The opinion of the court was delivered by: EDWARD A. INFANTE
I. Introduction and Background
Defendants were previously granted summary adjudication of plaintiff's environmental claims brought under the Resource Conservation and Recovery Act ("RCRA") 42 U.S.C. § 6972.
The parties' respective cross-motions for summary adjudication of plaintiff's claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607, were denied, and such claims (as well as several state law claims) remain pending.
Presently, defendants Greenbriar Homes Company, Gilbert M. Meyer and Morton Newman have moved, as prevailing parties under RCRA, for an award of attorney's fees, expert witness fees and costs in the amount of $ 240,875,26.
The motion was originally noticed for hearing on December 19, 1994, but then continued by stipulation of the parties to April 10, 1995 so that they could meet and confer in an effort to compromise the motion. The Court has not been specifically advised of the outcome of that process but it was quite evidently unsuccessful. For the reasons which follow, the motion is DENIED as premature.
"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 the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate." 42 U.S.C. § 6972(e) (emphasis added). Thus, as plaintiff's counsel points out, "under § 6972(e) an award of attorney's fees and costs is proper only after a final order has been issued".
However, the Court's prior order summarily adjudicating the RCRA claims, but withholding judgment on the CERCLA (and state law) claims, is not a "final" order.
Partial summary judgments "are by their terms interlocutory". Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 1206, 47 L. Ed. 2d 435 (1976).
"Subdivision (d) of Rule 56 indicates clearly . . . that a partial summary 'judgment' is not a final judgment . . . the partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. The adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact."
Notes of Advisory committee on Rules, 1946 Amendment to Fed.R.Civ.P. 56(d).
"'In the absence of [district court direction for entry of final judgment], any order or other form of decision, however designated, which adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.'"
Wetzel, supra, 96 S. Ct. at 1206 & n.2, quoting Fed.R.Civ.P. 54(b).
Because the Court's prior order was not a "final" order, defendants' request for attorneys' fees and costs pursuant to § 6972(e) is premature.
Accordingly, IT IS HEREBY ORDERED that defendants' motion for attorney's fees pursuant to RCRA, 42 U.S.C. § 6972(e), is DENIED WITHOUT PREJUDICE to being renewed upon entry of ...