ELR Citation: ELR 20768
No(s). 83-2040 (D.N.J. May 31, 1989)

The court holds that the forum rate rule is to be applied in actions under Federal Water Pollution Control Act §505(d) to recover attorney fees unless special expertise of counsel from a distant district was required or local counsel was unavailable. On reconsideration of its earlier decision awarding attorney fees, the court holds that plaintiffs failed to meet their burden of proving that out-of-forum lawyers from Washington, D.C., with higher hourly wage were necessary. Therefore, plaintiffs will receive only the New Jersey forum rate rather than the higher prevailing Washington, D.C., rate. The court does not modify its earlier award of two-thirds of travel time and expenses because the defendant should not be penalized for plaintiffs' choice of distant counsel. The court modifies its earlier reduction of claims for staffing depositions and grants plaintiffs a higher award because the plaintiffs demonstrated that there was little staffing redundancy. The court finds the photocopying costs grossly excessive but awards the full amount claimed because the defendant presented no opposing evidence. The court reduces plaintiffs' claim for postage expenses by 88 percent because much of the expense was due to unnecessary overnight mailing and the distance to the out-of-forum attorneys. The court denies unnecessary staff expenses, such as dinners and some overtime. The court denies expert witness fees due to the irrelevancy of his testimony.

The court holds that plaintiffs are entitled to recovery of attorney fees generated by the preparation and prosecution of the fee petition proceedings. However, the court finds staggering the hours claimed and reduces them, including reductions for those claims on which plaintiffs were unsuccessful. The court finds the photocopying costs claimed for this proceeding to be excessive, but awards the full amount absent contrary evidence. The court finds the postage claim to be excessive for the same reasons as above and awards only 12 percent of the claim. The court denies recovery of costs for unnecessary staff overtime and the irrelevant testimony of an expert witness. The court awards the plaintiffs' counsel two-thirds of their requested travel expenses and the full amount for telephone charges, subpoena service, and miscellaneous costs, and denies courier and messenger charges.

[Other decisions in this litigation are published at 14 ELR 20228, 15 ELR 20294, 20297, 18 ELR 20999, and 20 ELR 20756.]

Counsel listed at 20 ELR 20756.