant (which was 6 denied), violated a discovery order (and were sanctioned), and 7 chose to continue litigating this case after Mr. Coldani s death in 8 2009 (despite notification that none of Mr. Coldani s relatives 9 wanted to be substituted in to carry on the case as plaintiffs). While Plaintiff brought the initial suit, and subsequent 10 Both parties have been equally aggressive in their litigation 11 tactics, and this Court declines to single out Plaintiff as acting 12 in bad faith. 13 inherent power. 14 15 4. Accordingly, the Court will not award fees under its Sanctions Lastly, Defendants argue that attorneys fees, experts fees 16 and costs should be awarded to them as sanctions under 28 U.S.C. 17 § 1927, against the Isola Law Group. 18 motion for sanctions against the Isola Law Group, and dismissed it 19 without prejudice. 20 not award fees because Defendants had not properly documented their 21 hours for the Court. 22 litigation did not appear to be brought or driven by counsel in bad 23 faith. 24 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 25 the proceedings in any case unreasonably and vexatiously may be 26 required by the court to satisfy personally the excess costs, 27 expenses, and attorneys fees reasonably incurred because of such 28 conduct. 12 1 2 3 4 5 6 7 “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.” 8 Gomes v. American Century Companies, Inc., 2010 WL 1980201 at *3 9 (E.D. Cal. May 17, 2010) (internal citations omitted). 10 The Court will not order sanctions against Isola Law Group 11 under 28 U.S.C. § 1927. 12 the primary water flow direction was east, there was enough 13 evidentiary support for the belief that water might also at times 14 flow west. 15 the litigation up until August 2009 when Plaintiff and his counsel 16 determined that it would be very difficult and costly to prevail on 17 the CWA claim. 18 in the first place, “The Ninth Circuit has made it clear that the 19 filing of a complaint may not be sanctioned pursuant to § 1927 20 because § 1927 only addresses the multiplication of proceedings. “ 21 Gomes, at *4. 22 23 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 24 $98,523.90 in costs. Of this amount, $4,617.62 is sought in 25 fees for exemplification and the costs of making copies of 26 materials, and $93,906.28 is sought in experts fees. 27 the basis for recovery of costs cited by Defendants is that they 28 are the prevailing party under the CWA and RCRA. 13 However, As previously 1 discussed, the Court does not find that Defendants are the 2 prevailing or substantially prevailing party under the RCRA. 3 While Defendants may be considered the prevailing party under 4 the CWA, the Court does not find that Plaintiff s CWA claim was 5 frivolous, unreasonable or lacking in foundation. 6 Court will not award the costs enumerated in the Bill of Costs 7 to Defendants. 8 award costs under Rule 54(d)(1). Thus the As discussed above, the Court also declines to 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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