United States District Court, D. Arizona
ORDER
G.
Murray Snow, Chief United States District Judge.
Pending
before the Court is Plaintiff's Motion for Award of
Attorneys' Fees and Costs. (Doc. 145). For the following
reasons, the Court will grant the motion in part and deny in
part.
BACKGROUND
In
2016, Plaintiff Don't Waste Arizona filed a complaint
alleging that Defendant Hickman's Egg Ranch was violating
the Emergency Planning and Community Right to Know Act
(“EPCRA”), 42 U.S.C. §§ 11001-50. On
June 9, 2017, Defendant made an offer of judgment to
Plaintiff, which contained an offer of attorneys' fees
not to exceed $100, 000, a direct payment to Plaintiff of
$250, 000, an agreement to submit continuous reporting
requirements, and an entry of judgment against Defendant for
violating EPCRA. (Doc. 147 Ex. A). Plaintiff rejected this
offer and proceeded to a bench trial. Following the bench
trial, this Court found that Hickman's failed to comply
with the written notice requirement of EPCRA, and directed
Hickman's to make a payment to the U.S. Treasury. (Doc.
151). Plaintiff now files a motion for attorneys' fees.
DISCUSSION
I.
Analysis
EPCRA
provides that “[t]he 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 the prevailing or the substantially
prevailing party whenever the court determines such an award
is appropriate.” 42 U.S.C. § 11046(f). Before
awarding attorneys' fees under this provision, the Court
must make two findings. First it must find that the party who
seeks fees is the “prevailing or substantially
prevailing party.” Saint John's Organic Farm v.
Gem County Mosquito Abatement Dist., 574 F.3d 1074, 1058
(9th Cir. 2009). Then, it must find that an award of
attorney's fees is “appropriate.”
Id.
Once a
request for attorneys' fees is deemed appropriate, the
Court must determine whether the amount requested by
Plaintiff is reasonable. Haworth v. State of Nevada,
56 F.3d 1048, 1052 (1995).
A.
“Appropriate”
In the
Ninth Circuit, an award of fees is “appropriate”
unless “special circumstances exist that would render
such an award unjust.” Saint John's Organic
Farm, 574 F.3d at 154. Under this standard, “the
court's discretion to deny a fee award to a prevailing
party is narrow.” N.Y. Gaslight Club Inc. v.
Carey, 447 U.S. 54, 68 (1980). And Ninth Circuit has
emphasized that denials of attorneys' fees due to special
circumstances are “extremely rare.” St.
John's Organic Farm, 574 F.3d at 1064.
For
example, “a defendant's good faith belief that it
was following the law does not qualify as a ‘special
circumstance.'” Teitelbaum v. Sorenson,
648 F.2d 1248, 1250-51 (9th Cir. 1981). And in the context of
an citizen's enforcement suit, the Ninth Circuit has held
that “a lack of evidence of economic benefit” by
the defendant, “a lack of evidence of actual pollution,
” and the fact that defendant was not “forced to
cease polluting or potentially polluting activities, ”
did not qualify as a special circumstances where the Court
found the Defendant failed to comply with permitting
requirements. See Resurrection Bay Conservation
Alliance, 640 F.3d at 1093. Demonstrating special
circumstances is not impossible, and the Ninth Circuit has
held that special circumstances exist where the prevailing
party “failed to adequately brief the issues he
presented, thereby requiring the court to engage in
independent research.” Borunda v. Richmond,
885 F.2d 1384, 1392 (9th Cir. 1988).
No
special circumstances exist in this case. While Hickman's
violations here were minor, the Court is barred from finding
that constitutes a special circumstance by controlling Ninth
Circuit precedent. See Resurrection Bay Conservation
Alliance, 640 F.3d at 1093. Thus, awarding fees here is
appropriate.
B.
Rule 68 Does Not Apply In This Context
Hickman's
argues that even if the Court determines that Plaintiff is
entitled to attorneys' fees under EPCRA, it should limit
the fees to those accrued before Defendant made an Offer of
Settlement. But because Rule 68 does not apply in this
...