Perdue, Family Seeking $3M In Attorney Fees

BERLIN -- Three weeks after a U.S. District Court judge issued a ruling in the landmark civil suit filed against a Berlin farm family and Perdue over alleged pollution violations dating back to 2009, the victorious defendants in the case this week filed separate motions seeking a combined $3 million in attorney fees and other associated costs.

In March 2010, the New York-based Waterkeeper Alliance, along with the Assateague Coastal Trust and the Assateague Coastkeeper, filed suit in U.S. District Court against Perdue and Berlin’s Hudson Farm, a contract factory farm operation of about 80,000 birds. The suit was filed after sampling in ditches adjacent to the property allegedly revealed high levels of harmful fecal coliform and E. coli in concentrations that exceed state limits in violation of the Clean Water Act.

After three years of legal wrangling, the case finally went to trial in October and concluded after 10 days of testimony during which experts on both sides testified on the merits of the case. In late December, U.S. District Court Judge William Nickerson ruled in favor of the defendants Perdue and Alan Hudson, opining the Waterkeeper Alliance did not prove a Clean Water Act violation.

This week, each of the defendants filed separate motions seeking reimbursement for attorney fees and other costs associated with litigating the case. Perdue is seeking $2.5 million in attorney fees from the plaintiff, while Alan Hudson is seeking $500,000.

The complaint arose from an initial discovery by the Assateague Coastal Trust and the Coastkeeper of what appeared to be an uncovered pile of chicken manure on the Hudson farm that was leeching into drainage ditches and ultimately the creeks and streams that feed the Pocomoke River and finally the Chesapeake Bay. However, the alleged pile of chicken manure later turned out to be a pile of bio-solids, or sludge, obtained by the Hudsons from the town of Ocean City for use as fertilizer on the farm.

However, the plaintiffs in the case then altered their plan of attack, focusing on alleged bacteria from exhaust fans in the chicken houses on the farm, or even foot traffic in and out of the chicken houses that ultimately carried pollutants into the drainage ditches. However, in his 50-page opinion, Nickerson ruled the plaintiffs were unsuccessful in establishing a nexus between the fan exhaust or the foot traffic and the alleged Clean Water Act violation.

Three weeks later, Perdue and Alan Hudson filed motions seeking reimbursement for the funds they spent defending the case. In its motion, Perdue asserts the judge left open the potential for recovering legal fees in his opinion.

“The plaintiff’s claims against the defendants in this lawsuit were groundless from the start,” the motion reads. “When the plaintiff learned that what it had taken for an uncovered pile of chicken manure was actually a pile of harmless bio-solids, it nevertheless proceeded with a lawsuit. After describing the plaintiff’s lack of proof, the court reminded the parties that although prevailing defendants were not normally entitled to recover their legal fees, such an award would not be unprecedented.”

While asserting the figure could be much higher if the entire cost of defending the case from the start was considered, Perdue is only seeking the money it spent for a portion of the three-year case.

“Perdue, one of the prevailing parties, has incurred substantial legal fees over the three-plus years of this unnecessary litigation and believes that the law would support its recovery of all fees,” the motion reads. “Perdue has in fact incurred legal fees of approximately $2.5 million from the date of the court’s summary judgment ruling until the end of the trial and believes that it is both reasonable and fair to seek recovery of that portion of the amount that the pertinent law entitles it to recoup.”

In his motion for the recovery of attorney fees, Hudson also points out the case began with the misidentification of the alleged chicken manure on the farm and the plaintiff’s continued their allegedly frivolous assault on the defendants with a variety of other unfounded claims.

“The plaintiff’s claims against Mr. Hudson began with an erroneous identification of a pile of harmless bio-solids as uncovered chicken manure, morphed during discovery through several iterations of untenable alternate theories and concluded in a three-week trial that did nothing but demonstrate the irresponsible and frivolous nature of the plaintiff’s claims,” the motion reads. “Defendant Alan Hudson intends to seek upwards of $500,000 in fees and costs, which represent fees and costs incurred since the inception of this case.”

It is uncertain when a ruling might be meted out on the motions for the recovery of attorney fees and the timetable could depend on whether the plaintiffs file an appeal in the case, according to a letter to the opposing counsels filed by the judge on Monday. However, the Waterkeeper Alliance has not given any indication whether it will appeal the case.