United States District Court, S.D. West Virginia, Huntington Division
OHIO VALLEY ENVIRONMENTAL COALITION, INC., WEST VIRGINIA HIGHLANDS CONSERVANCY, INC., and SIERRA CLUB, Plaintiffs, APPALACHIAN HEADWATERS, INC., Nonparty in whose favor an has been entered,
ERP ENVIRONMENTAL FUND, INC. Defendant, VCLF LAND TRUST, INC., Nonparty against whom an order may be enforced.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the Court are Plaintiffs', Ohio Valley
Environmental Coalition, Inc.; West Virginia Highlands
Conservancy; and Sierra Club, Memorandum Outlining Award of
Costs, (ECF No. 141), and Motion to File Reply to Defendant
ERP Environmental Fund, Inc.'s (“ERP”)
Response to that Memorandum, (ECF No. 143). The Court
previously ruled that, per the terms of the Second Modified
Consent Decree, Plaintiffs are entitled to attorney's
fees from ERP. June 24, 2019 Mem. Op. & Order,
at 10, ECF No. 138. Having been fully briefed on the matter,
and for the reasons set forth herein, the Court
FINDS Plaintiffs' are entitled to an
award of $20, 814.35.
fully set out in the Court's June 24, 2019 Memorandum
Opinion and Order, this suit resulted in the present Second
Modified Consent Decree, in which both “[ERP] and its
parent company VCLF Land Trust, Inc., . . . agreed to fund
forest and stream restoration projects in West Virginia
pursuant to a Selenium Settlement Agreement.” June
24, 2019 Mem. Op. & Order, at 10 (quoting Second
Modified Consent Decree, at ¶ 18, ECF No. 105)
(internal quotations omitted). The Selenium Settlement
Agreement, which was incorporated into the Second Modified
Consent Decree, stated the donation would be a
six-million-dollar contribution to Appalachian Headwaters,
Inc. (“Appalachian Headwaters”) paid in monthly
intervals by VCLF Land Trust, Inc. Second Modified
Consent Decree, at 76-77. Subsequent to this agreement,
half of the required donation was made to Appalachian
Headwaters, $2, 125, 000 of which was wired directly by ERP.
Second Sutton Decl., ¶¶ 10-23, ECF No.
137-1. Eventually, both ERP and VCLF Land Trust, Inc. admit
they fell into arrears on the required donation.
ERP's Substituted Resp., at 1, ECF No. 121;
VCLF Land Trust Inc.'s Resp., at 2, ECF No.132.
Plaintiffs then filed the Motion to Enforce. Mot. to
Enforce, ECF No. 110. On June 24, 2019, the Court
granted the motion, entered judgment against ERP and VCLF
Land Trust, Inc. for the outstanding donation in favor of
Appalachian Headwaters, and granted an award for
attorney's fees in favor of Plaintiffs. June 24, 2019
Mem. Op. & Order, at 11; Judgment Order,
ECF No. 139. The Court now addresses the calculation of those
litigant pays his own attorney's fees, win or lose,
unless a statute or contract provides otherwise.”
Hardt v. Reliance Standard Life Ins. Co., 560 U.S.
242, 253 (2010) (internal citations omitted). The Fourth
Circuit utilizes a three-step process for the proper
calculation of an attorney's fee award.
First, “the court must determine the lodestar figure by
multiplying the number of reasonable hours expended times a
reasonable rate.” [McAfee v. Bozcar, 738 F.3d
81, 88 (4th Cir. 2013).] (internal quotation marks omitted).
Second, “the court must subtract fees for hours spent
on unsuccessful claims unrelated to successful ones. [Third],
the court should award some percentage of the remaining
amount, depending on the degree of success enjoyed by the
plaintiff.” Id. (citation omitted) (internal
quotation marks omitted).
Jones v. Southpeak Interactive Corp. of Delaware,
777 F.3d 658, 675-76 (4th Cir. 2015)
submits a fee request of $20, 779.35, plus related costs of
$35.00. Mem. Outlining Costs, at 2, ECF No. 141.
This is based on an hourly rate of $345.00 for a documented
60.23 hours. Teaney Declaration, ¶ 56, ECF No.
141-1. Defendant objects on three grounds, all of which are
entirely inapplicable to this calculation and based on a
plain misreading of the Court's earlier Order.
Accordingly, the Court will ensure compliance with the Fourth
Circuit's method for calculation before addressing
Defendant's response memorandum.
lodestar figure is based upon the product of a reasonable
rate and a reasonable number of hours. Defendant does not
object to Mr. Teaney's rate, and the Court is satisfied
with his detailed documentation justifying the proposed
amount. Similarly, Defendant does not object to the total
amount of hours dedicated to the enforcement of the Second
Modified Consent Decree,  and the Court finds the recorded hours
spent on these matters to be appropriate for a complex
environmental case. As such, the Court finds Plaintiffs'
lodestar figure of $20, 779.35 is reasonable.
second and third steps prescribed by the Fourth Circuit are
easily addressed in the instant case. All hours billed by
Plaintiffs' counsel were in regard to enforcing the
Second Modified Consent Decree for ERP and VCLF Land Trust,
Inc.'s failure to remit the required donation to
Appalachian Headwaters. Teaney Declaration, at 12.
This was a request for relief on a single claim, the
substance of which the Court granted on the merits. See
June 24, 2019 Mem. Op. & Order; see also Hensley
v. Eckerhart, 461 U.S. 424, 440 (1983) (“[A]
plaintiff who has won substantial relief should not have his
attorney's fee reduced simply because the district court
did not adopt each contention raised.”). Accordingly,
no reduction for “unsuccessful” or
“unrelated” claims is necessary, nor is a
reduction based upon the “degree of success.”
first of three arguments raised in its response, ERP argues
that Plaintiffs should not be awarded attorney's fees and
costs. ERP's Resp., at 2, ECF No. 142. This
argument is untimely, as Plaintiffs have already been awarded
attorney's fees. See June 24, 2019 Mem. Op. &
ERP claims that fees incurred against VCLF Land Trust, Inc.
should be partitioned out because “the Court has ruled
that those attorney's fees are not recoverable.”
ERP's Resp., at 2-3, ECF No. 142. This
mischaracterizes the Court's ruling and fails to
comprehend how fee apportionment functions. Previously, the
Court held that VCLF was not responsible for payment of those
fees reasonably incurred, not that the hours incurred were
not recoverable under the Second Modified Consent Decree.
June 24, 2019 Mem. Op. & Order, at 10.
Furthermore, subtraction occurs for claims which are
unsuccessful and unrelated. Here, the single claim was
against ERP and VCLF Land Trust Inc., both of whom were found
to be out of compliance with the Second Modified Consent
Decree. As Plaintiffs' achieved overall success in their
Motion to ...