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Ca-Pow! (Citizens Alert: Protect Our Waters!), By Donn Rice, As Co-Chairman v. the Town of Greece

March 9, 2012

CA-POW! (CITIZENS ALERT: PROTECT OUR WATERS!), BY DONN RICE, AS CO-CHAIRMAN, PLAINTIFF,
v.
THE TOWN OF GREECE, NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Siragusa, J. In a written Decision and Order, the Court denied Plaintiff's motion for leave to file an amended complaint and granted Defendant's motion to strike Plaintiff's June 24, 2010, amended complaint, as well as Defendant's motion to dismiss the original complaint. Decision and Order, Citizens Alert Prot. our Waters! v. Town of Greece, No. 10-CV-6035-CJS, 2010 U.S. Dist. LEXIS 95561 (W.D.N.Y. 2010).

Now before the Court is Defendant's motion seeking an award of attorney's fees pursuant to 33 U.S.C. § 1365(d), 28 U.S.C. § 1927, Fed. R. Civ. P. 54(d)(2), and Rule 11(b) of the W.D.N.Y. Local Rules of Civil Procedure. Notice of Motion, Sept. 29, 2010, ECF No. 31. For the reasons stated below, Defendant's application for attorney's fees is granted in part and denied in part.

PROCEDURAL HISTORY

On March 1, 2010, Defendant filed a motion, ECF No. 2, to dismiss the original complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Court scheduled oral argument on the motion for June 24, 2010, at 3:00 p.m. On that same day, Plaintiff filed what he titled "Plaintiff's First Amended Complaint," ECF No. 20, without leave of the Court and without consent by Defendant. Subsequently, on July 1, 2010, Defendant moved to strike the amended complaint and to dismiss the original complaint, ECF No. 22. On July 23, 2010, ECF No. 25, Plaintiff cross-moved for leave to file his amended complaint.

In its motion to dismiss Plaintiff's complaint, Defendant argued that Plaintiff lacked capacity and standing to sue, had sent a defective "notice of intent" letter to sue, and that the complaint failed to state a claim upon which relief could be granted. On March 2, 2010, the Court issued a motion scheduling order, ECF No. 15, ordering, inter alia, responding papers to be filed and served on or before April 6, 2010, reply papers to be filed and served on or before May 11, 2010, and for all papers to comply with the then current Local Rule of Civil Procedure 7.1.*fn1 In its responding papers, Apr. 6, 2010, ECF No. 16, Plaintiff failed to include a memorandum of law as required.*fn2 Plaintiff filed only the cover page of a memorandum. In its reply papers, filed May 10, 2010, ECF No. 17, Defendant alerted Plaintiff and the Court to the fact that Plaintiff had not filed a memorandum of law and further informed the Court that Plaintiff's attorney had a history of not filing memoranda of law.

Although it was on notice, as of May 10, 2010, that its responding papers only included the memorandum cover sheet, instead of a complete memorandum of law, Plaintiff waited until June 24, 2010, merely seventy-six minutes before oral argument was to be heard on the motion to dismiss the original complaint, to file an amended complaint. Amended Compl., Jun. 24, 2010, ECF No. 20. As indicated above, Defendant then moved to strike the amended complaint and to dismiss the original complaint, Jul. 1, 2010, ECF No. 22, and Plaintiff cross-moved for leave to file the amended complaint. First Mot. for Leave to File Amed. Compl., Jul. 23, 2010, ECF No. 25.

In its papers, as indicated above, Defendant alleged that opposing counsel frequently omitted memoranda of law, and so, at oral argument, the Court read the allegations:

CA-POW's attorney has repeatedly failed to comply with Rule 7.1(e) in other civil actions. In Lester v. M&M Knopf Auto Parts, the Western District of New York found that Mr. Seeger's submissions failed to comply with local Rule 7.1(e) because they did not include an answering memorandum. In Allens Creek/Corbetts Glen Preservation Group v. Caldera, 88 F. Supp 2d 77 at 81, affirmed by the Circuit, this district court found that Mr. Seeger had not filed any memorandum of law as required by rule 7.1(e) until well after six months after the opposing parties filed summary judgment motions. In Neighbors Organized to Save Amherst's Wetlands, Lexis 101376, another Western District of New York case, this court, citing Local Rule 7.1(e), admonished Mr. Seeger for filing a 29-page brief containing no case law or other pertinent legal authority. In Lewis v. FMC Corp., Lexis 76274, the Court granted a motion to strike the summary judgment motion papers submitted by Seeger in part because his memorandum of law contained no meaningful factual or legal argument in violation of the spirit of Local Rule 7.1(e). So I know you're familiar with the rule because you've been told about it on numerous times. So explain to me why being familiar with the rule would you ignore the requirement of filing a memorandum of law.

Transcript at 3, CA-POW! v. Town of Greece, NY, 10-CV-6035 (Jun. 24, 2010), ECF No. 27. Plaintiff's counsel eventually responded by stating:

MR. SEEGER: Okay, your Honor. I wish in May I had done one of those things that your Honor had just mentioned. I had drafted a memorandum of law, I haven't filed it. For some reason only the cover page was done. I did not realize that until Mr. Koegel submitted his affidavit. Frankly I took that as a very uncivil personal assault on me.

Id., at 4. Plaintiff's counsel admitted that he has been practicing law for twenty-nine years and has represented parties in roughly 100 cases in U.S. District Court over the last twelve years. Id., 3--4, 10. Later, the Court questioned Plaintiff's counsel about his actions and omissions. The Court asked counsel three different times why he waited until an hour before oral argument to file an amended complaint, and received different answers:

[THE COURT:] So I know you're familiar with the rule because you've been told about it on numerous times. So explain to me why being familiar with the rule would you ignore the requirement of filing a memorandum of law.. MR. SEEGER: And that was my foolish mistake, your Honor. And I did, frankly, I wasn't sure what to do..

THE COURT: Why would you wait? Because I don't have it, I'm obviously operating -- why would you wait until an hour before oral argument to file an amended complaint? Explain that to me.

MR. SEEGER: My father died when that memorandum was due before Judge Larimer.

THE COURT: I'm sorry about your loss.

MR. SEEGER: And that is why that Allens Creek memo of law was not filed and I was upset. The other-

THE COURT: When did your father pass away?

MR. SEEGER: 1999, October, eleven years ago. And I'm being faulted now by ...


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