Cal. Sportfishing Prot. Alliance v. Chico Scrap M, Corp.

• Decision Date: 21 September 2016
• Docket Number: No. 2:10-cv-01207-TLN-DB,2:10-cv-01207-TLN-DB
• Parties: CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiff, v. CHICO SCRAP METAL, INC., a California corporation; GEORGE W. SCOTT, SR., individually and as trustee of GEORGE W. SCOTT, SR. REVOCABLE INTER VIVOS TRUST, Defendants.
• Court: U.S. District Court — Eastern District of California

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE,a non-profit corporation, Plaintiff, v. CHICO SCRAP METAL, INC., a California corporation;GEORGE W. SCOTT, SR., individually and as trustee of GEORGE W. SCOTT,SR. REVOCABLE INTER VIVOS TRUST, Defendants.

No. 2:10-cv-01207-TLN-DB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 21, 2016

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION

This matter is before the Court pursuant to Plaintiff California Sportfishing Protection Alliance's ("Plaintiff") motion for reconsideration of Judge Garland E. Burrell's order denying Plaintiff's motion for interim attorney fees. (ECF No. 257.)¹ Defendants Chico Scrap Metal, Inc., and George W. Scott, Sr., individually and as trustee of the George W. Scott, Sr. Revocable Inter Vivos Trust ("Defendants") filed an opposition to Plaintiff's motion. (ECF No. 263.) The Court has carefully considered the arguments raised in Plaintiff's motion and reply, as well asDefendants' opposition. For the reasons set forth below, Plaintiff's motion for reconsideration is DENIED.

I. PROCEDURAL BACKGROUND

Plaintiff brings this suit against Defendants for enforcement under the Clean Water Act ("CWA") and California's Safe Drinking Water & Toxic Enforcement Act ("Proposition 65"). (ECF No. 97 at ¶¶ 1, 4.) After completing factual and expert discovery on March 23, 2015, Plaintiff and Defendants both moved for summary judgment. (ECF No. 169, 174, respectively.) Judge Burrell issued an order on August 17, 2015, granting partial summary judgment for Plaintiff and Defendants. (ECF No. 221.) Defendants then filed a motion asking Judge Burrell to reconsider the Court's grant of partial summary judgment in favor of Plaintiff. (ECF No. 226.) Judge Burrell granted the motion for reconsideration in part. (ECF No. 251.) On September 21, 2015, Plaintiff filed a motion for interim attorney's fees as a prevailing party under the CWA's fee provision, 33 U.S.C. § 1365(d). (ECF No. 230.) On January 8, 2016, Judge Burrell issued an order denying Plaintiff's interim fee motion. (ECF No. 253.) Plaintiff filed the instant motion, seeking reconsideration of Judge Burrell's order. (ECF No. 257.)

II. STANDARD OF LAW

"As long as a district court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient." City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001). A plaintiff may seek reconsideration of a district court's interlocutory order. United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000); E.D. Cal. L.R. 230(j) (allowing application for reconsideration "[w]henever any motion has been granted or denied in whole or in part"). Moreover, Federal Rule of Civil Procedure 54(b) authorizes the court to revise "any order or other decision ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b); Irving v. Lennar Corp., No. 2:12-CV-0290 KJM EFB, 2014 WL 1573552, at *2 (E.D. Cal. 2014).

Reconsideration is unwarranted in the ordinary case: "[A] motion for reconsiderationshould not be granted, absent highly unusual circumstances." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citations omitted); see also United Nat'l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). Frequent use would undermine "the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School District No. 1J, Multnomah County, Oregon v. AC & S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also E.D. Cal. L.R. 230(j) (stating that a party seeking reconsideration must show what "new or different facts or circumstances" which were not previously shown "or what other grounds exist for the motion"). "Clear error occurs when the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (citation and internal quotations omitted). A mere "attempt to reargue the case is not grounds for granting a motion for reconsideration." Kodimer v. Cnty. of San Diego, No. 07-CV-2221-BEN (NLS), 2010 WL 2926493, at *1 (S.D. Cal. July 22, 2010) (citing American Ironworks, 248 F.3d at 899).

III. ANALYSIS

Section 1365(d) of the CWA states: "The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." A district court's decision to award attorney fees under Section 1365(d) must meet two requirements: (1) the fee applicant must be a prevailing or substantially prevailing party; and (2) the court finds that an award of attorney fees is appropriate. Resurrection Bay Conservation All. v. City of Seward, Alaska, 640 F.3d 1087, 1091 (9th Cir. 2011). "The determination of attorney fees is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion." Id. (quoting Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1065 (9th Cir. 2006)). Plaintiff asserts six legal errors warrant the Court's reconsideration. However, based on Ninth Circuit precedent, the Court does not find thatPlaintiff's assertions rise to the level of clear legal error, so as to permit reconsideration.

A. Failure to Show Evidence of Prevailing Rates

Plaintiff argues Judge Burrell committed a clear error of law by not adhering to the "reasonable rates" standard, which Plaintiff defines as the rate for an attorney with "reasonably comparable skill, experience and reputation" for "similar services." (ECF No. 257 at 9.) Plaintiff contends Judge Burrell applied an erroneously narrow standard by requiring proof of rates of attorneys specializing in CWA exclusively. (ECF No. 257 at 9.) Plaintiff further argues Judge Burrell committed clear error by finding that Plaintiff failed to produce satisfactory evidence of prevailing rates. (ECF No. 257 at 12.) The Court finds that Plaintiff's has failed to show that Judge Burrell committed a clear error in his determination.

"The most useful starting point for determining the amount of a reasonable [attorney's] fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "When determining a reasonable hourly rate, the relevant community is the forum in which the district court sits. " Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013) (citation omitted). Importantly, the fee applicant has the burden of producing "satisfactory evidence" that the requested rates are in line with those prevailing in the relevant community for similar legal services of reasonably comparable skill and reputation. Blum v. Stetson, 465 U.S. 886, 895-97 & n.11; Gonzalez, 729 F.3d at 1205; Jordan v. Multnomah Cty., 815 F.2d 1258, 1262-63 (9th Cir. 1987). Satisfactory evidence of the prevailing market rates for similar legal services include affidavits of plaintiff's counsel, affidavits of other attorneys regarding prevailing market rates in the relevant community, and rate determinations in other cases, particularly those setting a rate for the plaintiff's counsel. United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990); Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 908 (9th Cir. 1995) (satisfactory evidence demonstrates the prevailing market rate in the relevant community for "similarly qualified lawyers working on a similar type of case").

"Clear error occurs when the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Smith v. Clark Cty. Sch. Dist., 727 F.3d950, 955 (9th Cir. 2013) (internal citations omitted). Here, Judge Burrell did not leave this Court with a "definite and firm conviction a mistake was committed," Smith, 727 F.3d at 955. Schwarz v. Sec'y of Health & Human Servs. instructs that satisfactory evidence demonstrates the prevailing market rate in the relevant community for "similarly qualified lawyers working on a similar type of case."² 73 F.3d 895, 908 (9th Cir. 1995). Judge Burrell repeats this standard almost exactly in his order, writing that Plaintiff's declarants did not credibly opine "about the prevailing rate in Sacramento for similarly qualified lawyers working on a similar Clean Water Act case." (ECF No. 253 at 6.) Judge Burrell's specificity in stating that the prevailing rate should refer to a similar Clean Water Act case rather than a "similar type of case" is not tantamount to applying an erroneous legal standard. As such, Judge Burrell's ruling does not constitute clear error and cannot serve as grounds for reconsideration.

Plaintiff also argues Judge Burrell applied an erroneously narrow standard when concluding Plaintiff's "declarants have not pointedly stated the prevailing rate in this community for a comparable Clean Water Act litigator." (ECF 253 at 6.) This statement does not amount to clear error because it is not a definitive application of an erroneous legal standard. Instead, Judge Burrell found Plaintiff failed to produce evidence of a prevailing rate because none of Plaintiff's affiants indicated how their work and rates for their work were clearly similar to Plaintiff's requested rates and type of litigation. (ECF No....