Paolino v. JF Realty, LLC, 830 F.3d 8

Ferreira owns a 39-acre property in Cumberland, RI, operated as an auto-recycling facility (LKQ/JF Realty); Paolino and Issa own an adjacent six-acre parcel alleged to be contaminated.
RIDEM issued enforcement notices in 2005–2009 directing installation of stormwater controls and a RIPDES permit; a stormwater management system was installed by October 2008 and a RIPDES permit was issued in 2007 to the Ferreira Trust.
Paolino-Issa repeatedly complained to RIDEM; RIDEM investigated, found most complaints without merit (one turbidity issue), issued and later resolved an NOV with a modest penalty, and conducted follow-up inspections with no further enforcement.
Plaintiffs filed a citizen suit under the Clean Water Act in 2012 alleging unlawful discharges to Curran Brook and lack of a valid permit; earlier procedural dismissals for defective pre-suit notice were reversed in part by this Court.
At trial Plaintiffs relied on expert Dr. Roseen; they belatedly submitted a revised expert report which the district court excluded as untimely under Rule 26/37. The district court found Plaintiffs failed to prove unlawful discharges and awarded defendants attorney’s fees; this appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of untimely expert supplement	Late supplement was necessary and critical to prove discharge	Supplement untimely; prejudiced defense; exclusion proper under Rules 26/37	Court affirmed exclusion as non-abuse of discretion (Esposito factors apply)
Sufficiency of evidence to prove CWA violation	Stormwater outfall discharged pollutants into Curran Brook without permit	Evidence showed no pollutant discharge from defendants' outfall; RIDEM found no ongoing violations	District court's factual findings upheld as plausible; Plaintiffs failed to meet burden
Applicability of citizen-suit given state enforcement	Plaintiff: citizen suit proper despite RIDEM involvement	Defendant: RIDEM’s ongoing and diligent enforcement undercuts need for citizen suit	Court held RIDEM’s active enforcement and remedial measures weakened need for citizen suit; supports dismissal
Fee award to prevailing defendants	Plaintiffs: suit was not frivolous or unreasonable; agencies’ inaction not dispositive	Defendants: continued litigation after facts became clear made suit frivolous/unreasonable; fees appropriate	Court affirmed fee award for litigation after June 30, 2014 as not an abuse of discretion

Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72 (1st Cir. 2009) (factors for assessing preclusion of late expert disclosures)
Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25 (1st Cir. 1998) (appellate standard for clear error in discretionary rulings)
Anderson v. Bessemer City, 470 U.S. 564 (U.S. 1985) (appellate review of factual findings—permissible views rule)
N. & S. Rivers Watershed Ass'n, Inc. v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991) (duplicative citizen suits undermine remediation when government action is underway)
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (U.S. 1987) (limits and purposes of Clean Water Act citizen suits)
Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228 (1st Cir. 2010) (standards for awarding fees against frivolous or unreasonable claims)