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PROFFITT v. MUNICIPAL AUTH. OF MORRISVILLE

June 27, 1989

RAYMOND PROFFITT
v.
THE MUNICIPAL AUTHORITY OF THE BOROUGH OF MORRISVILLE, et al.



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE

 The United States Court of Appeals for the Third Circuit has cautioned that attorneys' fee applications have the potential for "assum[ing] massive proportions, perhaps even dwarfing the case in chief." Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976). In the instant case, despite the fact that defendants, in a Consent Decree filed with this Court on June 23, 1988 and entered as a Final Judgment on August 16, 1988, agreed to pay reasonable attorneys' fees, they now take the position, in response to plaintiffs' attorney fee petition, that plaintiff is entitled to no award of attorney's fees. The Court disagrees.

 I.

 On August 1, 1986, plaintiff Raymond Proffitt, by and through his attorney, Randall Brubaker, Esq., commenced a citizen's suit against defendants The Municipal Authority of the Borough of Morrisville and numerous other municipalities and individuals (hereinafter "defendants"), pursuant to § 505 of the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. § 1365. On September 22, 1987, this Court granted partial summary judgment against defendant Municipal Authority of the Borough of Morrisville, declaring it to be in violation of the Act. A non-jury trial was scheduled to commence on May 16, 1988, for the purpose of determining both the liability, if any, of the remaining defendants, as well as the nature of the relief to be awarded. Following extensive negotiations, on the day of trial, the parties reached an agreement in principle and so stated on the record. A Consent Decree was filed with this Court on June 23, 1988. On August 16, 1988, following the forty-five day review period mandated by 33 U.S.C. § 1365(c)(3), this Court entered the Consent Decree as a final judgment. The Consent Decree provided, inter alia that "defendants agree to pay plaintiff's reasonable attorney's fees and cost of suit in accordance with 33 U.S.C. § 1365(d)." *fn1" On October 5, 1988, plaintiff filed a Petition for Attorneys' Fees. Subsequently, on February 22, 1989, plaintiff filed a Supplemental Fee Petition covering fees and expenses incurred in the intervening period.

 II.

 Plaintiff's application for the award of attorneys' fees is brought pursuant to Section 1365(d) of the Clean Water Act, which provides in pertinent part:

 
The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing party, whenever the court determines such an award is appropriate.

 33 U.S.C. § 1365(d). The Supreme Court, in Hensley v. Eckerhart, held that a plaintiff is a "prevailing party" for attorneys' fees purposes if he succeeds "on any significant issue in litigation which achieves some of the benefit . . . sought in bringing suit." 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983). *fn2"

 The Third Circuit, in Institutionalized Juveniles v. Secretary of Public Welfare, provided further guidance to district courts in making the determination of whether a plaintiff is a prevailing party:

 
To apply the prevailing party standard, it is important first to identify the relief plaintiff sought and, in relevant cases, the legal theories on which the relief was based. Usually a common sense comparison between relief sought and relief obtained will be sufficient to indicate whether a party has prevailed . . . Plaintiffs will be prevailing parties even though the relief they obtained is not identical to the relief they specifically demanded, as long as the relief obtained is of the same general type.

  758 F.2d 897, 911-912 (3d Cir. 1985); see also Abraham v. Pekarski, 728 F.2d 167, 175 (3d Cir.), cert. denied, 467 U.S. 1242, 82 L. Ed. 2d 822, 104 S. Ct. 3513 (1984). It is also clear that a party may be considered to be "prevailing" when the litigation is successfully terminated by a consent decree. See McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir. 1983); Doe v. Busbee, 684 F.2d 1375, 1379 (11th Cir. 1982).

 Based upon the record in this case, it is clear, as impliedly conceded by defendants in the Consent Decree, that plaintiff is a prevailing party. As a result of plaintiff's citizen suit, the following relief was obtained: the defendants have agreed to design, construct, and operate their facilities in conformity with both the Clean Water Act and the Pennsylvania Clean Streams Law; to achieve compliance with their NPDES permit; to pay civil penalties for both past and ongoing violations; to set aside money for a monitoring fund to pay for future expenses to be incurred by the plaintiff in the technical and legal monitoring of enforcement; and to permit plaintiff to split effluent samples with defendants in order to insure plant compliance. See generally Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S. Ct. 3274, 77 L. Ed. 2d 938 (1983).

 An award of attorney's fees in favor of the prevailing party, however, is not automatic. The "benchmark" of an award under such fee-shifting statutes as the Clean Water Act is that the fees assessed against the non-prevailing party be "reasonable." See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S. Ct. 3088, 3096-3099, 92 L. Ed. 2d 439 (1986) (" Delaware Valley I "). In determining whether an award of attorneys' fees is reasonable, the policies underlying the statute should be considered. A primary purpose of § 1365(d), as well as that of other federal fee-shifting statutes, is to enhance enforcement of important federal policies through citizen involvement. Id., 106 S. Ct. at 3098. As Judge Becker held in Student Public Interest Research Group v. AT&T Bell Laboratories (SPIRG v. AT&T) :

 
Congress provided fee shifting to enhance enforcement of important civil rights, consumer protection, and environmental policies. By providing competitive rates we assure that attorneys will take such cases, and hence increase the likelihood that the congressional policy of redressing public interest claims will be vindicated.

 842 F.2d 1436, 1449 (3rd Cir. 1988).

 The Third Circuit further instructs, however, that while the attorneys' fee award should be "adequate enough to attract competent counsel to the case," SPIRG v. AT&T, 842 F.2d at 1448 citing Senate Report on § 1988 of the Civil Rights Act, S. Rep. No. 1011, 94 Cong., 2d Sess. 6, reprinted in 1976 U.S. Code Cong. & Admin. News 5913, it should avoid the award of an undue windfall. As the Supreme Court held in Delaware Valley I :

 
These [fee shifting] statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client.

 106 S. Ct. at 3098. Therefore, it follows that not every expense which might ordinarily be charged a firm's fee paying clients would necessarily be "reasonable" under § 1365(d).

 The Supreme Court, in Blum v. Stenson, held that the "initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." 465 U.S. 886, 888, 104 S. Ct. 1541, 1544, 79 L. Ed. 2d 891 (1984). Courts refer to the product of this equation as the "lodestar." See Delaware Valley I, 106 S. Ct. at 3096-99. Determination of the lodestar, therefore, requires the trial court to "exclude from this initial fee calculation hours that were not reasonably expended on the litigation." Hensley v. Eckerhart, 461 U.S. at 434, 103 S. Ct. at 1939-40. The Supreme Court has emphasized that the lodestar figure-the product of reasonable hours times a reasonable rate-is strongly presumed to be the reasonable fee:

 Delaware Valley I, 106 S. Ct. at 3098 quoting Blum v. Stenson, 465 U.S. at 897, 104 S. Ct. at 1548. Upward adjustment of the lodestar figure through application of either a contingency enhancement or quality enhancement, is warranted only under exceptional circumstances. See SPIRG v. AT&T, 842 F.2d at 1451-1453.

 III.

 As discussed infra, the parties have been unable to agree upon a reasonable attorneys' fee in the instant case. The Third Circuit, in Blum v. Witco Chemical Corp., has held that hearings concerning fee disputes must be held only where the Court cannot, on the basis of affidavits and other documentation submitted by the parties, fairly decide disputed questions of fact. 829 F.2d 367, 377 (3d Cir. 1987); see also Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d at 910 n. 22; Sims v. Flanagan, 756 F.2d 4, 6 (3d Cir. 1985). In the instant case, plaintiff has submitted affidavits from his counsel which indicate that the time devoted to the case was recorded on internal time and billing sheets, kept to the nearest tenth or quarter hour as appropriate. The affidavits further recite that the exhibits attached to the Fee Petition constitute a "day by day summary and compilation of those contemporaneous time records." We find, therefore, that plaintiff has submitted ...


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