Monday, May 30, 2011

May 30, 2011 MEMORIAL DAY


TAPS at Arlington Cemetery:

Memorial Day, originally called Decoration Day, is a day of remembrance for those who have died in our nation's service. There are many stories as to its actual beginnings, with over two dozen cities and towns laying claim to being the birthplace of Memorial Day. There is also evidence that organized women's groups in the South were decorating graves before the end of the Civil War.

Waterloo N.Y. was officially declared the birthplace of Memorial Day by President Lyndon Johnson in May 1966, but it's difficult to prove conclusively the origins of the day.

Memorial Day was first observed on May 30, 1868, when flowers were placed on the graves of Union and Confederate soldiers at Arlington National Cemetery.  It is now celebrated in almost every State on the last Monday in May.

A resolution establishing a "National Moment of Remembrance" was passed in 2000 which asks that all Americans at 3:00 PM local time "voluntarily and informally observe in their own way a Moment of remembrance and respect, pausing from whatever they are doing for a moment of silence or listening to 'Taps'."

Monday, May 16, 2011

May 16, 2011 Judge Greer's 5/10/11 Order "reluctantly" Grants Additional Time for Witt Sewer Work and Notes that City's Actions "to get its financial house in order" Were the Result of its own "malfeasance"

Judge Greer's Order of May 10, 2011, (below) denies the City's requests regarding civil penalties previously imposed against the City and "reluctantly" grants the City's request for additional time to complete the rehabilitation of the Witt Sewer Line, a problem known by the City for approximately six years or more. In granting additional time for rehab of the sewer line, Judge Greer sets out specific benchmarks that the City must meet. Judge Greer also notes that the City's financial problems with illegal fund transfers, etc. were the result of the City's own malfeasance. The Order is printed below with omission of citations [].





On April 28, 2011, this Court held a hearing on a portion of defendant’s motion to alter or amend the judgment, []. The defendant moved this Court to alter or amend its Orders,[], and its Judgment, [], in four ways. These include: (1) adopt a new schedule for carrying out the rehabilitation of the Witt Sewer Line in accord with the defendant’s newly proposed schedule; (2) grant the defendant 45 days to install odor filters on the manholes along the gravity line between the Witt 2 and Witt 3 pump stations; (3) reduce the amount of civil penalties imposed to no greater than those imposed on Koch Foods, a former codefendant; and (4) allow the civil penalties imposed to be waived upon the defendant meeting Court-established benchmarks for completing the rehabilitation of the Witt Sewer line.

This Court decided issues two through four in an Order filed on April 25, 2011, [Doc. 328]. Basically, issue two was moot because the City installed the filters, albeit late. As to issues three and four, this Court denied the defendant’s motion. Also, regarding issues three and four, the defendant asked at the April 28, 2011 hearing that the Court reconsider its decision. This oral motion to reconsider and issue one will be addressed in turn after setting forth a brief summary of the facts and the standards of review. For the reasons set forth below, the defendant’s oral motion to reconsider is DENIED and the motion to alter or amend the Order, [], and Judgment, [], is reluctantly GRANTED.


Many of the facts are set forth in this Court’s April 25, 2011 Order, [], and they will not be restated here. The City introduced additional evidence at the April 28, 2011 hearing as to efforts taken by the City to secure funding for rehabilitation of the Witt sewer line.

Again, the City’s financial condition is important in analyzing the issue of whether to alter or amend the judgment as to civil penalties and the rehabilitation of the Witt sewer line. Several letters submitted by the City show that Anthony W. Cox, the City Administrator, and Lamar Dunn, an engineer working with the City, have been communicating with the State Comptroller’s Office and the Tennessee Department of Environment and Conservation (“TDEC”) on satisfying the Comptroller’s conditions and TDEC’s requirements for securing the SRF loan, which will fund the rehabilitation of the line.

There was evidence and testimony that the City had included the funding for the rehabilitation of the line in its fiscal year 2011 budget; however, Mr. Cox explained that the budget reflected the amount of the SRF loan which had not been secured. Evidence showed that the City tried to get permission to use other funds from another SRF loan to fund the rehabilitation of the line. Nonetheless, TDEC did not allow this. There was also evidence that the City had placed a higher priority on other projects instead of the Witt sewer line.

Perhaps the most troubling evidence presented was a letter from Mr. Dunn to Bryan Fowler, the City’s Director of Wastewater Operations, on July 30, 2009. The letter was a cover letter to Mr. Dunn’s plans and specifications for the rehabilitation of the Witt line, which the City had requested. More importantly, it states that it is Mr. Dunn’s understanding “that the City has no desire to move forward with this project at the present time.”

This evidence is most troubling because it was represented to this Court that this particular document was not produced to the plaintiffs prior to trial. Nevertheless, there is evidence presented which showed the City, after the May 2010 hearing, did seek funding and was pursuing the project. Mr. Dunn testified to a proposed schedule for rehabilitating the Witt sewer line. He proposed the following schedule:

Loan package sent to City from TDEC 04-21-11

Council action to authorize the accpetance and completion of the loan package 05-03-11 Submittal of completed loan package 05-03-11

Submittal of construction plans and specification for by TDEC 05-03-11

Approval from TDEC to advertise project for bids 45 days after receipt of plans

Receive bids 40 days after approval

Review of bids by Engineer with recommendation 10 days after of award bids

Council approval award subject to approval of TDEC first council meeting after recommendation

TDEC approval of “Authority to Award” construction 45 days after contract c o u n c i l action

Pre-Construction Conference 21 days after ATA

Contract execution for construction with Notice to Proceed 10 days after Pre-Construction Conference

Construction complete/system operational 2 3 0 d a y s after Notice to Proceed

Mr. Dunn testified that his schedule is reasonable in his opinion as an engineer with experience in this type of construction.


A motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) may be granted (1) to correct a clear error of law; (2) to account for newly discovered evidence or an intervening change in the controlling law; or (3) to otherwise prevent manifest injustice. []. A Rule 59(e) motion cannot be used to re-litigate previously decided issues, reargue a case, or raise new legal theories. []These motions “are not the proper vehicle to attempt to obtain a reversal of a judgment by offering the same arguments previously presented.” []. Furthermore, Rule 59(e) motions are “‘extraordinary in nature’” and “‘should be discouraged.’” [] As such, these motions are “granted ‘ very sparingly.’” []


A Rule 60 motion may be filed within one year after the entry of the judgment or order or within a reasonable time, depending upon the grounds upon which relief is sought. See Fed. R. Civ. P. 60(c)(1). Furthermore, Rule 60 motion may be granted only for certain specified reasons and is, thus, a significantly higher standard than that for granting a Rule 59 motion. [] Federal Rule of Civil Procedure 60(b) states: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Subsection (b)(6) should “apply ‘only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule.’” []


First, this Court will address the City’s oral request that the Court reconsider its April 25, 2011 decision regarding civil penalties. The City argued that the additional evidence presented should lead the Court to alter its conclusion that the City had made no effort to secure the SRF loan other than the initial request. The reconsideration of this conclusion, the City argues, should lead the Court to also change its conclusion as to the amount of civil penalties.

It is true that the evidence presented by the City at the hearing shows more effort on the City’s behalf to secure the SRF loan. However, the efforts the City had to undertake “to get its financial house in order” were a result of its own malfeasance. The State Comptroller’s Office required the City to meet certain conditions before the City was allowed to incur any new debt as a result of an illegal transfer and other issues found in an audit of the City’s finances. The Comptroller’s Office made this clear to the defendant on May 21, 2010, just 10 days after this Court’s hearing where the City represented to the Court that the rehabilitation of the line could be completed by June 30, 2011. The fact that the City could not incur new debt was reiterated to the City on June 21, 2010. Thus, it took time to satisfy the conditions, which delayed the SRF loan, and which delayed the rehabilitation of the line.

It is clear from the record that the City was aware as early as May 21, 2010, that it could not receive the funding to rehabilitate the line. However, the City did not inform this Court of the problems in receiving the funding necessary to rehabilitate the line. In the months thereafter, the City never communicated any difficulty in receiving funding to this Court. It never communicated to this Court that it could not meet the schedule it represented to the Court at the May 11, 2010 hearing. This failure is inexcusable. The City knew that its proposed schedule could not be met and that problems with the Witt sewer line would persist until the line could be fully rehabilitated. Evidence shows that overflows have continued, endangering the environment and human health. Such a failure to inform this Court cannot be ignored. For these reasons, the oral motion to reconsider the decision regarding the issuance of civil penalties is DENIED.

Second, this Court will address the issue regarding the rehabilitation of the Witt sewer line. The City bases its motion on newly discovered evidence and to prevent manifest injustice. See Fed. R. Civ. P. 59. Alternatively, the City argues to alter or amend based on Rule 60 for the “same reasons.” []. Despite the City’s specific written argument, it is actually asking this Court to alter the injunctive relief ordered in documents 307 and 312, namely that the City must rehabilitate the Witt sewer line by June 30, 2011. “A court has continuing jurisdiction to terminate or modify an injunction.” [] Modifications or dissolution of injunctions must take place under Rule 60(b). [] Rule 60(b)(5) provides that a party may obtain relief from a court order when ‘it is no longer equitable that the judgment should have prospective application,’ not when it is no longer convenient to live with the terms of a consent decree. Accordingly, a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Id. “Modification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous.” [].

In this case, the factual conditions suggest that a modification of the injunction is warranted. As stated above, the City presented evidence that it did make efforts to seek funding for the rehabilitation of the line after its initial request on February 15, 2010. It is also true, however, that the City knew as early as May 21, 2010, that it could not incur debt to fund the rehabilitation of the line. The City also represented to the Court at the April 28, 2011 hearing that the rehabilitation of the Witt line could not be accomplished without incurring debt in the form of the SRF loan. Due to the amount of time it took for the City to get its “financial house in order,” which the City did work actively and consistently to do, the securing of this loan was not possible. Thus, the line could not be rehabilitated by June 30, 2011. The plaintiffs do not dispute that the rehabilitation of the line by June 30, 2011 is impossible. However, they do argue for daily penalties after the June 30, 2011deadline until the line rehabilitation is complete. This Court declines to impose such penalties.

Moreover, despite the egregious error of not informing this Court of its efforts in securing the funding prior to the original Order, [ ], and Judgment, [ ], the City has apparently learned from its mistake. Since the entry of those orders, the City has consistently kept this Court informed of its progress. On May 3, 2011, the City informed the Court that it had completed all paperwork associated with the SRF Application. The package was then hand delivered to TDEC that same day. Therefore, it appears that the City is on schedule with the dates proposed in Mr. Dunn’s timeline, and it appears that it will continue to keep this Court informed of its progress on a timely basis. To be sure, however, this Court will order such updates as set forth below. In addition, the Court will order penalties if the City fails to meet periodic benchmark completions in fairness to the plaintiffs and to keep the City on track.

As such, the City is hereby ORDERED to comply with the following schedule in rehabilitating the Witt Sewer line. The City should note that this Court will likely not be forgiving as to any missed deadline, and the City must keep this Court informed of the progress. The amount of penalties for missing any deadline will not be determined at this time. Such penalties will be decided based on the benchmark missed and the specific reasons for failing to meet such benchmark.

Submittal of completed loan package May 3, 2011

Submittal of construction plans and specification for May 3, 2011 by TDEC

Approval from TDEC to advertise project for bids July 1, 2011

Receive bids August 10, 2011

Review of bids by Engineer with recommendation August 22, 2011 of award

Council approval award subject to approval of TDEC September 1, 2011

TDEC approval of “Authority to Award” construction October 17, 2011 contract

Pre-Construction Conference November 7, 2011

Contract execution for construction with Notice December 1, 2011 to Proceed

Construction complete/system operational August 1, 2012

As just stated, the City shall meet all deadlines listed above. A progress report shall be submitted to this Court within five days of each date listed. Any failure to meet the deadline will subject the City to penalties in an amount to be determined.


For the reasons stated above, the City’s oral motion to reconsider document 328 is DENIED. The motion to alter or amend Order number 307 and the Judgment, [], regarding rehabilitation of the Witt sewer line is GRANTED.

The Order and the Judgment shall be amended as set forth above. So ordered.




Tuesday, May 10, 2011

May 10, 2011 Danny Thomas, Chris Bivens, Paul LeBel, and Claude Jinks Are Sworn In

The City of Morristown has three new faces. See previous post.

Pictured at left are the new Mayor and five of the six Councilmembers: Front Row (L-R)Councilmembers Kay Senter and Claude Jinks. Back Row (L-R) Councilmember Chris Bivens, Mayor Danny Thomas, Councilmember Gene Brooks, and Councilmember Paul LeBel. Not pictured is Bob Garrett who did not attend the council meeting/swearing-in ceremony.

Danny Thomas took the oath of office as the City's new Mayor yesterday before a packed city chamber room. [Thomas defeated 8-year councilmember Frank McGuffin in the May 3 mayoral contest.]

Chris Bivens and Paul LeBel were also sworn in as new councilmembers.  [Bivens handily defeated longtime councilmember Doc Rooney, and Paul LeBel won his seat with a narrow 24-vote victory in a 4-man race for the at-large seat]

Claude Jinks, who had no opposition in his council race, was the only incumbent to retain his seat on the City Council.

Before the swearing-in ceremony, the prior Mayor and Council met and certified the election results.

Retired Judge Eddie Beckner then swore in the new Mayor and Councilmembers.

Outgoing Mayor Barile graciously handed over the Mayoral office to Danny Thomas.

Outgoing councilmember Doc Rooney graciously handed over the 2nd ward council seat to his successor Chris Bivens. 

Unsuccessful mayoral candidate and outgoing at-large councilmember Frank McGuffin was not present for his last meeting and did not see Paul LeBel sworn in to the at-large seat that McGuffin held for eight years.

Councilmember Bob Garrett also did not attend the meeting or the swearing-in ceremony.

City Administrator Tony Cox congratulated outgoing Mayor Barile and outgoing Councilmember Doc Rooney and gave them a token of appreciation from the City for their years of service. McGuffin wasn't there to receive Cox's congratulations or token of appreciation.

[Councilmembers Brooks, Garrett, and Senter were not up for re-election]

Thursday, May 05, 2011

May 5, 2011 Morristown City Election: McGuffin and Rooney Are Out

May 3, 2011, City Election.

Danny Thomas was elected Mayor over Frank McGuffin by a comfortable margin (1406-1048).  [Mayor Sami Barile chose not to run for re-election]

Chris Bivens, a political newcomer, decisively defeated longtime incumbent W.J. "Doc" Rooney for the 2nd ward council seat (1541-833).

Paul LeBel, a sitting county commissioner, now holds two local elected offices. LeBel took the at-large council seat in a 4-way race. LeBel eked out a 24-vote victory over runner-up Charles Cook (840-816).  Darrell Williams had 362 votes and Luke Pack had 361 votes. Frank McGuffin had held this seat for 8 years, chose to run for Mayor, and lost to Danny Thomas.

Claude Jinks had no opposition and retained his 4th ward council seat.

On Monday, May 9th, the newly-elected Mayor and Councilmembers will be sworn in at City Hall at 4:00 PM.

Sunday, May 01, 2011

May 1, 2011 Judge Greer Orders City of Morristown To Pay $489,674 in Attorney Fees Plus $56,629 in Litigation Costs to the Law Firm Representing Witt Residents

Background: Witt residents complained to the City about sewer odors almost from the moment that Koch Foods began operation in the East Tennessee Progress Center in 2005. The City did nothing. Complaints continued and stonewalling continued. The residents obtained the services of an environmental law firm and sued Koch Foods. The Witt residents and Koch Foods eventually reached a compromise and a Consent Decree was entered.  During the Koch Foods suit, a related suit was filed against the City of Morristown over its sewer operations and the Witt sewer line. In that suit, the U.S. District Court in Greeneville assessed the City with $105,000.00 in civil penalties for violations of the Clean Water Act [Click here] and ordered the City to repair the Witt Sewer Line. A jury awarded $8,500 in damages to two of the Plaintiffs. Then less than a week ago, Federal Judge Ronnie Greer ordered that in addition to the civil penalties, the City has to pay $489,674.26 in attorney fees and $56,629.00 in costs to the law firm that represented the Witt residents.  I haven't blogged in a while but several people have asked about is the most recent Order with footnotes and cites eliminated [ ] to make it easier to read.



This matter is before the Court on plaintiffs’ Supplemental Motion for an Award of Costs of Litigation, [Doc. 309]. The plaintiffs move this Court to award them $479,579.06 in fees and $102,629.00 in litigation costs against the City pursuant to Title 33 United States Code section 1365(d), the citizen suit provision of the Clean Water Act. The defendant City has replied, and the matter is ripe for review. For the reasons that follow, the motion will be GRANTED IN PART.


To review, at the trial of this matter, which took place from November 3-25, 2009, and prior to the jury retiring to deliberate, the Court ruled that Koch Foods, LLC (“Koch Foods”) violated the compatible pollutant limits in its Industrial User Permit 1017 (“IUP”) based on the Court’s interpretation of the permit’s
unambiguous, plain language as setting a ceiling, rather than a surcharge level, for biochemical oxygen demand (“BOD”) and total suspended solids (“TSS”). The Court also ruled that plaintiffs’ state law trespass claims for the intangible odors would be dismissed.

The jury found 72 daily violations of the IUP by Koch Foods for prohibited discharges c. and d.. The jury also found that the City violated its NPDES permit by failing to enforce the [IUP] for Koch Foods or by failing to prevent prohibited discharges from Koch Foods into the Morristown Sewer System. The jury determined that this violation occurred on 72 days. The jury did not find that the City violated its NPDES permit regarding the July 19, 2007 overflow, and the jury did not find that the City violated its NPDES permit by "failing to properly maintain and operate the Witt Sewer Line, including pump stations and pipes." See Verdict Form Questions 3 and 6,

However, the Court subsequently found in its Memorandum Opinion and Order, [Doc. 304], that the evidence at trial did not raise a genuine issue of fact with respect to the July 19, 2007 overflow and that the plaintiffs were entitled to judgment as a matter of law, notwithstanding the jury’s verdict, on that issue.

As to the state law claims, the jury found liability as to three of the 39 plaintiffs on the nuisance claim, awarding a total of $8,500.00 in damages to two of them, and allocating 100 percent of the fault to the City. The jury did not find that the City of Morristown committed inverse condemnation, and it did not find that Koch Foods was negligent.

On February 17, 2010, the Court entered a Consent Decree between plaintiffs and Koch Foods. The Consent Decree reflected a compromise between the plaintiffs and Koch Foods regarding plaintiffs’ outstanding claims for injunctive relief, civil penalties, costs and fees. Then on May 11, 2010, the Court held a motion hearing on several pending motions between plaintiffs and the City. The Court also heard evidence on the issue of civil penalties against the City.

On August 31, 2010, the Court denied the City’s Rules 50(b) and 59 motion, [Doc. 306].  On February 18, 2011, this Court entered an Enforcement Order based on the City's CWA violations. In that Order, the Court ordered that the City rehabilitate the Witt Sewer line as specified by Trial Exhibit 379 by June 30, 2011; and that the City install odor filters on the manhole covers on the gravity line between Witt 2 and Witt 3 pump stations within 30 days after the entry of the Order. Then, on March 1, 2011, this Court issued a Memorandum Opinion and Order which assessed $105,000.00 in civil penalties against the City for its CWA violations, [Doc.311]. Judgment was also entered on March 1, 2011. On April 25, 2011, this Court denied the City’s Rules 59(e) and 60 motion to alter or amend the Judgment to reduce or waive the amount of civil penalties.


Again, the plaintiffs move this Court to award them $479,579.06 in fees and $102,629.00 in litigation costs against the City pursuant to Title 33 United States Code section 1365(d), the citizen suit provision of the Clean Water Act.3 They support these figures with many filings, the most important of which is a detailed
Declaration of Lead Counsel Gary A. Davis.4 Section 1365(d) states, in pertinent part: The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney fees and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such an award is appropriate. Id.

The plaintiffs argue that the amounts requested should be awarded because (1) the request is timely; (2) they are the prevailing or substantially prevailing parties; (3) the fees are reasonable and have been apportioned in an equitable manner; (4) the expert fees and other costs were reasonably incurred and are equitably apportioned; and (5) the award is appropriate. See [Doc. 310, page 2-3].

The City argues that the plaintiffs were not substantially prevailing parties, and it challenges the reasonableness and the apportionment of the fees and costs.

Specifically, the City argues that (1) the plaintiffs triple or quadruple billed; (2) the hourly fees are unreasonable; (3) the charges for meals and mileage are unreasonable; (4) all costs related to expert Roger Cameron should be denied; (5) the City should pay no more than Koch Foods; and (6) the total should be reduced by 50 percent to reflect the level of plaintiffs’ success. In sum, the City seeks to pay no more than $93,713.38 in fees and $17,629.72 in costs and argues that, in any event, it should pay no more than the $214,000.00 paid by Koch Foods in compliance with the Consent Decree.

The City argues that the plaintiffs are not substantially prevailing parties because they only prevailed on a portion of their claims. As stated above, the plaintiffs were not successful on their state law trespass and inverse condemnation claims. Only three plaintiffs were successful on their nuisance claims, and the total award was $8,500.00. Thus, the City contends that they were not prevailing parties.

When considering a petition for attorney fees, the court must first determine whether the petitioning party was the prevailing party. [ ] “In the context of § 1365(d), a plaintiff is said to have ‘prevailed’ if he has succeeded on any significant issue in the litigation, which achieves some of the benefits sought in bringing suit.” [ ]

While it is true that the plaintiffs did not succeed on most of their state law claims, they did, however, succeed on a majority of their CWA claims. More importantly, they achieved what was probably their main goal, i.e. an order to abate the nuisance. The Court ordered the City to rehabilitate the Witt Sewer Line and install odor control filters on the manhole covers. The City presented evidence that rehabilitation would cost $1.6 million dollars. In addition, the City is ordered to pay $105,000.00 in civil penalties. Finally, Koch Foods and the plaintiffs entered into an agreement regarding injunctive relief. These “victories” are more than enough to show that the plaintiffs are prevailing parties.

The City argues that the plaintiffs’ requested fees are not reasonable and that the plaintiffs triple or quadruple billed. Now that the Court has determined that plaintiffs are prevailing parties, this Court must determine what fee is reasonable. [ ] A reasonable fee is “one that is ‘adequate to attract competent counsel, but ... [does] not produce windfalls to attorneys.’” [ ] The fee applicant bears the burden of proving a reasonable fee, documenting the appropriate hours expended, and exercising appropriate “billing judgment.” [ ] The starting point is to calculate the “lodestar” amount, which is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” [ ]  This resulting sum may need to be adjusted to reflect factors such as the “results obtained.” [ ].

The factors the Court must consider include: (1) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether
the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. [ ]  In addition, the Court should assess the “prevailing market rate in the relevant community” when determining the reasonable hourly rate. [ ]

Here, the plaintiffs argue for a rate of $300.00 per hour for Mr. Davis, $200.00 an hour for his associates, and $75.00 for his paralegal. The plaintiffs attached affidavits from practicing environmental and litigation attorneys in the area, and they state that these rates are reasonable. The City, however, argues for lower rates. It argues for a rate of $200.00 per hour for Mr. Davis and $150.00 to $165.00 an hour for his associates. The City does not address the paralegal rate. It, too, attaches affidavits of practicing attorneys. However, these attorneys do not focus on environmental law.

This Court has considered all of the factors listed above, and it concludes that the hourly rates requested by the plaintiffs are reasonable. This Court will not adjust the fees upwards or downwards based on any of the factors listed above. This case was complex, the pretrial motions were extensive, the trial was lengthy, and the post-trial motions have been numerous as well. The litigation has been on-going for over four years. The trial lasted approximately one month; there were over 50 witnesses and 210 exhibits.

Mr. Davis supports his request with time sheets generated by him and his staff from legal billing software. There is nothing in the record to indicate that he did not use reasonable billing judgment. His declaration establishes that he equitably divided the billable time and litigation expense into three reasonable categories: (1) time and expenses that applied to claims against both Morristown and Koch Foods that cannot reasonably be allocated separately; (2) time and expenses that applied principally to the Morristown case; and (3) time and expenses that applied principally to the Koch Foods case. Category three is not included in the plaintiffs’ request. Furthermore, his declaration establishes that he did not double, triple, or quadruple bill.

In addition, Mr. Davis is very experienced in his specialty practice of environmental law, and the rate for his associates adequately reflects their experience. Plaintiffs’ counsel represented numerous clients in this complex case, and the time requirements were demanding on such a small firm. Also, the firm had to advance the costs because Mr. Davis took the case on a contingency fee basis, which most attorneys, this Court opines, would not likely do with this type of case. This Court notes the City’s argument that the recovery, in its view, was only $8,500.00, but this Court has previously discussed and rejected this contention. It will not do so again.  Moreover, most of the work and evidence used for the CWA claims was the same as that for the state law claims, with a few exceptions.

In sum, when considering all the factors and evidence of the record, the rates proposed by the plaintiffs are reasonable and will not be adjusted. In addition, the time expended was reasonable. These reasonable rates will be multiplied by the reasonable number of hours worked to reach the total amount of fees. Thus, the plaintiffs’ motion is GRANTED in that the City is hereby ORDERED to pay $479,579.06 in fees. See [Doc. 310-1, ¶ 22-26] for detailed breakdown of hours and rates. It is also ORDERED that the City shall pay $10,095.20 in fees, which were incurred in pursuing recovery of attorney fees. See e.g., Coulter v. State of Tenn., 805 F.2d 146, 151 (6th Cir. 1986) (stating fees incurred in pursuit of collecting attorney fees are recoverable). Accordingly, the total amount of fees the City is ORDERED to pay is $489,674.26.

The City also objects to the plaintiffs request for costs. Mr. Davis’s declaration and the information attached thereto is adequate proof of the costs incurred. The City specifically challenges three types of the claimed costs: (1) meals during trial, (2) mileage travel during trial, (3) and Roger Cameron’s expert fees. The City also makes the blanket argument that the fees should be reduced to reflect the level of plaintiffs’ success.

The Sixth Circuit has stated that a plaintiff can recover “those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services.” [ ] Meals and mileage qualify as such expenses. Therefore, they will be included in the amount of costs.

Roger Cameron’s expert fees present a different question. While expert fees are recoverable, 33 U.S.C. § 1365(d), they should be reasonable. In addition, these fees are specifically authorized by the CWA citizen suit statute. Thus, it logically follows that the expert fees must be incurred in proving a CWA violation. This Court remembers Mr. Cameron’s testimony at trial quite well. He testified extensively as to the amount of property damage sustained by each land-owning plaintiff as a result of the foul odors emitted from the sewer system. The plaintiffs are correct in that this type of testimony is related to plaintiffs’ standing under the CWA, to claims that Koch Foods had violated its permit by discharging substances that would cause a public nuisance, and to the claim that the City had failed to enforce permit provisions. The claim as to Koch Foods, however, is not relevant to the expert fees incurred as to the City. It is clear to this Court that there was much overlap in Mr. Cameron’s testimony as to the City and to Koch Foods.

Considering all of this, the particular testimony of Mr. Cameron, and the requested fee, this Court determines that the amount sought is not reasonable. Not all of Mr. Cameron’s testimony supported the CWA violations. The majority of his testimony was evidence presented to prove the state law claims. In addition, most of the work for which Mr. Cameron billed applies to the state claims and not standing or CWA violations. As such, the amount of the fee should be reduced to reflect the percentage of his testimony that applied to standing under the CWA and as to the CWA violations of the City. The costs incurred by counsel for travel and a meal for Mr. Cameron’s deposition, deposition costs, postage costs, and Mr. Cameron’s expert fee and travel for trial testimony will not be reduced because it clearly relates to all claims and cannot reasonably be separated. See [Doc. 310-7]. His expert fees, however, should be adjusted to a reasonable level.

For the reasons stated above, the plaintiffs’ motion for costs is GRANTED IN PART. It is hereby ORDERED that the City pay a total of $56,629.00.

Finally, this Court declines to grant the City’s request to reduce any award based on the “amount of success.” This Court addressed that above. Also, this Court notes that all figures reasonably apportioned the fees and costs between Koch Foods and the City as explained in Mr. Davis’s declaration. See [Doc. 310-1]. Lastly, this Court refuses to restrict the amounts to be paid by the City to the same amount paid by Koch Foods as a result of the Consent Decree. The City was determined to be more culpable by the jury. Also, the Consent Decree was a result of a negotiated settlement between the plaintiffs and Koch Foods. The City has continued to litigate matters well past the trial. Thus, the plaintiffs have continued to incur fees and costs.


For the reasons stated above, the plaintiffs’ motion, [Doc. 309], is GRANTED IN PART. The City is ORDERED to pay $489,674.26 in fees and $56,629.00 in costs.