United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANTS' MOTION FOR
ATTORNEY'S FEES AND PLAINTIFF'S MOTION FOR LEAVE TO
APPEAL IN FORMA PAUPERIS
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Greg Bost and
Laurie Bost (“Bosts”) motion for attorney's
fees, Dkt. 73, and Plaintiff Andrew Long's
(“Long”) motion to appeal in forma
pauperis, Dkt. 79.
January 19, 2018, Long and co-Plaintiff Douglas Verdier
“Plaintiffs”) filed a complaint against the Bosts
asserting three causes of action as follows: (1) a violation
of the Clean Water Act, 33 U.S.C. § 1251, et
seq. (“CWA”) for filling without a permit,
(2) a violation of the CWA for an ongoing discharge, and (3)
a violation of state water management statutes and other
torts. Dkt. 1.
September 11, 2018, the Court granted in part and denied in
part the Bosts' motion to dismiss. Dkt. 23. In relevant
part, the Court concluded that Plaintiffs “plausibly
[allege] that the ongoing discharge of concrete and other
retaining-wall material into the Washougal River without a
permit is a present and unlawful discharge of pollutants
under the CWA.” Dkt. 23 at 7.
October 2018, Rebecca Rothwell, a wetlands and shorelands
specialist for the Washington Department of Ecology
(“Ecology”) and James Carsner, biologist and
project manager for the United States Army Corps of Engineers
(“Corps”), visited the Bosts' property. They
concluded that the retaining wall was located above the high
water mark and that the Bosts' repairs to the wall did
not require authorization from Ecology or from the Corps and
did not violate Washington's Shoreline Management Act or
the CWA. Dkt. 49, Declaration of Rebecca Rothwell; Dkt. 51,
Declaration of James Carsner. Despite these findings,
Plaintiffs maintained their single claim against the Bosts.
April 25, 2019, the Court granted the Bosts' motion for
summary judgment concluding that Plaintiffs failed to
“submit any evidence on an ongoing violation sufficient
to create material questions of fact for trial.” Dkt.
70 at 7.
9, 2019, the Bosts filed a motion for attorney's fees
arguing that Plaintiffs' suit was unfounded and
frivolous. Dkt. 73. On May 20, 2019, Long responded. Dkt. 76.
On May 24, 2019, the Bosts replied. Dkt. 77.
24, 2019, Long filed a motion for leave to appeal in
forma pauperis. Dkt. 79.
28, 2019, Verdier responded opposing the motion and informing
the Court that he and the Bosts “have signed a mutual
release that neither party would seek damages or continue
this [suit].” Dkt. 81.
the Court denies Long's motion because Long has failed to
establish that the appeal is in good faith. Hooker v. Am.
Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (applicant
must establish at least one issue or claim that is
“non-frivolous”). After both federal and state
regulators toured the relevant property and found no
violation of the CWA, Plaintiffs continued to pursue this
action based on their contention that the Bosts'
permanent structure constituted an ongoing violation. When it
came time to produce actual evidence of a continuing
violation, they had none. Any appeal of this factually
unsupported claim would be frivolous. Therefore, the Court
DENIES Long's motion to appeal in
“a plaintiff should not be assessed his opponent's
attorney's fees unless a court finds that his claim was
frivolous, unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so.”
Christiansburg Garment Co. v. Equal Emp't Opportunity
Comm'n, 434 U.S. 412, 422 (1978). The last phrase in
that standard is applicable here because Plaintiffs should
have known that their claim was groundless and frivolous
after the representatives from Ecology and the Corps visited
the Bosts' property and found no violation of the CWA.
Thus, the Court GRANTS the Bosts' motion
for attorney's fees and awards all fees incurred after
the Bosts can establish that they notified Plaintiffs of
Ecology and the Corps's conclusions.
Bosts may file a petition for fees. That petition must be
accompanied by a declaration supporting the date of notice to
Plaintiffs and detailed invoices as to the time spent and
fees charged in this matter. The summary the Bosts submitted
in support of their motion will not suffice. See
Dkt. 74-3 at 1. The Bosts shall note the petition as a
three-week motion in accordance with Local Rules W.D. Wash.
LCR 7(d)(3). Plaintiffs may respond and address the
reasonableness of the requested fees, the egregiousness of
the conduct, and their ability to pay. In re Yagman,
796 F.2d 1165 (9th Cir.1986), amended, 803 F.2d 1085
(9th Cir. 1986).