Paolino v. JF Realty, LLC

United States Court of Appeals
For the First Circuit

No. 15-1498

LOUIS PAOLINO; MARIE ISSA,

Plaintiffs, Appellants,

v.

JF REALTY, LLC; JOSEPH I. FERREIRA; ROBERT YABROUDY;
LKQ ROUTE 16 USED AUTO PARTS, INC., d/b/a/ Advanced
Auto Recycling; JOSEPH I. FERREIRA, Trustee of the
Joseph I. Ferreira Trust,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Lynch, and Thompson,
Circuit Judges.

Ronald L. Bonin, with whom Moretti Perlow & Bonin Law Offices,
was on brief, for appellants.
Robert Clark Corrente, with whom Whelan, Corrente, Kinder &
Siket LLP, was on brief, for appellees.

July 18, 2016
 TORRUELLA, Circuit Judge. This citizen enforcement

action under the Federal Water Pollution Control Act, 33 U.S.C.

§ 1251, et seq. ("Clean Water Act" or "CWA"), is the third such

suit brought by Plaintiffs-Appellants Louis Paolino and his wife

Marie Issa (collectively "Paolino-Issa") against the owner of a

neighboring parcel of land and the business operating on it,

Defendants-Appellees.1 It is only the latest in an inventive

series of unjustifiable efforts to indict their neighbor's

environmental practices. We affirm the district court's judgment

for Defendants-Appellees and award of attorneys' fees to the same.

I. The Facts

In 1983, Joseph I. Ferreira bought a thirty-nine-acre

site (the "Property") in Cumberland, Rhode Island. The Property

1 "Plaintiffs originally filed suit in Rhode Island state court
in 2006. After plaintiffs amended the complaint to include counts
under the CWA, the Resources Conservation and Recovery Act (RCRA),
42 U.S.C. § 6901 et seq., and the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§ 9601 et seq., defendants removed the case to federal court and
asserted that pre-suit notice was inadequate. On March 30, 2011,
the court dismissed plaintiffs' federal claims without prejudice
for failure to comply with the notice requirements of the various
statutes invoked, and remanded the remaining state claims to the
Rhode Island Superior Court. LM Nursing Serv., Inc. v. Ferreira,
No. 09-CV-413-SJM-DLM, 2011 WL 1222894, at *9 (D.R.I. Mar. 30,
2011). On June 6, 2011, plaintiffs filed a new federal complaint
against the defendants in the District of Rhode Island, which was
dismissed without prejudice by stipulation when notice was
defective." Paolino v. JF Realty, LLC, 710 F.3d 31, 34 n.1 (1st
Cir. 2013).

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is currently owned by JF Realty, LLC, ("JF Realty") of which

Ferreira is the sole member, and is home to an automobile recycling

business: LKQ Route 16 Used Auto Parts, Inc., d/b/a Advanced Auto

Recycling ("LKQ"). In December 1985, Paolino bought a six-acre

property (the "Paolino-Issa Property") abutting the Property for

$40,000. The two properties were previously part of a larger

parcel operated at various points as a pig farm and waste dump.

In the early 2000s, Paolino sold two half-acre parcels

for development. The purchaser subsequently sued Paolino for

failing to disclose that the Paolino-Issa Property was

contaminated. Paolino then sought a tax abatement in 2003

"because of the contamination found on his property." Paolino was

directed to remediate his property, but has not completed that

process.

In March 2005, also as a result of the contamination

pervading both properties, the Rhode Island Department of

Environmental Management ("RIDEM") issued a Notice of Intent to

Enforce ("NIE") to the then-operator of the Property, Advanced

Auto Recycling ("Advanced Auto"), requiring it to (1) install

controls to prevent stormwater runoff on the Property and (2) apply

for a Rhode Island Pollution Discharge Elimination System

("RIPDES") permit for the Property. Ferreira's business manager,

Robert Yabroudy, subsequently submitted an application to RIDEM

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for the permits required by the NIE, naming the operator as

Advanced Auto and the owner as the Joseph I. Ferreira Trust

("Ferreira Trust") although it appears2 that at that point in time

the Property was owned by JF Realty and operated by LKQ.3 RIDEM

would go on to issue the RIPDES permit to the Joseph I. Ferreira

Trust in July 2007.

The stormwater management system that was installed on

the Property would ultimately consist of two outfall pipes to drain

various of the Property's surface areas, with large detention

basins underneath to collect water and trap contaminants, set in

the headwall facing Curran Road. The pipes drain into an outfall

channel that eventually leads to Curran Brook. Construction of

the system began in October 2007. During the construction LKQ

received a second NIE on April 14, 2008. Defendants contracted a

civil engineering firm, Commonwealth Engineers, to bring the

2 This is one of many points of temporal murkiness. The Complaint
states that the permit request was filed on June 19, 2006, while
the Answer claims the request was filed in June 2005. The Answer
does not refute the claim that at the time of application the owner
was JF Realty and operator was LKQ.
3 Around the same time, in 2006, Paolino communicated to Yabroudy
that he wanted Ferreira to purchase the Paolino-Issa Property for
$250,000; Ferreira refused. Paolino-Issa subsequently filed their
first lawsuit against the Defendants for the contamination of the
Paolino-Issa Property and lodged complaints about the Property
with RIDEM, the Environmental Protection Agency ("EPA"), the U.S.
Attorney's Office, the police department, the Department of
Business Relations, and U.S. Senator Sheldon Whitehouse. To this
considerable barrage, they added a media campaign.

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Property into compliance and ultimately completed the construction

in October 2008.

RIDEM investigated numerous of Paolino-Issa's repeated

complaints and notified them that they found all but one without

merit. Paolino-Issa were notified in April 2008 that the

discharge point for stormwater had been relocated and was not

discharging stormwater onto their property.

On March 2, 2010, RIDEM issued a Notice of Violation

("NOV") to JF Realty informing them that an inspection on November

20, 2009, showed that pollutants were being discharged from the

Property to Curran Brook in violation of the Rhode Island Water

Pollution Act and RIDEM Water Quality Regulations. A $2,500.00

administrative penalty was imposed. RIDEM issued a letter on

November 19, 2012, confirming the receipt of a check from JF Realty

to pay the penalty and that all issues mentioned in the NOV were

resolved, effectively releasing the NOV. Subsequent inspections

in April 2014 found no additional violations and resulted in no

additional enforcement actions or fines.

II. Procedural Background

Paolino-Issa filed the current claim for injunctive

relief and civil penalties against JF Realty, Ferreira, Yabroudy,

LKQ, Advanced Auto, and Ferreira as trustee of the Ferreira Trust

under the citizen suit enforcement provisions of the CWA on January

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20, 2012, in the U.S. District Court for the District of Rhode

Island, alleging that contaminated stormwater runoff from the

Property was being discharged into United States waters,

contaminating the Paolino-Issa Property, and that Defendants

lacked a valid RIPDES permit. While the claim was originally

dismissed on July 26, 2012, due to defective pre-suit notice, this

court reversed the dismissal and remanded except as to claims

against Ferreira's business manager, Yabroudy. Paolino v. JF

Realty, LLC, 710 F.3d 31, 36, 40-42 (1st Cir. 2013). The deadline

for Plaintiffs to submit expert disclosures was February 28, 2014.

Although Plaintiffs provided disclosures for two expert witnesses

on that date, Alvin Snyder and Dr. Robert Roseen, the latter's

report was just thirty-two pages, some of which were stamped

"DRAFT." Paolino-Issa subsequently submitted a request to

supplement Roseen's report on June 13, 2014, which was, noted the

district court, "more than three months after the Plaintiffs'

expert disclosures were due, two weeks after expert discovery had

closed, and after the Defendants had filed their motion for summary

judgment, based, in part, on the information disclosed in Dr.

Roseen's expert report." The second report was seventy pages.

Despite a May deposition, neither Dr. Roseen nor Paolino-Issa had

indicated any intention to revise or supplement the February

report. The parties proceeded to trial, which took place over

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seven days in August and September 2014, at which the district

court permitted Roseen to testify only to the content of the

initial report. The district court issued a memorandum of

decision on November 19, 2014, concluding that Plaintiffs failed

to meet their burden of proof.

On December 3, 2014, Defendants filed a motion for attorney's

fees claiming: (1) that Plaintiffs went to trial without credible

evidence; (2) Paolino conceded that RIDEM had investigated the

Property and found his complaints lacked merit; and (3) neither

RIDEM nor the EPA chose to intervene. Plaintiffs filed an

objection to this motion, arguing that their action was not

frivolous or unreasonable, that the lack of action by

administrative agencies is not definitive, and that Defendants

were seeking fees related to prior suits. On March 26, 2015, the

district court ordered that the Plaintiffs pay $111,784.50, the

total amount of fees charged by Defendants' counsel from June 30,

2014, the date by which extensive discovery had been completed and

Plaintiffs had reviewed and responded to Defendants' motion for

summary judgment, to October 29, 2014.

III. The Excluded Expert Testimony

Paolino-Issa allege that the trial judge erred in

excluding from evidence a portion of the expert testimony of

Dr. Roseen as a result of Paolino-Issa's tardiness in filing Dr.

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Roseen's revised expert report. This claim faces a high bar and

falls well short.

When reviewing a district court sanction regarding a

discovery violation, this court will be deferential to the trial

judge. See Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003).

When "a party aspires to disclose expert evidence out of time and

the trial court opts to exclude it, we review that determination

for abuse of discretion." Santiago-Díaz v. Laboratorio Clínico y

De Referencia Del Este, 456 F.3d 272, 275 (1st Cir. 2006). Under

the "abuse of discretion" standard, this court will not substitute

its judgment for that of the district court unless left with a

"definite and firm conviction that the court below committed a

clear error of judgment." Schubert v. Nissan Motor Corp. in

U.S.A., 148 F.3d 25, 30 (1st Cir. 1998) (quoting In re Josephson,

218 F.2d 174, 182 (1st Cir. 1954)).

Under Federal Rule of Civil Procedure 26(e)(1):

A party who has made a disclosure under Rule
26(a) -- or who has responded to an
interrogatory, request for production, or
request for admission -- must supplement or
correct its disclosure or response: (A) in a
timely manner if the party learns that in some
material respect the disclosure or response is
incomplete or incorrect, and if the additional
or corrective information has not otherwise
been made known to the other parties during
the discovery process or in writing; or (B) as
ordered by the court.

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Fed. R. Civ. P. 26(e)(1). Pursuant to Rule 37(c)(1), reports that

are not disclosed in a timely manner are automatically excluded

and may not be used "to supply evidence . . . unless the failure

was substantially justified or is harmless." Fed. R. Civ. P.

37(c)(1). In Esposito v. Home Depot U.S.A., Inc., this court

stated that when reviewing a district court's decision to preclude

expert testimony, it will consider: "(1) the history of the

litigation; (2) the sanctioned party's need for the precluded

evidence; (3) the sanctioned party's justification . . . for its

late disclosure; (4) the opponent-party's ability to overcome the

late disclosure's adverse effects . . . ; and (5) the late

disclosure's impact on the district court's docket." 590 F.3d 72,

78 (1st Cir. 2009).

We find that, far from an abuse of discretion, the

district court's decision to exclude the untimely supplement to

Dr. Roseen's report passes the five-factor Esposito test easily.

Regarding the history of the litigation, Paolino-Issa repeatedly

missed deadlines for discovery and motions. See Esposito, 590

F.3d at 79. While Paolino-Issa contend that the information is

crucial to their case, Paolino-Issa presented numerous other forms

of evidence as well as nine other witnesses; moreover, Dr. Roseen

was allowed to testify -- only the untimely portion of his report

was excluded. Paolino-Issa claim their tardiness owed to

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Defendants' refusal to permit them entry onto the property. But

Paolino-Issa concede that they did not file a motion to obtain an

order to inspect the Property -- as opposed to a request for entry

-- until February 19, 2014, though experts' reports were to be

disclosed by February 28. Moreover, Paolino-Issa did not retain

Dr. Roseen until early February, further undermining Paolino-

Issa's asserted justification for their tardiness. As to the

fourth Esposito factor, as the district court noted, Paolino-

Issa's motion to "serve a revised expert report [came] months after

the deadline for expert disclosures had passed and only after the

Defendants . . . had filed their motion for summary judgment."

Defendants had already relied on the original report from

Dr. Roseen in drafting their motion for summary judgment. To

grant the request to supplement Dr. Roseen's report on June 13

would have substantially affected both Defendants, who had

tangibly relied upon that initial disclosure, and the district

court. See Santiago-Díaz, 456 F.3d at 277; Gagnon v. Teledyne

Princeton, Inc., 437 F.3d 188, 197-99 (1st Cir. 2006).

Paolino-Issa's Esposito-based "fatal sanction" argument

likewise fails. In Esposito, the plaintiff's "need for the expert

was so great that the magistrate judge's decision to preclude the

expert, although technically not a dismissal of Esposito's case,

effectively amounted to one." 590 F.3d at 78. Granted, when

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preclusion "carrie[s] the force of a dismissal, the justification

for it must be comparatively more robust." Id. at 79; see Young

v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003). But here the

preclusion of a portion of an expert witness's report in this case

following discovery, rather than before a successful motion for

summary judgment, did not constitute a de facto dismissal.

Dr. Roseen was still allowed to testify, along with other

witnesses, and the dismissal cannot be attributed to the exclusion

of the supplement to Dr. Roseen's tardily tendered report. We

thus find no abuse of discretion in the district court's decision

to exclude the revised report.

IV. The Judgment

We next address Paolino-Issa's contention that the trial

judge's judgment for the Appellees was an error in toto and somehow

against the great weight of the evidence presented at trial.

Pursuant to the CWA's citizen suit provision: "[A]ny

citizen may commence a civil action on his own behalf --

(1) against any person . . . who is alleged to be in violation of

(A) an effluent standard or limitation under this chapter . . . or

(B) an order issued by the Administrator or a State with respect

to such a standard or limitation." 33 U.S.C. § 1365(a)(1). Here,

Paolino-Issa sought to prove Defendants violated the CWA by

discharging pollutants from a point source into navigable waters

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without a permit. 33 U.S.C. §§ 1311(a), 1342(a), 1362(12).

Specifically, Paolino-Issa had to prove that water discharged from

the stormwater system's outfall pipes into the mingled channel

leading to Curran Brook contained pollutants.4

Upon review, this court may set aside the district

court's findings of fact only if "clearly erroneous" and with due

regard for the opportunity of the trial judge to determine the

credibility of the witnesses. Fed. R. Civ. P. 52(a); see also

Jackson v. Harvard Univ., 900 F.2d 464, 466 (1st Cir. 1990).

Conversely, this court reviews legal rulings by the district court

on a de novo basis. United States v. 15 Bosworth St., 236 F.3d

50, 53 (1st Cir. 2001).

In Anderson v. Bessemer City, the Supreme Court

established that:

[i]f the district court's account of the
evidence is plausible in light of the record
viewed in its entirety, the court of appeals
may not reverse it even though convinced that
had it been sitting as the trier of fact, it
would have weighed the evidence differently.
Where there are two permissible views of the
evidence, the factfinder's choice between them
cannot be clearly erroneous.

4 Turbidity, as opposed to pollutant levels, does not bear on
whether Defendants were in violation of the CWA or their permit,
thus we do not address the issue of turbidity.

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470 U.S. 564, 573-74 (1985). Here, the district court's order was

clearly grounded in the record and reflected a more-than-plausible

interpretation of that evidence. That court recounted the

extensive procedural history, incorporating prior decisions;

summarized the pertinent testimony of thirteen witnesses and the

findings of facts corresponding to each5; reviewed the timeline of

5 The district court reviewed evidence from (1) Christopher Lee,
a field technician employed by Rhode Island Analytical
Laboratories who took samples at the Paolino-Issa Property on
December 23, 2013, and took a sample from the drainage channel
located partially on the Paolino-Issa Property and no samples from
the Property; (2) Alvin J. Snyder, registered professional
engineer and the principal of Environmental Resource Associates,
a company dedicated to environmental compliance and remediation,
who made various visits to, and took various samples from, the
Paolino-Issa Property between 2009 and 2013; (3) Harold Ellis, a
former supervising environmental scientist with RIDEM, who only
offered testimony relating to events that occurred thirty years or
more before the complaint; (4) Louis R. Maccarone II, senior
sanitary engineer at the RIDEM office of waste management, who
sent a letter of responsibility to the Ferreira Trust on October
5, 2005, requiring the owners of the Property to conduct a full
site investigation and bring the Property into compliance with
regulations; (5) David D. Chopy, RIDEM's Chief of Compliance and
Inspection, who confirmed receiving data from Snyder that appeared
to demonstrate water quality violations but that could not be used
because Snyder was hired by Paolino; (6) Paolino, co-owner of the
Paolino-Issa Property, who saw oil sheen and turbidity in the water
coming from the Property onto his, but also conceded that his
complaints were investigated by RIDEM and were deemed to not have
merit; (7) David Holzinger, operations manager for LKQ, who
described the process of auto recycling at the LKQ facility, his
obligation to collect stormwater samples every quarter, and the
requirements to prevent contamination; (8) Yabroudy, business
manager for Ferreira, who applied for a RIPDES permit on June 15,
2006, that named the Trust as the owner of the Property and
Advanced Auto as the operator although Advanced Auto was dissolved
in 2005 and the Property was conveyed to JF Realty; (9) Ferreira,

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events based on testimony and evidence offered by both parties in

relation to the CWA claim; and noted DEM's investigations, actions,

and notifications.

The district court determined that the only evidence

Paolino-Issa presented to show the stormwater system was

discharging pollutants was overtly flawed. For example,

Dr. Roseen's report significantly misapprehends the stormwater

system's components and their functions. As Patrick Hogan of

RIDEM noted in his testimony, all of Snyder's samples came from a

who bought the Property in 1983 and serves as LKQ's plant manager
and stated he had no direct involvement with RIDEM although he was
aware of their notices and of how the stormwater management system
was installed; (10) Dr. Roseen, a Ph.D. in civil engineering with
a specialty in water resources engineering, who analyzed data
collected by his staff from the Property in 2014 as to potential
risks of contamination in light of the current system and reviewed
maintenance records from 2007 to 2013; (11) Patrick Hogan, in
charge of supervising the RIDEM Water Pollution and Septic
Enforcement Program, who visited the Property on various occasions
between 2008 and 2014 after receiving complaints from Paolino and
sent an NOI to JF Realty after a March 2008 visit and an NOV
following a November 2009 visit, but affirmed that JF Realty took
the necessary steps to address both and informed Paolino, in
response to continuing complaints, that a multimedia inspection
found no violations; (12) Karen Beck, a Commonwealth Engineering
employee, registered landscape architect, and wetlands scientist,
who worked on the design of the Property's stormwater management
system, obtained the necessary permits, and coordinated efforts by
Commonwealth's engineers; and (13) Richard Lavengood, engineer and
certified toxic use reduction planner, who is the principal of
RELCO Engineering that prepared the stormwater management plan for
LKQ, which included testing, training of personnel and dealing
with incidents.

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mingled water source, not directly from the Property or the

Property's outfall pipes. As such, it is no stretch to affirm the

district court's finding that Paolino-Issa failed to show the

stormwater system was emitting pollutants.

Further, we note Paolino-Issa's CWA claim failed in

another direction: 33 U.S.C. § 1251(a) exists to "restore and

maintain the chemical, physical, and biological integrity of the

[n]ation's waters." In the past, we have held that "[d]uplicative

actions aimed at exacting financial penalties in the name of

environmental protection at a time when remedial measures are well

underway do not further this goal" and may be "impediments to

environmental remedy efforts." N. & S. Rivers Watershed Ass'n,

Inc. v. Town of Scituate, 949 F.2d 552, 556 (1st Cir. 1991).

"[W]hen it appears that governmental action under either the

Federal or comparable State Clean Water Acts begins and is

diligently prosecuted, the need for citizen's suits vanishes."

Id. at 555; see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49, 60 (1987). Here, ample evidence

demonstrates RIDEM's ongoing involvement vis-à-vis the Property

and responsiveness to Paolino-Issa's repeated complaints and oft-

reiterated concerns, vitiating the premise that a citizen suit is

necessary at all.

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 Finally, Paolino-Issa's add-on argument that JF Realty

violated the CWA by failing to properly transfer the RIPDES permit

is ill-founded. Paolino-Issa rely on New Manchester Resort &

Golf, LLC, in which the U.S. District Court for the Northern

District of Georgia established that the "CWA authorizes citizen

suits for the enforcement of all conditions of a . . . permit."

New Manchester Resort & Golf, LLC v. Douglasville Dev., LLC, 734

F. Supp. 2d 1326, 1338 (N.D. Ga. 2010) (quoting Culbertson v. Coats

Am., Inc., 913 F. Supp. 1572, 1581 (N.D. Ga. 1995)). However, it

is important to distinguish, as JF Realty did, that the permit

violations in dispute in that case were "failing to maintain best

management practices, violating Georgia's in-stream water quality

standards, and ignoring monitoring and reporting requirements."

Id. at 1330. These substantive violations are hardly equivalent

to a failure to properly notify RIDEM of a transfer of ownership,

especially given that the both the transferor (the Ferreira Trust)

and the recipient (JF Realty) were controlled by the same person,

Ferreira; the identity of the current owner was known to RIDEM;

and the current owner was complying with the relevant regulations.

V. The Fee Award

At last, we turn to the question of attorney's fees.

The CWA citizen suit provision states that: "The court, in issuing

any final order in any action brought pursuant to this section,

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may award costs of litigation (including reasonable attorney and

expert witness fees) to any prevailing or substantially prevailing

party, whenever the court determines such award is appropriate."

33 U.S.C. § 1365(d). Attorney's fees may be awarded to a

prevailing defendant if it is found that the "plaintiff's action

was frivolous, unreasonable, or without foundation, even though

not brought in subjective bad faith." Lamboy-Ortiz v. Ortiz-

Vélez, 630 F.3d 228, 236 (1st Cir. 2010) (quoting Rosselló–González

v. Acevedo–Vilá, 483 F.3d 1, 6 (1st Cir. 2007)). "Although

determinations about whether to award attorney's fees are

generally focused on the claims as they existed at the time the

complaint was filed, 'fees also may be awarded on rare occasions

where the plaintiff continued to litigate after [the claims]

clearly became [frivolous, unreasonable, or groundless].'"

Torres-Santiago v. Municipality of Adjuntas, 693 F.3d 230, 235

(1st Cir. 2012) (quoting Ortiz-Vélez, 630 F.3d at 241) (alterations

and emphasis in original) (internal citations omitted). Here,

again, we review for abuse of discretion, "thus we will not lightly

substitute our judgment for that of the district court." Ortiz-

Vélez, 630 F.3d at 236.

The district court here provided a detailed basis for

awarding attorney's fees that precludes finding "a clear error of

judgment." Schubert, 148 F.3d at 30 (quoting Josephson, 218 F.2d

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at 182); cf. Ortiz-Vélez, 630 F.3d at 237. The district court

reviewed relevant facts carefully and noted that Plaintiffs

brought the current suit after Defendants installed a

comprehensive stormwater management system per RIDEM, that

"Paolino had been repeatedly informed by RIDEM that, with one

exception, his complaints about the Property had no merit,"6 and

that Paolino-Issa's complaints generated various "site visits, a

multi-media inspection, and extensive correspondence between

RIDEM, EPA, and local authorities." The district court found that

Paolino-Issa "refused to acknowledge the well-documented efforts

made by RIDEM that caused the Defendants to alleviate environmental

conditions on the Property."

The district court also noted Paolino-Issa's post-

verdict attempt to seek an injunction to return the Property to

its previous condition as a request to "undo beneficial changes to

the Property at great expense to the Defendants" that was "wholly

inconsistent with a citizen plaintiff who legitimately seeks to

prosecute violations of the CWA for the public good." The district

court further detailed Paolino-Issa's lack of diligence in

pursuing the suit against Defendants, evidenced by waiting six

6 The one exception pertained to turbidity and thus did not
justify this suit. See Paolino v. JF Realty, LLC, C.A. No. 12-
039-ML, 2014 WL 6485842 at *8 (D.R.I. Nov. 19, 2014).

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months to submit their written discovery requests, failing to

provide adequate water samples on which to base their complaints

despite pre-trial notice by RIDEM of the need to do so, allowing

discovery and motion deadlines to pass, attempting to submit

testimony of events that had occurred decades before relevant

events, and failing to retain a water resources engineering expert

to investigate, make findings, and produce a report on the Property

until two weeks before the deadline for disclosure.

While the court concedes Plaintiffs may have had a

reasonable claim in 2006, by 2012 the facts had changed

considerably. In essence, the district court concluded, with good

reason, that it is:

abundantly clear that the Plaintiffs continued
to engage in a bitter quarrel with the
Defendants long after the Defendants had taken
appropriate and RIDEM-approved measures to
address any legitimate concerns the Plaintiffs
might have raised in the interest of
protecting public water resources and long
after it became apparent that the Plaintiffs'
case was unsupportable.

Moreover, the district court carefully detailed its reasoning as

to the amount of the award. Although Defendants requested fees

covering billing hours charged since August 7, 2009, the court

noted that Defendants had failed to request attorney's fees in the

prior two cases and limited its consideration of their request to

the instant case. The court focused its inquiry on "[when] it

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became clear that the Plaintiffs' claims against the Defendants

were groundless," granting that "[i]t is not an easy task to

pinpoint the exact moment at which it should have been apparent to

the Plaintiffs that their continuing litigation lacked merit."

Only after reviewing the procedural history and availability and

persuasiveness of evidence and notifications throughout did the

court determine that it was as of June 30, 2014, after the

Plaintiffs had conducted "extensive discovery," engaged experts,

and reviewed and responded to Defendants' motion for summary

judgment, that "it was clear that further litigation against the

Defendants was both unreasonable and groundless."

As the district court carefully detailed its analysis

and the underlying factual basis for its conclusion, we see no

ground for a finding of clear error or any basis under Schubert

for this court to substitute its judgment for that of the district

court. 148 F.3d at 30.

VI. Conclusion

The judgment of the district court is affirmed.

AFFIRMED.

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