United States District Court, D. Massachusetts
THOMAS & BETTS CORPORATION, Plaintiff/Defendant-in-Counterclaim,
NEW ALBERTSON'S, INC., Defendant/Plaintiff-in-Counterclaim. NEW ALBERTSON'S, INC., Third-Party Plaintiff,
ALLIS-CHALMERS ENERGY, INC., f/k/a Allis-Chalmers Corporation, f/k/a Allis Chalmers Manufacturing Company, SIEMENS INDUSTRY INC., and ALFA LAVAL INC., f/k/a Alfa Laval, Inc., f/k/a/ The DeLaval Separator Company, Third-Party Defendants. THOMAS & BETTS CORPORATION, Third-Party Plaintiff,
SIEMENS INDUSTRY, INC., JEWEL FOOD STORES, INC., STAR MARKETS COMPANY INC., AND HYDE PARK MANAGER, INC., As Administrative Trustee for W/S Cardinal Hyde Park-MA Trust., ALLIS-CHALMERS ENERGY, INC., f/k/a Allis-Chalmers Corporation, f/k/a Allis-Chalmers Manufacturing Company, THE VILLAGE AT CLEARY SQUARE, LLC, HYDE PARK AUTO REPLACEMENT PARTS CO., INC., DAMPNEY COMPANY, INC., ALBERT L. ANDREWS, ALBERT L. ANDREWS III, RICHARD F. ANDREWS, ROBERT G. MATTHEWS, BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL, and ALFA LAVAL INC., Third-Party Defendants. ALFA LAVAL INC., Third-Party Plaintiff,
ACME INDUSTRIAL EQUIPMENT COMPANY, YUKON/HYDE PARK AVENUE LIMITED PARTNERSHIP and JEANETTE YUKON As General Partner of YUKON/HYDE PARK AVENUE LIMITED PARTNERSHIP, Third-Party Defendants.
MEMORANDUM & ORDER
WILLIAM G. YOUNG DISTRICT JUDGE
memorandum and order arises out of post-trial motions for
attorney's fees and other costs following a protracted
legal struggle over the cleanup of Middle and Lower Mother
Brook in the Hyde Park neighborhood of Boston. See Thomas
& Betts Corp. v. New Albertson's, Inc., No.
10-11947-WGY, 2016 WL 1735811, at *1-2 (D. Mass. May 2, 2016)
(recounting historical background of the present litigation
as detailed in Court's previous post-trial order). In the
months since the verdict, six parties have sought
attorney's fees, costs or both: Dampney Company, Inc.
(“Dampney”); Allis-Chalmers Energy, Inc.
(“Allis-Chalmers”); New Albertson's, Inc.
(“New Albertsons”); Thomas & Betts Corp.
(“Thomas & Betts”), Boston Renaissance Charter
School (“Charter School”); and Alfa Laval, Inc.
instant parties represent but a fraction of the original
number of parties before the Court, yet the present
post-trial litigation alone encompasses almost another three
dozen motions, memoranda, exhibits, and affidavits. Despite
the inherent complexity of so many filings, the pending
motions implicate only two cost-shifting rationales: (1) a
claim for nontaxable attorney's and expert's fees by
New Albertsons under Massachusetts General Laws chapter 21E,
section 15; and (2) claims for taxable costs by each party
pursuant to Federal Rule of Civil Procedure 54(d)(1).
Court assumes familiarity with the relevant factual
background and procedural posture of this case. See
Thomas & Betts, 2016 WL 1735811, at *1-2.
Accordingly, it summarizes only briefly the jury verdict and
submissions filed in connection with the instant motions for
fees and costs.
jury returned its verdict in this case following a six-week
trial. It found, first, that Thomas & Betts's response
costs were “necessary and appropriate” and
apportioned the resultant payment responsibility three ways
(85 percent to Thomas & Betts, 14 percent to Alfa Laval, and
1 percent to Charter School); second, that New
Albertsons's response costs were also “necessary
and appropriate” and ought be split between Thomas &
Betts (75 percent) and New Albertsons (25 percent); and
third, that New Albertsons did not “cause or
contribute” to the pollution of Mother Brook, despite
its equitable responsibility to bear some of the response
costs. See Jury Verdict (“Verdict”) 1-4,
ECF No. 801.
Albertsons now seeks to recover fees and costs. Corrected
Mem. Law Supp. New Albertson's, Inc.'s Mot. Award
Att'ys' and Experts' Fees Pursuant M.G.L. c. 21E,
§ 15 (“N.A. Mem.”), ECF No. 883; Reply Mem.
Supp. New Albertson's, Inc.'s Mot. Award
Att'ys' and Experts' Fees Pursuant M.G.L. c. 21E,
§ 15 (“N.A. Reply”), ECF No. 914. Thomas &
Betts opposes this motion. Pl.'s Opp'n New
Albertson's Mot. Award Att'ys' and Expert Fees
(“T&B Opp'n N.A.”), ECF No. 902; Thomas &
Betts Surreply Mem. Resp. New Albertson's Mot. Award
Att'ys' and Expert Fees (“T&B Surreply”),
ECF No. 917.
each of the other parties has filed claims and cross-claims
seeking to recover costs. See Dampney Company, Inc.'s
Mem. Supp. Bill Costs (“Dampney's
Mem.”), ECF No. 853; Allis-Chalmers Energy Inc.'s
Mem. Supp. Bill Costs (“Allis-Chalmers's
Mem.”), ECF No. 855; Thomas & Betts Corporation's
Mem. Supp. Mot. Bill Costs (“T&B Mem.”), ECF No.
898; Boston Renaissance Charter School's Opp'n Thomas
& Betts Corp.'s Mot. Bill Costs and Supp. Mot. Bill Costs
(“Charter Mem.”), ECF No. 909; Alfa Laval,
Inc.'s Opp'n Thomas & Betts Corporation's Mot.
Bill Costs and Cross-Mot. Bill Costs (“Alfa
Mem.”), ECF No. 906. These motions are also contested.
See Thomas & Betts Corporation's Opp'n Dampney
Company's Bill Costs (“T&B Opp'n
Dampney”), ECF No. 900; Thomas & Betts
Corporation's Opp'n Allis-Chalmers Energy, Inc.'s
Bill Costs (“T&B Opp'n Allis- Chalmers”), ECF
No. 899; Charter Mem.; Alfa Mem.
the Court is New Albertsons's motion for fees and costs,
as well as motions by Dampney, Allis-Chalmers, Thomas &
Betts, Alfa Laval, and Charter School for costs. Although
Federal Rule of Civil procedure 54(d) provides the basic
legal framework for claims for both fees and costs,
distinct subsections of that rule (and, correspondingly,
distinct legal standards) govern each. Accordingly, the Court
analyzes them separately, first evaluating New
Albertsons's motion for fees and then turning to the
various parties' motions for costs.
Albertsons argues that it is entitled to attorney's fees
under state law, and proffers a calculation of an award.
Thomas & Betts refutes the applicability of the state law
fee-shifting provision, and further takes issue with New
Albertsons's fee calculations. The Court addresses these
issues in turn.
Whether Fees are Recoverable
Rule of Civil Procedure 54(d)(2) provides the procedure for
requesting attorney's fees. It applies, however, only
where a party contends that fee-shifting is appropriate under
some independent substantive law, as a “prevailing
litigant is ordinarily not entitled to collect a reasonable
attorney's fee from the loser.” Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S.
240, 247 (1975).
New Albertsons claims it is entitled to attorney's fees
under Massachusetts General Laws chapter 21E, section 15
(“Section 15”). N.A. Mem. 2, 4. Thomas & Betts
disputes this. T&B Opp'n N.A. 6.
In any suit by Massachusetts residents to enforce the
requirements of this chapter, or to abate a hazard related to
oil or hazardous materials in the environment, the court may
award costs, including reasonable attorney and expert witness
fees, to any party other than the commonwealth who advances
the purposes of this chapter.
Mass. Gen. Laws ch. 21E, § 15. As the language of
Section 15 makes clear, recovery is available only to
Massachusetts residents. Further, a party may only recover
fees under Section 15 if it was found “innocent”
of contributing to hazardous waste release. See Bank v.
Thermo Elemental Inc., 451 Mass. 638, 668 (2008).
Finally, even if a party is eligible to recover fees under
Section 15, the amount of any award is within the discretion
of the Court. Sanitoy, Inc. v. Ilco Unican Corp.,
413 Mass. 627, 633 (1992). The Court addresses these issues
in turn, ultimately concluding that New Albertsons is
entitled to fees under Section 15.
& Betts challenges New Albertsons's Massachusetts
residency, noting that New Albertsons is incorporated in Ohio
and has its principal place of business in Idaho. T&B
Opp'n N.A. 11-12. New Albertsons does not dispute that it
is not itself a corporate resident of Massachusetts, but
contends it ought be considered a resident under Section 15
while “standing in the shoes” of its subsidiary,
Shaw's Supermarkets (“Shaws”), a
Massachusetts corporation and tenant of 1377 Hyde Park Ave.
N.A. Mem. 6-7.
initial matter, that New Albertsons is a corporate entity,
rather than an individual citizen, does not disqualify it
from recovering of fees under Section 15. See Sanitoy,
Inc. v. Ilco Unican Corp., 413 Mass. 627, 632 (1992).
Faced with a dearth of instructive case law on the issue of
whether New Albertsons, as the parent company of Shaws, ought
be considered a Massachusetts resident, the Court adopts a
functional approach to Section 15 and concludes that New
Albertsons satisfies the residency requirement.
the course of this litigation, New Albertsons accepted
responsibility for the 1377 Hyde Park property cleanup
obligations. Indeed, it admitted that it was an
“operator” of the relevant Shaws
facility. Ignoring an out-of-state parent
corporation's willingness to “stand in the
shoes” of a subsidiary would seem to subvert Chapter
21E's goal of incentivizing hazardous waste clean-up. See
Acme Laundry Co. v. Sec'y of Envtl. Affairs, 410
Mass. 760, 764 (1991) (citing Sheehy v. Lipton Indus.,
Inc.,24 Mass.App.Ct. 188, 197 (1987)) (“Chapter
21E ‘is drafted in a comprehensive fashion to compel
the prompt and efficient cleanup of hazardous
material.'”). Moreover, the Supreme Judicial Court
has interpreted the scope of Section 15 broadly, in the
interest of achieving expeditious toxic material clean-up.
See Sanitoy, 413 Mass. at 632 (refusing to limit
Section 15 applicability to a putative class made of multiple
residents because it ...