Don't Waste Arizona Inc. v. Hickman's Egg Ranch Inc.

          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 ...