United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR
C. Cougnenour UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' motion for
attorney fees and costs (Dkt. No. 386). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby GRANTS
in part and DENIES in part the motion for the reasons
above-captioned matter was a Clean Water Act (CWA) citizen
lawsuit in which seven environmental advocacy organizations
alleged that Defendant BNSF Railway Company violated federal
law by allowing its railcars to discharge coal and related
pollutants into protected waterways within Washington.
(See Dkt. No. 113.) Plaintiffs based Defendant's
CWA violations on the alleged fact that “[e]ach and
every train and each and every rail car discharges coal
pollutants to waters of the United States when traveling
adjacent to, over, and in proximity to the waters of the
United States.” (Id. at ¶ 48.) After
multiple years of litigation, the Court denied the
parties' cross motions for summary judgment. (Dkt. No.
337.) After six days of trial, the parties reached a
settlement in principle. (Dkt. No. 367.)
2, 2017, the Court entered the proposed consent decree. (Dkt.
No. 384.) Defendant is required to (1) perform a study of the
viability of coal car covers; (2) remove and monitor the coal
and petcoke at six separate sites; and (3) pay $1 million to
The Rose Foundation for Communities and the Environment.
(See Id. at 5-9.) The consent decree also provides
that Plaintiffs may move for reasonable attorney fees and
litigation costs. (Id. at 10.) Plaintiffs filed this
instant motion, arguing they are entitled to fees and that
the requested fees are appropriate. (Dkt. No. 386.)
filed a surreply to strike the declarations submitted with
Plaintiffs' reply. (Dkt. No. 415.) Defendant argues the
declarations contain legal arguments and offer new evidence.
(Id. at 1.) The Court GRANTS the request to strike
the declarations to the extent the declarations contain legal
arguments in an attempt to circumvent the reply brief page
limits. (See, e.g., Dkt. No. 404 at ¶ 9.)
However, the Court DENIES the request to the strike costs
documentation exhibits. (See, e.g., Dkt. Nos. 404-5,
405-1.) As detailed below, the documentation provided with
the original motion was detailed enough to evaluate if the
costs were reasonable. The Court does not need to rely on the
reply exhibits. Therefore, these documents are not
prejudicial and will not be stricken.
MOTION FOR ATTORNEY FEES AND COSTS
fees and costs are awarded under the CWA if the Court finds
that Plaintiffs are the “prevailing or substantially
prevailing party” and that an award is
“appropriate.” St. John's Organic Farm v.
Gem Cty. Mosquito Abatement Dist., 574 F.3d 1054, 1058
(9th Cir. 2009) (citing 33 U.S.C. § 1365(d)).
are the prevailing party if (1) the settlement is judicially
enforceable; (2) the agreement materially alters the
relationship between the parties; and (3) Plaintiffs obtained
actual relief on the merits of their claims. Id. at
1059. Defendant concedes that the first two elements are met,
but makes the bold argument Plaintiffs did not obtain actual
relief on the merits. (Dkt. No. 399 at 2.) Defendant is
Defendant claims that because Plaintiffs did not obtain the
exact relief they sought in their complaint, they are not the
prevailing party. (Dkt. No. 399 at 2-3.) However, to obtain
actual relief on the merits, “[t]he relief achieved
need not be of precisely the same character as the relief
sought in the complaint, but it must require defendants to do
something they otherwise would not have been required to
do.” St. John's Organic Farm, 574 F.3d at
1059. This burden is not demanding. “[T]he amount of
relief obtained may be much smaller than the amount
sought” and it “need not be identical in
form.” Id. at 1060. There is no dispute that
the relief Plaintiffs obtained in the consent decree requires
Defendant to do something it otherwise would not have been
required to do. The agreement requires substantial work at a
significant cost to Defendant. Moreover, the relief achieved
is parallel and similar to the relief originally requested.
The Court will not entertain Defendant's argument any
further. Plaintiffs are the prevailing party.
Appropriate Attorney Fees and Costs
agreeing in their reply to reduce some requests, Plaintiffs
ultimately request $3, 549, 095.62 in attorney fees and $298,
331.14 in costs, totaling $3, 847, 426.76. As a preliminary
note, this case was vigorously litigated for many years, as
evidenced by over 400 docket entries and the nearly 10, 000
hours Plaintiffs' counsel worked on the matter. The
complexity of the issues and the intensity of litigation
counsels a substantial attorney fees and costs award to the
prevailing party, Plaintiffs.
fees are calculated using the “lodestar” method,
which involves multiplying the number of hours reasonably
expended on the litigation by a reasonable hourly rate.
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978
(9th Cir. 2008). In Kerr v. Screen Extras Guild,
Inc., 526 F.2d 67, 70 (9th Cir. 1975), the Ninth Circuit
listed a number of factors district courts should consider in
making their determination of both the number of hours
reasonably expended and a reasonable hourly rate.
“Among the factors identified by Kerr as
relevant to the determination of a reasonable fee are the
following: experience, reputation, and ability of the
attorney; the outcome of the results of the proceedings; the
customary fees; and the novelty or the difficulty of the
question presented.” Chalmers v. City of Los
Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986).
does not argue that Plaintiffs spent too many hours on this
case in proportion to the magnitude of their allegations.
(Dkt. No. 399 at 4.) Instead, Defendant argues that
Plaintiffs worked too many hours because the allegations were
“preposterous” and Plaintiffs' counsel
overbilled in the ways described below. (Id.) The
Court concludes Plaintiffs' claims were not preposterous.
This is emphasized by the consent decree, which substantially
alters Defendant's behavior, and the massive amount of
evidence put forward at trial regarding coal and petcoke
discharges. Therefore, Defendant's arguments that the
attorney fees amount should be reduced because the lawsuit
“overpromised” and the evidence
“under-delivered, ” (id. at 11), are
unpersuasive and will not be considered any further. The
Court will address Defendant's overbilling arguments in
the order they were briefed in the opposition.
Work: Defendant contends the Court should eliminate
hours billed for unnecessary work including Plaintiffs'
(1) improperly filed separate statement of material facts,
(2) subpoenas which were either quashed or withdrawn; (3)
motions regarding confidentiality designations; (4) lengthy
trial brief; and (5) preparation of over 1, 500 trial
exhibits when approximately 250 were ultimately used at
trial. (Dkt. No. 399 at 5.)
Court concludes the improperly filed separate statement of
material facts was unnecessary work. This district does not
allow such documents to be filed. Regardless of whether or
not the Court ...