District Court Also Denied Plaintiff’s Requests for Sanctions After Defendant Withdrew Rule 11 Motion After Grant of Voluntary Dismissal; Reasons For Both — No Prevailing Party.
The Clean Water Act, 33 U.S.C. § 1365, allows citizen suits and has a fee-shifting clause which allows a district court, in its discretion, to award litigation costs, including attorney and expert witness fees, to a prevailing or substantially prevailing party. However, case law in the Ninth Circuit has established that a defendant only prevails where plaintiff’s action is found to be frivolous/unreasonable/without foundation. –engrafting the Christiansburg Garment standard into the CWA area. (Razore v. Tulalip Tires, 66 F.3d 236, 240 (9th Cir. 1995).) The next case establishes that a voluntary dismissal, in the light of rising litigation costs and where experts on each side had sharply conflicting views, does not mean a dismissing plaintiff’s complaint was of the magnitude to justify an award of any amount of the requested $441,555.90 fees to the defense.
In California Sportfishing Protection Alliance v. Matheson Tri-Gas, Inc., Case No. 2:11-cv-01456-MCE-KJN (E.D. Cal. Doc. No. 81 Oct. 11, 2013), plaintiff filed a CWA citizens suit, but moved to voluntarily dismiss based on ongoing high litigation costs, after defendant filed a summary judgment motion. The defense then filed a Rule 11 sanctions motion. U.S. District Judge England granted the plaintiff’s dismissal motion with prejudice and entered judgment in defendant’s favor, leaving defendant as the technically prevailing party. Defendant elected to withdraw its Rule 11 motion, but plaintiff then filed its own motion for sanctions. The defense moved to recover substantial attorneys fees under CWA’s fee-shifting clause, § 1365(d).
District Judge England denied the defense fee request and also rejected plaintiff’s sanctions request.
The problem here is that there was no “prevailing party.” Plaintiff’s complaint was not so frivolous or unreasonable on the merits, with the dismissal being prompted by pocketbook concerns of keeping up with what were likely large ongoing litigation expenses. Also, plaintiff did have expert opinions sharply conflicting with defense expert beliefs–again, showing it had some “beef” to the citizens suit. With respect to plaintiff’s sanctions request, the district court denied this on equitable grounds; after all, defendant did withdraw its Rule 11 motion, leaving no one as the prevailing party.
HAT TIP–We thank colleague Thierry Montoya of AlvaradoSmith for bringing this case to our attention. Terry specializes in land use/environmental law and is on the Editorial Board of the Environmental Liability, Enforcement & Penalty Reporter (a periodic Argent Communications Group publication).