United States v. Smith

303 F.R.D. 630, 90 Fed. R. Serv. 3d 403, 2014 U.S. Dist. LEXIS 163819, 2014 WL 6669398
CourtDistrict Court, S.D. Alabama
DecidedNovember 21, 2014
DocketCivil Action No. 12-00498-KD-C
StatusPublished

This text of 303 F.R.D. 630 (United States v. Smith) is published on Counsel Stack Legal Research, covering District Court, S.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Smith, 303 F.R.D. 630, 90 Fed. R. Serv. 3d 403, 2014 U.S. Dist. LEXIS 163819, 2014 WL 6669398 (S.D. Ala. 2014).

Opinion

ORDER

KRISTI K. DuBOSE, District Judge.

After due and proper consideration of the issues raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated November 4, 2014, is ADOPTED as the opinion of this Court. Accordingly, it is ORDERED that Plaintiffs motion for reimbursement of expenses pursuant to Fed.R.Civ.P. 37(c)(2) (Doc. 117) is GRANTED in part, with Plaintiff being awarded reasonable expenses totaling $10,000 rather than the $35,495.00 requested.

REPORT AND RECOMMENDATION

WILLIAM E. CASSADY, United States 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 plaintiffs motion for reimbursement of expenses pursuant to Fed.R.Civ.P. 37(e)(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 GRANT IN PART the plaintiffs motion for reimbursement of expenses (Doc. 117).

FACTUAL BACKGROUND

The United States instituted its Clean Water Act ease 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 [632]*632the 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:

13. CWA section 502(7), 33 U.S.C. § 1362(7), defines “navigable waters” as “the waters of the United States, including the territorial seas.”
14. 33 C.F.R. § 328.3(a)(1), (2), (5), and (7), and 40 C.F.R. § 232.2, define “waters of the United States” to include: all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce; tributaries to such waters; and wetlands adjacent to such waters or their tributaries.
15. 33 C.F.R. § 328.3(b) and 40 C.F.R. §§ 122.2 and 232.2 define “wetlands” as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(c) defines “adjacent” as “bordering, contiguous, or neighboring.” Wetlands separated from other waters of the United States by man[ jmade dikes or barriers, natural river berms, beach dunes and the like are “adjacent wetlands.” Id.
21. Beginning in 1998, continuing at least through 2004, at times and locations best known to Defendant, Defendant and/or persons acting on his behalf, discharged dredged or fill material into waters of the United States without a permit under CWA section 404. The discharges were made into Dennis Creek, a perennial stream, and into four unnamed tributaries of Dennis Creek, and wetlands adjacent to and abutting Dennis Creek and its unnamed tributaries, near 30E55'13" north latitude and 87E51'03" west longitude, In Baldwin County, Alabama (the “Site”).
22. Dennis Creek is a direct tributary of the Tensaw River, a traditional navigable water. Dennis Creek’s confluence with the Tensaw River is approximately 3 miles from the Site. The Tensaw River empties into Mobile Bay approximately fifteen (15) miles from its confluence with Dennis Creek. The Tensaw River and Mobile Bay are waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce. A significant nexus exists between the affected tributaries, Dennis Creek, and their adjacent wetlands and the Tensaw River.
30. Defendant has violated and continues to violate CWA section 301(a), 33 U.S.C. § 1311(a), by his unauthorized discharges of dredged or fill material into waters of the United States, including Dennis Creek and unnamed tributaries of Dennis Creek, and wetlands adjacent to and abutting Dennis Creek and its tributaries, at the Site.

(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, plaintiffs counsel emailed counsel for the defendant and supplied counsel with numerous ease citations and “holdings” that “man[ Jmade and man-altered structures/waters are covered by the Clean Water Act.” (Doc. 117, Exhibit 1, at 1.) Plaintiffs 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 [633]*633(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.)1

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Bluebook (online)
303 F.R.D. 630, 90 Fed. R. Serv. 3d 403, 2014 U.S. Dist. LEXIS 163819, 2014 WL 6669398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-alsd-2014.