16 Front St. LLC v. Miss. Silicon, LLC

• Decision Date: 19 February 2016
• Docket Number: NO. 1:14-CV-00183-DMB-DAS,1:14-CV-00183-DMB-DAS
• Citation: 162 F.Supp.3d 558
• Parties: 16 Front Street LLC and C. Richard Cotton, Plaintiffs v. Mississippi Silicon, LLC, and Gary C. Rikard, Executive Director, Mississippi Department of Environmental Quality, in his Official Capacity and as Executive Director of the Mississippi Environmental Quality Permit Board, Defendants
• Court: U.S. District Court — Northern District of Mississippi

162 F.Supp.3d 558

16 Front Street LLC and C. Richard Cotton, Plaintiffs

v.Mississippi Silicon, LLC, and Gary C. Rikard, Executive Director, Mississippi Department of Environmental Quality, in his Official Capacity and as Executive Director of the Mississippi Environmental Quality Permit Board, Defendants

NO. 1:14-CV-00183-DMB-DAS

United States District Court, N.D. Mississippi, Aberdeen Division.

Signed February 19, 2016

D. Ronald Musgrove, Musgrove/Smith Law, Jackson, MS, Deborah E. Jennings, DLA Piper, Washington, DC, J. Michael Bowman, Baldwin Haspel Burke & Mayer, LLC, New Orleans, LA, for Plaintiff.

Donna J. Hodges, MS Dept. of Environmental Quality, Lee Davis Thames, Jr., Mississippi Attorney General's Office, Jackson, MS, for Defendant.

ORDER

Debra M. Brown, UNITED STATES DISTRICT JUDGE

This Clean Air Act action is before the Court on DefendantMississippi Silicon, LLC's motion for attorney's fees, Doc. #115; and Plaintiffs' motion for leave to file a sur-rebuttal, Doc. #121.For the reasons below, both motions will be denied.

IRelevant Procedural History

Of relevance to this order,¹ on September 29, 2014, Plaintiffs16 Front Street LLC and C. Richard Cotton filed their original complaint against Defendant Mississippi Silicon (“MS Silicon”), alleging federal question jurisdiction under 42 U.S.C. § 7604(a)(3) of the Clean Air Act(“CAA”).Doc. #1at ¶ 6.Plaintiffs alleged that MS Silicon was constructing a new major emitting facility, a silicon manufacturing plant, without a permit in violation of the CAA and Mississippi state regulations.Id.at ¶¶ 65–68.Plaintiffs claimed that deficiencies in the permitting process of the Mississippi Department of Environmental Quality(“MDEQ”) violated procedural requirements regarding public participation imposed by the CAA and its implementing regulations, and that MS Silicon's ongoing construction of the plant deviated from the materials MS Silicon submitted to MDEQ in its permit application.Id.at ¶¶ 25–60, 66–67.Two days after filing their complaint, Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction, seeking to halt MS Silicon's construction.Doc. #3.On November 7, 2014, following the submission of extensive briefing,² Chief Judge Sharion Aycock³ issued an order denying Plaintiffs' request for a temporary restraining order, and deferring the request for a preliminary injunction.Doc. #35.

On January 23, 2015, Plaintiffs filed an amended complaint pursuant to Rule 15(a)(1)(B), adding as a defendantGary Rikard, in his official capacity as Executive Director of MDEQ and its Permit Board.Doc. #69.The amended complaint contained essentially the same allegations against MS Silicon as the original complaint, and added a claim that MDEQ, in the process of granting MS Silicon's permit application, violated the CAA.Id. at ¶¶ 79–86.

On March 24, 2015, Rikard, arguing that Plaintiffs' claims were barred by the Eleventh Amendment, filed a motion to dismiss for lack of subject matter jurisdiction.⁴Doc. #95.Plaintiffs timely responded to the motion.Doc. #104.Rikard did not reply.

On July 30, 2015, this Court issued an order dismissing without prejudice the claims against MS Silicon for lack of subject matter jurisdiction.Doc. #111at 27.In the same order, the Court instructed Plaintiffs and Rikard to submit supplemental briefs addressing whether this Court had subject matter jurisdiction over the claims asserted against Rikard in the amended complaint, including whether the amended complaint may relate back to the original complaint for the purpose of assessing jurisdiction.Id.

On August 18, 2015, the parties submitted supplemental briefs addressing the issue of this Court's jurisdiction over Rikard.Doc. #117; Doc. #118.The same day, MS Silicon filed a motion for attorney's fees pursuant to 42 U.S.C. § 7604(d).Doc. #115.Plaintiffs timely responded to the motion for attorney's fees, Doc. #119, and MS Silicon timely replied, Doc. #120.

On September 11, 2015, Plaintiffs filed a motion for leave to file a sur-reply.Doc. #121.Four days later, on September 15, 2015, MS Silicon responded in opposition to the motion for leave.Doc. #122.Plaintiffs did not reply to MS Silicon's response.

Subsequently, on December 22, 2015, this Court granted Rikard's motion to dismiss for lack of jurisdiction.Doc. #123.

IIMotion for Leave to File Sur-Reply

“While it is true that the Federal Rules of Civil Procedure do not expressly allow for a surreply by a nonmovant[,] ... a sur-reply is appropriate when the movant's rebuttal raises new legal theories or attempts to present new evidence at the reply or rebuttal stage.”Elwood v. Cobra Collection Agency , No. 2:06–cv–91, 2006 WL 3694594, at *7(S.D.Miss.Dec. 14, 2006).However, “surreplies are heavily disfavored by courts.”Warrior Energy Servs. Corp. v. ATP Titan M/V , 551 Fed.Appx. 749, 751 n. 2(5th Cir.2014)(internal punctuation omitted).Accordingly, the Court must decide whether MS Silicon's reply raised new legal theories or attempted to present new evidence.Such an inquiry necessarily requires consideration of the arguments raised in MS Silicon's initial brief and Plaintiffs' response brief.

In its memorandum in support of its motion for attorney's fees, MS Silicon contends that the Court has discretion to award fees under the CAA, and argues that attorney's fees under the statute are appropriate because it was the prevailing party and because Plaintiffs' claims were “frivolous, unreasonable, or groundless” under Christiansburg Garment Co. v. EEOC , 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648(1978).Doc. #116at 1, 3–4.As support for the latter argument, MS Silicon argues that, “[t]o determine whether an action was frivolous, courts have looked to whether the plaintiff established a prima facie case, the defendant offered to settle, and whether the case proceeded to a trial on the merits.”Id . at 4(citingBarnes Found. v. Twp. of Lower Merion , 242 F.3d 151, 158(3d Cir.2001) ).

In their response to the motion for attorney's fees, Plaintiffs submit that the motion should be denied because: (1) it is premature; (2)the Court lacks jurisdiction to award attorney's fees; (3) MS Silicon did not prevail on the merits; and (4) the action was not groundless under Christiansburg because, among other reasons, the Court issued lengthy opinions in this case and such opinions reveal that “the issue was carefully contested, litigated, and argued ....”Doc. #119at 3, 5, 7, 10.Plaintiffs also argue that the three-factor “test in [Merion ] has never been adopted (or even acknowledged) by any court in the Fifth Circuit.”Id. at 7 n.5.

In its reply, MS Silicon cites Sierra Club v. Energy Future Holdings Corp. ,⁵ an unpublished decision from the Western District of Texas, as authority for the following propositions: (1)the district court has discretion to award attorney's fees under the CAA; (2)courts in the Fifth Circuit have considered some of the Merion factors under the Christiansburg inquiry; and (3) extensive briefing is not dispositive in the Christiansburg inquiry.SeeDoc. #120at 2, 8, 9.

In seeking leave for a sur-reply, Plaintiffs argue that “MS Silicon cited, for the first time, the unreported ... Energy Future Holdings case[, and]Plaintiffs have not had an opportunity to respond to its authority in this matter.”Doc. #121at ¶ 1.MS Silicon responds that a sur-reply is inappropriate because its citations of Energy Future Holdings did not raise new issues.Doc. #122at 2.

A reply's inclusion of “previously un-cited authority” does not justify a sur-reply when the “new” authority is offered “to correct the other side's arguments or supply additional authority.”Sosna v. Bank of Am. N.A. , No. 10–2374, 2011 WL 1060966, at *6(D.Kan.Mar. 21 2011).The Court has reviewed MS Silicon's reply in support of the motion for attorney's fees and does not see a new argument or legal theory that would justify a sur-reply.To the contrary, as mentioned above, MS Silicon's citations to Energy Future Holdings all either address arguments in Plaintiffs' response brief or provide additional support for arguments raised in the initial brief and motion.Accordingly, Plaintiffs' motion for leave to file a sur-reply, Doc. #121, is denied.

IIIMotion for Attorney's Fees

Pursuant to 42 U.S.C. § 7604(d) of the CAA, a “court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.”When a defendant seeks attorney's fees under this provision, an award will only be “appropriate” when the defendant“prevailed” in the litigation, Ruckelshaus v. Sierra Club , 463 U.S. 680, 685–86, 103 S.Ct. 3274, 77 L.Ed.2d 938(1983);⁶ and the underlying action “was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so,”Christiansburg , 434 U.S. at 423, 98 S.Ct. 694.⁷As articulated above, Plaintiffs argue that the motion for attorney's fees must be denied because: (1) it is premature; (2)the Court lacks jurisdiction to award attorney's fees following a dismissal for lack of subject-matter jurisdiction; (3) MS Silicon did not prevail on the merits; and (4) the action was not frivolous, unreasonable, groundless, or continued after becoming frivolous, unreasonable, or groundless.Doc. #119.Because this Court concludes that it lacks jurisdiction to award fees under § 7604(d), MS Silicon's motion for attorney's fees must be denied.

It is axiomatic that “[f]ederal courts are courts of limited jurisdiction.They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.”Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391(1994)(internal citations omitted).Accordingly, where a district court lacks...