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Kalodner v. Bodman

December 18, 2006


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Plaintiff Philip P. Kalodner, Esq., persuaded this Court to order the U.S. Department of Energy ("DOE") to distribute certain funds to his clients and others. See Consol. Edison Co. of N.Y. v. Abraham, 271 F. Supp. 2d 104 (D.D.C. 2003) ("ConEd IV"), aff'd, 87 Fed. Appx. 751 (D.C. Cir. 2004). Mr. Kalodner subsequently brought a suit to force DOE to increase the amount of the distribution, which DOE eventually did of its own volition. See Consol. Edison Co. of N.Y. v. Abraham, 2004 U.S. Dist. LEXIS 27190, No. 03-1991 (D.D.C. June 30, 2004)("ConEd V"), aff'd in part and rev'd in part sub nom., Consol. Edison v. Bodman, 445 F.3d 438 (D.C. Cir. 2006) ("ConEd v. Bodman"). Mr. Kalodner also brought a short-lived suit to force DOE to expedite its distribution of the funds at issue in ConEd IV and ConEd V, but that case was dismissed as moot. See Consol. Edison Co. of N.Y. v. Bodman, Case No. 05-cv-816 (RMC), Mem. Op. at 2 (D.D.C. March 2, 2006) ("ConEd VI"), aff'd, 2006 WL 3431687 (D.C. Cir. Aug. 7, 2006).

The instant action is an attempt by Mr. Kalodner to recover attorneys' fees based on his efforts in the aforementioned lawsuits. This is by no means Mr. Kalodner's first attempt to recover attorneys' fees in connection with these cases. His right to attorneys' fees was litigated extensively in ConEd IV and ConEd V, and there is one other case currently pending in this Court that is singularly devoted to the issue. See Kalodner v. Pub. Serv. Elec. & Gas Co., No. 04-cv-152 (HHK) ("Pub. Serv. Co."). More significantly, the D.C. Circuit recently weighed in regarding Mr. Kalodner's ability to obtain attorneys' fees, and issued a ruling that binds this Court in any further adjudications on that subject. See ConEd v. Bodman.

Against this backdrop , Mr. Kalodner moves to consolidate all his outstanding fee suits and to certify a class of defendants. Defendants, on the other hand, oppose consolidation and move to dismiss the instant action in its entirety. The Court will deny the motions to consolidate and to certify a class (the latter without prejudice), and will grant Defendants' motions to dismiss.


The instant case has a long lineage. To trace it all would be more confusing than helpful. A scant outline is provided; the curious reader is referred to earlier cases.*fn1

The oil embargo in 1973 resulted in price gouging in the United States. In response, Congress passed the Emergency Petroleum Allocation Act of 1973 ("EPPA"), Public Law No. 93-159, 87 Stat. 627 (former 15 U.S.C. §§ 751 et seq.). The EPPA imposed price controls on crude oil sold in the United States between 1973 and 1981. Violators of the EPPA were required to refund overcharges to the DOE. See Consol. Edison Co. v. O'Leary, 117 F.3d 538, 540 (Fed. Cir. 1997).

The huge amounts of money collected by DOE led, naturally, to litigation by refund claimants who asserted that they had been overcharged. In 1986, DOE, the fifty States, and various non-government claimants entered into a settlement agreement, In re Dep't of Energy Stripper Well Exemption Litig., 653 F. Supp. 108, 110 (D. Kan. 1986) ("Stripper Well"). According to the agreement and DOE's Modified Statement of Restitutionary Policy for Crude Oil Cases, 51 Fed. Reg. 27,899 (Aug. 4, 1986), the non-governmental entities that were parties to the Stripper Well agreement received funds that had been placed in escrow and waived all other existing and future claims. Out of the remaining funds, 80% was split between DOE and the States. DOE reserved the other 20% for claimants who were not parties to the settlement, which included Mr. Kalodner's clients in the ConEd cases. The DOE Office of Hearing and Appeals ("OHA") is tasked with allocating the 20% portion among claimants pursuant to administrative regulations known as "Subpart V." See 10 C.F.R. Pt. 205, Subpt. V. The funds themselves are held by the U.S. Treasury.

It would appear that Mr. Kalodner has spent the majority of his legal career litigating various points affecting the distribution of the 20% portion among his clients. See Am. Compl. ¶ 18. In this lawsuit, he alleges that his labors have inured to the benefit of not only his clients, but to the entire class of claimants who received some portion of the funds that were set aside under the Stripper Well settlement. He names certain of those claimants as defendants (the "Claimant Defendants"),*fn2 as well as Samuel Bodman and George Breznay, the Secretary of Energy and the Director of OHA, respectively (the "Federal Defendants"), and seeks to recover attorneys' fees from both. He relies on his self-proclaimed victories in ConEd IV, ConEd V, and ConEd VI as the basis for his claim for attorneys' fees under the "common fund" doctrine, which allows a party "'who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from the fund for litigation expenses incurred.'" ConEd v. Bodman, 445 F.3d at 451 (quoting Swedish Hospital v. Shalala, 1 F.3d 1261, 1265 (D.C. Cir. 1993)).


A. Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must treat the complaint's factual allegations - including mixed questions of law and fact - as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). The court need not, however, accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).In deciding a 12(b)(6) motion, the Court may typically consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).

B. Motion to Consolidate

Under Federal Rule of Civil Procedure 42(a), a district court may consolidate cases that involve "a common question of law or fact." See also 9 Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 2382 (2d ed.1995). "The decision whether to consolidate cases under Rule 42(a) is within the broad discretion of the trial court." Stewart v. O'Neill, 225 F. Supp. 2d 16, 20 (D.D.C. 2002). "When determining whether to exercise such discretion, 'courts weigh considerations of convenience and economy against considerations of confusion and prejudice.'" Am. ...

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