ELR Citation: ELR 20756
No(s). 83-2040 (D.N.J. Feb 14, 1989)

The court holds that successful Federal Water Pollution Control Act (FWPCA) plaintiffs are entitled to $273,990 in litigation costs and attorney fees under FWPCA §505(d), which is significantly less than they had requested. The court holds that the plaintiffs' attorneys billed grossly excessive hours in prosecuting this case, that they consistently overstaffed even the simple legal procedures, that much of the expert testimony was irrelevant, and that the time spent deposing those experts was nonproductive. The court, in determining whether costs were justified, considered the degree of success by plaintiffs. The court holds that three plaintiffs' attorneys in court was excessive and reduced costs by one-third because at most two attorneys would have been reasonable. The court holds that the plaintiffs are not entitled to compensation for hours spent preparing amici curiae briefs for two appeals of other FWPCA suits because these briefs had no effect on this case and making defendant pay for those costs would be unfair. The court holds that plaintiffs are not entitled to compensation for all the travel time of their out-of-forum attorneys from Washington, D.C., when competent local New Jersey attorneys were available. The court awards an amount equal to what a local attorney would have spent traveling to court. The court holds that defendant is not liable for all the educational costs of bringing on a new plaintiffs' attorney to replace one that had left. The court holds that activity prior to notice of intent to sue is not compensable investigative work, that work by another group is not compensable for lack of specific relationship to this case, and that plaintiffs' in-house counsel is not entitled to a court award of attorney fees for doing client work.

The court holds that the plaintiffs' attorneys are entitled to the community market rate for comparable attorneys, even though plaintiffs' attorneys charge an artificially low billing rate. Further, the market rate is that which exists in New Jersey, the site of the litigation, and not Washington, D.C., the community where plaintiffs' attorneys practice. The court holds that a delay enhancement to the lodestar for the years of waiting for the judgment is unnecessary because the award and changes in the tax laws provide them sufficient benefit. The court holds that plaintiffs are entitled to litigation expenses, but reduces the claims significantly. Plaintiffs are awarded only 10 percent of their photocopying and binding claims, and 12 percent of their postage claim because the evidence was too vague to prove necessity. The court awards all telephone costs, but awards only two-thirds of the travel costs because the plaintiff chose to engage out-of-forum counsel for which the defendant should not be penalized. The court denies charges for courier services and secretarial overtime because of a lack of proof of necessity. The court denies recovery for 60 percent of plaintiffs' expert witness fees because much of the witnesses' testimony stated the obvious or addressed matters of questionable relevance. The court holds that the transcript, demonstrative evidence, deposition witness fees, filing fees, and other miscellaneous costs are reasonable and allows them.

[Other decisions in this litigation are published at 14 ELR 20228, 15 ELR 20294, 20297, 18 ELR 20999, and 20 ELR 20768.]

Counsel for Plaintiffs
Michael Gordon
Gordon, Gordon & Haley
80 Main St., West Orange NJ 07052
(201) 736-0094

Carolyn Smith Pravlik, Bruce Terris
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Robert Blomquist, Kenneth D. Roth
Davis, Reberkenney & Abramowitz
499 Cooper Landing Rd., P.O. Box 5459, Cherry Hill NJ 08002
(609) 667-6000