Alliedsignal, Inc. v. Amcast Intern. Corp., No. C-3-92-013.
| Decision Date | 12 January 2001 |
| Docket Number | No. C-3-92-013. |
| Citation | 177 F.Supp.2d 713 |
| Parties | ALLIEDSIGNAL, INC., Plaintiff, v. AMCAST INTERNATIONAL CORP., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Nicholas Charles Hollenkamp, Kathryn Anne Lamme, Dinsmore & Shohl LLP, Dayton, OH, David C. Toomey, Lisa W. Clark, Gerald J. Pappert, Seth Cooley, Duane Morris Heckscher LLP, Philadelphia, PA, for plaintiff.
Donald Jeffrey Ireland, Ann Wightman, Faruki Gilliam & Ireland, Dayton, OH, for defendant.
DECISION AND ENTRY AWARDING PLAINTIFF THE SUM OF $3060.00 FOR ATTORNEY'S FEES INCURRED AS A RESULT OF DUPLICATIVE TRIAL PREPARATION MADE NECESSARY BY COUNSEL FOR DEFENDANT'S UNTIMELY NOTIFICATION THAT SHE WOULD BE SEEKING A CONTINUANCE; FINDINGS OF FACT; EXPANDED OPINION; CONCLUSIONS OF LAW; PROCEDURES SET FORTH TO BE FOLLOWED BY COUNSEL
For a number of years, the Plaintiff disposed of waste from a coal tar products plant it operated in an abandoned sand and gravel pit in Ironton, Ohio, known as the Goldcamp Disposal Area ("GDA"). The Defendant, which operated a foundry in Ironton, also dumped wastes into the GDA. After the United States Environmental Protection Agency ("EPA") placed the GDA on the National Priorities List ("NPL"),1 Plaintiff entered into two agreements with the EPA, under which it agreed to investigate the environmental hazards at the GDA and to clean up that facility. Through December 31, 1994, the Plaintiff had incurred response costs in excess of $12,000,000 to comply with those agreements, and it is estimated that the total cost will be $30,000,000. The Plaintiff brought this action, seeking to recover a portion of the more than $12,000,000 that it had expended through 1994, under §§ 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9607(a) and 9613(f).2 In addition, the Plaintiff seeks a declaratory judgment that the Defendant is liable for costs it has incurred since 1994 and that it will incur in the future, as well as prejudgment interest. The Defendant has asserted a counterclaim against the Plaintiff, seeking contribution from the latter, pursuant to § 113(f) of CERCLA.3 This matter was tried with the Court sitting as finder of fact. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court now states its Findings of Fact separately from its Conclusions of Law.
However, before setting forth its Findings of Fact and Conclusions of Law, the Court will rule upon the Plaintiff's request that the Defendant be required to compensate it for a portion of the attorney's fees it incurred to prepare for trial herein. Although the trial of this litigation was initially scheduled to commence in August, 1994, it was continued until February, 1995, at the request of Defendant's counsel. That continuance was granted because one of the Defendant's attorneys was scheduled to give birth within a matter of weeks of the date upon which the trial had been scheduled to commence. Defendant's counsel did not, however, inform her counterpart that she would be seeking a continuance until June 16, 1994. The Court granted the requested continuance on June 24, 1994. Since the Plaintiff's counsel had begun trial preparation, when Defendant's counsel mentioned that she would be seeking a continuance, this Court, in its Decision of February 10, 1995 (Doc. # 156), conditionally sustained the Plaintiff's request that the Defendant be required to compensate it for a portion of the attorney's fees it had incurred to prepare for trial which had been scheduled to commence in August, 1994. This Court conditionally sustained the Plaintiff's request (rather than sustaining it outright), because the Plaintiff had not documented the amount of time that its counsel had expended in trial preparation, before being informed by Defendant's counsel on June 16th that she would be seeking a continuance, and, further, because Plaintiff's counsel had failed to provide a reasonable explanation as to why he had continued to prepare for trial between June 16th, the date on which Defendant's counsel told her counterpart that she would be seeking a continuance, and June 24th, the date on which the Court granted Defendant's request for a continuance. Doc. # 156 at 2. In addition, the Court was unable to ascertain "what trial preparation, undertaken and accomplished in order to prepare for the February 6, 1995, trial date, proved to be duplicative of that which had been undertaken in advance of the previously established trial date of August 15, 1994." Id. Accordingly, the Court directed the Plaintiff's counsel to submit an additional filing, documenting the amount and extent of trial preparation expended for the August, 1994, trial date, which was:
(1) undertaken prior to June 16, 1994, when Defendant's counsel advised that she would be seeking a continuance of the then established trial date of August 15, 1994; (2) undertaken between June 16, 1994, when so notified that a continuance would be sought, and this Court's granting the Defendant's Motion for Continuance, during a telephone conference call on June 24, 1994; and (3) undertaken and accomplished for the February 6, 1995, trial, which, in actuality, proved to be duplicative of that undertaken by Plaintiff's counsel for the continued trial date of August 15, 1994.
Id. at 3. The Court also afforded Defendant the opportunity to file a responsive memorandum. The parties have submitted memoranda and documentation on this issue (see Docs. # 182 and # 183), and the Court now turns to its resolution.
The Plaintiff has requested that the Court require the Defendant to compensate it the sum of $6,000.00, for duplicative trial preparation. The Plaintiff has supported that request with an affidavit of its counsel, David Toomey ("Toomey"), to which invoices that were submitted to the Plaintiff are attached.4 In his affidavit, Toomey focuses solely upon trial preparation that occurred during May and December, 1994, and has provided invoices for only those months. He has highlighted those invoices to indicate what portion of a particular entry of time was for trial preparation. Toomey has also added a column to the invoices for trial preparation time. According to Toomey, he and co-counsel billed their client $14,176.50, for 89.6 hours expended for trial preparation during the month of June, 1994.5 Toomey states that a significant portion of the trial preparation that was undertaken in June, 1994, was expended to draft the Final Pretrial Order. During December, 1994, Plaintiff's counsel expended 107 hours on trial preparation, billing their client $21,091.00. According to Toomey, a significant portion of the trial preparation undertaken during December, 1994, was also devoted to drafting the Final Pretrial Order. Based upon his knowledge of what was done to prepare for the trial of this lawsuit, as well as his experience as a trial lawyer, Toomey opines that $6,000.00 is a reasonable estimate for duplicated time. Toomey does not otherwise explain his estimate.6
In opposing the Plaintiff's request for an award of attorney's fees, the Defendant argues that the Plaintiff erroneously presumes that much of the effort that its counsel expended in June, 1994, had to be duplicated in December of that year. According to the Defendant, much of the activity set forth in the invoices attached to Toomey's affidavit, should have been completed in June, if done properly. Thus, the Defendant contends that any duplication in effort was for the benefit of the Plaintiff, for which it (Defendant) should not be required to provide compensation. In addition, the Defendant argues that Toomey has failed to present sufficient basis for his opinion that $6,000.00 is a reasonable estimate of the expenses incurred by his client for duplicative effort. Finally, the Defendant argues that the description of the services performed, set forth on the invoices, fails to provide sufficient detail to show the precise pretrial activities performed, thus causing it to guess at what activities actually took place.7
This Court agrees with the Defendant that the Plaintiff's documentation of the expenses that it incurred for duplicative trial preparation by its counsel is somewhat meager.8 For instance, Toomey's estimate of $6,000.00 is not supported other than by his statement that it is based upon his knowledge of this case and his experience as a trial lawyer. In addition, the descriptions in the invoices submitted by the Plaintiff of the activities undertaken (particularly those by Toomey) lack detail.9 Those descriptions do not allow the Court to determine whether activity undertaken in December was duplicative of that performed in June, or whether the December activity merely constituted a completion of that which began in June. Nevertheless, the Court cannot agree with Defendant that the Plaintiff should be denied any recovery of fees. The uncontroverted evidence before the Court is that Plaintiff's counsel engaged in significant trial preparation, before Defendant's counsel gave notice that she would be requesting a continuance. One cannot put aside a task, as complex as preparing for a trial of this nature, for a period of months, without, at a minimum, having to engage in the duplicative activity of once again "coming up to speed." Moreover, Toomey states that he and co-counsel were, indeed, forced to engage in duplicative activity as a result of the continuance.
Therefore, the Court is left with two, equally firm convictions: 1) that the Plaintiff has failed to justify, in an adequate fashion, Toomey's estimate that $6,000.00 is a reasonable estimate for the expenses his client incurred as a result of the duplicative work performed by counsel, which was occasioned by Defendant's untimely request for the continuance; and 2)...
To continue reading
Request your trial
-
Carson Harbor Village, Ltd. v. Unocal Corporation, Case No. CV 96-3281 MMM (RCx) (C.D. Cal. 10/29/2003)
...we conclude that CFA substantially complied with the NCP's RI/FS/ROD/RD requirements"); Alliedsignal, Inc. v. Amcast International Corp., 177 F. Supp.2d 713, 745 (S.D. Ohio 2001) ("Mundell's testimony to the contrary notwithstanding, the Plaintiff did consider each of these alternative reme......
-
Aviall Services, Inc. v. Cooper Industries, LLC
...to comment before costs are incurred," and no PRPs were denied an opportunity to comment); AlliedSignal, Inc. v. Amcast Int'l Corp., 177 F.Supp.2d 713, 743 n. 62 (S.D.Ohio 2001) ("[A]n entity substantially complies with the NCP, when its actions meet the purposes of that The court agrees wi......
-
Carson Harbor Village, Ltd. v. Unocal Corp.
...we conclude that CFA substantially complied with the NCP's RI/FS/ROD/RD requirements"); Alliedsignal, Inc. v. Amcast International Corp., 177 F.Supp.2d 713, 745 (S.D.Ohio 2001) ("Mundell's testimony to the contrary notwithstanding, the Plaintiff did consider each of these alternative remedi......
-
Gencorp, Inc. v. Olin Corp.
...enter declaratory relief as to future response costs where liability for existing costs is established); AlliedSignal v. Amcast Int'l Corp., 177 F.Supp.2d 713, 757 (S.D.Ohio 2001). Entry of a declaratory judgment, however, cannot be fully mandatory. Under Article III of the United States Co......
-
Cry, No Recovery!: Narrowing Judicial Interpretation of Cercla's Double Recovery Provision
...cooperation with the government in determining allocation costs even though the site owner had been deficient in its waste analysis. 177 F. Supp. 2d 713, 754 (S.D. Ohio 2001).72. Fogleman, supra note 22, at 153 (noting that courts may consider "any factor they deem to be in the interest of ......