# Joint Appendix Vol II — Burlington v. Dague > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0215%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix Vol II - **Published:** January 1, 1992 - **Citation:** 505 U.S. 557 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0215%3A06. Public record. Not legal advice.