Joint Appendix Vol II — Burlington v. Dague
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No. 91-810
In The
Supreme Court of the United States
October Term, 1991
r
CITY OF BURLINGTON,
Petitioner,
VS.
ERNEST DAGUE, SR., ERNEST DAGUE, JR.,
BETTY DAGUE, AND ROSE A. BESSETTE,
Respondents.
¢
On Writ Of Certiorari To The United States
Court Of Appeals For The Second Circuit
«
JOINT APPENDIX
VOLUME II, PAGES 219-417
®
MicHaet B. CLarpr* Wituiam W. PEarson*
Ropert R. McKEeEarin Mo toy, Jones &
Freperick S. Lane III Donaunue, P.C.
Dinse, ERDMANN & CLapp 33 North Stone Avenue
209 Battery Street Suite 2100
Burlington, Vermont Tucson, Arizona 85701
05402-0988 Telephone: (602) 620-5520
Telephone: (802) 864-5751 Counsel for Respondents
Counsel for Petitioner
*Counsel of Record
Petition for Certiorari Filed November 18, 1991
Certiorari Granted January 27, 1992
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS
e Volume I
6. Plaintiffs’ Application for Attorney’s Fees
- and Costs November 1, 1989.................
7. Memorandum in Support of Application for
Fees and Costs, November 1, 1989 ...........
| Volume II
8. Memorandum in Opposition to Application
for Fees and Costs, November 13, 1989.......
| 9. Reply Memorandum in Support of Applica-
2 e tion for Fees and Costs, November 24, 1989...
10. Supplemental Memorandum in Opposition
Ne nn eee eeuue
Plaintiffs’ Complaint filed October 9, 1985,
included in Appendix to Petition for Cer-
tiorari at pp. 244-269
Opinion and Order of United States District
Court for the District of Vermont, March 26,
1986, included in Appendix to Petition for
Certiorari at pp. 44-53
Opinion and Order of Second Circuit Court
of Appeals, August 20, 1986, included in
Appendix to Petition for Certiorari at pp.
142-144
Findings of Fact, Opinion and Order of
United States District Court for the District
of Vermont, October 17, 1989, included in
Appendix to Petition for Certiorari at pp.
59-115
to Application for Fees and Costs, December
EE 8056068 ONS UU Fo 866s oS tena reencee ves
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
ii
TABLE OF CONTENTS - Continued
Reply Memorandum in Support of an Award
of Fees and Costs, January 3, 1990..........
Opinion and Order of the United States Dis-
trict Court for the District of Vermont, April
2, 1990, included in Appendix to Petition for
Certiorari at pp. 130-134
Petition for Enforcement of Order, April 17,
i, ETE
Memorandum in Opposition to Plaintiff’s
Petition for Enforcement of Order, April 27,
PP
Plaintiffs’ Response to Defendant’s Opposi-
tion to Enforcement of Court Order, May 1,
Ir
Order of the United States District Court for
the District of Vermont, May 4, 1990........
Judgment of United States District Court for
the District of Vermont, May 7, 1990,
included in Appendix to Petition for Cer-
tiorari at pp. 116-117
Opinion of Second Circuit Court of Appeals,
June 12, 1991 included in Appendix to Peti-
tion for Certiorari at pp. 1-37
Plaintiff's Bill of Costs, June 25, 1991 .......
Order of Second Circuit Court of Appeals,
August 20, 1991 included in Appendix to
Petition for Certiorari at pp. 145-146
Supplemental Application for Attorney’s
Fees and Costs, June 25, 1991...............
22.
23.
24.
iii
TABLE OF CONTENTS - Continued
Application to Second Circuit Court ‘of
—_ for Attorney’s Fees and Costs, June
25,
ee eae ideecneuecesacccceccocccccs
Order of United States District Court for the
District of Vermont, October 11, 1991,
included in Appendix to Petition for Cer-
tiorari at pp. 137-138
Order of Second Circuit Court of Appeals,
October 25, 1991, included in Appendix to
Petition for Certiorari at pp. 38-39
Page
219
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR., ERNEST )
DAGUE, JR., BETTY DAGUE and _ ) Civil Action
ROSE A. BESSETTE ) No. 85-269
)
v. )
CITY OF BURLINGTON )
MEMORANDUM IN OPPOSITION TO PLAINTIFFS’
APPLICATION FOR AWARD OF FEES AND COSTS
Plaintiffs request an award of $406,984.66 for all fees,
costs and expenses incurred in the prosecution of this
action. The total amount is comprised of $7,295 for expert
witness fees, $3,634.66 for attorney expenses and a lode-
star award of $198,027.50 for which they request a 100%
enhancement.
Defendant opposes Plaintiffs’ request and contends
that the relief obtained and the extent to which the Plain-
tiffs prevailed in this action do not justify or provide legal
support for the lodestar award or the costs Plaintiffs seek.
In addition, the enhancement requested by the Plaintiffs
is foreclosed by a decision of the United States Supreme
Court.
I. The Extent To Which The Plaintiffs Prevailed And The
Relief Obtained Do Not Entitle The Plaintiffs To The
Award Of Fees And Costs That Has been Requested
Plaintiffs’ ten-count Complaint sought detailed and
comprehensive prohibitory and mandatory injunctive
220
relief, imposition of civil penalties, compensatory and
punitive damages,' costs and attorney’s fees. When the
action was commenced in October of 1985, Plaintiffs were
seeking a preliminary injunction calling for immediate
closure of the Defendant's landfill. They also sought the
imposition of specific monitoring and remediation
requirements.?
A determination of the extent of the Plaintiffs’ suc-
cess in the case necessarily entails a comparison of the the
[sic] relief obtained with the relief sought. As the United
States Supreme Court held in Hewitt v. Helms, 482 U.S.
755, 96 L.Ed.2d 654, 107 S. Ct. 2672 (1987), “Respect for
ordinary language requires that a plaintiff receive at least
some relief on the merits of his claim before he can be
said to prevail.” Id. at 96 L.Ed.2d 661. Further explication
of the meaning of relief was provided by the Court in
Rhodes v. Steward, 488 US __, 102 L.Ed.2d 1, 109SCt aS
4,
' Compensatory and punitive damages were sought in
connection with Plaintiff's pendant state claims. Those claims
were severed from the claims of federal and state statutory
violations and are to be tried at a later date. The Citizen's Suits
provisions of the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. § 6972 and the Clean Water Act (“CWA”)
33 U.S.C. § 1365, do not provide for awards of compensatory or
punitive damages; and the State of Vermont’s Ground Water
Protection Act does not provide for an award of attorney's
fees. Therefore, with respect to the issue of the relief obtained
by the Plaintiffs, the inquiry is limited to the request for
injunctive relief and imposition of civil penalties under RCRA
and the CWA.
? The exact relief requested is set forth on pages 24
through 26 of Plaintiffs’ Complaint. Those pages are attached
as Appendix A to this Memorandum.
221
(1988). There the Court was dealing with an issue of
attorneys fees under 42 U.S.C. §1988, in a case where,
prior to the entry of judgment by the District Court, one
of the plaintiffs died and the other was released from
prison. As a result, the Supreme Court held, their claims
of denial of due process concerning a magazine subscrip-
tion were rendered moot. The Court went on to hold that
a declaratory judgment would constitute relief only if “it
affects the behavior of the defendant towards the plain-
tiff.” Id. at 102 L.Ed.2d, 6. Because the case was moot
before judgment issued, the judgment afforded no relief
even though it declared that the defendant had not
afforded the plaintiffs the proper procedural and substan-
tive due process protections. Therefore plaintiffs were not
entitled to recover attorneys fees.
Similarly in the case at bar, although this Court
reached legal conclusions favorable to the Plaintiffs, the
Opinion and Order did not “affect the behavior of the
defendant towards the plaintiff.” Id. This is not to say
that the Court’s Orders do not require anything of the
Defendant. Certainly they do. But, what is required was
either already done before the Order was entered or was
something that the Defendant was already obligated to
do under orders of the State of Vermont. The Defendants
behavior toward the Plaintiffs insofar as this case is con-_
cerned, was mandated by the State and left unaltered by
this Court’s Orders.
With regard to the injunctive relief, the Plaintiffs
requested injunctions requiring nine specific actions or
cessations of actions (see Appendix A); and this Court
222
issued orders requiring the Defendant to undertake cer-
tain corrective actions and to close the landfill. Speci-
ficaily, the Court ordered that the Defendant install and
make operational by May 26, 1986, a methane gas control
system and a leachate collection system (Opinion and
Order dated March 26, 1986); and that the landfill be
closed down by January 1, 1990 (Opini
: ion and Ord
dated October 16, 1989). P ‘ond
While those Orders may relate to the relief requested
by the Plaintiffs in paragraphs A, E and F of Plaintiffs’
request for relief, they obligated the Defendant to do only
what it was already required to do under orders issued
by the State which, in turn, was authorized by EPA to
implement RCRA in Vermont. Additionally, in the case of
the March 26, 1986 Order, the work that was the subject
of that Order had already been completed, albeit behind
schedule, under compulsion of the January 31, 1985
Assurance of Discontinuance and an action brought in
Chittenden Superior Court by the State of Vermont to
enforce the Assurance.
| It is true that relief need not be judicially decreed to
justify an award of attorney’s fees; and a law suit may
prompt voluntary action on the part of the Defendant
providing the relief sought by the Plaintiffs, Hewitt v.
Helms, supra. However, in the case at bar there is no
evidence that the conduct of the Defendant, to the extent
that it provided the relief Plaintiffs were after, was a
product of Plaintiffs’ lawsuit. Instead, as the record
shows, Defendant's efforts to improve its landfill were
the result of the State’s enforcement efforts and the
Defendant's efforts to comply with the State’s orders
With regard to the closure of the landfill, there can be ne
223
question but that even if this Court's Order had not
imposed a January 1, 1990 deadline, the Defendant would
have still been required to close the landfill to meet the
deadline imposed by the State. And, importantly, the
Defendant has not presented any argument, against clos-
ing the landfill on that date, nor has it otherwise
attempted to avoid its obligation to do so.
For these reasons, consistent with the holdings of the
United States Supreme Court, Defendant contends that
the Plaintiffs are not entitled to an award of attorneys
fees.
Il. The Lodestar Amount Requested is Too High.
Even if it is assumed that the Plaintiffs are entitled to
recover some attorneys fees, by requesting an award for
what purports to be all of the time expended on the case,
Plaintiffs eviderce ignorance of the standards established
by the very opinions they cite. In both Copland v. Marshall,
641 F.2d 880 (D.C. Cir. 1980) and Sierra Club v. E. P. A., 769
F.2d 796 (D.C. Cir. 1985) the courts held that the lodestar
award should not reflect unproductive time or time spent
litigating claims upon which the party was unsuccessful.
Partial or limited success should not be fully compen-
sated.
In the case at bar, the Plaintiffs have met with a
number of failures: they did not obtain a preliminary
injunction requiring the immediate closure of the landfill;
they were not successful in their claims that RCRA’s
permitting and notification requirements applied to
defendant's landfill; they were not successful in seeking
224
to have the landfill declared an open dump; and, they
were not successful in obtaining the relief requested in
paragraphs A, B,C, D,G, H, 1, J, L, or M of the Complaint
(see Appendix A). Their total for fees also appears to
include time spent in the unsuccessful appeal of this
Court’s March 26, 1986 Order to the Second Circuit Court
of Appeals and time spent on the pendant state claims,
for which no fees may be awarded.
If the Plaintiffs could be said to have achieved suc-
cess by obtaining the two Court Orders, it was cumula-
tive of the success the State and the City had already
achieved in connection with the management of the land-
fill. .
Because the Plaintiffs have achieved, at most, only
partial success, Defendants request an opportunity to
engage in discovery of Plaintiffs’ counsel concerning the
allocation of the time they represent has been spent on
various aspects of the case. Defendant also requests a
hearing before this Court on the question of Plaintiffs’
attorney's fees. Any award of attorney’s fees should be
limited by the extent of plaintiffs’ success. Hensley v.
Eckerhart, 461 U. S. 76 L.Ed.2d 40, 103 S. Ct. 1933 (1983).
II]. Enhancement of the Attorneys Fee Award is
Improper
Plaintiffs also seek a 100% enhancement of their legal
fees citing, inter alia, Pennsylvania v. Delaware Valley Citi-
zen’s Council, 483 U.S. 711, 97 L.Ed.2d 585, 107 S. Ct. 3078
(1987). However, in Delaware Valley the Supreme Court
held that enhancements should not be awarded. Writing
225
for the majority Justice White observed that the reason-
able hourly rate for a reasonable number of hours worked
would “automatically” take into account any issues such
as complexity and difficulty of the case. He wrote: “any
further increase in this sum based on the risk of not
prevailing would result not in a ‘reasonable’ attorney's
fees, but in a windfall for an attorney who prevailed in a
difficult case.” Id. at 97 L.Ed.2d 599.
The Court in Delaware Valley did not close the door
completely on fee enhancements; but it did clearly state
that they were to be the exception rather than the rule.
Accord, Blum v. Stenson, 465 U. S. 886, 79 L.Ed. 2d 891,
104 S. Ct. 1541 (1984). The Court held that even in the
exceptional case where an enhancement was, in the
informed discretion of the trial court, appropriate, the
enhancement would be limited to '/s of the lodestar
award.
Plaintiffs’ request for any enhancement should be
denied under the authority of the Supreme Court's hold-
ing in Delaware Valley.
CONCLUSION
Defendants oppose Plaintiffs’ request for payment of
attorney’s fees and other expenses. Plaintiffs’ degree of
success was insufficient to support any award inasmuch
as they did not obtain any new relief from or against the
City; at best the Plaintiffs achieved only partial success
and therefore would be entitled to only a partial award of
the fees and expenses; in the event of a partial award,
discovery and hearing will be necessary to fix the proper
226
amount of the award; and finally, no enhancement of the
lodestar amount should be granted.
Dated at Burlington, Ver i
, mont th
November, 1989. ies
DINSE, ERDMANN & CLAPP
By: /s/ Robert R. McKearin .
Robert R. McKearin, Esq.
APPENDIX A
COUNTY X - UNCOMPENSATED TAKING
110. Plaintiffs incor
porate by reference para h
2 through 109 of this Complaint. iiadaae
ad 111. This count is brought under Chapter I, Article
nd, of the Vermont Constitution to recover just compen-
sation for the Defendant’s partial nated
property. partial taking of Plaintiffs
112. The health hazards and environmental damage
created by the Defendant's operation of the Landfill oe
substantially diminished the value and use of Platneaiie
Property and, as such, constitute a partial taking of Plain-
tiffs’ property, for which Plaintiffs are entitled just com-
pensation under Chapter I, Arti
, icle 2nd, of th
Constitution. a
y of
227
RELIEF
WHEREFORE, Plaintiffs request the Court to provide
_the following relief:
A. Issue a preliminary and permanent injunction
which would, at a minimum, order Defendant to:
1) Immediately cease its acceptance of hazard-
ous, solid or any other waste of any kind;
2) Cease the unlawful discharge of hazardous
and toxic pollutants into the groundwater
beneath and around the Landfill and into
the surface waters of the Intervale;
B. Issue an Order directing Defendant to present to
the Court within 30 days a plan to excavate and properly
dispose of hazardous wastes in the Landfill;
C. Issue an Order directing Defendants not to alter
any part of the Landfill without the prior approval of a
court-appointed monitor (paid for by Defendant);
D. Issue an Order directing Defendant to present to
the Court within 30 days a plan to purge the hazardous
and toxic materials from the groundwater beneath and
around the Landfill and from the surface waters of the
Intervale;
E. Issue an Order to install and thereafter continu-
ously operate a leachate collection drain system,
F. Issue an Order directing Defendants to present to
the Court within 30 days a methane gas control and
abatement plan to remove all possibility of a methane gas
explosion on or near Plaintiffs’ property and that of other
affected property owners.
228
G. Issue an Order directing Defendant to report
monthly to the court-appointed monitor;
H. Issue an Order directing Defendant to permit the
court-appointed monitor to oversee Defendant in Defen-
dant’s implementation of corrective measures;
I. Issue an Order directing Defendant to obtain and
file a bond or equivalent security with the Court;
J. Impose upon Defendant civil penalties pursuant
to 42 U.S.C. § 6928(g) and 33 U.S.C. § 1319(d);
K. Award Plaintiffs all costs of litigation, including
reasonable attorney and expert witness fees, pursuant to
42 U.S.C. § 6922(e) and 33 U.S.C. § 1365(d);
L. Award Plaintiffs the sum of $500,000.00 in com-
pensatory damages, and the sum of $500,000.00 in puni-
tive damages;
M. Issue an Order to restore the Plaintiffs’ property
to its original condition prior to the methane gas explora-
tion.
N. Issue an Order that this Court retain jurisdiction
to supervise the carrying out of any order entered by the
Court concerning the remedial action to be taken by
Defendant; and
229
©. Any other relief as the Court may deem equita-
ble, just and proper.
Burlington, Vermont. 9 October 1985.
DOWNS RACHLIN & MARTIN
By: William K. Pearson
William K. Pearson
Attorney for Plaintiffs
100 Dorset Street
P.O. Box 190
Burlington, Vermont 05402
(802) 863-2375
230
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR., BETTY L.
DAGUE, ADMINISTRATRIX OF
THE ESTATE OF ERNEST J.
DAGUE, II, BETTY DAGUE and
ROSE A. BESSETTE
V.
CITY OF BURLINGTON
Civil Action
No. 85-269
Owe wee
PLAINTIFFS’ REPLY MEMORANDUM IN
SUPPORT OF THEIR APPLICATION FOR AWARD
OF FEES AND
In its opposition to Plaintiffs’ request for fees and
costs, Defendant claims: (1) Plaintiffs should get nothing
because they did not really prevail in this action; (2)
Plaintiffs should receive only a partial award because
they achieved only partial success; and (3) enhancement
of the lodestar is “foreclosed” by a decision of the United
States Supreme Court. There is no merit to any of these
claims.
I. THIS COURT HAS ALREADY DETERMINED THAT
PLAINTIFFS HAVE SUBSTANTIALLY PREVAILED
ON THEIR STATUTORY CLAIMS.
Defendant first challenges this Court’s determination
“that Plaintiffs have substantially prevailed in both their
RCRA and CWA claims.” It contends that Plaintiffs’ suc-
cess was so limited or insufficient to justify any award of
fees and costs. According to Defendant, the extent of
231
Plaintiffs’ success shouid be determined solely by com-
paring the relief obtained with the relief sought: it does
not matter (to Defendant) that this Court found Defen-
dant liable on four of the five statutory counts of Plain-
tiffs’ Complaint.!
Moreover, to suggest (as Defendant does) that this
Court’s Orders of March 26, 1986 and October 16, 1989
are merely superfluous to what it was already required to
do under orders of the State of Vermont not ao
audacious but flies in the face of a record replete wit
Defendant’s non-compliance’ with one (extended) dead-
line after another in a series of Assurances of ancmge4
nuance - the first of which dates back to December 15,
1981.?
In short, the Court has twice rejected Defendant's
mootness argument. The Court has also determined that
Plaintiffs have substantially prevailed on their statutory
claims, and are entitled to their “costs of litigation” under
42 U.S.C. § 6972(e) and 33 U.S.C. § 1365(d).
it would not have
1 If Defendant truly means what it says, | t hay
wasted valuable judicial resources by vigorously ——e
statutory liability over the past four years, but wou Pear
simply consented to judgment on its liability under RCRA a
the CWA.
i i ecting held
2 A review of the transcript of the emergency m held
on Tuesday evening, November 14, 1989, between the | .
Mayor, Board of Aldermen, and City Attorney, haa _——
j Defendant's conduct has been alter y this
Court’ Sota of October 16, 1989. (Plaintiffs will file a copy of
the transcript when it becomes available to the public — in
about a week).
232
Il. DEFENDANT’S GENERALIZED OPPOSITION IS
INSUFFICIENT TO REDUCE THE LODESTAR.
Defendant next contends that even if Plaintiffs did
prevail, the lodestar requested is too high. Defendant's
opposition to Plaintiffs’ fee request, however, is notable
for what it does not contain, namely any specific objec-
tions to either the reasonableness of the rates charged or
hours expended by Plaintiffs’ attorneys. Defendant's fail-
ure to specify particular hours it believes to be excessive
precludes it from contesting the lodestar amount, since
generalized objections are an inadequate basis for such
reduction. Stokes v. City of Montgomery, Ala., 706 F.Supp.
811 (M.D. Ala. 1989).
Indeed, Plaintiffs submit that Defendant has, in
effect, conceded that both the rates and hours spent are
reasonable. Rather, Defendant argues only that Plaintiffs’
success is partial or limited, at best, and asserts that they
should not be awarded fees for their “failures.”* Defen-
dant overlooks Dominic v. Consolidated Edison Co., 822 F.2d
1249 (2d Cir. 1987) and its holding that, when the issues
are so intertwined factually, a fully compensatory fee
3 In its opposition, Defendant requests “an opportunity to
engage in discovery of Plaintiffs’ counsel concerning the
allocation of the time they represent has been spent on various
aspects of the case.” With all due respect, Defendant has had
the opportunity to review the 87 pages of Exhibit | attached to
Plaintiffs’ Application for Award of Fees and Costs. Such docu-
mentation makes clear that there is no need for discovery prior
to any fee award and, indeed, such evidentiary proceedings
have been met with disfavor by the courts. See Copeland v.
Marshall, 641 F.2d 880, 905 (D.C. Cir. 1980); Konczak v. Tyrrell,
603 F.2d 13, 19 (7th Cir. 1979), cert. denied, 444 U.S. 1016 (1987).
233
award is justified even where a plaintiff did not prevail
on all of his claims. See United States Football League v.
National Football League, 887 F.2d 408, 58 U.S.L.W. 2257 (2d
Cir. Oct. 10, 1989) (court held it was not error to include
in the lodestar determination time spent on antitrust alle-
gations dismissed prior to trial and other unsuccessful
claims; “development of factual allegations and theories
to support a claim is part of the normal litigation process
and should be compensable.”)
Thus, it is well-settled that a fee request should not
be reduced or enhancement denied by mere application
of a mathematical formula in which the total number of
issues are blindly compared to the number of issues
prevailed upon. Hensley v. Eckerhart, 461 US. 424, 103
S.Ct. 1933, 1940-41 n.11 (1983). Here, there should be no
“artificial distribution” of attorney time between the suc-
cessful and unsuccessful claims, as all the issues involved
a “common core of facts” and were “based on related
legal theories.” Dominic, 833 F.2d at 1259.
IIT. Ae LODESTAR SHOULD BE
Finally, Defendant contends that any enhancement of
the lodestar is improper, citing Pennsylvania v. Delaware
Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct.
3078 (1987) (Delaware Valley Il). The United States
Supreme Court recently affirmed, however, enhancement
of reasonable hourly rates for the delay in payment of
attorneys’ fees. Missouri v. Jenkins, 109 S.Ct. 2463 (1989)
(an enhancement for delay in payment of a statutory fee
award against a state governmental entity is permissible).
234
Since Delaware Valley II, numerous courts have also
enhanced lodestar amounts based on a contingent fee
arrangement between plaintiffs and their counsel. See,
e.g., Stokes v. City of Montgomery, Ala., 706 F.Supp. 811
(M.D. Ala. 1989) (court enhanced the lodestar 100 per-
cent); Fadhl v. City and County of San Francisco, 859 F.2d
649 (9th Cir. 1986) (100 percent multiplier affirmed); see
also Palmer v. Shultz, 679 F. Supp. 68 (D.D.C. 1988) (100
percent enhancement affirmed). Lastly, there is simply no
support whatsoever that in a case such as this the enhan-
cement is limited as a matter of law to one-third of the
lodestar. Stokes, Fadhl and Palmer, supra.
Plaintiffs submit that this is an appropriate case for a
fee enhancement.
CONCLUSION
Plaintiffs’ Application for Award of Fees and Costs is
unchallenged on any specific grounds by Defendant.
Accordingly, this Court should award Plaintiffs a lodestar
amount of $198,027.50, which fee should be doubled,
together with an award of $7,295.00 for expert witness
fees and $3,634.66 for expenses incurred in this action.
Plaintiffs further request that this Court order Defen-
dant to pay Plaintiffs forthwith their “costs of litigation”
under 42 U.S.C. § 6972(e) and 33 USC. § 1365(d), to
ensure that Defendant does not prevail by conducting an
economic war of attrition. To do otherwise will discour-
age other private attorneys general from engaging in
public interest litigation to enforce the very statutes this
235
Court has already determined Defendant to have vio-
lated.
Burlington, Vermont. 22 November 1989.
DOWNS RACHLIN & MARTIN
Attorneys for Plaintiffs
By: Richard N. Bland
Richard N. Bland
William W. Pearson
199 Main St., P.O. Box 190
Burlington, VT 05402-0190
(802) 863-2375
236
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR., )
ERNEST DAGUE, JR., )
BETTY DAGUE AND )
ROSE A. BESSETTE ) Civil Action
)
)
)
No. 85-269
V.
CITY OF BURLINGTON
SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO
PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES
RCRA and the Clean Water Act each provide that if a
party substantially prevails in the case, a court may
award attorney's fees as appropriate (42 U.S.C. § 6972(e)
and 33 U.S.C. § 1365{d)). Consequently, the threshold
issue in this case with respect to the award of attorney's
fees is whether or the Plaintiffs have substantially pre-
vailed' in the lawsuit. Although this Court has stated in
its Opinion and Order dated October 16, 1989, “that
' The requirement in RCRA and the Clean Water Act that
the fee seeking party “substantially prevail” suggests a more
exacting standard than applies in cases governed by the Civil
Rights Attorney’s Fee Award Act, 42 U.S.C. § 1988. That Act
uses only the term “prevailing” and not the term “substantially
prevailing.” In the cases that have applied that act and stan-
dard, it has been held that the party must show that they
received “at least some relief on the merits” of the claim before
they can be said to prevail. (Hewitt v. Helms, 482 U.S. 755, 759,
96 L.Ed.2d 654, 661, 107 S. Ct. 2672 (1987), (emphasis added). If
some relief establishes a status as a prevailing party, presuma-
bly substantial relief must be obtained to be characterized as a
substantially prevailing party.
237
Plaintiffs have substantially prevailed in both their RCRA
and CWA claims,” Defendant, City of Burlington, respect-
fully submits that even though the Court may have con-
cluded that the Plaintiff prevailed on a majority of the
legal issues in the case, nevertheless, the Plaintiffs have
not “substantially prevailed” as those terms have been
interpreted in decisions concerning the award of attor-
ney’s fees.
It is clear that the Plaintiffs did not prevail com-
pletely. The Court held in favor of the Defendant on
several issues and denied much, if not most, of the relief
Plaintiffs had requested. The relief which was granted
was, as Defendants have previously argued, identical to
the obligations imposed on the City by the State of Ver-
mont. In effect, this Court’s opinion evidences the Court's
approval of the measures and time table established by
the State for closure of the City’s landfill and for mitigat-
ing any adverse affect that the landfill might otherwise
have on the environment.
It is equally clear that the extent to which a party
may have prevailed is directly measured by the extent to
which the party obtained relief. As the U.S. Supreme
Court held in Rhodes v. Stewart, 488 U.S. 102 L.Ed.2d
1, 109 S. Ct. ___ (1988) “in the absence of relief, a party
cannot meet the threshold requirement of § 1988 that he
prevail, and in consequence he is not entitled to an award
of fees.” Id. at 102 L.Ed.2d 6.?
? The Court in Pennsylvania v. Delaware Valley Citizens
Council for Clean Air, 478 U.S. 546, 92 L.Ed.2d 439, 106 S. Ct.
(Continued on following page)
238
Accepting, for the purposes of discussion at least,
that in an environmental action relief need not be per-
sonal to the plaintiff or a class of plaintiffs, but may
instead relate to a thing or a practice or activity of the
defendant; nevertheless, to be considered prevailing, a
party must still obtain some of the relief sought (in the
case of Clean Air Act (42 U.S.C. 7604(d) or civil rights
claims) or a substantial amount of the relief sought (in the
case of Clean Water Act or RCRA claims). It is further
submitted that, in keeping with Rhodes v. Stewart and
Hewitt v. Helms, supra, the defendant's obligation with
respect to the subject matter of the lawsuit must be
changed by the lawsuit even if the defendant's obliga-
tions toward the plaintiff need not be directly affected. In
this case the Defendant's obligation to the Plaintiffs or the
subject matter of this lawsuit have not been changed by
any orders of this Court.
During the period of time that this lawsuit has been
pending (since its filing on October 9, 1985) the City of
Burlington has undertaken the following activity with
regard to the landfill.
1. Installation of the methane gas contro] system;
2. Installation of the leachate collection system; and
3. Preparation of the landfill for final closure.
(Continued from previous page)
3088 (1986) (Delaware Valley |) held that an award of attor-
ney’s fees under the citizen suit provisions of the Clean Air
Act, 42 U.S.C. § 7604(d) should be governed by the same
principles of case law governing an award of fees under 42
U.S.C. § 1988.
239
While it is true that those same actions were the
subject of orders issued by this Court and were within the
scope of the relief sought by the Plaintiffs, the inquiry
must not end here. The next question is whether the
laintiffs’ lawsuit (and hence this Court’s Orders) were
the cause in fact of those actions. Child v. Spillane 866 F.2d
691 (4th Cir. 1989) (an applicant must demonstrate that a
casual connection exits between the relief obtained and
the litigation), Disabled in Action of Pennsylvania v. Pierce,
789 F.2d 1016 (3rd Cir. 1986) (Case under the Rehabilita-
tion Act of 1973 (29 U.S.C. § 794 and 42 U.S.C. § 1988;
where case settled, plaintiff’s lawsuit must be a material
factor in prompting the defendant to afford relief) and
Posada v. Lamb County Texas, 716 F.2d 1066 (Sth Cir. 1983)
(plaintiff's action under the Voting Rights Act, 42 U.S.C.
19731(e) was not a significant catalyst for and hence was
not a cause in fact of the defendant's efforts to develop
constitutionally adequate plans to protect minority voting
rights; thus, attorney’s fees not awarded.)
The chronology of events relevant to activities listed
in items one, two and three above compel the conclusion
that Plaintiffs’ lawsuit was not the cause in fact of those
activities. First, each of those three actions was mandated
by the Assurance of Discontinuance dated January 31,
1985 and the March 1985 Order of the Chittenden Supe-
rior Court (Trial Exhibit 4). Second, the engineering and
design work for the methane gas control system (MGCS)
and the leachate collection system (LCS) were carried out
by the engineering firm of O’Brien and Gere beginning in
April of 1985 (see Affidavit of Steve Goodkind, see
“Attachment A”). Third, final plans and specifications
were completed by O’Brien and Gere by August, 1985.
240
Fourth, solicitation for bids on the installation on the
MGCS and the LCS were sent out on September 5, 1985.
Fifth, bids were received on October 5, 1985. Each of
those activities or events occurred before the Plaintiffs
commenced the instant action on October 9, 1985 and
before the Plaintiffs gave notice to the City or any other
entity that they were bringing the instant action (October
8, 1985).
Installation of the MGCS and LCS began on Novem-
ber, 1985. On December 18, 1985 the State brought suit
against the City for missing the deadline for installation
of the MGCS (12/2/85) and the LCS (9/2/85). The meth-
ane gas control system was operational on December 27,
1985, and both the leachate collection system and the
methane control system were fully operational before
March 26, 1986, the date of this Court’s Order concerning
Plaintiffs’ request for preliminary injunctive relief.
Although the City had previously encountered
delays and obtained extensions of deadlines or amend-
ments to Assurances of Discontinuance, it cannot be pre-
sumed that but for the Plaintiffs’ suit, similar extensions
and delays would have occurred in this instance. Posada
v. Lamb County Texas, supra (it could not be presumed that
but for the plaintiff's actions, the Attorney General would
not have complied with his legal duties). Furthermore,
the fact that the City had obtained final engineering plans
forthe project and had solicited bids for the engineering
work as well as the fact that the State was aggressively
enforcing the state Court Order, all serve to rebut any
suggestion that the Plaintiffs’ case prompted the defen-
dants actions.
241
In summary on this point, Defendant submits that
the chronology of events pertaining to the landfill as they
relate to and parallel the Plaintiffs’ request for relief in
the Orders of this Court demonstrate-that the Plaintiffs’
lawsuit did not function as a cause in fact of those events.
In the words of the 5th Circuit Court of Appeals in
Posada, “plaintiffs simply caught the train as it pulled out
of the station.” Id. at 1071.
PLAINTIFFS ACHIEVED LIMITED SUCCESS AT BEST
If this Court nevertheless concludes that a sufficient
causal relationship exists between the lawsuit and the
conduct of the Defendant pertaining to the landfill,
Defendant contends that the Plaintiffs’ success was not
complete; and having obtained only limited success,
Plaintiffs are only due payment of a limited amount of
their attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 76
L.Ed.2d 40, 103 S. Ct. 1933 (1983). The lodestar fee award
requested by the Plaintiffs ($198,027.50) should be
reduced by the deleting charges pertaining to:
1. The Plaintiffs’ failed effort to obtain preliminary
injunctive relief;
2. Plaintiffs’ appeal of this Court's decision on the
request for preliminary relief;
3. Time spent on the common law tort claims for
damages;
4. Time spent on the State Groundwater Act claim,
10 U.S.C. § 1390, et seq.; and
5. Repetitive or unproductive time.
SS
242
Plaintiffs’ accounting of fees while detailed, does not
allow for a completely accurate allocation of the time
among these various areas. However, excerpts from
Plaintiffs’ time records which relate in whole or in part+to
these challenged areas are reproduced in “Attachment B.”
Although it may not be possible to determine ail of the
hours spent in each of the challenged categories, it is
possible to establish a reasonably conservative minimum
numbers of hours spent in each of those categories.
The first two categories (preliminary injunction work
and work on the appeal) are more procedural categories
than substantive. Defendant recognizes that the issues
covered by those two categories are intertwined with and
indeed are the same as the RCRA and CWA issues raised
by the Complaint. Still, Plaintiffs were unsuccessful in
both of those efforts and both of those efforts reflect work
that was not only unsuccessful, but repetitious of other
work done in the case. In that regard, Defendant points
out that prior to commencing the lawsuit, one of Plain-
tiffs’ counsel spent in excess of 100 hours researching the
law. Such thoroughness may be commendable, but when
it is performed by an attorney who professes to be experi-
enced in the substantive areas involved in the suit (Bland
Affidavit Section 6, Page 4), Defendant questions either
the degree of experience claimed or the need for the
amount of research done. It is inappropriate to require
the Defendant to pay for the repetition of that research to
the extent it was involved in the preliminary injunction
effort and the ensuing appeal. Not only should the repe-
titious research in those two efforts be disaliowed, but all
time spent in both of those efforts should be disallowed, -
both because of the lack of success and because the effort
243
had to be repeated in preparation for the trial on Plain-
tiffs’ request for permanent relief.
With respect to time spent on the pendant [sic] state
claim for damages, Defendant assumes that attorney’s
fees for work done on those common law claims in prepa-
ration for the upcoming trial of that case will not be
awarded. By the same token, to the extent that time spent
on those pendant claims is identifiable from the Plaintiffs’
time records, it should also be disallowed.
With regard to the state Groundwater Protection Act,
inasmuch as that act does not allow for an award of
attorney’s fees, to the extent that the time devoted to that
effort can be identified from Plaintiffs’ time records, it
should be disallowed.
Finally, with regard to other repetitive or unproduc-
tive time, for many of the activities on the case, three
individuals were involved in doing the same thing. Attor-
neys Pearson, Bland and legal assistant Case were often
all in attendance at depositions, and hearings, or all were
engaged in review of the same memorandum or prepara-
tion of the same motion. In that regard, Defendant chal-
lenges the appropriateness of the charge for the time of
legal assistant Case.
Further in that same category, Defendant challenges a
portion of the time spent by Plaintiff in putting together
their application for an award of attorney's fees. A total
of 58.9 hours with charges of $4,709 expended in this
effort is inordinate in light of the fact that Plaintiff's
attorneys presumably have computerized billing and
record keeping which should reduce to a minimum the
amount of time necessary to compile the data pertaining
244
to attorney's fees, and in light of the fact that Plaintiffs’
firm has had direct experience before this Court in seek-
ing an award of attorney’s fees and, therefore, should be
well versed in the applicable law as well as presumable
having done the requisite investigative work concerning
reasonable attorney's fees for purposes of establishing the
lodestar amount.
Defendant cites to Dominic v. Consolidated Edison Com-
pany of New York, Inc., 822 F.2d 1249 (2nd Cir. 1987) and
U.S. Football League v. National Football League, 887 F. 2d
408 (2nd Cir. 1989) as authority for their suggestion that
no effort should be made to reduce the lodestar award
due their limited success. In this argument, however, the
Plaintiffs overlook the fact that unlike the age discrimina-
tion claim and the retaliatory discharge claim made by
Dominic, or the antitrust claims in U.S.F.L., Plaintiffs’
RCRA claims concerning Defendant's notification and
permit requirements were not inextricably intertwined
with the other claims-taised, nor are the Plaintiffs’ com-
mon law claims of nuisance and trespass inextricably
intertwined. Furthermore, deletion of the time spent on
the preliminary injunction and the appeal does not entail
an effort to draw a fine distinction between substantive
issues. Rather, it simply requests disallowance of unsuc-
cessful and repetitious efforts. Finally, Plaintiffs reliance
on Dominic overlooks the instructions from Hensley v.
Eckerhart, supra, that if there are related legal theories
involving a common core of facts that are not susceptible
of being delineated, the Court “should focus on the sig-
nificance of the overall relief obtained by the plaintiff in
relation to the hours reasonably expended on the litiga-
tion.” Id. at 461 U.S. 424, 435, 76.Ed.[sic}2d 40, 51-52, 103
245
S. Ct. 1933, 1940 (1983). Therefore, if, due to the inter-
relatedness of the events and subject matter of various
aspects of the lawsuit particular hours of work cannot be
eliminated, nevertheless, the Court should reduce the
hours reasonably expended on the overall litigation so
that it reasonably relates to the relief obtained. In both
Dominic and U.S.F.L. the Second Circuit recognized this
obligation. This Court is similarly constrained.
Defendant also challenges Plaintiffs’ request for pay-
ment of its fees at its current rates. The Second Circuit
has held in New York Association for Retarded Children v.
Carey, 711 F.2d 1136 (2nd Cir. 1983), that lodestar amount
should be calculated at the historic rate, not the current
rate. In that case, the Circuit Court also established the
requirement that contemporaneous time records be main-
tained in order to support the lodestar award. To the
extent that Attorney Pearson did not maintain contempo-
raneous time records for the period of April 1985 to
October 1985 (see affidavit of Attorney Pearson para-
graph 7, page 3), his fees should be disallowed entirely.
And to the extent that the time spent on the request for
attorney's fees includes time spent in an effort to recon-
struction Attorney Pearson's time, that time should also
be disallowed.
NO ENHANCEMENT SHOULD BE ALLOWED
Plaintiffs identify several factors which they contend
justify an enhancement of their fee in this case. These
factors are the risk and amount involved; the novelty of
the issues raised and the difficulties in prosecuting the
case; the undesirability of the case; the skill required, the
246
experience and ability of the attorneys; the preclusion
from other employment by the attorneys because of the
delay; and the delay and the results obtained, citing
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (7th
Cir. 1984), Plaintiffs Memorandum in Support of Plain-
tiffs’ Application for Fees and Costs at p. 5. But, those are
not the proper criteria for determining whether or how
much of an enhancement may be appropriate.
Defendant acknowledges having erroneously charac-
terized the opinion in Pennsylvania v. Delaware Valley Citi-
zens Council, 483 U.S. 711, 97 L.Ed.2d 585, 107 S. Ct. 3078
(1987), (Delaware Valley II) as a majority opinion rather
than a plurality. Therefore, this Court is not bound to
apply enhancement in the manner called for by the plu-
rality. However, the Opinion of Justice O’Conner to which
courts have subsequently looked for guidance in award-
ing enhancements, see, e.g., Stokes v. City of Montgomery,
Ala., 706 F.2d 811 (M.D. Ala. 1989), does not support an
enhancement award based on the factors cited by the
Plaintiff. Justice O’Conner expressly agreed with the plu-
rality that the legal risk of loss in a particular case would
not support an enhancement. 483 U.S. 734, 97 L.Ed 2d
603. She also agreed the novelty of the issues raised or
difficulties in prosecuting the case as well as the skill,
experience and ability of the attorneys involved were all
adequately compensated under the lodestar award. Jus-
tice O'Conner concluded that an enhancement is appro-
priate only to the degree that the relevant market
compensates for contingency cases. The burden of prov-
ing that issue lies with the fee applicant. Id.
Assuming arguendo that a. enhancement is appropri-
ate in this instance, Plaintiffs have nevertheless failed to
247
meet their burden of establishing the degree of an
enhancement because they have failed to establish the
degree to which the relevant market compensates for
contingency. The Affidavits of attorneys Michael G. Fur-
long, Robert A. Mello and Jon R. Eggleston are submitted
in support of the Plaintiff's request. None of those attor-
neys professes to engage primarily in plaintiff's work. In
fact, both Attorney Furlong and Attorney Eggleston state
that their firms do little plaintiff's work. Each of the
attorneys stated that when they do contingent work, the
percentage of recovery is normally fixed at a level which
would return more to the firm than would be charged at
hourly rates; but none of the attorney’s [sic] stated the
degree to which their contingent return would exceed
their hourly return. Therefore the plaintiffs have not
established a basis for any contingency enhancement.
Without doubt attorneys hope to obtain a settlement
or a damage award that results in a fee greatly in excess
of their hourly rate. At times they succeed but in many
instances the return is less. A contingency multiplier of
the hourly rate based on what counsel in a particular
market hope to see in contingent cases case [sic] can not
logically support a request for enhancement by that same
amount in all cases. Just as only some contingency cases
actually yield a fee consistent with a high multiplier, only
some “prevailing parties” prevail to the extent that a
multiplier of the lodestar is appropriate. For the reasons
set forth throughout this memorandum, the degree of
success obtained by the plaintiff is insufficient to support
a lodestar award, much less an enhancement of that
award.
248
Plaintiffs also seek enhancement based on delay
between the institution of the suit and its conclusion, a
subject most recently addressed by the U.S. Supreme
Court in Missouri, et al. v. Jenkins, US __, 105 L.Ed.2d
229, 109 S. Ct. 2463, 57 U.S. Law Week 4735. In Jenkins, the
Court held that an adjustment for delay in payment based
on current rather than historic hourly rates or otherwise
is within the contemplation of the statute. The Court did
not hold that it was required in all instances. On the facts
of the case before it, the delay had resulted in a substan-
tial hardship, the plaintiff's firm was small and it
incurred $633,000 of debt to keep the firm running during
the pendency of the suit. The Plaintiffs’ firm in this case
is not similarly situated. The firm is large and by all
appearances prosperous. Based on the number of hours
spent by Plaintiffs’ counsel during the pendancy [sic] of
this case, even as substantial as they were, each of the
attorneys and other staff still had the overwhelming
majority of their work time available for other clients. In
these circumstances, Defendant submits that a delay
enhancement is not only unnecessary, but inappropriate.
SUMMARY
An award of any attorneys fees in this case is inap-
propriate and contrary to the standards established for
such an award in this Circuit and by the United States
Supreme Court. Plaintiffs have not prevailed, much less
have they substantially prevailed as those terms have
been interpreted in the context of attorneys’ fee cases.
Alternatively, and if this court nevertheless finds that the
plaintiffs have prevailed, defendant request [sic] that in
249
the exercise of its discretion this court reduce the plain-
tiff’s lodestar figure by at least 75 percent to reflect the
limited success obtained. Defendant requests that enhan-
cement of the lodestar be denied. The burden of proof is
on Plaintiffs as fee applicants, to establish their entitle-
ment and the reasonable amount. They have not dis-
charged those burdens.
Dated at Burlington, Vermont this 7th day of Decem-
ber, 1989.
DINSE, ERODMANN & CLAPP
By: /s/ Robert R. McKearin
Robert R. McKearin, Esq.
Attorney for Defendant
McNEIL & MURRAY
By: /s/
Nancy G. Sheahan, Esq.
Attorney for Defendant
SS
250
ATTACHMENT A
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR.,
ERNEST DAGUE, JR.,
BETTY DAGUE AND
ROSE A. BESSETTE
v.
CITY OF BURLINGTON
Civil Action
No. 85-269
eee ee ee
AFFIDAVIT OF STEVEN GOODKIND
I, STEVEN GOODKIND, being first duly sworn,
hereby depose and state as follows:
1. My name is Steven Goodkind.
2. Iam the City Engineer for the City of Burlington.
3. As such I have been directly involved with the
operation of the City of Burlington’s landfill. | have also
been one of the primary technical representatives of the
City of Burlington in its relations with the State of Ver-
mont and private engineering firms.
4. In April of 1985, O’Brien & Gere Engineers were
authorized to begin final design of the landfill leachate
collection system and methane control system and cap-
ping.
5. In August of 1985, final plans and specs were
received from O’Brien & Gere for the leachate collection
and methane control systems.
251
6. Both systems were accepted by the State of Ver-
mont as being designed to provide the level of control
necessary to achieve compliance with the State Court
Order of March, 1985, and the Assurance of Diseonti-
nuance.
7. On September 5, 1985, contracts for the leachate
collection and methane control systems were sent out to
bid.
8. The City executed contracts with Ralph B. Good-
rich Company, Inc., on November 11, 1985, for installa-
tion of both systems.
9. The methane gas control system began operation
on December 27, 1985, utilizing temporary blowers.
10. Installation of the complete, as designed, meth-
ane control system was in place and operating prior to
March 26, 1985. Final inspection by the manufacturer
occurred on March 25, 1986.
11. The leachate collection system began operations
on January 15, 1986. On that date, the associated pump
Station, the function of which was to pump collected
leachate to the wastewater treatment plant. Until the
pump station was completed on March 6, 1986, collected
leachate was trucked to the wastewater treatment plant.
12. The complete, as designed, leachate collection
system was in place and operating as of March 7, 1986.
13. I am personally familiar with the design and
selection of both systems and based on that familiarity, |
can say that the suit by the Dagues, et al, had nothing to
do with the decision to install the systems, the design of
:
ee Ee
= . — Oe —_
252
the systems, or the decision on when they should be or
were installed.
Dated at Burlington, Vermont this 7 day of December,
1989. i
/s/ Steven Goodkind
Steven Goodkind
Sworn and subscribed to before me this 7th day of
December, 1989. _
Before me Alison Coburn
Notary Public
ATTACHMENT B
EXCERPTS FROM PLAINTIFFS’
ATTORNEY’S FEES RECORDS
Sample Entry -
Date: Atty: Hours: Amount:
Description of Services:
04/11/85 MJC 4.4 154.00
Review landfill news articles; photograph Dague
property before excavation; conference with clients
regarding retainer agreements.
04/12/85 MJC 2.5 87.50
Conference with clients regarding revised
retainer agreements; pick up City Attorney’s let-
ter regarding indemnification for excavation of
Dague property.
253
04/15/85 MJC 3.0 105.00
Property inspection of City excavation for sewer
pipe; draft memorandum regarding principals
in case.
04/16/85 MJC 7.5 262.50
Property inspection during initial search for sewer
pipe; photograph same; conference with clients
and Street Department personnel regarding
methane problem; report to Attorney Pearson
regarding same.
04/17/85 MJC 7.5 262.50
Property inspection during renewed excavation
for sewer pipe; photograph same; conference
with Street Department officials and clients
regarding same.
04/18/85 MJC 35 192.50
Continued property inspection during excava-
tion of clients’ land; additional photographing;
conference with Street Department personne!
and clients regarding same.
04/19/55 MJC 5.8 203.00
Further property inspection and photograph same;
conference with Attorney Pearson regarding
methane levels on Dague property; develop test
form for client use.
04/29/85 MJC 1.0 35.00
Fact investigation at City Hall regarding finance
board action.
05/03/85 MJC 1.8 63.00
Conference with Attorney Pearson and clients
regarding claims against City and City’s liability
for damages to Dague property; photograph
recent excavation and restoration of law.
254
06/10/85 MJC 2.7 94.50
Telephone conference with Ernie Dague, Jr. and
Attorney Gretchen Bailey regarding status of
City’s replacement of clients’ law; telephone
conference with landscaping firms regarding
feasibility of sodding and use; conference with
clients regard [sic] same.
06/11/85 MJC 0.5 17.50
Analyze possible solution to grass-growing
problem for clients.
06/13/85 MJC 0.6 21.00
Telephone conference with Attorney Gretchen
Bailey regarding City’s decision on clients’ law:
telephone conference with Betty Dague regard-
ing same.
06/14/85 MJC 1.0 35.00
Telephone conference with Attorney Gretchen
Bailey regarding City’s decision on clients’ law:
memorandum to Attorney Pearson regarding
same.
07/02/85 WwWWP 0.3 25.50
Analyze damages to clients’ property
07/02/85 MJC 1.2 48.00
Referencing law restoration
07/09/85 MJC 1.0 40.00
Referencing damage to Dague lawn.
07/17/85 MJC 1.2 48.00
Inspection of Dague property concerning law
problems (including Attorney Pearson).
10/06/85 RNB 4.3 193.50
Continue to revise Complaint, including sec-
tions on Plaintiffs’ injuries and Count VIII on
uncompensating taking; conference with Attor-
ney Pearson regarding same.
255
10/10/85 RNB 0.9 40.50
Preparation for preliminary injunction hearing.
10/11/85 MJC 2.5 100.00
Preparation for hearing on Motion for Prelimi-
nary Injunction.
10/14/85 RNB 7.2 324.00
Legal research on case law and commentary
under RCRA and CWA; Interview with Donald R.
Bessette regarding his mother joining lawsuit; con-
ference with Attorney Pearson regarding need
for methane gas expert and expert on endanger-
ment present by landfill.
10/14/85 MJC 5.3 212.00
... conference with Attorney Pearson in prepa-
ration for preliminary injunction hear-
ing; . . . conference with Mr. Bessette regarding
nuisance and methane gas claims and possibility
of his mother joining lawsuit as Plaintiff.
10/14/85 WWP 3.5 297.50
Interview Mr. Bessette; draft retainer agreement;
read notification regulations; identify experts
for affidavits; review Complaint for factual
basis.
10/15/85 RNB 6.2 279.00
Legal research of case law and legislative his-
tory of RCRA and CWA for preliminary injunc-
tion hearing; . . . further preparation for hearing.
10/15/85 MJC 0.8 32.00
-.. conference with Attorney Pearson regarding
organization of file in preparation for hearing
and further investigation in preparation for
hearing.
10/16/85 RNB 3.7 166.50
Legal research on requirement of security for
the issuance of a preliminary injunction. . . .
\
256
10/16/85 MJC 4.0 160.00
Interview Don and Rose Bessette at Mrs.
Bessette’s home; investigation of methane gas
migration there; compile and sent expert mate-
rials to experts.
10/17/85 RNB 4.2 189.00
Telephone conference with Dr. Roebuck of
Dartmouth Medical School regarding review of
data to testify to determine that landfill may
present a substantial and imminent hazard... .
10/18/85 MJC 1.0 40.00
Conference with Don Bessette and Louis
Bessette.
10/18/85 GLH 2.5 87.50
Interviews of property owners adjacent to the
City landfill.
10/21/85 MJC 2.2 88.00
Conference with Attorney Pearson regarding
adding Rose Bessette as party plaintiff to law-
suit; conference with Dagues regarding same.
10/22/85 RBL 2.5 150.00
Preparation for hearing on Motion for Prelimi-
nary Injunction. .. .
10/22/85 RNB 7.3 328.50
‘+ Preparation for preliminary injunction. .. .
10/23/85 WWP 5.5 467.50
... further research on preliminary injunction
Standards. .. .
10/23/85 RBL 4.0 240.00
Legal research in response to Motion to Con-
tinue hearing for preliminary injunction; . .
257
10/23/85 RNB 8.7 391.50
Draft affidavits in support of Motion for Prelim-
inary Injunction; revise Memorandum in Oppo-
sition to Motion to Continue Hearing. . . .
10/23/85 MJC 4.2 168.00
Telephone conference with Ruth Einstein and
Julie Hackbarth regarding testimony at prelimi-
nary injunction hearing; . . . organize file in
preparation for preliminary injunction hearing;
10/24/85 WWP 3.0 255.00
Preparation and filing of affidavits; telephone
conferences with experts; telephone conference
with Ms. Smith; conference with clients; prepare
for hearing.
10/24/85 RBL 3.0 180.00
Draft additional language to supplement Mem-
orandum In Opposition to Motion to Continue;
draft memorandum on preliminary injunction
standards.
10/24/85 RNB 9.2 414.00
- Preparation for hearing on preliminary
injunction. . .
10/24/85 MJC 8.6 344.00
Preparation for preliminary injunction hear-
ae
10/25/85 WWP 4.0 340.00
Prepare for hearing on Motion for Preliminary
Injunction.
10/25/85 RNB 7.6 342.00
Draft Affidavit of of [sic] Dr. Frank Reed; prepa-
ration for hearing on preliminary injunction;
telephone conferences with Hackbarth and Eins-
tein regarding testimony at preliminary injunc-
tion hearing .. .
258
10/25/85 MJC 4.5 180.00
Meeting with clients to sign Affidavits for pre-
liminary injunction hearing; inspect Bessette
property; test basement yard and bank holes for
presence of methane gas.
10/26/85 WWP 2.0 170.00
Prepare for preliminary injunction hearing.
10/27/85 WWP 12.0 1,020.00
Preparation for tomorrow’s preliminary injunc-
tion hearing.
10/27/85 RNB 11.2 504.00
Preparation for preliminary injunction hear-
_ are
10/27/85 MJC 10.5 420.00
Preparation for preliminary injunction hear-
ee
10/28/85 WWP 10.0 850.00
Prepare for and represent clients at preliminary
injunction hearing at federal court.
10/28/85 RNB 7.4 333.00
Preparation for and assist at hearing on prelimi-
nary injunction.
10/28/85 MJC 7.5 300.00
Prepare for and attendance at hearing; service of
subpoenas; and conference with witnesses.
10/31/85 MJC 10.5 420.00
Conference with Attorney Pearson regarding
work in preparation for 12/10/85 court hear.
ing. ...
11/01/85 MJC 0.8 32.00
Review photos for use at continued preliminary
injunction hearing and/or trial.
12/02/85 MJC 6.2 248.00
Preparation for 12/9/85 hearing; ... .
259
12/03/85 RNB 9.2 514.00
Preparation for hearing. . . .
12/03/85 MJC 6.8 272.00
Attend Goodkind deposition. . . .
12/04/85 RNB 9.4 423.00
Finish drafting proposed Findings of Fact; draft
proposed Conclusions of Law; ... .
12/05/85 WWwPpP 7.5 637.50
-». prepare Motion and Memorandum for Sanc-
tions (?); prepare for Monday’s hearing.
12/06/85 WWP 8.0 680.00
Review signed Interrogatories, Motion for Sanc-
tions, prepare for Monday’s hearing. . . .
12/06/85 RNB 8.3 373.50
Extensive preparation for hearing on prelimi-
nary injunction.
12/07/85 RNB 5.3 238.50
Revise proposed Findings of Fact; thorough
review of deposition, transcripts and exhibits.
12/08/85 WwwpP 13.0 1,105.00
Preparation for preliminary injunction hearing.
12/08/85 RNB 11.2 504.00
Preparation for hearing on preliminary injunc-
tion. .
12/08/85 MJC 13.0 502.00
Preparation for preliminary injunction hear-
rr
12/09/85 WWP 11.7 994.50
Prepare for and attend hearing; prepare for and
take Countryman’s deposition.
12/09/85 RNB 11.7 526.50
Preparation for hearing; attend and assist at
same; preparation for deposition of William
Countryman; attend at same.
260
12/09/85 MJC 10.6 424.00
Preparation for and attend preliminary injunc-
tion hearing; ... .
12/10/85 GLH 1.2 42.00
Assist in transporting and delivering files to
federal court for hearing.
12/10/85 RNB 8.4 378.00
Referencing preliminary injunction hearing.
12/10/85 MJC 9.3 372.00
Preparation for and attend preliminary injunc-
tion hearing. . . .
12/11/85 WwPpP 9.5 807.50
Preparation for and attend preliminary injunc-
tion hearing; ... .
12/11/85 RNB 5.2 234.00
Review Goodkind deposition exhibits concern-
ing migration of methane from the landfill for
use at the hearing; attend same.
12/11/85 MJC 6.5 260.00
Preparation for preliminary injunction hearing;
12/12/85 WwWwpP 9.0 765.00
Preparation for and attend hearing.
12/12/85 RNB 7.4 333.00
Draft preliminary statement and first argument
of discussion re: preliminary injunction
12/12/85 MJC 6.5 260.00
Attendance and note takingat preliminary
injunction hearing.
12/13/85 WWwP 9.0 765.00
Preparation for and attend hearing
12/13/85 RNB 7.5 337.50
Draft memoranda concerning preliminary
injunction hearing.
261
12/13/85 MJC 6.5 260.00
Attend and note taking at preliminary injunc-
tion hearing.
12/13/85 GLH 6.0 210.00
Assist in transporting files to Court. . .
12/14/85 RNB 3.7 166.50
Drafting arguments concerning preliminary
injunction.
12/15/85 WWP 11.0 935.00
Preparation for hearing.
12/15/85 RNB 13.2 594.00
Revision of memorandum on preliminary
injunction motion.
12/16/85 WwWwPpP 9.0 765.00
Preparation for and attend hearing.
12/16/85 RNB 8.5 382.50
Finished drafting memoranda concerning hear-
eae
12/16/85 MJC 8.0 320.00
Attending and note taking at preliminary
injunction hearing.
12/17/85 wwpP 5.6 476.00
Organize files from hearing; outline memoran-
dum, additional proposed findings and con-
cerns; telephone conferences with Court;
telephone conference with Mr. Clapp.
12/19/85 WwwpP 8.0 680.00
Finish revising first section of memorandum,
proposed findings and conclusions.
12/19/85 RNB 10.6 477.00
Revise supplemental memorandum in support
of Plaintiffs’ Motion for Preliminary Injunction.
262
12/19/85 MJC 7.1 284.00
Organize file, copy exhibits for filing with
Court; index exhibits. . . .
12/20/85 WwwPpP 3.8 323.00
Tour landfill, file supplemental memorandum in
support of Plaintiffs’ Motion for Preliminary
Injunction
12/20/85 RNB 8.4 378.00
Draft third argument of discussion in supple-
mental memorandum... .
12/20/85 MJC 7.1 254.00
Landfill inspection with Attorney Pearson,
opposing counsel, and Magistrate; preparation
for filing Proposed Findings and Conclusions;
arrange for copying; organized documents for
filing.
01/02/86 WwWWwP 4.8 408.00
Outline reply brief... .
01/02/86 RNB 8.3 373.50
Preparation of reply brief.
01/02/86 MJC 5.8 232.00
Analyze arguments opposing Defendant’s Mem-
orandum in Opposition to for [sic] Preliminary
Injunction; organize file.
01/03/86 wwpP 4.0 340.00
-.. analyze reply memorandum; research City’s
preliminary injunction authority.
01/03/86 RNB 8.8 396.00
Referencing reply memorandum.
01/05/86 RNB 43 193.50
Draft of reply memorandum.
01/06/86 wwpP 6.0 510.00
Work on reply memorandum. .. .
263
01/06/86 MJC 4.8 192.00
Send out bills for copying, analyze Plaintiffs’
response to Defendant's cbjections to proposed
facts .. . review Defendant's objections to pro-
posed facts; draft memorandum rebutting objec-
tions.
01/07/86 WwWwWwP 7.0 595.00
Reply memorandum.
01/07/86 RNB 2.3 103.50
Review Defendant's objections to Plaintiff's Pro-
posed Findings of Fact; other work concerning
reply memorandum.
01/07/86 MJC 3.2 128.00
.. review draft Memorandum in Opposition to
Defendant's Objection to Proposed Facts. . . .
01/09/86 WWP 3.0 255.00
Preparation for preliminary injunction hearing.
01/10/86 WWwP 6.5 552.50
Preparation for and attend preliminary injunc-
tion hearing.
01/10/86 RNB 8.0 360.00
Draft memorandum relating to preliminary
injunction hearing; attend hearing.
01/10/86 MJC 4.3 172.00
. . attend final hearing on Motion for Prelimi-
nary Injunction.
01/20/86 MJC 0.6 24.00
Draft and review outline of facts proposed and
not objected to by City.
01/27/86 wwp 1.8 153.00
Review proposed fact comparisons; review
metion to compel.
264
01/31/86 MJC 1.8 72.00
Telephone conference with Ernie Dague, Jr
regarding trespass on his property by City.
02/21/86 wwp 1.0 85.00
Telephone conference with Attorney Bland
about Magistrate’s decision.
02/21/86 RNB 3.3 148.50
Review and analysis of the Magistrate’s Report
and Recommendation .. . (relating to the Report
and Recommendation)
02/21/86 MJC 3.0 120.00
Telephone conference with Court regarding
decision by Magistrate; review decision; tele-
phone conferences with client regarding same.
02/22/86 WwpP 0.5 42.50
Telephone conference with Attorney Bland con-
cerning objections to Magistrate’s decision.
02/23/86 RNB 2.3
Initial draft of Plaintiffs’ objections to Magis-
trate’s Report and Recommendation.
02/24/86 WWwP 1.5 127.50
Review decision and analyze findings of fact.
02/24/86 RNB 0.6 27.00
Conference with Attorney Pearson concerning
report and recommendation.
02/25/86 wwp 1.5 127.50
Analyze findings of fact and outline objections.
02/26/86 wwp 1.0 85.00
Further review of findings of fact.
02/27/86 wwpe 1.5 127.50
Draft and edit outline for objections to Magis-
trate’s decision.
265
02/27/86 RNB 8.3 373.50
Analyze of findings of fact.
02/28/86 WwwpP 1.0 85.00
Several telephone conferences with Mr. Bland
about objections to Magistrate’s decision.
02/28/86 RNB 7.5 337.50
Revise arguments in Plaintiff's objections. . . .
03/01/86 WwWP 4.5 382.50
Organize and draft objections to Magistrate’s
ruling.
03/02/86 WwWwP 8.0 680.00
Edit draft and research objections to Magis-
trate’s decision.
03/02/86 RNB 8.8 396.00
Referencing drafts of Plaintiff’s objections.
03/03/86 WwWwPpP 3.5 297.50
Analyze objections, edit final draft.
03/03/86 RNB 11.9 535.50
Work re: objections to Magistrate’s Report and
Recommendations.
03/03/86 JHT 6.8
Conference with Attorney Bland regarding
preparation of chronology based on findings of
fact of Magistrate; review findings and develop-
ment of chronological structure.
03/03/86 MJC 7.0 280.00
Assist in drafting and revising objections to
Magistrates’s recommendations. . .
03/05/86 wwpP 2.2 187.00
Revise proposed order.
03/05/86 RNB 5.8 261.00
Thorough review of City and Third-Party Defen-
dant G.E.’s objections to Magistrates Report and
266
Recommendations; draft proposed order for
preliminary injunction.
03/05/86 MJC 1.5 60.00
Revise memo regarding City’s objections to
Magistrate’s recommendations.
03/24/86 MJC 0.3 12.00
Telephone conference with client regarding
excessive trash in yard from landfill; plan fur-
ther work to be done.
03/27/86 RNB 2.3 103.50
Thorough review and analysis of Judge Billings’
opinion; telephone conference with Attorney
Pearson to discuss Judge Billings’ Opinion and
grounds for an appeal therefore; legai research
on procedures for the withdrawal of EPA autho-
rization of a RCRA and the regulations promul-
gated thereunder; legal research on rules of
appellate procedure for appealing an Order of
the U.S. District Court.
03/27/86 MJC 0.6 24.00
Intraoffice conference regarding Court's denial
of Motion for Preliminary injunction; review
and analyze Court Order.
04/04/86 WWP 1.5 127.50
Review and analyze Judge Billings’ decision and
appeal options.
04/04/86 RNB 2.4 108.00
Further analysis of Judge Billings’ Opinion and
arguments to be made on appeal; draft outline
of hazardous waste permit arguments to be
made on appeal.
04/07/86 WWP 3.0 255.00
Outline and evaluate grounds for appeal; tele-
phone conference with Court.
267
04/15/86 RNB 1.3 85.50
Further analysis of standards for preliminary
injunction, standard of review on appeal, and
arguments to be raised on appeal.
04/21/86 RNB 1.6 72.00
Analyze issues proposed to be raised on appeal
and the procedure on appeal; draft notice of
appeal.
04/22/86 WWP 2.0 170.00
Outline and analyze appeal issues; review
exhibit and transcript requirements on appeal.
04/22/86 RNB 1.2 54.00
Further analysis of issues proposed to be raised
on appeal; draft pre-argument statement.
04/22/86 MJC 0.4 16.00
Telephone conference with Federal Court for list
of exhibits; review and proofread notice of
appeal documents.
04/23/86 WWP 2.0 170.00
Lengthy review of procedures for Second Cir-
cuit Court of Appeals.
04/23/86 MJC 0.3 12.00
Review exhibit list from Federal Court; Mem-
orandum to Attorney Bland regarding same.
04/24/86 RNB 0.8 36.00
Analyze procedure for docketing the appeal;
telephone conference with Clerk of Federal Dis-
trict Court.
04/28/86 RNB 0.5 22.50
Review procedure for admission to practice
before the U.S. Court of Appeals for the Second
Circuit.
268
04/29/86 RNB 1.3 58.50
Further analysis of procedure on appeal; draft
outline of procedure and deadlines on appeal.
04/30/86 WWP 1.0 85.00
Final review of forms C and D, other appeal
procedures and proper certification.
04/30/86 RNB 1.5 67.50
Analyze need to file depositions of the genera-
tors so as to include them within the docket
entries; review and analyze forms C and D and
further legal research on procedures on appeal.
04/30/86 MJC 0.6 24.00
Submittal of depositions to Federal Court for
filing; telephone conference with Court Clerk
regarding same.
05/01/86 WWP 0.6 51.00
Final approval of appeal forms; service of same.
05/01/86 RNB 0.5 22.50
Review of papers to be filed in the Court of
appeals and in the U.S. District Court, and to be
served on the other parties.
05/04/86 MJC 0.3 12.00
Letter to Court Clerk regarding filing of deposi-
tions.
05/05/86 RNB 2.8 126.00
Legal research under RCRA and the CWA in
preparation for drafting appellant's brief.
05-05-86 WWP 1.0 85.00
Read Second Circuit scheduling calendar; con-
ference with Mr. Clapp; telephone conference
with client.
05-06-86 RNB 5.2 234.00
Continue legal research under RCRA and the
CWA in preparation for drafting brief.
269
05-07-86 WWwP 1.0 85.00
Review appeal schedule of hearing dates and
issues outline; review evidence of trash at
Dague house; review photographs.
05-07-86 RNB 7.3 328.50
Draft letters to Mr. Burbank and Attorney Clap
regarding consent to proceed before the Magis-
trate; telephone conference with Clerk of the
U.S. District Court of Appeal for the Second
Circuit regarding admission to practice before
the Second Circuit; continue legal research of
case law under RCRA and the CWA in prepara-
tion for drafting the brief.
05-08-86 wwP 0.5 42.50
Review exhibit requirements.
05-08-86 RNB 5.8 261 00
Draft first part of argument | of Appellants
brief.
05-09-86 wwpP 2.3 195.50
Review outline for brief; letter to Mr. Clapp
regarding exhibits.
05-09-86 RNB 6.3 283.50
Draft second and third parts of argument | of
Appellants’ brief.
05-09-86 MJC 2.0 80.00
Review exhibits to be filed with appeals court;
deliver notice of exhibits designated to Attorney
Clapp.
05-11-86 RNB 3.3 148.50
Draft argument II of appellants’ brief.
05-12-86 RNB 5.5 247.50
Thorough analysis of Weinberger case and draft
argument III of the brief.
270
05-13-86 WWP 4.5 352.50
Prepare for tomorrow’s pre-argument confer-
ence
05-13-86 RNB 5.2 234.00
Draft statement of the case and statement of the
facts; revise arguments I, II, and III; preparation
for pre-argument conference.
05-14-86 WWP 9.00 765.00
Preparation for and attend conference at Second
Circuit Court of Appeals.
05-14-86 RNB 11.0 495.00
Preparation for and attend pre-argument confer-
ence at the U.S. Court of Appeals for the Second
Circuit.
05-15-86 WWP 0.3 25.50
Letter to the Court.
05-15-86 RNB 0.3 13.50
Telephone conference with Clerk of the U‘S.
Court of Appeals for the Second Circuit regard-
ing scheduling of argument.
05-16-86 WWP 1.0 85.00
Review docket entries; telephone conference
with Mr. Clapp; letter to Court.
05-16-86 MJC 0.7 28.00
Analyze exhibits to be designated on appeal;
deliver notice of same to opposite counsel.
05-19-86 RNB 2.8 126.00
Compile appendix and table of contents of brief.
05-20-86 WWP 5.2 442.00
Draft and edit brief; detailed analysis of neces-
sary revisions to same.
05-20-86 RNB 4.5 : 202.50
Telephone conference with Mr. Jarvis regarding
depositions of third-party Defendants and
271
Plaintiffs’ exhibits; analyze issues in need of
additional legal research and analyze issues
raised on appeal; analysis of City of Gallatin
case and the “Hazardous and Solid Waste
Amendments of 1984.”
05-21-86 WWP 6.5 552.50
Draft and edit brief.
05-21-86 RNB 10.8 486.00
Further analysis of issues raised on appeal;
review procedural requirements for brief; revise
brief.
05-21-86 MJC 2.8 112.00
Send Judge billings’ Opinion to Dr. Reed; assem-
ble documents for Appendix to appellants’ brief.
05-22-86 WwP 5.0 425.00
Further edits to brief; further analysis of waste
industries and other important cases; review
case chart.
05-22-86 RNB 8.3 373.50
Draft chart of case law for the appeal; draft
checklist for the appeal; revise brief.
05-22-86 MJC 4.0 160.00
Assemble and paginate appendix to Appellants’
brief; review citations in brief for appendix.
05-23-86 WwWwP 7.5 637.50
Extensive edit of brief; review filing form
requirements.
05-23-86 RNB 7.3 328.50
Further analysis and revise brief; draft certifi-
cate of service.
05-23-86 JHT 2.2 99.00
Legal research regarding scope of discretion for
injunctive relief.
272
05-23-86 MJC 5.0 200
Preparation for appeal; file organization; site
inspection and conference with clients regarding
city’s request to clean bank beside landfill; assist
in preparing documents for appeal.
05-25-86 WWP 4.5 382.50
Drafting and editing brief.
05-26-86 WWP 10.0 850.00
Extensive drafting and editing of brief; analyze
judicial discretion and legal research on same.
05-26-86 MJC 7.7 308.00
Preparation for filing brief; appendix and
addendum with Court of appeals; proofread
brief; copy statutes for addendum.
05-26-86 DL 7.0 210.00
Legal research on standards for issuance of pre-
liminary injunction upon violation of federal
environmental and other public interest legisla-
tion.
05-27-86 WwWwP 2.5 212.50
Prepare brief for filing with Court of Appeals.
05-27-86 MJC 6.8 272.00
Prepare brief, appendix and addendum for fil-
ing; telephone conference with printers regard-
ing same; organize and complete printing,
proofread and revise brief; assemble packages of
documents for filing and service; telephone con-
ference with Don Bessette regarding City’s
request to clear bank; memorandum regarding
same.
06-03-86 RNB 2.8 126.00
Preparation for oral argument; legal research on
District Court’s discretion to issue an injunction
upon a finding of a statutory violation.
273
06-05-86 MJC 1.6 64.00
Draft letter to City regarding cleanup of
embankment.
06-06-86 MJC 1.3 52.00
Review and edit letter to City regarding cleanup
of embankment.
06-08-86 WwWP 2.5 212.50
Analyze procedures; review notice documents;
outline argument and organize appeal notebook.
06-11-86 WWP 4.0 340.00
Review and analyze City’s brief; prepare note-
book for argument.
06-11-86 RNB 8.0 360.00
Thorough review and analysis of City’s brief;
conference with Attorney Pearson to discuss
notebook for oral argument and to discuss
City’s brief; compile documents for notebook for
oral argument; review and analyze memoran-
dum regarding traditional and second circuit
standards for preliminary injunction.
06-11-86 MJC 2.4 96.00
Assist in preparing appeal notebook; telephone
conference with appeals court regarding return
of “extra” copies of appendix; review City’s
brief; organize file.
06-12-86 WwwpP 2.0 170.00
Edit letter to City; verify documents to court
and hearing date; review first draft of reply
brief.
06-13-86 WWP 2.4 204.00
Further analyze City’s brief; telephone confer-
ences with Mr. Sorrell; prepare for hearing;
locate documents; review hearing binder; tele-
phone conference with Mr. Wadhams.
274
06-13-86 RNB 4.2 189.00
Legal research on abandonment or waiver of a
claim on appeal; compile documents for note
book for oral argument.
06-15-86 WwWP 3.5 297.50
Review legislative history for 1984 Amend-
ments; review and analyze briefs.
06-16-86 WWP 1.5 127.50
... further analysis of City’s brief.
06-16-89 RNB 1.5 67.50
Conference with Attorney Pearson regarding
rescheduling of oral argument and discussion of
“Hazardous and Solid Waste Amendments of
1954; further analysis of memorandum on statu-
tory injunctions.
06-17-89 WWwP 1.5 127.50
Telephone conference with Court; telephone
conference with Mr. Clapp; Motion and Affi-
davit to Court regarding oral argument date.
06-17-89 RNB 1.8 81.00
Compile RCRA;s [sic] criteria for classification
of sanitary landfills for notebook for oral argu-
ment.
06-18-86 RNB 0.7 31.50
Revise reply brief.
06-18-86 MJC 3.3 132.00
Conference with Don Bessette regarding signing
of agreement with City to clean up bank; file
maintenance; send briefs to clients; conference
with Mr. Bessette regarding construction plan of
his mother’s property.
06-19-86 WWP 2.4 204.00
.. . prepare for oral argument; review argument
notebook. .
275
06-22-86 RNB 0.8 36.00
Discuss reply brief with Attorney Pearson... .
06-23-86 WwWP 2.5 212.50
Draft reply brief.
06-23-86 RNB 3.5 157.50
Draft table of contents and table of cases and
statutes for reply brief; thorough proofread of
reply brief.
06-23-86 MJC 3.0 120.00
Draft certificate of service and enclosure letter
to Court for filing reply brief; proofread reply
brief; organize copying and distribution of reply
brief; deliver to Attorney Clapp; send copies of
all briefs to clients.
06-24-86 RNB 4.9 220.50
Draft statement of the case and outline of first
argument for oral argument .. .
05-26-86 RNB 5.2 234.00
Draft second and third arguments for oral argu-
ment.
07-01-86 RNB 1.5 97.50
Prepare for oral argument on appeal; review
third-party Defendant’s Memorandum in Oppo-
sition to City’s Motion to Join Additional Defen-
dants.
08-06-86 RNB 2.4 156.00
Further preparation for oral argument; draft list
of questions likely to be raised at oral argument;
telephone conference with environmental task
force.
08-08-86 = WWP 1.0 100.00
Prepare for oral argument.
08-10-86 WwwPpP 3.6 360.00
Prepare for oral argument.
276
08-12-86 WWP 3.0 300.00
Prepare for oral argument.
08-12-86 RNB 6.4 416.00
. . . preparation for oral argument.
08-13-86 WWP 5.0 800.00
Prepare for tomorrow’s argument; travel to New
York city.
08-13-86 RNB 8.5 552.50
Legal research on notice provisions of RCRA
and the CWA; preparation for oral argument.
08-14-86 WwWP 8.0 800.00
Oral argument at Second Circuit.
08-14-86 RNB 8.0 520.00
Further preparation for oral argument and
attend oral argument.
08-18-86 WwWwP 1.5 150.00
Review Second Circuit hearing and refile docu-
ments... .
08-18-86 RNB 0.3 19.50
Telephone conference with Ernie Dague, Jr.
regarding oral argument at Court of Appeals.
08-20-86 WwwpP 1.0 100.00
Telephone conference with Court; review and
analyze decision of Court of Appeals.
08-21-86 WwwP 5.0 500.00
Analyze all options for appeal... .
08-21-86 RNB 1.5 97.50
Conference with Attorney Pearson to discuss
decision and possible appeal from Second Cir-
cuit. .
10-08-86 wwp 1.0 100.00
Analyze options in light of City’s failure to
respond to requests to admit.
277
11-03-86 WwWwWwP 0.8 80.00
Review gas meter options... .
11-03-86 MJC 2.4 96.00
.. . telephone conference with client regarding
recalibration of gas meter... .
11-10-86 MJC 1.0 40.00
.. . telephone conference with client regarding
recalibration of gas meter; memorandum
regarding same.
11-17-86 WwwpP 0.6 60.00
. review gas meter calibration issue.
11-24-86 MJC 0.8 | 32.00
Plan further work for Motion to Compel; file
maintenance.
05-12-87 MJC 0.4 16.00
Telephone conference with Don Bessette regard-
ing proposed construction on mother’s prop-
erty; memorandum regarding same.
05-18-87 MJC 0.8 32.00
Telephone conference with client regarding
windblown trash problem; memorandum to
attorney Pearson regarding same... .
05-19-88 RNB 0.3 | 21.00
Assignments to legal assistant case regarding
City’s trespass on Ernie Dague, Sr.’s property
05-19-88 MJC 0.5 22.50
Analysis of new fact issues regarding trespass
by City ....
08-26-88 RNB 1.3 91.00
Legal research on common law causes of action
and defenses thereto in preparation for trial on
pendant state claims.
278
09-08-88 RNB 2.0 140.00
Legal research on compensation for paralegal
hours and enhancement of attorney’s fees... .
02-03-89 WWP 2.2 275.00
. Organize and evaluate water test results
against new state ground water regulations.
02-03-89 MJC 1.5 75.00
. review state groundwater regulations.
02-06-89 RNB 2.3 184.00
Review and analysis of Vermont's groundwater
protection rule and strategy... .
02-06-89 MJC 1.0 50.00
Telephone conference with VANR regarding
copy of current groundwater regulations and
classification of state groundwater; report to
Attorney Bland regarding same; .
02-07-89 MJC 5.5 275.00
Attend Lamoille County Regional Solid Waste
District meeting in Morrisville to monitor City
and State representations regarding City’s land-
fill.
02-08-89 MJC 0.6 30.00
Memorandum regarding Solid Waste District
meeting and City and State statements regard-
ing City’s landfill.
05-08-89 MJC 11.0 550.00
Preparation for and assistance at trial of federal
claims in Rutland; telephone conference with
firm librarian regarding documents needed as
exhibits.
05-09-89 MJC 11.5 575.00
Preparation for trial; assist at trial; mark admit-
ted exhibits to be used at trial; telephone confer-
ence with firm librarian regarding maps of
landfill and title search of landfill.
279
10-19-89 ART 9.1 682.50
Legal research regarding attorney fees under
RCRA and Clean Water and Air Acts.
10-20-89 HB 3.1 372.00
Research regarding recovery of fees.
10-20-89 RNB 2.5 200.00
Compile and analyze legal research on recovery
of costs of litigation under RCRA and CWA;
compile receipts for disbursements incurred;
conference with Attorney Briggs regarding legal
research on loadstar and multiplier; telephone
conference with Dr. Frank Reed regarding Judge
Billings’ decision.
10-20-89 ART 7.0 525.00
Continue legal research regarding awards of
attorney fees under RCRA and Clean Water Act;
shepardize cases.
10-20-89 AJG 1.8 81.00
Continue review of files for disbursement
receipts.
10-22-89 ART 1.0 75.00
Legal research regarding attorney fees under
RCRA and Clean Air Act; begin draft motion for
fees.
10-23-89 HB 2.8 336.00
Continue preparation of fee application and
accompanying affidavits.
10-23-89 ART 4.2 315.00
Continue draft motion for attorney fees and
expenses.
10-24-89 RNB 1.8 144.00
Continue review and proofread draft statement
of services.
280
10-25-89 GSC 2.4 216.00
Detailed line-by-line review of bill for legal ser-
vices from 1985 to present; review standards for
attorneys fees awards and enhancement criteria.
10-25-89 RNB 0.8 64.00
Conference with accounting department regard-
ing statement of services.
10-25-89 ART 1.7 127.50
Revisions to Motion for Attorney Fees and sup-
porting Memorandum.
10-26-89 RNB 4.3 344.00
Extended telephone conference with Attorney
Pearson regarding draft statement of services;
telephone conference with Attorney Gallagher
regarding same; legal research on requirements
governing court-awarded attorney fees applica-
tions; follow-up telephone conference with
Attorney Gallagher regarding same; revise
Plaintiffs’ application for award of fees and
costs and supporting memorandum.
10-26-89 ART 0.7 52.50
Legal research and analysis regarding contem-
poraneous time records requirement; telephone
conference with accounting regarding bill.
10-27-89 RNB 3.3 264.00
Analyze requirements for court-awarded attor-
ney fees applications; conference with account-
ing department regarding hourly rates for
services; continue to revise memorandum in
support of Plaintiffs’ application for award of
fees and costs.
10-28-89 RNB 4.3 344.00
Draft Affidavit in support of Plaintiffs’ applica-
tion for award of fees and costs; revise same;
review receipts for expenses.
a
281
10-29-89 RNB 3.8 304.00
Revise Affidavit in support of Plaintiffs’ applica-
tion for award of fees and costs; extended tele-
phone conference with Attorney Pearson
regarding revisions to memorandum in support
of Plaintiffs’ application for award of fees and
costs; continue to revise memorandum in sup-
port of Plaintiffs’ application for award of fees
and costs.
10-30-89 RNB 4.3 344.00
Telephone conference with Attorney Pearson
regarding revisions to memorandum in support
of Plaintiffs’ application for award of fees and
costs; follow-up telephone conference with
Attorney Pearson regarding revisions to appli-
cation and affidavit in support of Plaintiffs’
application, for award of fees and costs; tele-
phone conference with Attorney Mello regard-
ing affidavit in support of Plaintiffs’ application
for award of fees and costs; telephone confer-
ence with Attorney Furlong regarding same;
draft affidavits for Attorneys Mello and Fur-
long; telephone conference with Attorney Eg-
gleston regarding affidavit in support of
Plaintiffs’ application for award of fees and
costs; draft affidavit of Attorney Eggleston; tho-
rough review and analysis of proposed attach-
ment to Attorney Pearson's affidavit; edit
Attorney Pearson's affidavit.
68,591.00
282
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR., BETTY L.
DAGUE, ADMINISTRATRIX OF
THE ESTATE OF ERNEST J.
DAGUE, II, BETTY DAGUE and
)
)
) Civil Action No.
)
ROSE A. BESSETTE )
)
)
)
85-269
v.
CITY OF BURLINGTON
PLAINTIFFS’ REPLY IN SUPPORT OF AN
AWARD OF FEES AND COSTS
Defendant’s supplemental memorandum opposing
Plaintiffs’ fee request raises nothing new, but once again
rehashes the same mootness argument twice rejected by
this Court. In Environmental Defense Fund v. Lee M.
Thomas, Administrator, U.S. Environmental Protection
Agency, 24 E.R.C. 1853 (D.D.C. 1986), the District Court
for the District of Columbia granted the plaintiffs’ motion
for award of attorneys’ fees and expenses incurred in an
action to compel the U.S. EPA to issue final permitting
standards for underground waste disposal tanks, as
required by section 3004(w) or RCRA, 42 U.S.C.
§ 6924(w). The defendants opposed the award for a
number of reasons, including: (1) EPA conceded from the
start that the RCRA statutory deadline had not been met;
and (2) the date set by the court for EPA to promulgate
the permitting standards was not the date sought by
plaintiffs. The Court held that the plaintiffs did not have
to show that they received all relief requested in their
complaint in order to prevail. The court cited Hensley v.
283
Eckerhart, 461 U.S. 424 (1983), which set forth standards
generally applicable in all cases in which Congress has
authorized an award of fees to a prevailing party:
Plaintiffs may be considered prevailing parties
for attorneys’ fees purposes if they succeed on any
significant issue in litigation which achieves
some of the benefit the parties sought in bring-
ing suit. 461 U.S. at 433 (emphasis added).
Even though this Court found the Defendant in sig-
nificant violation of RCRA and the CWA, the Defendant
continues to minimize and disparage its failure to comply
with these federal environmental statutes. The Defendant
continues to scoff at this Court’s Orders dated March 26,
1986 and October 16, 1989, and federal law. This Court
has already determined that Plaintiffs have “substantially
prevailed” in this action therefore are entitled to their
“costs of litigation, including reasonable attorney and
expert witness fees.” 42 U.S.C. § 6972(e) and 33 U.S.C.
1365(d). After four years of litigation, Plaintiffs’ attorneys
should receive promptly an award of their requested fees
and costs.
Burlington, Vermont 31 December 1989
DOWNS RACHLIN & MARTIN
By: /s/ Richard N. Bland
Richard N. Bland, Esq.
William W. Pearson, Esq.
Attorneys for Plaintiffs
199 Main St., P.O. Box 190
Burlington, VT 05402-0190
(802) 863-2375
284
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT COURT OF VERMONT
ERNEST DAGUE, SR., BETTY L. )
DAGUE, ADMINISTRATRIX OF _ )
THE ESTATE OF ERNEST J. )
DAGUE, II, BETTY DAGUE and ) Civil Action No.
ROSE A. BESSETTE ) 85-269
)
)
)
v.
CITY OF BURLINGTON
PETITION FOR ENFORCEMENT OF ORDER
By order dated 2 April 1990, this Court “ORDERED,
ADJUDGED AND DECREED that plaintiff shall recover
from the defendant the sum of $198,027.50 for attorneys
fees, plus necessary expenses in the amount of $10,929.66,
together with a 25% enhancement of the total attorneys
fees in the amount of $49,506.87 plus taxable costs.”' The
defendant has failed and refused to make prompt pay-
ment of these fees and expenses, despite a request for
payment from plaintiffs’ counsel.
Wherefore, plaintiffs request the Court to order
defendant to pay them forthwith its interim award of
attorneys fees and expenses in the amount of $258,464.03,
together with such other relief the Court deems just and
proper.
! These fees and expenses were incurred from 5 April 1985
through 30 October 1989.
285
Burlington, Vermont. 16 April 1990.
DOWNS RACHLIN & MARTIN
By: /s/ Richard N. Bland
Richard N. Bland
William W. Pearson
Attorneys for Plaintiffs
199 Main St., P.O. Box 190
Burlington, VT 05402-0190
(802) 863-2375
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR., BETTY L.
DAGUE, ADMINISTRATRIX OF
THE ESTATE OF ERNEST J.
DAGUE, II, BETTY DAGUE and
ROSE A. BESSETTE
V.
CITY OF BURLINGTON
Civil Action No.
85-269
eee ee eee”
CERTIFICATE OF SERVICE
On 16 April 1990, I served Plaintiffs’ Petition for
Enforcement of Order on Defendant by mailing true and
correct copies of same via first class mail, postage pre-
paid, to Robert R. McKearin, Esq., Dinse Erdmann &
Clapp, 209 Battery Street, P. O. Box 988, Burlington, VT
286
05402-0988 and Nancy G. Sheahan, Esq., McNeil Murray,
Inc., 271 South Union Street, Burlington, VT 05401.
Burlington, Vermont. 16 April 1990.
DOWNS RACHLIN & MARTIN
By: /s/ Richard N. Bland
Richard N. Bland
Attorneys for Plaintiffs
199 Main St., P.O. Box 190
Burlington, VT 05402-0190
(802) 863-2375
287
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR., BETTY L.
DAGUE, ADMINISTRATRIX OF
THE ESTATE OF ERNEST J.
DAGUE, II, BETTY DAGUE and
ROSE A. BESSETTE
Vv.
CITY OF BURLINGTON
Civil Action No.
85-269
i ee i i ee
MEMORANDUM IN OPPOSITION TO PLAINTIFFS’
PETITION FOR ENFORCEMENT OF ORDER
Defendant City of Burlington opposes Plaintiffs’ Peti-
tion for Enforcement of this Court’s Order of April 2,
1990. Plaintiffs as petitioners, have requested that this
Court order the City of Burlington to pay “forthwith” the
award of attorney’s fees and expenses totaling
$258,464.03. While characterized as an interim award in
Plaintiffs’ Petition, there is nothing in the Opinion and
Order that would suggest that it is intended to be viewed
as interim. Indeed, it appears to be the final order per-
taining to the issue of attorney's fees. The claims left for
resolution in this matter are to be tried to a jury and do
not provide for an award of attorney's fees to a prevailing
party.
Defendant's opposition to enforcement of the Order
at this time is based primarily on the fact that the Order,
for payment of more than a quarter of a million dollars to
Plaintiffs’ law firm, if enforced “forthwith” as Plaintiffs
have requested, will impose a substantial burden on
Defendant.
288
Furthermore, until judgment is entered, Defendant
will not be able to challenge the award.
On the other hand, a delay of enforcement of the
award pending entry of judgment (and pending resolu-
tion of the appeal) is appropriate inasmuch as there is no
evidence that the Plaintiffs or their counsel will be preju-
diced by such a delay of payment.
Accordingly, Defendant requests that the Plaintiffs’
Petition for Enforcement of Order be denied.
Dated at Burlington, Vermont this 25th day of April,
1990.
DINSE, ERODMANN & CLAPP
By: /s/ Robert R. McKearin
Robert R. McKearin, Esq.
Attorney for Defendant
289
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR., BETTY L. )
DAGUE, ADMINISTRATRIX OF _ )
THE ESTATE OF ERNEST J. )
DAGUE, Il, BETTY DAGUE and ) Civil Action No.
ROSE A. BESSETTE ) 85-269
)
)
)
Vv.
CITY OF BURLINGTON
PLAINTIFFS’ RESPONSE TO DEFENDANT'S
OPPOSITION TO ENFORCEMENT OF COURT ORDER
Defendant opposes enforcement of this Court’s Order
of April 2, 1990 claiming that, if enforced “forthwith,” it
will impose a “substantial burden” on Defendant.' Defen-
dant makes this claim even though it has maintained for
the past five years in its Annual Reports to the public that
any award of attorneys fees will be covered by insurance
proceeds. (See attached.) While Plaintiffs appreciate
Defendant's reluctance to pay the Court's award of attor-
neys fees and costs, they question why Defendant should
say one thing to this Court and the opposite to the public.
In addition, this action has been pending for almost
five years, during which period Plaintiffs’ counsel have
received no payment of their fees and expenses. This has
imposed a “substantial burden” on them. Certainly the
' Defendant also claims that, even if the Court’s Order is
not enforced at this time, “the City’s fiscal affairs will remain
under the cloud of the Order awarding attorney's fees and
costs.”
290
Defendant does not want to pay the Court's award of fees
and expenses at any time. Yet payment of the Court's
award, however unpleasant, is the price to be paid for
multiple violations of the federal environmental laws.
Burlington, Vermont. 30 April 1990.
DOWNS RACHLIN & MARTIN
By: /s/ Richard N. Bland
Richard N. Bland
William W. Pearson
Attorneys for Plaintiffs
199 Main St., P.O. Box 190
Burlington, VT 05402-0190
(802) 863-2375
City of Burlington,
Vermont
1986 Annual Report
July 1, 1985 - June 30, 1986
* » *
CITY OF BURLINGTON, VERMONT
NOTES TO COMBINED FINANCIAL STATEMENTS
JUNE 30, 1986
19. Commitments and contingencies:
A. Landfill litigation - The City has been named as
defendant in a lawsuit concerning the operation of the
Burlington Landfill. As mentioned in last year’s report,
the claimants contend that the City’s operation of its
landfill violated the Federal Resource Conservation Act
291
and the Clean Water Act. They contend that the City
improperly received hazardous waste, and that polluting
leachate and methane gas has been permitted to migrate
from the landfill in violation of the statutes to the indi-
vidual damage of the named plaintiffs and the general
public. They also assert pendant state common law
claims. They are seeking money damages, attorneys fees
and a permanent injunction requiring the City to dig up
and remove offending materials to another complying
landfill site.
The City is defending this case vigorously. Plaintiffs’
initial request for a preliminary injunction was denied
after extensive hearing by the U.S. District Court. Plain-
tiffs appealed, but the denial was affirmed by the 2nd
Circuit Court of Appeals. Discovery proceedings are now
taking place. The other insurance carriers are proceeding
on the basis of a “reservation of rights” which allows
them to later contend that their insurance policies do not
cover the claimed loss. It is the City’s assessment that a
reasonable probability exists that the individual plaintiffs
will be awarded some monetary damages. The City does
not believe such damages will be significant. The City
believes that both any monetary damages assessed and
any award of attorneys’ fees will be covered by insurance
proceeds. However, insurance proceeds are not likely to
be available in the event that the court should order the
injunctive relief plaintiffs are seeking.
The cost to the City of relocating dumped materials
could be quite significant indeed. A figure in the millions
of dollars would not be an excessive estimate in the City’s
view. Under any such circumstances, it would be a major
financial exposure for the City and would undoubtedly
292
result in the need for an emergency loan or other borrow-
ing to cover the cash. However, the City is reasonably
confident that such drastic measures will not be ordered
by the court.
B. Sewer litigation - The City is a defendant in
another lawsuit in which plaintiffs are seeking $1,000,000
in damages based on damages to real estate alleged to
have occurred as a result of an overflow of a City sewer
line. In addition, the plaintiffs are seeking $500 per day in
damages for the City’s refusal to issue a certificate of
occupancy for said real estate. The City is cautiously
optimistic that it will prevail. Though the City’s liability
carrier has reserved its right to later assert a lack of
coverage, the City believes that any judgment
of a7 *
City of
Burlington, Vermont
1987 Annual Report
July 1, 1986 -
June 30, 1987
* * *
CITY OF BURLINGTON, VERMONT
NOTES TO COMBINED FINANCIAL STATEMENTS
JUNE 30, 1987
19. Commitments and contingencies:
A. Landfill litigation - The City has been named as
defendant in a lawsuit concerning the operation of the
Burlington Landfill. As mentioned in last year’s report,
the claimants contend that the City’s operation of its
landfill violated the Federal Resource Conservation Act
and the Clean Water Act. They contend that the City
293
improperly received hazardous waste, and that polluting
leachate and methane gas has been permitted to migrate
from the landfill in violation of the statutes to the indi-
vidual damage of the named plaintiffs and the general
public. They also assert pendant state common law
claims. They are seeking money damages, attorney fees
and a permanent injunction requiring the City to dig up
and remove offending materials to another complying
landfill site.
The City is defending this case vigorously. Plaintiffs’
initial request for a preliminary injunction was denied
after extensive hearing by the U.S. District Court. Plain-
tiffs appealed, but the denial was affirmed by the 2nd
Circuit Court of Appeals. Discovery proceedings are now
taking place. The other insurance carriers are proceeding
on the basis of a “reservation of rights” which allows
them to later contend that their insurance policies do not
cover the claimed loss. It is the City’s assessment that a
reasonable probability exists that the individual plaintiffs
will be awarded some monetary damages. The City does
not believe such damages will be significant. The City
believes that both any monetary damages assessed and
any award of attorneys’ fees will be covered by insurance
proceeds. However, insurance proceeds are not likely to
be available in the event that the court should order the
injunctive relief plaintiffs are seeking.
The cost to the City of relocating dumped materials
could be quite significant. A figure in the millions of
dollars would not be an excessive estimate in the City’s
view. Under any such circumstances, it would be a major
financial exposure for the City and would undoubtedly
294
result in the need for an emergency loan or other borrow-
ing to cover the cash requirements. However, the City is
reasonably confident that such drastic measures will not
be ordered by the court.
B. Other litigation - The City is involved in various
other litigations which the City believes are either with-
out sufficient merit or substance to be likely to result in
material, uninsured judgments or settlements.
C. Electric Department -
1. The Electric Department purchases power from
Vermont Yankee pursuant to the provisions of a contract
which entitles
City of
Burlington
Vermont
1989
Annual Report
July 1, 1988 -
June 30, 1989
* * *
CITY OF BURLINGTON, VERMONT
NOTES TO COMBINED FINANCIAL STATEMENTS
JUNE 30, 1989
19. Commitments and contingencies:
A. Landfill Litigation - The most significant law suit
from the standpoint of municipal liability was the case
entitled Dague, et al. v. City of Burlington. During the past
fiscal year, the United States District Court did find that
the City had committed ceriain violations of the Federal
295
Clean Water Act and the Resource, Conservation &
Recovery Act through the operation of the Burlington
landfill. The court determined that there was some possi-
bility that leachate from the facility would make its way
into the tributaries of the Winooski River and then to the
river and Lake Champlain. Because the Court found that
the City had taken and was taking the proper steps to
close such facility in an environmentally responsible
manner, it refused to order the payment of any civil fines
by the City. Since the City was planning to close the
facility as of January 1, 1990 in any event, the order did
not severely prejudice the City.
There remains pending before the Court a request
from the law firm which represented the plaintiff for legal
fees to be paid by the City. The claim is in the amount of
$400,000. The City is most vigorously contesting both the
entitlement to and the amount of the legal fees in ques-
tion. The City is reasonably optimistic that either through
Court order or as a result of the obligations of the insur-
ance carrier that there will not be an obligation on the
part of the City to pay the current amount in controversy
from general city revenues.
B. Landfill Contract - On November 21, 1989, the
City entered into an agreement to improve and operate a
landfill in the town of Colchester, Vermont. This agree-
ment is with Rathe, Inc., and includes a commitment by
the City to construct an environmentally acceptable land-
fill. Work on this project was begun in November, 1989.
* * *
296
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST DAGUE, SR.,
ERNEST DAGUE, JR., and ;
BETTY DAGUE : Civil No.
85-269
v.
CITY OF BURLINGTON
ORDER
On April 17, 1990, plaintiffs petitioned the court to
enforce its previous order of April 2, 1990 which ordered
the defendant to pay attorneys fees and necessary
expenses. Defendant City of Burlington responded by
moving for an entry of judgment of the April 2, 1990
order as well as the court’s order of October 16, 1989.
In consideration of this matter, the court finds, pur-
suant to Fed. R. Civ. P. 54(b), that there is no just reason
for a delay in entering judgment on these orders. Speci-
fically, the court finds that with the exception of Count V
addressed in the October 16, 1989 order, the claims
decided by the two orders are independent from the state
claims which remain; thus, there is no fair reason to delay
certification for appellate review.
The court finds, however, that the Octobei 16, 1989
order did not finally adjudicate damages as to Count V;
therefore it is inappropriate to enter judgment as to that
count. See International Controls Corp. v. Vesco, 535 F.2d
742, 748 (1976) (“[A] judgment cannot be considered final
297
as long as it leaves open the question of additional dam-
ages.”); Hudson v. Chicago Teachers Union Local No. 1, 708
F. Supp. 961, 962 (N.D. Ill. 1989).
The defendant’s motion for an entry of judgment is
GRANTED IN PART. The plaintiff’s petition for enforce-
ment is DENIED pending appeal. The court directs the
clerk of court to enter judgment as to Counts I, II, III and
IV of the court’s Opinion and Order, dated October 16,
1989, and the Opinion and Order dated April 2, 1990.
SO ORDERED.
Dated at Rutland in the District of Vermont this 4th
day of May, 1990.
/s/ Franklin S. Billings, Jr.
Franklin S. Billings, Jr.
Chief Judge
298
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ERNEST DAGUE, SR.,
ERNEST DAGUE, JR.,
BETTY DAGUE, and
ROSE A. BESSETTE,
Plaintiffs-Appellees, Docket No. 90-7544
v.
CITY OF BURLINGTON,
)
)
)
)
)
)
)
)
)
Defendant-Appellant )
Counsel for Plaintiffs-Appellees respectfully submits,
pursuant to Rule 39(c) of the Federal Rules of Appellate
Procedure, the within bill of costs and requests the Clerk
to prepare an itemized statement of costs taxed against
the Defendant-Appellant and in favor of Plaintiffs-Appel-
lees for insertion in the mandate.
Docketing Action
Cost of printing appendix (necessary copies __) N/A
Cost of printing brief (necessary
copies 15) $ 68.12
Cost of printing reply brief (necessary
copies ___) N/A
$ 68.12
VERIFICATION
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
I declare under penalty of perjury that the foregoing
costs are correct and were necessarily incurred in this
299
action and that the services for which fees have been
charged were actually and necessarily performed. A copy
of hereof was this day mailed to Michael Clapp, Esq.
Dinse, Erdmann & Clapp, P.O. Box 988, Burlington, Ver-
mont, 05402 with postage fully prepaid.
Burlington, Vermont. June 25, 1991.
Attorneys for Plaintiffs-Appellees
By: /s/ William W. Pearson
William W. Pearson
Molloy, Jones & Donahue
P.O. Box 2268
Tucson, AR 85702
(602) 622-3531
By: /s/ Heather Briggs
Heather Briggs
Downs Rachlin & Martin
P.O. Box 190
Burlington, VT 05402
(802) 863-2375
300
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ERNEST DAGUE, SR.,
ERNEST DAGUE, JR.,
BETTY DAGUE, and
ROSE A. BESSETTE,
Plaintiffs-Appellees,
V.
CITY OF BURLINGTON,
)
)
)
)
) Docket No. 90-7544
)
)
)
)
Defendant-Appellant. )
AFFIDAVIT
Heather Briggs, being duly sworn states as follows:
I am an attorney with Downs Rachlin & Martin,
attorneys for the plaintiffs-appellees. The costs outlined
in the Bill of Costs submitted herewith were necessarily
incurred in connection with the appeal in this action. |
make this affidavit to explain more fully the nature of the
various items which appear on the Bill of Costs.
1. Costs of Briefs and Appendices. These costs were
incurred for the copying and binding of appellees’ brief,
reply brief and appendices. Documents supporting this
request are attached as Exhibit A. Plaintiff may recover
these costs pursuant to Fed. R. App. P. 39(a). The sum of
$68.12 represents the actual cost of reproduction and
binding, which sum is less than $0.20 per page. Local
Rule of the Second Circuit § 39; Furman v. Cirrioto, 782
F.2d 353 (2d Cir. 1986).
301
Burlington, Vermont. June 25, 1991.
DOWNS RACHLIN & MARTIN
Attorneys for Plaintiffs-Appellees
By: /s/ Heather Briggs
Heather Briggs
199 Main Street
P.O. Box 190
Burlington, VT 05402-0190
(802) 863-2375
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
Subscribed and sworn to before me this 25th day of
June, 1991.
/s/ Anita R. Tuttle
Notary Public
302
BILL OF COSTS
) DISTRICT
United States District Court ) Vermont
) DOCKET NO.
Dague et al. ) 85-269
Plaintiffs )
v. )
City of Burlington ) MAGISTRATE CASE NO.
Defendant )
Judgment having been entered in the above entitled
action on July 12, 1991 (date) against City of Bur-
lington the clerk is requested to tax the following as
costs:
BILL OF COSTS
ei Er ee as 6 he ae ne i te ae $ 130
Fees for service of summons
PPT TTT TTT TTT TEE 17.25
Fees of the court reporter for all or
any part of the transcript necessarily
obtained for use in the case................ 407.25
Fees and disbursements for printing.......... 772.95
Fees for witnesses (itemized on
I ee Me icine 279.24
Fees for exemplification and copies
of papers necessarily obtained for use
WD GD si vc csccccscoccscssatdsdinssntsuce sss 845.80
Docket fees under 28 U.S.C. § 1923............
303
Costs incident to taking of depositions........ 4,385.54 —
Costs as shown on Mandate of
ee OF IE baw sk uncadebecudeccassavace
Other costs (Please itemize)
TOTAL = $6,838.03
SPECIAL NOTE: Attach to your bill an itemization and
documentation for requested costs in all categories. Briefs
should also be submitted supporting the necessity of the
requested costs and citing cases supporting taxation of
those costs.
DECLARATION
I declare under penalty of perjury that the foregoing
costs are correct and were necessarily incurred in this
action and that the services for which fees have been
charged were actually and necessarily performed. A copy
hereof was this day mailed with postage fully prepaid
thereon to: Michael Clapp, Esq., Dinse, Erdmann &
Clapp, P.O. Box 988, Burlington, Vermont, 05402.
SIGNATURE OF ATTORNEY — Heather Briggs
ror: Ernest Dague, Sr. et al. pate 6-25-91
Name of claiming party
304
) DATE AND TIME
Please take notice that I will )
appear before the clerk who will )
tax said costs on the following __)
day and time: )
) AMOUNT TAXED
Costs are hereby taxed in )
the following amount and ) $
included in the judgment: )
CLERK OF THE COURT (py) DEPUTY CLERK DATE
WITNESS FEES (computation,
cf. 28 U.S.C. 1821 for statutory fees)
——————— SSS
Total
ATTENDANCE SUBSISTENCE MILEAGE Cost
NAME AND Total Total Total Each
rEsIpDENcCE Days Cost Days Cost Miles Cost Witness
Ruth
Einstein,
Montpelier,
VT 1 30.00 15.00 45.00
Julie
Hackbarth,
Montpelier,
VT 1 30.00 15.00 45.00
James
Ogden,
Burlington,
VT 1 30.00 5.00 35.00
305
Thomas
Moreau,
Burlington,
VT 1 30.00 5.00 35.00
Stephen
Goodkind,
Burlington,
VT 1 30.00 3.00 33.00
William
Rowley,
Burlington,
VT 1 30.00 13.12 43.12
Brian
Hecken-
berger,
Montpelier,
VT 1 30.00 13.12 43.12
TOTAL $279.24
NOTICE
Section 1924, Title 28, U.S. Code (effective September 1,
1948) provides:
“Sec. 1924. Verification of bill of costs.”
“Before any bill of costs is taxed, the party claiming
any item of cost or disbursement shall attach thereto an
affidavit, made by himself or by his duly authorized
attorney or agent having knowledge of the facts, that
such item is correct and has been necessarily incurred in
the case and that the services for which fees have been
charged were actually and necessarily performed.”
306
See also Section 1920 of Title 28 which reads in part as
follows:
“A bill of costs shall be filed in the case and, upon
allowance, included in the judgment or decree.”
The Federal Rules of Civil Procedure contain the fol-
lowing provisions:
Rule 54(d)
“Except when express provision therefor is made
either in a statute of the United States or in these rules,
costs shall be allowed as of course to the prevailing party
unless the court otherwise directs, but costs against the
United States, its officers, and agencies shall be imposed
only to the extent permitted by law. Costs may be taxed
by the clerk on one day’s notice. On motion served within
5 days thereafter, the action of the clerk may be reviewed
by the court.”
Rule 6(e)
“Whenever a party has the right or is required to do
some act or take some proceedings within. a prescribed
period after the service of a notice or other paper upon
him and the notice or paper is served upon him by mail, 3
days shall be added to the prescribed period.”
Rule 58 (In Part)
“Entry of the judgment shall not be delayed for the
taxing of costs.”
307
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
ERNEST DAGUE, SR., ERNEST
DAGUE, JR., BETTY DAGUE,
and ROSE A. BESSETTE,
Plaintiffs
Civil Action
No. 85-269
Vv.
CITY OF BURLINGTON,
)
)
)
)
)
)
)
)
Defendant )
MEMORANDUM IN SUPPORT OF BILL OF COSTS
Plaintiffs submit this memorandum in support of the
expenses claimed in the foregoing bill of costs. Fed. R.
Civ. P. 54; Fed. R. App. P. 39; 28 U.S.C. § 1920; 42 U.S.C.
§ 6972(e); 33 U.S.C. § 1365 (prevailing party may be
awarded costs of litigation).
1. Filing Fees.
Plaintiffs incurred $125.00 in filing fees at the time
they filed this complaint with the District Court. Hohensee
v. Basalyga, 50 F.R.D. 230, aff'd 429 F.2d 982 (3rd Cir.
1969). Plaintiffs also incurred $5.00 as the fee for filing the
notice of appeal in 1986. The fee is authorized pursuant to
Fed. R. App. P. 39(e). This fee is to be taxed in the District
Courts as costs of the appeal in favor of the Plaintiffs as
the prevailing parties. Id.
308
2. Witness Fees
Plaintiffs incurred $279.24 in witness fees for attendance
at the trial. Accordingly, all of these witnesses and the
resulting fees were reasonably necessary to the case and
are recoverable. Nissho-Iwai Co., Ltd. v. Occidental Crude
Sales, 729 F.2d 1530 (5th Cir. 1984).
3. Fees for Exemplification and Copies of Paper Neces-
sarily Obtained for Use in the Case.
Title 28 U.S.C. § 1920(4) authorizes a judge or clerk of
any court of the United States to include as costs photo-
copies necessarily obtained for use in the case. Plaintiff
seeks recovery here only of those copies furnished to the
court or opposing counsel. Such costs were approved in
Beech Cinema v. 20th Century Fox Film Corporation, 480 F.2d
1195, 1198 (S.D. N.Y. 1979), affirmed 622 F.2d 1106 (2d Cir.
1980). In Beech Cinema, the prevailing party originally
sought recovery of travel expenses, meals and lodging,
messenger service, secretarial overtime, long distance
phone calls, and postage costs. The court disallowed the
above expenses as not authorized under a bill of costs.
Additionally, however, the plaintiff sought recovery for
photocopy expenses. The court allowed recovery of the
costs of those copies “furnished to the court or opposing
counsel.” Beech Cinema, 48 F. Supp. at 1198. See also Tav-
arez v. Heckler, 610 F. Supp. 1059, 1064 (S.D. New York
1985).
In the instant action, Plaintiffs have submitted only
the expenses they incurred in providing copies and
exhibits to the Court and opposing counsel. Copying has
been charged at the Court’s rate of 20 cents per page.
309
Based upon the foregoing authority, Plaintiffs respectfully
submit that their requested photocopying costs, totalling
$845.80 are allowable and should be taxed.
4. Plaintiffs’ Costs Incident to Taking Depositions.
Plaintiffs took the depositions of only the ten (10)
individuals most directly involved in the events sur-
rounding Defendant’s management of the landfill, dis-
posal at the landfill and the effects of the same.
Specifically, these individuals were Steven Goodkind,
Thomas Moreau, James Robear, Robert Dill, Laurence
Bartlett, Frank Reed, Donald Stewart, William Country-
man, Craig Heindel, Henry Hager, Swiatoslav Kaczmar
and representatives of the Blodgett Co., Inc., the E.B. &
A.C. Whiting Co., the Edlund Co., Inc. and General Elec-
tric. Most of these individuals testified at the trial. Plain-
tiffs respectfully submit that these depositions were
crucial to Plaintiffs’ case and costs incurred by Plaintiff to
obtain copies of these depositions, totalling $4,385.54
should be awarded.
In State of Illinois v. Sangamo Construction Co., 657 F.2d
855 (7th Cir. 1981), the expenses incurred in discovery
depositions reasonably necessary. to the case were held
recoverable. In the instant case, Plaintiffs respectfully
submit that the deposition testimony of each of the ten
(10) deponents was essential to properly support the
verdict in favor of Plaintiffs and, as in Sangamo Construc-
tion Co., expenses incident to these depositions should be
allowed.
310
WHEREFORE, Plaintiffs pray that costs totalling
$6,838.03 be taxed against Defendant.
Burlington, Vermont. June 25, 1991.
Attorneys for Plaintiffs
By: /s/ William W. Pearson
William W. Pearson
Molloy, Jones & Donahue
P.O. Box 2268
Tucson, AR 85702
(602) 622-3531
Fed. I.D. No.
By: /s/ Heather Briggs
Heather Briggs
Downs Rachlin & Martin
P.O. Box 190
Burlington, VT 05402
(802) 863-2375
Fed. I1.D. No. 000601319
B3 / 40.0617
Not reproduced are 85 pages of original documentation
(invoices, receipts, etc.) of expenses and disbursements
totalling $6838.03, the amount of which is not disputed.
311
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
ERNEST DAGUE, SR., ERNEST
DAGUE, JR., BETTY DAGUE, Civil Action
)
)
and ROSE A. BESSETTE, ) No. 85-269
Plaintiffs Appellate
#90-7544
v. )
) (Filed
CITY OF BURLINGTON, 6/25/91)
Defendant)
PLAINTIFFS’ SUPPLEMENTAL APPLICATION
FOR AWARD OF FEES AND COSTS
Plaintiffs submit this application for their costs of
litigation, including attorney fees and expenses, incurred
in this action since October 31, 1989, excluding attorney
fees and expenses relating to the appeal to the Second
Circuit. The Resource Conservation and Recovery Act of
1976 (“RCRA”), 42 U.S.C. § 6901 et seq., and the Clean
Water Act (“CWA”), 33 U.S.C. § 1251 et seq., provide that
the prevailing or substantially prevailing party may be
awarded costs of litigation, including reasonable attorney
and expert witness fees. 42 U.S.C. § 6972(e); 33 U.S.C.
§ 1365(d).
On October 31, 1989, Plaintiffs submitted a fee appli-
cation covering fees and expenses through that date, but
excluding items properly includable on a bill of costs. On
April 2, 1990, the district court ordered an interim award
of $247,534.37, including a 25% risk enhancement. An
interlocutory appeal was filed by Defendant, followed by
an affirmance by the Second Circuit on June 12, 1991.
Plaintiffs now seek to recover fees incurred in this Court
312
since October 31, 1989, the date of their last fee applica-
tion in this Court. In support of this application, Plaintiffs
submit affidavits and other documentation to substanti-
ate the requested fees and expenses. ,
WHEREFORE, Plaintiffs respectfully request that,
based upon the attached affidavits of counsel, legal mem-
orandum and other supporting documents, supplemental
attorney fees in the amount of $24,113.00 be awarded to
Plaintiffs and that this amount be enhanced 25%
($6,028.25) pursuant to Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 107 S.Ct. 3078 (1987),
Hensley v. Eckerhart, 461 U.S. 424 (1983) and Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (7th Cir. 1984)
and this Court’s order of April 2, 1990, for a total of
$30,141.25. Plaintiffs further request that the Court award
$2,707.61 for attorney expenses incurred in this matter
since October 31, 1989 plus interest at the prevailing
federal rate, 28 U.S.C. § 1961, from the date of judgment
to the date of payment.
Burlington Vermont. June 25, 1991.
Attorneys for Plaintiffs
By: /s/ William W. Pearson
William W. Pearson
Molloy, Jones & Donahue
P.O. Box 2268
Tucson, AZ 85702
(602) 622-3531
Federal I.D. No.
313
By: /s/ Heather Briggs
Heather Briggs
Downs Rachlin & Martin
P.O. Box 190
Burlington, VT 05402
(802) 863-2375
Federal I.D. No. 000601319
B3 /40.0617
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
ERNEST DAGUE, SR., ERNEST
DAGUE, JR., BETTY DAGUE,
and ROSE A. BESSETTE,
Plaintiffs
Civil Action
No. 85-269
v.
CITY OF BURLINGTON,
)
)
)
)
)
)
)
)
Defendant )
MEMORANDUM IN SUPPORT OF PLAINTIFFS’
SUPPLEMENTAL APPLICATION FOR AWARD
OF FEES AND COSTS
Plaintiffs submit this memorandum in support of
their supplemental application for attorneys fees and
expenses.
314
I. Statement of Facts
Plaintiffs Ernest Dague, Sr. Ernest Dague, Jr., Betty
Dague and Rose A. Bessette brought this action against
the City of Burlington, Vermont (“the City”) for alleged
violations of federal and state law arising out of the
operation of the Burlington Municipal Disposal Grounds
(“the Landfill”). Plaintiffs commenced this action under
the citizen suit provisions of the Resource Conservation
and Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6972,
and the Clean Water Act (“CWA”), 33 U.S.C. § 1365, and
under pendent state claims. Plaintiffs sought injunctive
relief, imposition of civil penalties, compensatory and
punitive damages for their pendent state claims, costs,
and attorneys fees.
After a bench trial, the Court issued its Findings of
Fact, Opinion and Order, finding Defendant liable on four
of the five statutory counts of Plaintiffs’ Complaint.
Thereafter, “[h]aving determined that plaintiffs have sub-
stantially prevailed in both their RCRA and CWA
claims,” the district court assessed fees and expenses in
the amount of $247,534.37. The Defendant appealed and
the Second Circuit affirmed the judgment of the District
Court. Plaintiffs now move for a supplemental award for
their attorney fees and expenses incurred in this court
since October 31, 1989.
Since the date of Plaintiffs’ last fee application,
Defendant has moved for summary judgment, the Dis-
trict Court has awarded fees, and attempts were made to
enforce that award, which ultimately resulted in the
appeal to the Second Circuit by Defendant. Plaintiffs have
been required by necessity to respond appropriately in
315
order to preserve the order of District Court. The result is
that Plaintiffs’ counsel have now prosecuted this action
for almost six years without compensation. Plaintiffs sub-
mit that an interim order awarding payment of all fees
and costs to date is appropriate.
Il. Argument and Authority
The starting point for any calculation of attorneys
fees is the “lodestar,” the product of a reasonable hourly
rate and the number of hours reasonably expended on
substantive issues on which the petitioner satisfies the
statutory threshold of success. Sierra Club v. EPA, 769 F.2d
796, 23 ERC 1001, 1002 (D.C. Cir. 1985); Copeland v. Mar-
shall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc). After the
lodestar is calculated, a determination must be made as to
whether any enhancement of the lodestar is appropriate.
Sierra Club, 769 F.2d at 809-10.
A. Calculation of the Lodestar
This Court has already determined (and the Second
Circuit has affirmed) that Plaintiffs have substantially
prevailed on their federal claims, thereby entitling them
to a fully compensatory fee award. Hensley v. Eckerhart,
461 U.S. 424 (1983). All that remains to be decided is
whether the additional fees sought by Plaintiffs are based
on “reasonable” rates and “reasonable” hours. “In com-
puting the fee, counsel for [Plaintiffs as] prevailing par-
ties should be paid, as is traditional with attorneys
compensated by a fee-paying client, ‘for all time reason-
ably expended on a matter.” Save Our Sound Fisheries
Association v. Callaway, 429 F.Supp. 1136, 1147 (D.R.!
316
1977) (analysis utilized in civil rights actions applicable to
environmental cases) (quoting S. Rep. No. 94-1011, 94th
Cong., 2d Sess. at 6 (1976)).
Plaintiffs’ attorneys have submitted two affidavits
stating that their rates are those usually charged to clients
who pay on an hourly basis, (Exhibits 1 and 2), as well as
affidavits from other attorneys in Burlington, Vermont
stating that the applicable rates for Downs Rachlin &
Martin attorneys (and for Mr. Pearson, who is currently
practicing in Tuscon, [sic] Arizona in the field of environ-
mental law and whose current billing rate is $170 per
hour), are reasonable. (Exhibits 3, 4 and 5). Blum v. Sten-
son, 465 U.S. 886 (1989). Plaintiffs’ application is further
supported by itemized contemporaneous records for all
time expended. (Exhibits 1 and 2). The descriptive entries
show that all time spent was reasonably necessary.
Accordingly, Plaintiffs submit that the appropriate °
lodestar is $24,113.00 in supplemental attorneys fees.
B. Enhancing the Lodestar
The next step to consider is whether an enhancement
of the lodestar amount is appropriate. Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 107 S.Ct.
3078 (1987) (“Delaware Valley II”); Hensley v. Eckerhart, 461
U.S. 424 (1983); and Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (7th Cir. 1984). An enhancement is
appropriate here.
The purpose behind applying an enhancement or
multiplier is to attract competent counsel. SPIRG of New
Jersey v. AT&T Bell Laboratories, 842 F. 2d 1436, 27 ERC
317
1409, 1421 (3rd Cir. 1988); Delaware Valley II, 107 S.Ct.
3078 (1987). Simply stated, if plaintiffs’ attorneys can
receive as a maximum only the lodestar amount, after
risking complete nonpayment as well as the hardships
imposed by delay, lack of cash-flow, and out-of-pocket
expenses, then competent counsel will be reluctant to
serve on behalf of private attorneys general. The purpose
underlying the “multiplier” is to balance the inherent
inequities between plaintiffs and fee-paying defendants
and to reward attorneys who take on public interest cases
and achieve substantial results.
In this case, this Court has already determined that
the enhancement of 25 percent (6,028.25) is appropriate,
as affirmed by the Second Circuit. Accordingly, Plaintiffs
request that the supplemental fees requested herein also
be enhanced by the same amount, for a total fee award of
$30,141.25.
C. Expenses
In addition to attorneys fees, Plaintiffs request that
they be awarded reasonable expenses not otherwise
recoverable in a bills of costs,’ incurred in this action.
Plaintiffs’ counsel has attached an affidavit setting forth
that these expenses were necessary and reasonably
incurred and has attached copies of applicable bills and
receipts, totalling $2,707.61. (Exhibits 1 and 2). Accord-
ingly, Plaintiffs request that this amount also be awarded.
' Plaintiffs have submitted a separate Bill of Costs.
318
An award of costs in this case is not limited to those
normally allowed pursuant to 28 U.S.C. § 1920 or FR. Civ.
P. 54. While there are few environmental cases on this
point, case law developed under other fee-shifting stat-
utes instructs that all reasonable out-of-pocket expendi-
tures are to be awarded. Shorter v. Valley Bank and Trust
Co., 678 F.Supp. 714, 726 (N.D. Ill. 1988) (FLSA); Reichman
v. Bonsignore & Mazzotta, 818 F.2d 278 (2d Cir. 1987)
(citing Laffey v. Northwest Airlines, Inc., 747 F.2d 4, 30
(D.C. Cir. 1984)); Herold v. Hajoca Corp., 864 F.2d 317, 323
(4th Cir. 1988) (ADEA); Kossman v. Calcumet County, 849
F.2d 1027, 1030 (7th Cir. 1988) (ADEA); Hidle v. Geneva
County Board of Education, 681 F. Supp. 752, 758 (D.C. Ala.
1988); Laffey, 746 F.2d at 30; Thompson v. Sawyer, 586 F.
Supp. 635, 643 (D.D.C. 1984) (Title VII); Planells v. Howard
University, __ F Supp. __, 34 FEP 66, 71 (D.C.D.C. 1984)
(Title VII); Monroe v. United Air Lines, Inc., 565 F.Supp.
274, 289 (N.D. Ill. 1983) (ADEA).
Courts addressing claims under environmental pro-
tection statutes have stated that the general policies
underlying awards of fees and expenses in civil rights
cases apply to similar fee requests under environmental
statutes. See, e.g., Pennsylvania v. Delaware Valley Citizens’
Council for Clean Air, 106 S.Ct. 3088, 24 E.R.C. 1577 (1986)
(“Delaware Valley I”); SPIRG of New Jersey v. AT&T, 842
F.2d 1436, 1439 n.1 (3rd Cir. 1988); Save Our Sound Fish-
eries Association v. Callaway, 429 F. Supp. 1136 (D.R.1.
1977).
Courts resolving fee issues under the Clean Air Act,
42 US.C. § 7607(f), a fee shifting statute substantially
similar to the fee shifting provision in RCRA and the
CWA, (SPIRG of New Jersey, 842 F.2d at 1439 n.1) have
319
awarded costs similar to those requested by Plaintiffs
here. Sierra Club v. EPA, 769 F.2d 796, 812 (D.C. Cir. 1985)
(awarding telephone, photocopying, postage costs); Ala-
bama Power Co. v. Gorsuch, 672 F.2d 1, 6-8 (D.C. Cir. 1982)
(travel, postage, copies of legislative history and tran-
script expenses awarded). All expenses requested by
Plaintiffs are therefore reimbursable.
D. Interest
Plaintiffs further request an award of post judgment
interest pursuant to 28 U.S.C. § 1961.
Ill. CONCLUSION
Plaintiffs respectfully request the Court to award
supplemental attorneys fees in the amount of $24,113.00,
to enhance said fees 25% (for a total of $30,141.25) to
award $2,707.61 for expenses, and post-judgment interest
at the rate of 8.19% from October 17, 1989 to the date of
payment by the Defendant.
Burlington, Vermont. June 25, 1991.
Attorneys for Plaintiffs
By: /s/ William W. Pearson
William W. Pearson
Molloy, Jones & Donahue
P.O. Box 2268
Tucson, AR 85702
(602) 622-3531
Federal I.D. No.
320
By: /s/ Heather Briggs
Heather Briggs
Downs Rachlin & Martin
P.O. Box 190
Burlington, VT 05402
(802) 863-2375
Federal I.D. No. 000601319
Not reproduced are 13 pages of original documentation
(invoices, receipts, etc.) of expenses and disbursements in
each of exhibits 1 & 2 totalling $2,707.61, the amount of
which is not disputed.
EXHIBIT 1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
ERNEST DAGUE, SR.,
ERNEST DAGUE, JR., BETTY
DAGUE, and ROSE A. BESSETTE,
eee ee
Plaintiffs,
V. Civil Action
CITY OF BURLINGTON, No. 85-269
Defendant.
321
AFFIDAVIT IN SUPPORT OF PLAINTIFFS’
APPLICATION FOR SUPPLEMENTAL AWARD
OF FEES AND COSTS
STATE OF VERMONT )
CHITTENDEN COUNTY ) -
Heather Briggs, being duly sworn, deposes and states as
follows:
1.
I am an attorney in the law firm of Downs Rachlin &
Martin, attorneys for Plaintiffs in this action. This affi-
davit provides the specification and itemization neces-
sary for recovery of costs of litigation, including
reasonable attorney fees and expenses, pursuant to 42
U.S.C. § 6972(e) and 33 U.S.C. § 1365(d).
2.
Attached hereto as Exhibit 1 are the billing state-
ments by this law firm for legal services performed in this
Court since October 31, 1989, exclusive of the appeal to
the Second Circuit. These billings are accurate and true
representations of work actually performed, compiled
from time slips prepared by the attorney or legal assistant
performing the work described. Time slips are prepared
by each attorney and legal assistant on a daily basis and
reflect actual time spent on the matter, as well as a
description of the work performed. As shown in Exhibits
1 and 2, the total amount of Plaintiffs’ attorneys fees
322
incurred from October 31, 1989 to May 7, 1990 is
$24,113.00.
3.
Attached are copies of the expense receipts incurred
in this Court since October 31, 1989, exclusive of amounts
relating to the appeal and of any amount to be included
in Plaintiffs’ Bill of Costs. These receipts are accurate and
true representations of expenses actually incurred and
total $167.96. Certain other expenses were also neces-
sarily incurred for which no receipts are available: (1)
telephone $101.82; (2) postage $220.22; (3) travel $38.10;
(4) computer legal research $617.11; and (5) copying
$850.20'. These expenses total $1,827.45. Thus, total
expenses per Exhibits 1 and 2, not otherwise recoverable
in a Bill of Costs, are $2,707.61.
4.
William W. Pearson served as lead counsel for Plain-
tiffs in this matter. He was first admitted to the Indiana
Bar and the U.S. District Court, Southern District of Indi-
ana, in 1971; the Vermont Bar in 1975; the U.S. District
Court, District of Vermont, in 1977; the U.S. Court of
Appeals, Second Circuit, in 1986; the Arizona Bar and the
U.S. District Court, District of Arizona, in 1989. He
received his undergraduate degree from University of
' The practice of Downs Rachlin & Martin is to pass neces-
sarily incurred litigation expenses on to fee-paying clients and
not to increase hourly rates to absorb such expenses.
323
Chicago in 1968. He then attended Georgetown Univer-
sity Law Center where he received his J.D. in 1971. He is
presently a member of the Arizona, Vermont and Ameri-
can Bar Associations.
Mr. Pearson is an experienced trial attorney in the
field of environmental law. His experience with environ-
mental legal problems includes hazardous waste manage-
ment, toxic torts, NPDES permits, landfills, hazardous
waste risk management and commercial lending, envi-
ronmental audits, wastewater treatment facilities, Super-
fund, RCRA, Act 250, underground storage tanks, and
insurance coverage for environmental claims.
5.
Richard Bland assisted Mr. Pearson in this matter. Mr.
Bland was first admitted to the Vermont Bar in 1985; the
U.S. District Court, District of Vermont, in 1986; and the
Supreme Court of the United States in 1989. Mr. Bland
received his undergraduate degree form [sic] University
of Vermont in 1982. He then attended Washington Uni-
versity School of Law where he received his J.D. in 1985.
Mr. Bland is presently a member of the Chittenden
County, Vermont and American Bar Associations.
Mr. Bland was, during his employment with this
firm, a trial attorney whose practice was primarily in the
field of environmental law. He has experience in resolv-
ing environmental legal problems involving hazardous
waste management, including the generation, transporta-
tion, storage and disposal of hazardous waste, landfills,
RCRA, CWA, Superfund, asbestos, underground storage
tanks, hazardous waste risk management and commercial
324
lending, and insurance coverage for environmental
claims.
6.
Based upon personal knowledge of hourly rates
charged by other attorneys in the Burlington area with
similar experience, reputation and skill, | know that rates
from $100 - $175 per hour are routinely charged. As
shown in Exhibit 1, there are varying levels of rates
charged by the law form of Downs Rachlin & Martin.
Work performed by partners is billed at $100 - $175 per
hour. Work performed by associates is billed at $65 - $110
per hour, depending on the level of experience. The fol-
lowing is a list of each attorney and legal assistant who
worked on this case, the amount of time they spent on
this case, and their hourly rates:
Heather Briggs 0.50 HOURS AT 130.00/HR
= 65.00
Heather Briggs 4.50 HOURS AT 120.00/HR
= 540.00
Richard N. Bland 30.10 HOURS AT 90.00/HR
= 2,709.00
Richard N. Bland 84.80 HOURS AT 80.00/HR
= 6,784.00
Anita R. Tuttle 8.20 HOURS AT 75.00/HR
= 615.00
Michael J. Case 2.00 HOURS AT 55.00/HR
= 110.00
Michael J. Case 2.30 HOURS AT 50.00/HR
= 115.00
325
7.
In order to substantiate that the requested hourly
rates are reasonable, attached are Exhibits 3, 4 and 5
which are affidavits from attorneys in the Burlington area
which set forth their respective billing rates and further
indicate the hourly rates for counsel with similar experi-
ence, reputation and skill.
8.
The environmental practice at Downs Rachlin & Mar-
tin has been limited to representing fee-paying clients,
because of the risk associated with the representation of
private attorneys general and plaintiffs on a contingency
fee basis. Thus, most of the hours spent on this matter
would have been spent representing other clients who
would pay our hourly rates on a monthly basis.
Nevertheless, all work associated with Defendant's
statutory liability was taken on a contingent basis: had
Plaintiffs not prevailed on their statutory claims, counsel
for Plaintiffs would not be compensated at all for their
services on these claims. In fact, to date, this firm has not
received any payment for its services.
An important factor in this firm’s decision to purse
Plaintiffs’ statutory claims was the opportunity to have
any eventual award of attorneys fees enhanced by the
Court beyond the lodestar amount. This incentive, in my
professional opinion, is necessary to attract competent
counsel to represent private attorneys general in public
interest litigation. Accordingly, I am of the opinion that
Plaintiffs would have faced extreme difficulties in finding
326 | 327
other local counsel of similar experience to pursue their Sample Entry -
claims under RCRA and the CWA on an hourly rate to be
paid only on the contingency of success.
June 25, 1991 /s/ Heather Briggs
Date Heather Briggs
Sworn to and subscribed before me this 25th day of
June, 1991.
/s/ Anita R. Tuttle
Notary Public
Commission Expires: 2/10/95
DOWNS RACHLIN & MARTIN, PROF. CORP
9 PROSPECT STREET
POST OFFICE BOX 99
ST. JOHNSBURY, VT 05819-0099
June 24, 1991
MRS. ERNEST DAGUE
272 MANHATTAN DRIVE
BURLINGTON, VT 05401
FILE NUMBER: 23690001
DRAFT NUMBER: 1.002
FOR THE PERIOD THROUGH May 6, 1990
DAGUE V. CITY OF BURLINGTON
Date: Atty: Hours: Amount:
Description of Services:
10/31/89 RNB 12.30 984.00
LETTER TO ATTORNEY PEARSON REGARD-
ING HIS AFFIDAVIT IN SUPPORT OF PLAIN-
TIFFS’ APPLICATION FOR AWARD OF FEES
AND COSTS; DRAFT LETTER TO ATTORNEYS
CLAPP AND MCNEIL REGARDING PLAIN-
TIFFS’ SETTLEMENT DEMAND; LETTER TO
MR. BURBANK REGARDING FILING AND
SERVICE OF PLAINTIFFS’ APPLICATION FOR
AWARD OF FEES AND COSTS, SUPPORTING
MEMO, AFFIDAVITS AND EXHIBITS; TELE-
PHONE CONFERENCE WITH ACCOUNTING
DEPT. REGARDING REVISIONS TO STATE-
MENT OF SERVICES; REVIEW ATTORNEY
EXPENSES AND COMPILE RECEIPTS THERE-
FORE; PROOFREAD PLAINTIFFS’ APPLICA-
TION FOR AWARD OF FEES AND COSTS,
SUPPORTING MEMORANDUM AND AFFI-
DAVITS AND EXHIBITS; TELEPHONE CON-
FERENCE WITH ATTORNEY GALLAGHER
REGARDING SAME; SERVICE AND FILING OF
SAME.
10/31/89 ART 6.30 472.50
LEGAL RESEARCH REGARDING EXPENSES
TO BE APPLIED FOR IN BILL OF COSTS;
REVIEW EXPENSES.
10/31/89 MJC 0.50 25.00
REVIEW DISBURSEMENT RECORDS AND
TIMESHEETS FOR RECOVERY OF LEGAL
FEES.
328
11/01/89 ART 0.80 60.00
ORGANIZATION OF BILL OF COSTS SUP-
PORTING DOCUMENTS AND OUTLINE.
11/03/89 MJC 0.40 20.00
REVIEW MOTION FOR ATTORNEYS FEES
AND ASSOCIATED DOCUMENTS.
11/08/89 RNB .30 24.00
LEGAL RESEARCH ON DISPLACEMENT OF
CITIZEN SUITS UNDER RCRA BY FEDERALLY
AUTHORIZED STATE PROGRAMS.
11/11/89 RNB 2.30 184.00
FURTHER LEGAL RESEARCH ON EXCEP-
TIONS TO 60-90 DAY NOTICE AS A CONDI-
TION PRECEDENT TO COMMENCING A
CITIZEN SUIT UNDER THE CWA AND RCRA;
LEGAL RESEARCH ON TOXIC POLLUTANT
EFFLUENT STANDARDS AND PROHIBITIONS
UNDER SECTION 1317(A) OF THE CWA.
11/14/89 RNB 12.50 1,000.00
REVIEW DEFENDANT'S NOTICE OF APPEAL
AND ANALYZE ITS MEMORANDUM IN
OPPOSITION TO PLAINTIFFS’ APPLICATION
FOR AWARD OF FEES AND COSTS; REVIEW
AND ANALYZE FEDERAL RULES OF APPEL-
LATE PROCEDURE, 28 U.S.C. §§ 1291, 1292,
AND APPEALS TO THE SECOND CIRCUIT
(6TH EDITION); EXTENDED TELEPHONE
CONFERENCE WITH ATTORNEY PEARSON
REGARDING SAME AND CROSS-APPEAL-
ABLE ISSUES; TELEPHONE CONFERENCE
WITH ATTORNEY CLAPP REGARDING VOL-
UNTARY DISMISSAL OF APPEAL OF INTER-
LOCUTORY DECISION OF JUDGE BILLINGS;
FOLLOW-UP TELEPHONE CONFERENCE
WITH ATTORNEY MCKEARIN REGARDING
SAME AND SETTLEMENT POSSIBILITIES;
329
FOLLOW-UP ATTORNEY PEARSON REGARD-
ING SAME; ATTEND EMERGENCY MEETING
OF CITY BOARD OF ALDERMEN REGARDING
LANDFILL CRISIS.
11/14/89 ART 0.50 37.50
REVIEW OPPOSITION MEMO TO PLAINTIFF'S
REQUEST FOR FEES; ANALYZE APPEAL AND
FINALITY ISSUES.
11/15/89 RNB 3.30 264.00
FURTHER REVIEW AND ANALYSIS OF CITY’S
MEMORANDUM IN OPPOSITION TO PLAIN-
TIFFS’ APPLICATION FOR AWARD OF FEES
AND COSS |sic]; REVIEW AND ANALYZE
STIPULATION OF DISMISSAL OF APPEAL;
LEGAL RESEARCH ON ENHANCEMENT OF
ATTORNEYS’ FEES UNDER FEE-SHIFTING
STATUTES.
11/15/89 ART 0.60 45.00
ANALYSIS OF RESPONSE TO MEMO IN
OPPOSITION.
11/20/89 HB 2.50 300.00
RESEARCH AND PREPARATION OF REPLY
BRIEF REGARDING FEE APPLICATION.
11/20/89 RNB 6.80 544.00
THOROUGH REVIEW AND ANALYSIS OF
HAUSTROM V. TILLAMOOK COUNTY DECI-
SION; ANALYZE ARGUMENTS AND CASE-
LAW IN REPLY TO DEFENDANT'S
MEMORANDUM IN OPPOSITION TO PLAIN-
TIFFS’ APPLICATION FOR AWARD OF FEES
AND COSTS; BEGIN DRAFTING PLAINTIFFS’
REPLY MEMORANDUM IN SUPPORT OF
THEIR APPLICATION FOR AWARD OF FEES
AND COSTS, INCLUDING FIRST ARGUMENT
THAT PLAINTIFFS HAVE SUBSTANTIALLY
330
PREVAILED, ENTITLING THEM TO A FULLY
COMPENSATORY FEE AWARD.
11/21/89 HB 2.00 240.00
REVISIONS TO REPLY BRIEF CONCERNING
FEE APPLICATION.
11/21/89 RNB 6.30 504.00
FURTHER LEGAL RESEARCH ON STATU-
TORY FEE AWARDS; CONTINUE DRAFTING
PLAINTIFFS’ REPLY MEMORANDUM IN SUP-
PORT OF THEIR APPLICATION FOR FEES
AND COSTS, INCLUDING ARGUMENTS
THAT DEFENDANT’S GENERALIZED OPPO-
SITION IS INSUFFICIENT TO REDUCE THE
LODESTAR AND THE LODESTAR
REQUESTED SHOULD BE ENHANCED;
REVISE SAME.
11/22/89 RNB 1.50 120.00
LETTER TO ATTORNEY MCKEARIN; TELE-
PHONE CONFERENCE WITH ATTORNEY
PEARSON REGARDING PLAINTIFFS’ REPLY
MEMORANDUM IN SUPPORT OF THEIR
APPLICATION FOR AWARD OF FEES AND
COSTS; PROOFREAD, SERVICE AND FILING
OF SAME; FOLLOW-UP TELEPHONE CON-
FERENCE WITH ATTORNEY PEARSON
REGARDING HEARING ON PLAINTIFFS’
APPLICATION FOR AWARD OF FEES AND
COSTS.
11/29/89 RNB 0.50 40.00
REVIEW AND ANALYZE MINUTES OF 14
NOVEMBER 1989 EMERGENCY MEETING OF
CITY’S BOARD OF ALDERMEN.
12/04/89 RNB 2.70 216.00
EXTENDED TELEPHONE CONFERENCE
WITH ATTORNEY WILLIAM PEARSON
REGARDING HEARING ON PLAINTIFFS’
331
APPLICATION FOR AWARD OF FEES AND
COSTS AND ARGUMENT IN RESPONSE TO
CITY’S OPPOSITION THERETO; ATTEND
HEARING ON CITY’S MOTION TO DISMISS
IN STATE OF VERMONT V. CITY OF BUR-
LINGTON PENDING IN CHITTENDEN SUPE-
RIOR COURT.
12/07/89 RNB 0.30 24.00
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON IN FURTHER PREPARATION
FOR HEARING ON PLAINTIFFS’ APPLICA-
TION FOR AN AWARD OF FEES AND COSTS.
12/07/89 MJC 1.00 50.00
TELEPHONE CONFERENCE WITH DON
BESSETTE AND ROSE BESSETTE REGARDING
STATUS OF CASE.
12/08/89 RNB 1.30 104.00
FURTHER PREPARATION FOR HEARING ON
PLAINTIFFS’ APPLICATION FOR AWARD OF
FEES AND COSTS; TELEPHONE CONFER-
ENCE WITH ATTORNEY PEARSON REGARD-
ING SAME AND ARGUMENT FOR
ENHANCEMENT OF FEES.
12/10/89 RNB 4.80 384.00
REVIEW AND ANALYZE CASELAW IN SUP-
PORT OF PLAINTIFFS’ APPLICATION FOR
AWARD OF FEES AND COSTS AND PREPARE
ORAL ARGUMENT FOR HEARING ON SAME.
12/11/89 RNB 10.30 824.00
FURTHER LEGAL RESEARCH ON FEDERAL
COURT AWARDS OF ATTORNEY'S FEES; FUR-
THER PREPARATION FOR AND ATTEND
HEARING ON PLAINTIFFS’ APPLICATION
FOR AWARD OF FEES AND COSTS; THO-
ROUGH REVIEW AND ANALYSIS OF CITY’S
332
PPLEMENTAL MEMORANDUM IN OPPO-
SITION TO PLAINTIFFS’ REQUEST FOR
ATTORNEY’S FEES; REVIEW CITY’S INTER-
ROGATORIES AND REQUESTS TO PRODUCE
DATED 11 DECEMBER 1989; THOROUGH
REVIEW AND ANALYSIS OF DEFENDANT'S
MOTION FOR JUDGMENT AND@®OR SUM-
MARY JUDGMENT AND@®OR DISMISSAL OF
COUNTS I - V OF PLAINTIFFS’ COMPLAINT;
FURTHER REVIEW AND ANALYSIS OF HAUS-
TROM V. TILLAMOOK COUNTY.
RNB 3.70 296.00
Sn DRAFT PLAINTIFFS’ REPLY IN SUPPORT OF
AN AWARD OF FEES AND COSTS; REVIEW
AND ANALYZE 9TH CIRCUIT COURT OF
APPEALS DECISION IN HAUSTROM V.
TILLAMOOK COUNTY.
20.00
12/13/89 MJC 0.40
TELEPHONE CONFERENCE WITH DON
BESSETTE AND LETTER TO BESSETTE.
120.00
12/14/89 RNB 1.50
FURTHER ANALYSIS OF DEFENDANT'S
MOTION FOR DISMISSAL AND U5S.
SUPREME COURT DECISION IN HAUSTROM
V. TILLAMOOK.
89 RNB 4.30 344.00
ei paciN DRAFTING MEMORANDUM IN OPPO-
SITION TO DEFENDANT’S MOTION FOR
JUDGMENT AND/OR DISMISSAL OF
COUNTS |, Il, Il] AND IV OF PLAINTIFFS
COMPLAINT; TELEPHONE CONFERENCE
WITH ATTORNEY PEARSON REGARDING
SAME
12/17/89 RNB 4.30 344.00
CONTINUE DRAFTING MEMORANDUM IN
OPPOSITION TO DEFENDANT’S MOTION
333
FOR JUDGMENT AND/OR DISMISSAL OF
COUNTS I - IV OF PLAINTIFF’S COMPLAINT.
12/19/89 RNB 3.30 264.00
LETTER TO ATTORNEY PEARSON REGARD-
ING DRAFT MEMORANDUM IN OPPOSITION
TO DEFENDANT’S MOTION FOR JUDGMENT
AND/OR DISMISSAL OF COUNTS | - IV OF
PLAINTIFFS’ COMPLAINT AND DRAFT OF
PLAINTIFFS’ REPLY IN SUPPORT OF AN
AWARD OF FEES AND COSTS; ATTEND
HEARING AT CHITTENDEN SUPERIOR
COURT ON STATE’S MOTION FOR PRELIMI-
NARY INJUNCTION IN STATE OF VT. V. CITY
OF BURLINGTON; TELEPHONE CONFER-
ENCE WITH ATTORNEY PEARSON REGARD.
ING SAME AND DRAFT RESPONSE
MEMORANDA.
12/23/89 JCG 0.30 37.50
LEGAL RESEARCH APPLICATION OF “LAW
OF THE CASE” DOCTRINE; INTRAOFFICE
MEMORANDUM TO ATTORNEY BLAND.
12/27/89 RNB 1.30 104.00
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON REGARDING REVISIONS TO
PLAINTIFFS’ REPLY IN SUPPORT OF AN
AWARD OF FEES AND COSTS AND PLAIN.
TIFFS’ MEMORANDUM IN OPPOSITION TO
DEFENDANT’S MOTION FOR JUDGMENT
AND@®OR DISMISSAL OF COUNTS | - IV OF
PLAINTIFFS’ COMPLAINT, AND SERVICE
AND FILING OF SAME; REVISE AND PROOF-
READ SAME.
12/28/89 RNB 1.20 96.00
LETTER TO CLERK OF COURT REGARDING
FILING OF MEMORANDUM IN OPPOSITION
TO DEFENDANT’S MOTION FOR JUDGMENT
334
AND/OR DISMISSAL OF COUNTS I-IV OF
PLAINTIFFS’ COMPLAINT AND PLAINTIFFS’
REPLY IN SUPPORT OF AN AWARD OF FEES
AND COSTS; LEGAL RESEARCH ON LAW-OF-
CASE DOCTRINE; TELEPHONE CONFER-
ENCE WITH ATTORNEY PEARSON REGARD-
ING ARGUMENTS AGAINST DISMISSAL OF
COUNTS II AND IV OF PLAINTIFFS’ COM-
PLAINT.
01/10/90 RNB 1.30 117.00
REVIEW AND ANALYZE SUPPLEMENTAL
MEMORANDUM IN SUPPORT OF DEFEN-
DANT’S MOTION DATED DECEMBER 11,
1989; LETTER TO ATTORNEY PEARSON
REGARDING SAME.
03/01/90 RNB 0.50 45.00
TELEPHONE CONFERENCE WITH MRS.
BETTY DAGUE REGARDING PENDING
MOTION FOR DISMISSAL AND APPLICA-
TION FEES, AND JURY TRIAL ON PENDENT
STATE CLAIMS; REVIEW CITY’S 1989
ANNUAL REPORT REGARDING LANDFILL
LITIGATION; LETTER TO ATTORNEY PEAR-
SON REGARDING SAME.
03/16/90 RNB 2.50 225.00
THOROUGH REVIEW AND ANALYSIS OF
JUDGE BILLINGS’ OPINION AND ORDER ON
CITY’S MOTION FOR DISMISSAL; EXTENDED
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON REGARDING SAME; BRIEF
TELEPHONE CONFERENCE WITH ATTOR-
NEY GALLAGHER REGARDING SAME.
03/19/90 RNB 0.50 45.00
FURTHER ANALYSIS OF JUDGE BILLINGS’
OPINION AND ORDER ON CITY’S MOTION
335
FOR DISMISSAL AND ANALYZE SETTLE-
MENT STRATEGY.
04/03/90 RNB 1.00 90.00
EXTENSIVE ANALYSIS OF JUDGE BILLINGS’
OPINION AND ORDER REGARDING ATTOR-
NEYS FEES AND EXPENSES; EXTENDED
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON REGARDING SAME.
04/04/90 HB 0.50 65.00
CONFERENCE WITH RICHARD BLAND AND
RESEARCH REGARDING ENFORCEMENT OF
INTERIM FEE AWARD.
04/06/90 RNB 0.60 54.00
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON REGARDING JUDGE BILL-
INGS’ OPINION AND ORDER DATED 2 APRIL
1990; TELEPHONE CONFERENCE WITH
ATTORNEY MCKEARIN REGARDING CITY’S
INTENT TO ABIDE BY THE ORDER AND
MAKE PAYMENT OF THE FEE AWARD.
04/07/90 RNB 0.30 27.00
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON REGARDING CITY’S TENTA-
TIVE DEC'SION NOT TO PAY THE FEE
AWARD OF JUDGE BILLINGS’ 2 APRIL 1990
OPINION AND ORDER.
04/10/90 RNB 0.30 27.00
LETTER TO ATTORNEY MCKEARIN REGARD-
ING CITY’S INTENT TO PAY AWARD OF FEES
AND COSTS.
04/11/90 RNB 2.50 225.00
REVIEW ATTORNEY MCKEARIN’S 10 APRIL
1990 LETTER REGARDING CITY’S INTENT TO
MAKE PAYMENT OF COURT-AWARDED FEES
AND EXPENSES; TELEPHONE CONFERENCE
336
WITH ATTORNEY PEARSON REGARDING
SAME; LEGAL RESEARCH ON APPEALS
FROM INTERLOCUTORY DECISIONS UNDER
28 USC § 1292(B) AND F.R.A.P. 5.
~ 04/13/90 RNB 0.70 63.00
DRAFT PETITION FOR ENFORCEMENT OF
ORDER OF ATTORNEYS FEES AND
EXPENSES; LETTER TO ATTORNEY PEARSON
REGARDING SAME.
04/16/90 RNB 0.80 72.00
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON REGARDING DRAFT PETI-
TION FOR ENFORCEMENT OF ORDER;
REVISE SAME; SERVICE AND FILING OF
SAME.
04/17/90 RNB 0.60 54.00
TELEPHONE CONFERENCE WITH MRS.
BETTY DAGUE REGARDING STATUS OF
COURT’S AWARD OF FEES AND EXPENSES
AND HER AVAILABILITY FOR JURY TRIAL
ON PENDANT STATE CLAIMS; CONFERENCE
WITH ACCOUNTING DEPARTMENT
REGARDING FEES AND EXPENSES
INCURRED FROM 31 OCTOBER 1989 TO
DATE. .
04/19/90 RNB 1.30 117.00
REVIEW AND ANALYZE ATTORNEY
MCKEARIN’S 17 APRIL 1990 LETTER
REGARDING DR. KACZMAR’S BILL;
ANALYZE CITY’S DISCOVERY RESPONSES
REGARDING INSURANCE COVERAGE; TELE-
PHONE CONFERENCE WITH ATTORNEY
MCKEARIN REGARDING PARTY RESPONS-
IBLE FOR PAYMENT OF DR. KACZMAR’S
BILL.
337
04/19/90 MJC 2.00 110.00
LOCATE FILE DOCUMENTS REGARDING
SETTLEMENT OFFERS, {NSURANCE COVER-
AGE FOR CITY OF BURLINGTON: CONFER-
ENCE WITH ATTORNEY BLAND REGARDING
SAME.
04/20/90 RNB 0.30 27.00
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON REGARDING CITY’S REQUEST
FOR PAYMENT OF DR. KACZMAR’S BILL
AND PNF HEARING ON PETITION FOR
ENFORCEMENT OF ORDER.
04/26/90 RNB 11.30 1,017.00
THOROUGH REVIEW AND ANALYSIS OF
CITY’S MEMORANDUM IN OPPOSITION TO
PLAINTIFF’S PETITION FOR ENFORCEMENT
OF ORDER, MOTION FOR ENTRY OF JUDG-
MENT AND SUPPORTING MEMORANDUM
OF LAW; TELEPHONE CONFERENCE WITH —
ATTORNEY PEARSON REGARDING SAME;
EXTENSIVE LEGAL RESEARCH REGARDING
ENTRY OF PARTIAL JUDGMENT UNDER
F.R.C.P. 54(b).
04/27/90 RNB 2.30 207.00
DRAFT MEMORANDUM IN OPPOSITION TO
DEFENDANT’S MOTION FOR ENTRY OF
JUDGMENT; REVISE SAME.
04/30/90 RNB 3.30 297.00
LEGAL RESEARCH ON STAY UPON APPEAL
AND STAY OF JUDGMENT AS TO MULTIPLE
CLAIMS; DRAFT PLAINTIFF’S RESPONSE TO
DEFENDANT'S OPPOSITION TO ENFORCE-
MENT OF COURT ORDER: REVISE SAME;
TELEPHONE CONFERENCE WITH ATTOR-
NEY PEARSON REGARDING SAME.
a en
338
Heather Briggs 0.50 HOURS AT ge
= 65.0
Heather Briggs 4.50 HOURS AT 120.00/HR
a ” = 540.00
ichard N. Bland 30.10 HOURS AT 90.00/HR
— = 2,709.00
Richard N. Bland 84.80 HOURS AT 80.00/HR
= 6,784.00
Anita R. Tuttle 8.20 HOURS AT 75.00/HR
= 615.00
Michael J. Case 2.00 HOURS AT 55.00/HR
= 110.00
Michael J. Case 2.30 HOURS AT 50.00/HR
= 115.00
TOTAL SERVICES RENDERED $ 10,938.00
EXHIBIT 2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
ERNEST DAGUE, SR., ERNEST
DAGUE, JR., BETTY DAGUE,
and ROSE A. BESSETTE,
Plaintiffs
Civil Action
No. 85-269
v.
CITY OF BURLINGTON,
)
)
)
)
)
)
)
)
Defendant )~
339
AFFIDAVIT IN SUPPORT OF PLAINTIFFS’
SUPPLEMENTAL APPLICATION FOR AWARD
OF FEES AND COSTS
STATE OF ARIZONA )
) AFFIDAVIT
COUNTY OF PIMA - )
William W. Pearson, being duly sworn, deposes and
States as follows:
1. From the beginning of this action until May 30,
1989, I was a partner in the law firm of Downs, Rachlin &
Martin, attorneys for plaintiffs in this action. Since June 1,
1989, I have been with the firm of Molloy, Jones & Don-
ohue [sic] in Tucson, Arizona. This affidavit provides
additional support for plaintiffs’ application for the
award of fees and costs on appeal pursuant to this
Court’s Order of June 12, 1991, and 42 U.S.C. § 6972(e)
and 33 U.S.C. § 1365(d). ‘
2. My relevant background is as follows:
a. B.A. degree from University of Chicago in
1968
b. J.D. degree from Georgetown University
Law Center in 1971
c. Admitted to Indiana Bar and US. District
Court, Southern District of Indiana in 1971
d. Admitted to Vermont Bar in 1975 and the
U.S. District Court, District of Vermont in
1977
e. Admitted to U.S. Court of Appeals, 2nd Cir-
cuit in 1986 :
f. Admitted to Arizona Bar and U.S. District
Court, District of Arizona in 1989.
340
3. Iam an experienced trial attorney in the field of
environmental law. I have handled a variety of environ-
mental legal problems including hazardous and solid
waste management, toxic torts, NPDES permits, landfills,
lender liability for environmental hazards, environmental
audits, wastewater treatment facilities, Superfund, RCRA,
Act 250, underground storage tanks, and insurance cover-
age for environmental claims.
4. In practicing environmental law in Vermont, it is
my experience that a very high percentage of fee paying
clients retain big city, national law firms to do their high
stakes, sophisticated environmental work. For example,
Downs, Rachlin & Martin is one of only a couple Vermont
law firms who are lead counsel for a significant party in
Vermont's Superfund sites. The other significant parties
are represented by law firms from such places as Boston,
New York City, and Washington, D.C. These outside Ver-
mont firms are hired because the laws are complex, the
technical issues sophisticated and the financial stakes are
high. Commensurate with their experience and expertise,
these out-of-state firms charge hourly fees substantially
higher than their Vermont counterparts.
5. Presently, | am responsible for the environmental
practice in Molloy, Jones & Donahue, which is one of the
premier law firms in Tucson, Arizona, a city whose popu-
lation is greater than all of Vermont. I am continuing my
environmental law practice in the areas outlined above.
My present hourly rate is $170.00 per hour.
6. Attached to this Affidavit is an account of legal
services provided by me in this action from October 31,
341
1989 to May 6, 1990. During this time, | kept contempora-
neous records of the date and time spent working on this
case. I also made contemporaneous description entries for
the work done.
7. I have reviewed the attachments to Exhibits 1 and
2. To the best of my knowledge, Exhibits 1 and 2 are fair
and accurate itemizations of the legal services and costs
related to this action for the time period stated herein,
including necessary costs to Vermont to argue Plaintiff's
first application for fees.
8. Concerning the Plaintiffs’ application for an
enhancement of the fees as Stated, it is mv considered
judgment that the plaintiffs could have found no other
attorneys to represent them other than Attorney Bland
and myself based on the following:
a. The plaintiffs had no funds with which to
pay for legal services on an up-front basis;
b. At the time this suit was brought Attorney
Bland and | were among a handful of Ver-
mont lawyers sufficiently sophisticated in
this specialized area to handle plaintiffs’
Claims;
¢. Defendant is a political subdivision which
does not function or have priorities like a
Private sector party thereby increasing the
uncertainty of a strategy and outcome;
d. The enormous up-front expense in this case
of services and costs incurred would be pro-
hibitive to all but larger law firms.
9. In summary, in my professional judgment, the
total lodestar and enhancement requested are reasonable
342
and appropriate given all the factors listed in the Appli-
cation itself and in this affidavit.
/s/ William W. Pearson
William W. Pearson
SUBSCRIBED AND SWORN TO before me this 21 day of
June, 1991, by William W. Pearson.
/s/ jeff Thompson
Notary Public
My Commission Expires:
My Commission Expires November 11, 1994
B3:40:0617
BILLING STATEMENT OF
WILLIAM W. PEARSON, ESQ.
TUCSON, ARIZONA
June 25, 1991
Mr. Ernie Dague, Sr.
Estate of Ernie Dague, Jr.
Mrs. Betty Dague
Ms. Rose Bessette
Manhatten Drive
Burlington, Vermont 05401 -
File Number: 2369-0001
For Period: October 31, 1989 to May 7, 1990
Matter: Dague v. City of Burlington
343
Sample Entry -
Date: Hours: A
Description of Services: —
10/31/89 6.3 1071.00
Analyze WWP affidavit in support of plaintiff's
application for award of fees and costs; review
draft motion and memorandum plus attach-
ments; analyze and edit demand letter to city
11/7/89 1.0 170.00
Outline issues which city likely to appeal with
focus on notice requirements under RCRA (no
notice, 60 day notice and 90 day notice), CWA 60
day notice and adequacy of notice under regula-
tion requirements;
11/9/89 ‘18 306.00
Analyze strategy options for city: will stay be
automatic, will attorney fees issue be split off,
will city file declaratory judgment action, will
pendent state claims have to be tried first before
attorney fees paid and will city challenge court's
award of fees without specific hearing on “sub-
stantially prevail” standard
11/14/89 5.4 918.00
Read City’s Notice of Appeal and Memorandum
in Opposition to Plaintiff's Application for
Award of Fees and Costs; 2 extended telephone
ee with attorney Bland about the
of City’s appeal, the proper a | pro-
cedure and the Possibility of iealienate onaiees
the merits of a cross appeal on Count |; review
Rule 3(a) of the federal rules of appellate pro-
cedure, U.S.C. 1291 and 1292 and FRCP 54(b)
as they apply to the City’s appeal; read Hewitt v.
Helms and Rhodes v. Stewart on proper standard
for an award of attorney fees
—_—_- ~ =
344
11/16/89 3.2 544.00
Obtain and read Hallstrom v. Tillamook decided
by the U.S. Supreme Court on November 7,
1989; compare with 9th Circuit decision; analyze
impact of decision on multiple notice issues in
this case;
11/21/89 3.0 510.00
Outline issues to be addressed in plaintiffs’
reply memorandum: plaintiff prevailed on
merits, lodestar calculations were appropriate
and a fee enhancement is appropriate; review
standards set out in Pennsylvania v. Delaware
Valley for fee enhancement; read U.S.F.L. v.
N.F.L. on fee award determination; reanalyze
application of these two cases to plaintiffs’ fee
application
11/22/89 1.5 255.00
Final edit of plaintiffs’ reply memorandum; two
phone conferences with attorney Bland on final
edits; outline strategy for oral argument; review
recent state efforts to force city to relocate land-
fill
12/04/89 ; 0.5 85.00
phone conference with attorney Bland on fee
application and state v city hearing
12/07/89 0.3 51.00
phone conference with attorney Bland
12/09/89 9.5 1615.00
Collect relevant case law, applicable memos and
notes for fees hearing to be held on 12/11/89 in
Rutland, Vermont; travel to Burlington, Vermont
12/10/89 6.0 1020.00
Prepare for tomorrow’s hearing: review all pri-
mary case law, read all memoranda filed on fee
award with supporting documents and reread
345
Hallstrom v Tillamook in anticipation of it being
raised in tomorrow’s hearing; phone conference
with attorney Bland
12/11/89 95 1615.00
Travel to Rutland, Vermont: hearing before
Judge Billings on fee application; read city’s
new motion and memorandum requesting dis-
missal of complaint based on Hallstrom; read
and analyze city’s supplemental memo in sup-
port of its opposition to plaintiffs’ application
for attorney's fees; read and analyze city’s inter-
rogatories and requests to produce regarding
attorney’s fees; further analysis of Hallstrom and
other notice cases;
12/12/89 8.0 1360.00
Return to Arizona; outline responses to city’s
new motion for dismissal, discovery and sup-
plemental memorandum of fees
12/15/89 1.5 255.00
lenghty [sic] phone conference with attorney
Bland on city’s dismissal motion, discovery and
fees hearing; read Free Press articles on city’s
position on relocating dump and closure of
landfill;
12/22/89 1.5 255.00
Read and edit draft of plaintiffs’ memo in Oppo-
sition to city’s motion and memo for judgment
or dismissal; also read and edit plaintiffs’ reply
in support of an award of fees and costs
12/27/89 1.0 170.00
Fax edits on drafts to attorney Bland; extended
Phone conference with attorney Bland on edits
and “law of case” application
ee
346
12/28/89 0.5 85.00
Phone conference with attorney Bland on timely
filings and further hearings on motions
1/10/96 0.3 85.00
Phone conference with attorney Bland on city’s
supplemental memorandum in support of city’s
motion
1/15/90 1.0 170.00
Read and
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