WILLIAM E. CASSADY, Magistrate Judge.
This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on plaintiff's motion for reimbursement of expenses pursuant to Fed.R.Civ.P. 37(c)(2) (Doc. 117) and the defendant's response in opposition (Doc. 136). Upon consideration of the foregoing pleadings (with attachments), and all other relevant documents in this file, the Magistrate Judge recommends that the Court
The United States instituted its Clean Water Act case against Hamilton Smith in this Court on August 6, 2012, alleging that the defendant discharged pollutants, "including dredged or fill material, into waters of the United States in Baldwin County, Alabama, without authorization by a permit issued by the United States Army Corps of Engineers[], in violation of CWA section 301(a), 33 U.S.C. § 1311(a)." (Doc. 1, at 1.) The complaint otherwise reads, in relevant part, as follows:
(Id. at ¶¶13-15, 21-22 & 30.) In answer to the complaint, filed August 28, 2012, Smith stated he was without sufficient information or knowledge to either admit or deny paragraphs 13-15, denied the allegations in paragraph 21, denied that Dennis Creek is a "traditional navigable water" but stated he was without sufficient information or knowledge to admit or deny the remaining portion of paragraph 22, and denied the allegations contained in paragraph 30. (Doc. 4, at 2-3, 3 & 4.)
The parties filed their Rule 26(f) report on October 15, 2012, at 5:36 p.m. (See Doc. 7.) Earlier that day, plaintiff's counsel emailed counsel for the defendant and supplied counsel with numerous case citations and "holdings" that "man[]made and man-altered structures/waters are covered by the Clean Water Act." (Doc. 117, Exhibit 1, at 1.) Plaintiff's counsel concluded the email in the following manner: "If you are agreeable based on the case law, we would like to be [able to] say in the report that Mr. Smith is not contesting the prima facie elements of the CWA claim—including waters of the United States—but the focus of discovery should be on the affirmative defenses and other remedy issues." (Id. at 2.) Such agreement was not forthcoming inasmuch as the parties, in their Rule 26(f) report, identified a total of twelve (12) subjects upon which discovery need be had, including the following subjects relating to liability: "(1) Smith's knowledge of CWA requirements; . . . (5) the role that Dennis Creek plays with respect to the chemical, physical, and biological integrity of waters of the United States, including the Tensaw River and Mobile Bay; [and] (6) the hydrological conditions at the Site and along relevant segments[.]" (Doc. 7, at 6.) The Court entered its Rule 16(b) scheduling order on October 17, 2012. (Doc. 8.)
On October 19, 2012, counsel for plaintiff emailed counsel for Smith a proposed stipulation and order in an effort to streamline discovery. (Compare Doc. 117, Exhibit 1, at 1 with id., [Proposed] Joint Stipulation Regarding Claims and Defenses and [Proposed] Order Regarding Joint Stipulation on Claims and Defenses.) The proposed joint stipulation and order both read, in relevant part, as follows:
(Doc. 117, Exhibit 1, Joint Stipulation Regarding Claims and Defenses, at 2-3; see also id., [Proposed] Order Regarding Joint Stipulation on Claims and Defenses, at 1-2.) Again, however, there was no response forthcoming from Smith's attorneys regarding the joint stipulation on claims and defenses proposed by counsel for the United States. Instead, counsel for Smith penned the following email to counsel for the United States on November 5, 2012:
(Doc. 117, Exhibit 2.)
On December 12, 2012, the United States served written discovery on Smith, including its first set of requests for admission. (Compare Doc. 117, Exhibit 3 with Doc. 24, at 2 (submission order which makes reference to the fact that plaintiff served written discovery on the defendant on December 12, 2012).) Request for Admission 18 asked Smith to "[a]dmit that Dennis Creek
(Doc. 18, at 13-14 & 14 (emphasis in original; footnote omitted).) The undersigned set plaintiff's motion to compel down for a hearing and ordered counsel and their clients to appear for the hearing unless the parties were able to reach agreement on the entirety of the discovery dispute to which the motion was addressed. (See Doc. 24.) Thereafter, the parties filed a joint stipulation regarding the motion to compel and request to cancel hearing (Doc. 26); counsel for the parties were advised by telephone that the April 4, 2013 hearing was canceled and that a written order would be entered by the undersigned with respect to the stipulation (Doc. 28, at 1). The Court's April 5, 2013 order reads, in relevant part, as follows:
(Doc. 28, at 1 & 3-4.)
According to the United States, in light of Smith's definition of Dennis Creek and consistent refusal to admit that the tributaries and adjacent wetlands referenced in plaintiff's definition (and at issue in this case from onset) were jurisdictional waters, it was forced "to engage experts (Dr. William Kruczynski and Mary Sitton) to prepare a significant nexus analysis in order to prove jurisdiction at trial[,]" (Doc. 117, at 4-5),
The United States attached a portion of Dr. Kruczynski's July 9, 2013 expert report to its Rule 37(c)(2) motion for reimbursement of expenses, that is, pages 11 through 18. (Doc. 117, Exhibit 7.) All pages are single-spaced and of those pages provided there can be no question but that a solid seven (7) pages are dedicated to Dr. Kruczynski's analysis of significant nexus between impacted waters on Smith's property and traditional navigable waters. (See id.) And while the undersigned can readily discern that there were ten and one-half (10½) pages of the report before the relevant "significant nexus" analysis began, there is no way of knowing the exact length of the report.
In addition to attaching a portion of Dr. Kruczynski's expert report to its Rule 37(c)(2) motion for reimbursement of expenses, the United States attached the declarations of two of its experts, Dr. Kruczynski and Mary Sitton, who were tasked, at least in part, with the jurisdictional analysis—or supplying proof in support of the analysis—necessitated by Smith's refusal to admit that the creeks and adjacent wetlands at issue in this case were jurisdictional waters of the United States covered by the Clean Water Act. (Compare Doc. 117, Exhibit 11, Kruczynski declar., at ¶ 2 with id., Exhibit 12, Declaration of Mary Sitton, at ¶ 2.) Dr. Kruczynski's declaration reads, in relevant part, as follows:
(Doc. 117, Exhibit 11, Kruczynski declar., at 2-3 (emphasis supplied).) Sitton confirms that she "reviewed aerial photographs and provided supporting analysis for Dr. Kruczynski's significant nexus work." (Doc. 117, Exhibit 12, Sitton declar., at ¶ 2.)
(Id. at ¶ 3 (emphasis supplied).)
"If a party fails to admit what is requested under Rule 36
The Eleventh Circuit, in Perez, supra, expounded on the third exception set forth in the rule by recognizing that "[t]he implicit message of Rule 37 is . . . that issues obviously subject to dispute should be resolved at trial, not in a discovery motion." 297 F.3d at 1269 (emphasis in original); see Mutual Serv. Ins. Co., supra, at 1326 ("The `true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail.'" (citation omitted)). As for exception (B), "[a]n issue is of substantial importance when it is material to the disposition of the case." Securities and Exchange Comm'n v. Happ, 392 F.3d 12, 34 (1st Cir. 2004), citing Washington State Dep't of Transp. v. Washington Natural Gas Co., Pacificorp, 59 F.3d 793, 806 (9th Cir. 1995).
In this case, defendant Smith contends that exceptions (A) and (D) are applicable and, therefore, sanctions are not appropriate under Rule 37(c)(2). (Doc. 136, at 2-3 ("Defendant admitted the request, while noting that it did not concur with Plaintiff's overly broad and vague definition of the `Dennis Creek.' The vague definition was
Smith also contends that his responses to Request for Admission 18 did not cause plaintiff to incur expenses to prove the jurisdictional waters issue, see Fed.R.Civ.P. 37(c)(2) (only providing for an award of reasonable expenses incurred in "making the proof")), in light of Dr. Kruczynski's deposition and trial testimony that he understood at the time he was retained that it was stipulated that Dennis Creek constituted jurisdictional waters of the United States. (See Doc. 136, at 3-4.) The problem with Smith's argument is that he takes an overly restrictive view of Dr. Kruczynski's testimony. Given the manner in which the questions were posed to plaintiff's expert, he had to "admit" to this stipulation because the parties emphatically agreed and stipulated that the "main stem" of Dennis Creek constituted jurisdictional waters of the United States. However, as is evident from the remainder of the expert's testimony, the jurisdictional issue was more complicated than indicated by defense counsel inasmuch as Dr. Kruczynski's focus in this regard was directed to the tributaries (and adjacent wetlands) of Dennis Creek to establish that they constituted waters of the United States. And this "significant nexus" analysis by Dr. Kruczynski, as set forth above, was necessitated by the defendant's failure to admit that these very tributaries (and adjacent wetlands) constituted waters of the United States. Accordingly, the undersigned disagrees with Smith in this regard and finds that his failure to admit that the tributaries and adjacent wetlands at issue in this case were jurisdictional waters of the United States caused the government to incur expenses (namely, expert expenses) to prove same.
In this same vein, Smith contends that "
(Id. at 5.) Thus, Smith concludes, the government's "expenses for Ms. Sitton's expertise were [] not the result of [his] Rule 36 responses." (Id.) And while defendant's argument in this regard might appear to be an attack on the reasonableness of Sitton's expenses— perhaps because Smith makes the same arguments in that portion of his brief (see id. at 6)—the undersigned cannot find that this argument is meritless. At the same time, the undersigned cannot definitively find that the aerial photographs which Sitton references in her declaration (see Doc. 117, Exhibit 12, at ¶ 2) were admitted during the trial of this cause because the undersigned did not conduct the trial. However, if, in fact, those aerial photographs were admitted and utilized during the trial then they were likely admitted for some purpose other than the jurisdictional waters issue because the jurisdictional waters issue was a "dead" issue by the time of trial (see, e.g., Doc. 117, at 5). Accordingly, plaintiff
The undersigned's final consideration centers on the reasonableness of the expenses plaintiff requests as a sanction, that is, $35,495.00 in expert expenses. Rule 37(c)(2) specifically references that the party who fails to admit need pay "the
The declarations of Dr. Kruczynski and Ms. Sitton merely state that the experts reviewed their billables and "
As previously indicated, the undersigned may have been able to get past the declaration "beliefs" of Dr. Kruczynski and Ms. Sitton had the United States provided those experts' itemized billings—including dates of work performed, a description of work performed on each date, the amount of time spent on each date performing the work described, and the hourly rate billed—but that, obviously, did not happen. Had such evidence been provided, of course, the Court could have discerned for itself whether any double billing occurred for the same work and, otherwise, whether the billings were excessive, redundant, or unnecessary. Cf. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-1940, 76 L.Ed.2d 40 (1983) (in the context of considering an award of attorney's fees under § 1988, the Supreme Court advised district courts to exclude excessive, redundant, or otherwise unnecessary hours); Jean v. Nelson, 863 F.2d 759, 772-773 (11th Cir. 1988) (discussing the reasonableness of the hours expended in the context of contentions by the government that the fee requests were not supported by sufficient documentation and often involved a duplication of effort), judgment aff'd, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).
In light for the foregoing, the undersigned is placed in a position of "arriving" at a reasonable award of expenses to plaintiff for being forced to establish that Creeks A, B, and E (and adjacent wetlands) were jurisdictional waters of the United States. In consideration of the relevant pleadings in this case the undersigned recommends that the Court award to the United States reasonable expenses in the amount of $10,000.00. Even if the Court determines that the government should be able to recover some of the Sitton expense for her review of aerial photographs and supporting analysis, the undersigned is confident that an award of $10,000.00 will comfortably cover Sitton's reasonable expenses and those of Dr. Kruczynski in kayaking the waters around the site and penning seven pages of a report of untold pages—but, conservatively, three times seven pages in length—that cost the government a total of $23,000.00.
The Magistrate Judge
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D.ALA. L.R. 72.4. The parties should note that under Eleventh Circuit precedent, "the failure to object limits the scope of [] appellate review to plain error review of the magistrate judge's factual findings." Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 2013) (emphasis in original). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
(Doc. 136, Exhibit B. Deposition of William Kruczynski, Ph.D., at 40-42; see also Doc. 136, at 3-4 (defendant's citation to and quotation of Dr. Kruczynski's trial testimony that the defendant's stipulation that Dennis Creek constituted jurisdictional waters did not resolve everything inasmuch as the issue was more complicated and required him to be able to say that he boated from the Tensaw River to the property while staying on waters or wetlands the entire way).)
There can be no question but that in this case Smith admitted in part Request for Admission 18 and implicitly denied it in part. As explained above, Smith admitted that Dennis Creek constituted waters of the United States but then "stepped back" from that admission by asserting that he did not adopt the definition of Dennis Creek used by the United States. Since the plaintiff defined Dennis Creek as "the main stem of Dennis Creek, which runs through the Site, any tributaries (whether named or unnamed) within its watershed, and any adjacent wetlands[]" (Doc. 136, Exhibit A), and plaintiff later supplied his definition of Dennis Creek to be "the main stem of Dennis Creek as depicted on available maps in the possession of the United States[]" (Doc. 26, at 3), there is no question but that Smith admitted in part and implicitly denied in part plaintiff's Request for Admission 18, see Fed.R.Civ.P. 36(a)(4) ("[W]hen good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest."). And because Smith would not admit that the tributaries within Dennis Creek's watershed and the adjacent wetlands were waters of the United States for purposes of the Clean Water Act, plaintiff was required to make such proof. Compare United States v. Robison, 505 F.3d 1208, 1222 (11th Cir. 2007) ("[P]ursuant to Marks, we adopt Justice Kennedy's `significant nexus' test as the governing definition of `navigable waters' under Rapanos. . . . Again, under Justice Kennedy's concurrence, a water can be considered `navigable' under the CWA only if it possesses a `significant nexus' to waters that `are or were navigable in fact or that could reasonably be so made.' . . . Moreover, a `mere hydrologic connection' will not necessarily be enough to satisfy the `significant nexus' test.") with Rapanos v. United States, 547 U.S. 715, 779-780, 126 S.Ct. 2208, 2248, 165 L.Ed.2d 159 (2006) (Kennedy, J., concurring in the judgment) ("Consistent with SWANCC and Riverside Bayview and with the need to give the term `navigable' some meaning, the Corps' jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense. The required nexus must be assessed in terms of the statute's goals and purposes. Congress enacted the law to restore and maintain the chemical, physical, and biological integrity of the Nation's waters, and it pursued that objective by restricting dumping and filling in `navigable waters[.]' With respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can perform critical functions related to the integrity of other waters—functions such as pollutant trapping, flood control, and runoff storage. Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase `navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term `navigable waters.'" (all internal citations and some quotation marks omitted)); but cf. id. at 739 & 742, 126 S.Ct. at 2225 & 2226 (plurality opinion) ("In sum, on its only plausible interpretation, the phrase `the waters of the United States' includes only those relatively permanent, standing or continuously flowing bodies of water `forming geographic features' that are described in ordinary parlance as `streams[,] . . . oceans, rivers, [and] lakes.' The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . . . [O]nly those wetlands with a continuous surface connection to bodies that are `waters of the United States' in their own right, so that there is no clear demarcation between `waters' and wetlands, are `adjacent to' such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to `waters of the United States' do not implicate the boundary drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a `significant nexus' in SWANCC[.]"). In meeting the "significant nexus" test, the United States employed experts whose reports it was required to disclose first (see Doc. 8, ¶ 6 ("The disclosure of expert testimony, including reports, required by Fed.R.Civ.P. 26(a)(2) is to be made by Plaintiff on or before
