IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, :

Plaintiff, :

vs. : CA 12-0498-KD-C

HAMILTON SMITH, :

Defendant.

REPORT AND RECOMMENDATION

This cause is before the Magistrate Judge for issuance of a report and 

recommendation, pursuant to 28 U.S.C. § 636(b), on plaintiff’s motion for 

reimbursement of expenses pursuant to Fed.R.Civ.P. 37(c)(2) (Doc. 117) and the 

defendant’s response in opposition (Doc. 136). Upon consideration of the foregoing 

pleadings (with attachments), and all other relevant documents in this file, the 

Magistrate Judge recommends that the Court GRANT IN PART the plaintiff’s motion 

for reimbursement of expenses (Doc. 117).

FACTUAL BACKGROUND 

The United States instituted its Clean Water Act case against Hamilton Smith in 

this Court on August 6, 2012, alleging that the defendant discharged pollutants, 

“including dredged or fill material, into waters of the United States in Baldwin County, 

Alabama, without authorization by a permit issued by the United States Army Corps of 

Engineers[], in violation of CWA section 301(a), 33 U.S.C. § 1311(a).” (Doc. 1, at 1.) The 

complaint otherwise reads, in relevant part, as follows:

13. CWA section 502(7), 33 U.S.C. § 1362(7), defines “navigable 

waters” as “the waters of the United States, including the territorial seas.”

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14. 33 C.F.R. § 328.3(a)(1), (2), (5), and (7), and 40 C.F.R. § 232.2, 

define “waters of the United States” to include: all waters which are 

currently used, were used in the past, or may be susceptible to use in 

interstate or foreign commerce; tributaries to such waters; and wetlands 

adjacent to such waters or their tributaries.

15. 33 C.F.R. § 328.3(b) and 40 C.F.R. §§ 122.2 and 232.2 define 

“wetlands” as “those areas that are inundated or saturated by surface or 

ground water at a frequency and duration sufficient to support, and that

under normal circumstances do support, a prevalence of vegetation 

typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(c) 

defines “adjacent” as “bordering, contiguous, or neighboring.” Wetlands 

separated from other waters of the United States by man[]made dikes or 

barriers, natural river berms, beach dunes and the like are “adjacent 

wetlands.” Id.

. . .

21. Beginning in 1998, continuing at least through 2004, at times 

and locations best known to Defendant, Defendant and/or persons acting 

on his behalf, discharged dredged or fill material into waters of the United 

States without a permit under CWA section 404. The discharges were 

made into Dennis Creek, a perennial stream, and into four unnamed 

tributaries of Dennis Creek, and wetlands adjacent to and abutting Dennis 

Creek and its unnamed tributaries, near 30E55’13” north latitude and 

87E51’03” west longitude, In Baldwin County, Alabama (the “Site”).

22. Dennis Creek is a direct tributary of the Tensaw River, a 

traditional navigable water. Dennis Creek’s confluence with the Tensaw 

River is approximately 3 miles from the Site. The Tensaw River empties 

into Mobile Bay approximately fifteen (15) miles from its confluence with 

Dennis Creek. The Tensaw River and Mobile Bay are waters that are 

currently used, were used in the past, or may be susceptible to use in 

interstate or foreign commerce. A significant nexus exists between the 

affected tributaries, Dennis Creek, and their adjacent wetlands and the 

Tensaw River.

. . .

30. Defendant has violated and continues to violate CWA section 

301(a), 33 U.S.C. § 1311(a), by his unauthorized discharges of dredged or 

fill material into waters of the United States, including Dennis Creek and 

unnamed tributaries of Dennis Creek, and wetlands adjacent to and

abutting Dennis Creek and its tributaries, at the Site.

(Id. at ¶¶13-15, 21-22 & 30.) In answer to the complaint, filed August 28, 2012, Smith 

stated he was without sufficient information or knowledge to either admit or deny 

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paragraphs 13-15, denied the allegations in paragraph 21, denied that Dennis Creek is a 

“traditional navigable water” but stated he was without sufficient information or 

knowledge to admit or deny the remaining portion of paragraph 22, and denied the 

allegations contained in paragraph 30. (Doc. 4, at 2-3, 3 & 4.) 

The parties filed their Rule 26(f) report on October 15, 2012, at 5:36 p.m. (See Doc. 

7.) Earlier that day, plaintiff’s counsel emailed counsel for the defendant and supplied 

counsel with numerous case citations and “holdings” that “man[]made and man-altered 

structures/waters are covered by the Clean Water Act.” (Doc. 117, Exhibit 1, at 1.) 

Plaintiff’s counsel concluded the email in the following manner: “If you are agreeable 

based on the case law, we would like to be [able to] say in the report that Mr. Smith is 

not contesting the prima facie elements of the CWA claim—including waters of the 

United States—but the focus of discovery should be on the affirmative defenses and 

other remedy issues.” (Id. at 2.) Such agreement was not forthcoming inasmuch as the 

parties, in their Rule 26(f) report, identified a total of twelve (12) subjects upon which 

discovery need be had, including the following subjects relating to liability: “(1) Smith’s 

knowledge of CWA requirements; . . . (5) the role that Dennis Creek plays with respect 

to the chemical, physical, and biological integrity of waters of the United States, 

including the Tensaw River and Mobile Bay; [and] (6) the hydrological conditions at the 

Site and along relevant segments[.]” (Doc. 7, at 6.) The Court entered its Rule 16(b) 

scheduling order on October 17, 2012. (Doc. 8.)1

 1 The order set forth a discovery completion date of September 13, 2013, and 

ordered the plaintiff to make its disclosure of expert testimony, including reports, not later than 

July 12, 2013. (Id. at 1 & 2.) The discovery completion date was later extended by two weeks. 

(See Doc. 36.)

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On October 19, 2012, counsel for plaintiff emailed counsel for Smith a proposed 

stipulation and order in an effort to streamline discovery. (Compare Doc. 117, Exhibit 1, 

at 1 with id., [Proposed] Joint Stipulation Regarding Claims and Defenses and 

[Proposed] Order Regarding Joint Stipulation on Claims and Defenses.) The proposed 

joint stipulation and order both read, in relevant part, as follows:

1. Smith no longer denies and does not dispute the following 

allegations in Count 1 of the United States’ Complaint, and Smith’s 

Answer shall be amended accordingly in this case: the allegations in 

paragraphs 21-22; the allegation in paragraph 23 that Smith’s activities at 

the Site resulted in discharges of dredged or fill material into waters of the 

United States (but not the allegation in said paragraph that such activities 

were “unauthorized,” which remains disputed); paragraphs 24-26; the 

allegation in paragraph 27 that Smith either owned, leased or otherwise 

controlled the property on which each alleged discharge of dredged or fill 

material into waters of the United States occurred (but not the allegation 

in said paragraph that such activities were “unauthorized,” which 

remains disputed); the allegation in paragraph 28 that Smith conducted, 

directed[,] contracted for, supervised and/or otherwise controlled and/or 

participated in the activities at issue in paragraph 21 (but not the 

allegation in paragraph 28 that such activities were “unauthorized,” 

which remains disputed); and paragraph 29. Specifically, Smith does not 

and shall not dispute in this case that: (1) Smith is a “person” covered by 

the CWA; (2) Smith discharged “pollutants” from “point sources” into 

Dennis Creek and its tributaries at the Site; (3) Dennis Creek and its 

tributaries at the Site are “waters of the United States” for purposes of the 

CWA and related regulations[;] and (4) Smith did not have and has not 

obtained a permit for the alleged activities pursuant to CWA Section 

404(a), 33 U.S.C. § 1344(a).

2. As stated above, Smith continues to dispute and deny that 

his alleged activities were unauthorized and denies that his activities 

required a permit issued by the Corps pursuant to CWA Section 404(a), 33 

U.S.C. § 1344(a), for the reasons set forth in the first affirmative defense in 

the Answer. Smith also continues to assert that the applicable statute of 

limitations may bar some or all of the United States’ claims. In addition to 

those affirmative defenses, Smith reserves the right to dispute the 

following issues regarding the alleged CWA violations: (1) the 

appropriate scope of restoration at the Site; (2) the need for other 

mitigation measures; and (3) the amount of civil penalty to be imposed by 

the Court.

(Doc. 117, Exhibit 1, Joint Stipulation Regarding Claims and Defenses, at 2-3; see also id., 

[Proposed] Order Regarding Joint Stipulation on Claims and Defenses, at 1-2.) Again, 

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however, there was no response forthcoming from Smith’s attorneys regarding the joint 

stipulation on claims and defenses proposed by counsel for the United States. Instead, 

counsel for Smith penned the following email to counsel for the United States on 

November 5, 2012:

As a follow-up to our conversation, please find attached an aerial photo 

with the potential areas of dispute listed as “A”-“F”. As we discussed, I 

will address these briefly as follows:

A—Pond behind house; this area is south of a field/wooded rainwater 

runoff and has a spring seepage from the hillside just behind the house. 

We believe this would not be a jurisdictional wetland under the CWA.

B—Sometimes identified as the HWY 225 impoundment. This crossing 

was installed to access timber on the south side of the tract. We agree that 

this is a jurisdictional wetland under the CWA. This crossing is located 

where the old stage coach road crossed. We believe that this crossing 

meets all BMPs and is not subject to recapture as the area was historically 

subject to shallow water inundation due to prevalent beaver activity. A 

standpipe system is utilized to allow the free flow of water and inhibit 

blockage by beavers[.] We believe that this crossing would be subject to 

the statute of limitations.

C & D—[T]hese are small crossings with flow through culverts leveled on 

the terrain at the toe of the surrounding bluff installed for logging access 

to the bluff above. Water occurs from spring seepage from the sides of the 

hills. We believe these would likely also not be jurisdictional wetlands 

under the CWA. 

E—Sometimes identified as the “Upper Crossing”, this crossing was 

installed after the B, C and D crossings to provide more direct access for 

heavy equipment and trucks utilized in silviculture operations to the east 

of this crossing. We believe that this crossing meets all BMPs and is not 

subject to recapture. This crossing was subsequently supplemented with a 

very large culvert at the request of the EPA.

F—This is a small crossing and pond across a “draw” or rainfall drainage 

back in the early 90s with the assistance of the local Soil and Water 

Conservation office. We believe this would not be a jurisdictional wetland 

under the CWA and would be subject to the statute of limitations.

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(Doc. 117, Exhibit 2.)2

On December 12, 2012, the United States served written discovery on Smith, 

including its first set of requests for admission. (Compare Doc. 117, Exhibit 3 with Doc. 

24, at 2 (submission order which makes reference to the fact that plaintiff served written 

discovery on the defendant on December 12, 2012).) Request for Admission 18 asked 

Smith to “[a]dmit that Dennis Creek3 qualifies as ‘Waters of the United States’ for 

purposes of the Clean Water Act.” (Doc. 117, Exhibit 3, at 3 (footnote supplied).) Smith 

made the following response: “Admit that Dennis Creek constitutes the waters of the 

United States. The Defendant does not adopt the overly broad definition of Dennis 

Creek used by the United States.” (Doc. 117, Exhibit 4, at 3 (emphasis in original).) 

Request for Admission 18, along with numerous other requests for admission, 

interrogatories, and requests for production, were the subject of a motion to compel 

discovery filed by the plaintiff. (See Doc. 18.) 

Rule 36 requires Smith to provide a straight answer to the United 

States’ admissions focusing on the status of Dennis Creek under the CWA. 

Despite the United States’ efforts to eliminate these issues cooperatively 

before serving formal discovery, Smith refused to enter any stipulation, 

forcing the United States to prepare a series of requests to elicit Smith’s 

position on whether Dennis Creek qualifies as “waters of the United 

States” for purposes of the CWA. See RFAs 10, 11, 12, 14, 15, 17, 18, 19, 20, 

21, 23, 24, 25, 26, 27, 28, 29, 30, 34, 35, and 36. Smith’s approach to all of the 

requests is illustrated by his response to RFA 18:

 2 Plaintiff represents in its sanctions motion, and the defendant does not dispute 

the representation, that “[d]efendant’s November 5, 2012 email uses different alphabetical 

references for the tributaries than those ultimately agreed to by the parties for trial. It refers to 

Creek E as Creek A, and to Creeks A and B as Creeks C and D, respectively.” (Doc. 117, at 4.) 

3 The United States defined “Dennis Creek” in its requests for admission as 

follows: “’shall mean the main stem of Dennis Creek, which runs through the Site, any 

tributaries (whether named or unnamed) within its watershed, and any adjacent wetlands.’” 

(Doc. 136, Exhibit A.) 

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18. Admit that Dennis Creek qualifies as “Waters 

of the United States” for purposes of the Clean Water Act.

RESPONSE: Admit that Dennis Creek constitutes the 

waters of the United States. The Defendant does not adopt 

the overly broad definition of Dennis Creek used by the 

United States.

Augustini Decl. Ex. 2. If Smith had just responded with the first sentence, 

there would be no dispute, but the second sentence renders the response 

vague and ambiguous. Specifically, the United States contends that 

Smith’s statement that he “does not adopt” the United States’ definition of 

Dennis Creek creates unnecessary confusion regarding the scope and 

meaning of the admissions. The problem is that Smith provided no 

explanation of how he defines “Dennis Creek” for purposes of his 

responses to those RFAs. Without clarification, the United States has no 

way of knowing precisely what facts Smith has admitted and what he has 

denied, and whether any actual dispute between the parties remains

regarding these issues. This renders Smith’s responses evasive and 

incomplete. . . . Accordingly, the Court should require Smith to provide a 

complete response to each of the following RFAs: 10, 11, 12, 14, 15, 17, 18, 

19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 34, 35, and 36. While Smith need not 

adopt the United States’ definition if he disagrees with it, he must be 

required to specify how he defines “Dennis Creek” for purposes of his 

admissions, and be bound by that response for all future purposes in this 

action. Indeed, the purpose of Rule 36(a) is to eliminate uncertainty, not 

perpetuate it, and to establish certain material facts as true in order to 

narrow the range [of] disputed issues in the case.

(Doc. 18, at 13-14 & 14 (emphasis in original; footnote omitted).) The undersigned set 

plaintiff’s motion to compel down for a hearing and ordered counsel and their clients to 

appear for the hearing unless the parties were able to reach agreement on the entirety of 

the discovery dispute to which the motion was addressed. (See Doc. 24.) Thereafter, the 

parties filed a joint stipulation regarding the motion to compel and request to cancel 

hearing (Doc. 26); counsel for the parties were advised by telephone that the April 4, 

2013 hearing was canceled and that a written order would be entered by the 

undersigned with respect to the stipulation (Doc. 28, at 1). The Court’s April 5, 2013 

order reads, in relevant part, as follows:

The undersigned initially observes that the parties’ joint stipulation 

(Doc. 26) MOOTS plaintiff’s motion to compel (Doc. 18).

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. . .

Third, Smith has stipulated for clarification purposes that all of his 

responses to plaintiff’s Requests for Admission regarding “Dennis 

Creek,”—namely Requests for Admission 10, 11, 12, 14, 15, 17, 18, 19, 20, 

21, 23, 24, 25, 26, 27, 28, 29, 30, 34, 35, and 36—“are premised upon a more 

precise definition of Dennis Creek to include the main stem of Dennis 

Creek as depicted on available maps in the possession of the United 

States.” (Doc. 26, at 3.)4

(Doc. 28, at 1 & 3-4.) 

According to the United States, in light of Smith’s definition of Dennis Creek and 

consistent refusal to admit that the tributaries and adjacent wetlands referenced in 

plaintiff’s definition (and at issue in this case from onset) were jurisdictional waters, it 

was forced “to engage experts (Dr. William Kruczynski and Mary Sitton) to prepare a 

significant nexus analysis in order to prove jurisdiction at trial[,]” (Doc. 117, at 4-5),5

 4 “Since the United States was merely seeking Smith’s definition of Dennis Creek 

to enable it to understand his responses to the aforementioned Requests for Admission (see Doc. 

18), and has now received that definition (Doc. 26, at 3), the defendant obviously need not make 

any supplemental responses to Requests for Admission 10, 11, 12, 14, 15, 17, 18, 19, 20, 21, 23, 24, 

25, 26, 27, 28, 29, 30, 34, 35, and 36.” (Doc. 28, at 4 n.4.)

5 During his deposition on September 5, 2013, Dr. Kruczynski gave the following 

testimony:

Q What was the purpose of the boat trip, in your understanding?

A To look at the lower reaches of Dennis Creek and where it entered 

Dennis Lake and the Tensaw River and to sample a portion of the wetland 

adjacent to the lower reaches of Dennis Creek to determine the vegetative 

community of that part of the Dennis Creek ecosystem.

Q Why was that necessary in view of your evaluation of the site?

A It has to do with determining significant nexus for jurisdiction 

under the Clean Water Act.

Q Did you have information from the United States that Mr. Smith 

had admitted that Dennis Creek at the site was the jurisdictional water of the 

United States?

(Continued)

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only to find out several months after its experts had disclosed their reports that 

defendant’s own expert, Dr. Barry Vittor, agreed that the tributaries/streams and 

wetlands at issue are jurisdictional waters under the Clean Water Act (Doc. 117, Exhibit 

8, September 18, 2013 Deposition of Barry A. Vittor, at 67). And during the trial of this 

action, Vittor testified that during his 2006 visit to the site it was patently obvious, 

without any need for him to perform any field work, that the tributaries/streams and 

 

A Yes.

Q So if that’s an admitted aspect, why would you need to do that 

independent work?

A Just to be thorough.

Q So you felt it was necessary to establish proof of what was 

admitted?

A You could state it that way, but I wanted to be thorough to 

determine the continuity of wetlands from Mr. Smith’s property to Dennis Lake.

Q Could that not have been determined from aerial photographs?

A It was determined from aerial photographs, but we wanted the 

ground truth to make sure that the aerial photograph signature was being read 

correctly by checking on the ground at determined locations.

Q I guess my curiosity is if you have an aerial photograph showing a 

river and showing Dennis Lake coming off the river and showing Dennis Creek 

flowing to Dennis Lake, do you need to ride in a boat to determine tat the river is 

actually there?

A I wanted to see it myself.

(Doc. 136, Exhibit B. Deposition of William Kruczynski, Ph.D., at 40-42; see also Doc. 136, 

at 3-4 (defendant’s citation to and quotation of Dr. Kruczynski’s trial testimony that the 

defendant’s stipulation that Dennis Creek constituted jurisdictional waters did not 

resolve everything inasmuch as the issue was more complicated and required him to be 

able to say that he boated from the Tensaw River to the property while staying on 

waters or wetlands the entire way).) 

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wetlands at issue are jurisdictional waters and that he advised Smith and his attorney of 

his position in this regard. (Doc. 117, Exhibit 9, April 2, 2014 Trial Transcript, at 5-6.) 

The United States attached a portion of Dr. Kruczynski’s July 9, 2013 expert 

report to its Rule 37(c)(2) motion for reimbursement of expenses, that is, pages 11 

through 18. (Doc. 117, Exhibit 7.) All pages are single-spaced and of those pages 

provided there can be no question but that a solid seven (7) pages are dedicated to Dr. 

Kruczynski’s analysis of significant nexus between impacted waters on Smith’s 

property and traditional navigable waters. (See id.) And while the undersigned can 

readily discern that there were ten and one-half (101⁄2) pages of the report before the 

relevant “significant nexus” analysis began, there is no way of knowing the exact length 

of the report.6

In addition to attaching a portion of Dr. Kruczynski’s expert report to its Rule 

37(c)(2) motion for reimbursement of expenses, the United States attached the 

declarations of two of its experts, Dr. Kruczynski and Mary Sitton, who were tasked, at 

least in part, with the jurisdictional analysis—or supplying proof in support of the 

analysis—necessitated by Smith’s refusal to admit that the creeks and adjacent wetlands 

at issue in this case were jurisdictional waters of the United States covered by the Clean 

Water Act. (Compare Doc. 117, Exhibit 11, Kruczynski declar., at ¶ 2 with id., Exhibit 12, 

Declaration of Mary Sitton, at ¶ 2.) Dr. Kruczynski’s declaration reads, in relevant part, 

as follows:

 6 Interestingly, Dr. Kruczynski states in his declaration that “[a]ttached hereto is a 

true and correct copy of the Rule 26 expert report that I signed on July 9, 2013[.]” (Doc. 117, 

Exhibit 11, Declaration of William L. Kruczynski, Ph.D., at ¶ 2.) However, that entire expert 

report is not, in fact, attached to Dr. Kruczynski’s declaration. (See id.) As previously indicated, 

therefore, the undersigned has no way to “fix” the length of that report.

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2. . . . Defendant’s refusal to admit to Clean Water Act 

jurisdiction necessitated that the United States prepare a jurisdictional 

analysis to prove that there was a significant nexus between the waters at 

Mr. Smith’s property and the Tensaw River, which is presented in my 

Rule 26 report. Mary Sitton, another United States’ expert witness, 

reviewed aerial photographs and provided supporting analysis for my 

significant nexus work.

3. I have reviewed my billings in this matter to determine how 

much the United States incurred for the preparation of my significant 

nexus analysis, and believe that the appropriate amount is $15,495. I am 

not including in that total my billables relating to other issues in the case 

aside from Clean Water Act jurisdiction.

(Doc. 117, Exhibit 11, Kruczynski declar., at 2-3 (emphasis supplied).) Sitton confirms 

that she “reviewed aerial photographs and provided supporting analysis for Dr. 

Kruczynski’s significant nexus work.” (Doc. 117, Exhibit 12, Sitton declar., at ¶ 2.) 

3. I have reviewed my billings in this matter to determine how 

much the United States incurred for the preparation of my part of the 

significant nexus analysis, and believe that the appropriate amount is at 

least $20,000. I am not including in that total my billables relating to other 

issues in the case aside from Clean Water Act jurisdiction.

(Id. at ¶ 3 (emphasis supplied).)

CONCLUSIONS OF LAW

“If a party fails to admit what is requested under Rule 367 and if the requesting 

party later proves a document to be genuine or the matter true, the requesting party 

 7 “The purpose of [] [R]ule [36] is ‘to expedite the trial and to relieve the parties of 

the cost of proving facts that will not be disputed at trial.’” Perez v. Miami-Dade County, 297 F.3d 

1255, 1264 (11th Cir. 2002) (quoting 8A, Charles Alan Wright, Arthur R. Miller & Richard L. 

Marcus, Federal Practice and Procedure § 2252 (2d ed. 1994) (other citation omitted)), cert. denied, 

537 U.S. 1193, 123 S.Ct. 1291, 154 L.Ed.2d 1028 (2003). “A responding party has essentially four 

possible options: admit in part or in full; deny the request in part or in full; set forth reasons 

why the party cannot admit or deny; or object to the request by specific objection or by a motion 

for protective order.” Bruggemann v. Amacore Group, Inc., 2011 WL 1899251, *4 (M.D. Fla. Apr. 1, 

2011) (citing Fed.R.Civ.P. 36(a)(4) & (6)), report and recommendation adopted, 2011 WL 1930561 

(M.D. Fla. May 19, 2011). Of course, “[o]nce the matter is admitted, Rule 36(b) provides that it is 

‘conclusively established unless the court on motion permits withdrawal or amendment of the 

admission.’” Perez, supra, at 1264, quoting Fed.R.Civ.P. 36(b). 

(Continued)

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There can be no question but that in this case Smith admitted in part Request for 

Admission 18 and implicitly denied it in part. As explained above, Smith admitted that Dennis 

Creek constituted waters of the United States but then “stepped back” from that admission by 

asserting that he did not adopt the definition of Dennis Creek used by the United States. Since 

the plaintiff defined Dennis Creek as “the main stem of Dennis Creek, which runs through the 

Site, any tributaries (whether named or unnamed) within its watershed, and any adjacent 

wetlands[]” (Doc. 136, Exhibit A), and plaintiff later supplied his definition of Dennis Creek to 

be “the main stem of Dennis Creek as depicted on available maps in the possession of the 

United States[]” (Doc. 26, at 3), there is no question but that Smith admitted in part and 

implicitly denied in part plaintiff’s Request for Admission 18, see Fed.R.Civ.P. 36(a)(4) (“[W]hen 

good faith requires that a party qualify an answer or deny only a part of a matter, the answer 

must specify the part admitted and qualify or deny the rest.”). And because Smith would not 

admit that the tributaries within Dennis Creek’s watershed and the adjacent wetlands were 

waters of the United States for purposes of the Clean Water Act, plaintiff was required to make 

such proof. Compare United States v. Robison, 505 F.3d 1208, 1222 (11th Cir. 2007) (“[P]ursuant to 

Marks, we adopt Justice Kennedy’s ‘significant nexus’ test as the governing definition of 

‘navigable waters’ under Rapanos. . . . Again, under Justice Kennedy’s concurrence, a water can 

be considered ‘navigable’ under the CWA only if it possesses a ‘significant nexus’ to waters that 

‘are or were navigable in fact or that could reasonably be so made.’ . . . Moreover, a ‘mere 

hydrologic connection’ will not necessarily be enough to satisfy the ‘significant nexus’ test.”) 

with Rapanos v. United States, 547 U.S. 715, 779-780, 126 S.Ct. 2208, 2248, 165 L.Ed.2d 159 (2006) 

(Kennedy, J., concurring in the judgment) (“Consistent with SWANCC and Riverside Bayview 

and with the need to give the term ‘navigable’ some meaning, the Corps’ jurisdiction over 

wetlands depends upon the existence of a significant nexus between the wetlands in question 

and navigable waters in the traditional sense. The required nexus must be assessed in terms of 

the statute’s goals and purposes. Congress enacted the law to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters, and it pursued that objective

by restricting dumping and filling in ‘navigable waters[.]’ With respect to wetlands, the 

rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can 

perform critical functions related to the integrity of other waters—functions such as pollutant 

trapping, flood control, and runoff storage. Accordingly, wetlands possess the requisite nexus, 

and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in 

combination with similarly situated lands in the region, significantly affect the chemical, 

physical, and biological integrity of other covered waters more readily understood as 

‘navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or 

insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable 

waters.’” (all internal citations and some quotation marks omitted)); but cf. id. at 739 & 742, 126 

S.Ct. at 2225 & 2226 (plurality opinion) (“In sum, on its only plausible interpretation, the phrase 

‘the waters of the United States’ includes only those relatively permanent, standing or 

continuously flowing bodies of water ‘forming geographic features’ that are described in 

ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’ The phrase does not include 

channels through which water flows intermittently or ephemerally, or channels that 

periodically provide drainage for rainfall. . . . [O]nly those wetlands with a continuous surface 

connection to bodies that are ‘waters of the United States’ in their own right, so that there is no 

clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by 

the Act. Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters 

of the United States’ do not implicate the boundary drawing problem of Riverside Bayview, and 

thus lack the necessary connection to covered waters that we described as a ‘significant nexus’ 

in SWANCC[.]”). In meeting the “significant nexus” test, the United States employed experts 

whose reports it was required to disclose first (see Doc. 8, ¶ 6 (“The disclosure of expert 

(Continued)

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may move that the party who failed to admit pay the reasonable expenses, including 

attorney’s fees, incurred in making that proof.” Fed.R.Civ.P. 37(c)(2) (emphasis 

supplied; footnote added).8 The rule goes on to instruct district courts that they “must 

so order [this sanction] unless: (A) the request was held objectionable under Rule 36(a); 

(B) the admission sought was of no substantial importance; (C) the party failing to 

admit had a reasonable ground to believe that it might prevail on the matter; or (D) 

there was other good reason for the failure to admit.” Id. (emphasis supplied). The 

Eleventh Circuit has recognized that the sanction set forth in Rule 37(c)(2) “encourages 

parties to identify undisputed issues early so as to avoid unnecessary costs.” Mutual 

Serv. Ins. Co. v. Frit Industries, Inc., 358 F.3d 1312, 1326 (11th Cir. 2004) (citation omitted).

The Eleventh Circuit, in Perez, supra, expounded on the third exception set forth 

in the rule by recognizing that “[t]he implicit message of Rule 37 is . . . that issues 

obviously subject to dispute should be resolved at trial, not in a discovery motion.” 297 F.3d 

at 1269 (emphasis in original); see Mutual Serv. Ins. Co., supra, at 1326 (“The ‘true test 

under Rule 37(c) is not whether a party prevailed at trial but whether he acted 

reasonably in believing that he might prevail.’” (citation omitted)). As for exception (B), 

“[a]n issue is of substantial importance when it is material to the disposition of the 

case.” Securities and Exchange Comm’n v. Happ, 392 F.3d 12, 34 (1st Cir. 2004), citing 

 

testimony, including reports, required by Fed.R.Civ.P. 26(a)(2) is to be made by Plaintiff on or 

before July 12, 2013, and by Defendant on or before August 9, 2013.”)), only then to be made 

aware upon deposing Smith’s expert—after disclosure of his expert report—that there was no 

dispute that the tributaries/streams and adjacent wetlands in question constitute waters of the 

United States.

8 “The plain language of Rule 37 permits a Court to award monetary sanctions 

only after the requesting party has proved the matter at issue.” Point Blank Solutions, Inc. v. 

Toyobo America, Inc., 2011 WL 742657, *2 (S.D. Fla. Feb. 24, 2011) (citation omitted).

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Washington State Dep’t of Transp. v. Washington Natural Gas Co., Pacificorp, 59 F.3d 793, 

806 (9th Cir. 1995).9

In this case, defendant Smith contends that exceptions (A) and (D) are applicable 

and, therefore, sanctions are not appropriate under Rule 37(c)(2). (Doc. 136, at 2-3 

(“Defendant admitted the request, while noting that it did not concur with Plaintiff’s 

overly broad and vague definition of the ‘Dennis Creek.’ The vague definition was 

objectionable and Defendant had good reason to protect his interests by noting the 

same and not inadvertently stipulating to more than he intended. The definition on its 

face could encompass just more than creeks A through E, but also other wet spots on 

Defendant’s property. Therefore, Fed.R.Civ.P. 37(c)(2) should not apply since 

Defendant admitted the same, in part, and exceptions (A) and (D) apply to this 

situation.”). While there is no question but that Smith admitted Request for Admission 

18 in part, as reflected above, it is equally clear that Smith denied the request for 

admission in part as well; therefore, his partial admission argument cannot save him 

from the government’s Rule 37(c)(2) motion. Moreover, Smith did not object to this 

request for admission; instead, he merely qualified his admission and, therefore, 

exception (A), see Fed.R.Civ.P. 37(a)(2)(A) (“the request was held objectionable under 

Rule 36(a)”10), is inapplicable. And, finally, the undersigned need disagree with the 

defendant as to the applicability of subsection (D), see Fed.R.Civ.P. 37(c)(2)(D) (“there 

was other good reason for the failure to admit”)), inasmuch as the identity (albeit, not 

by “name”) of the tributaries/streams/creeks—more specifically, Creeks A, B, and E—

 9 “A district court’s determination under Rule 37 is entitled to great deference by 

this court.” Mutual Serv. Ins. Co., supra, 358 F.3d at 1326 (citation omitted).

10 “The grounds for objecting to a request must be stated.” Fed.R.Civ.P. 36(a)(5).

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and adjacent wetlands at issue in this case have been known to the parties from the “get 

go.” Thus, there was simply no chance that by admitting this request that Smith would 

admit that “other wet spots”11 on his property were jurisdictional waters. Exception (D) 

simply does not apply. 

Smith also contends that his responses to Request for Admission 18 did not cause 

plaintiff to incur expenses to prove the jurisdictional waters issue, see Fed.R.Civ.P. 

37(c)(2) (only providing for an award of reasonable expenses incurred in “making the 

proof”)), in light of Dr. Kruczynski’s deposition and trial testimony that he understood 

at the time he was retained that it was stipulated that Dennis Creek constituted 

jurisdictional waters of the United States. (See Doc. 136, at 3-4.) The problem with 

Smith’s argument is that he takes an overly restrictive view of Dr. Kruczynski’s 

testimony. Given the manner in which the questions were posed to plaintiff’s expert, he 

had to “admit” to this stipulation because the parties emphatically agreed and 

stipulated that the “main stem” of Dennis Creek constituted jurisdictional waters of the 

United States. However, as is evident from the remainder of the expert’s testimony, the 

jurisdictional issue was more complicated than indicated by defense counsel inasmuch 

as Dr. Kruczynski’s focus in this regard was directed to the tributaries (and adjacent 

wetlands) of Dennis Creek to establish that they constituted waters of the United States.

And this “significant nexus” analysis by Dr. Kruczynski, as set forth above, was 

necessitated by the defendant’s failure to admit that these very tributaries (and adjacent 

wetlands) constituted waters of the United States. Accordingly, the undersigned 

disagrees with Smith in this regard and finds that his failure to admit that the 

 11 Smith nowhere identifies any of these “wet spots.” 

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tributaries and adjacent wetlands at issue in this case were jurisdictional waters of the 

United States caused the government to incur expenses (namely, expert expenses) to 

prove same. 

In this same vein, Smith contends that “[p]laintiff cannot separate Mary Sitton’s 

expert mapping and delineations as to just the jurisdictional waters issue since it was 

all needed and utilized regardless of any stipulations.” (Doc. 136, at 4.) 

Defendant does not contend that such maps and delineations were 

not helpful for Dr. Kruczynski’s independent significant nexus work; 

however, that work would have been completed by Ms. Sitton regardless 

of Defendant’s response to the request for admission, in order for 

Plaintiff[] to properly present its case and identify the boundaries and 

measurements of the streams and wetlands at issue. In fact, those same 

aerial maps, measurements, and figures were presented and utilized by 

the Plaintiff at both trial phases (at which point there was no dispute over 

whether the jurisdictional issues were stipulated). 

(Id. at 5.) Thus, Smith concludes, the government’s “expenses for Ms. Sitton’s expertise 

were [] not the result of [his] Rule 36 responses.” (Id.) And while defendant’s argument 

in this regard might appear to be an attack on the reasonableness of Sitton’s expenses—

perhaps because Smith makes the same arguments in that portion of his brief (see id. at 

6)—the undersigned cannot find that this argument is meritless. At the same time, the 

undersigned cannot definitively find that the aerial photographs which Sitton 

references in her declaration (see Doc. 117, Exhibit 12, at ¶ 2) were admitted during the 

trial of this cause because the undersigned did not conduct the trial. However, if, in fact, 

those aerial photographs were admitted and utilized during the trial then they were 

likely admitted for some purpose other than the jurisdictional waters issue because the 

jurisdictional waters issue was a “dead” issue by the time of trial (see, e.g., Doc. 117, at 

5). Accordingly, plaintiff SHOULD NOT be reimbursed for Sitton’s expenses in 

reviewing aerial photographs (and delineating the creeks and wetlands at issue) if it 

was necessary for her to review those photographs and make such delineations anyway 

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in order for the United States “to properly present its case and identify the boundaries 

and measurements of the streams and wetlands at issue[]” (see Doc. 136, at 5). Compare 

Hillside Productions, Inc. v. County of Macomb, 2009 WL 3059147, *2 (E.D. Mich. Sept. 24, 

2009) (”Rule 37(c)(2) awards are inappropriate where the denied admission is proven 

with evidence that the requesting party would have offered regardless of the denial.”)

with Afcan v. United States, 2011 WL 1869353, *2 (D. Alaska, May 13, 2011) (“The task 

really is to separate the amount of work done to prove recklessness, which would also 

have been done to prove the standard of care from the amount of work done to prove 

recklessness only. The former is compensable, but the latter would not be 

compensable.” (internal footnote omitted)).

The undersigned’s final consideration centers on the reasonableness of the 

expenses plaintiff requests as a sanction, that is, $35,495.00 in expert expenses. Rule 

37(c)(2) specifically references that the party who fails to admit need pay “the 

reasonable expenses . . . incurred [by the requesting party] in making that proof.” Id. 

(emphasis supplied). Although the rule is silent on this point, the undersigned is of the 

opinion that the party moving for sanctions is responsible either for proving the 

inherent reasonableness of the expenses requested or, at the very least, providing the 

court with sufficient information from which it can determine that the amount of 

expenses requested is reasonable.12 In this case, the United States has done neither. 

The declarations of Dr. Kruczynski and Ms. Sitton merely state that the experts

reviewed their billables and “believe” they billed the government $15,495 and $20,000, 

respectively, for their parts in the significant nexus analysis and that they are “not 

 12 Stating this latter portion of the sentence somewhat differently, the undersigned 

finds that the moving party must provide this Court with an objective basis by which to 

estimate the value of the expert’s services.

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including in th[ose] total[s] [their respective] billables relating to other issues in the case 

aside from Clean Water Act jurisdiction.” (Doc. 117, Exhibits 11 & 12 (emphasis 

supplied).) It should suffice to observe that a “belief” is not tangible proof of 

reasonableness and, indeed, the use of this adjective causes the undersigned to be 

inherently suspect and skeptical of the conclusory amounts set forth in the declarations 

of the two experts. This skepticism is confirmed by Smith’s arguments in his brief in 

opposition (Doc. 136, at 5-6) that, for the undersigned, turn on their heads Dr. 

Kruczynski’s and Ms. Sitton’s declaration statements that their requests (again, 

$15,495.00 and $20,000.00) do not include any amounts relating to other issues in the 

case. It is impossible for the undersigned to “believe”—much less find—that Dr. 

Kruczynski dedicated $15,495.00 to his substantial nexus analysis—even giving him 

credit for the time he spent in a kayak—inasmuch as his total expert report fee was

$23,000.00 (see Doc. 136, at 5 (Smith notes Dr. Kruczynski’s trial testimony “that his 

entire expert report cost approximately $23,000.00.”)) and the pertinent analysis appears 

on only seven of an untold number of pages (see Doc. 117, Exhibit 7)13 of a report that

covered numerous other subjects (see Doc. 136, at 5 (“Dr. Kruczynski’s extensive report 

covered, among other things . . ., a detailed determination of the linear footage of 

streams and acreage of wetlands impacted by filling and impounding (including a 

review of similarly situated waters in the study area); the loss of ecological functions of 

the wetlands (physical water quality, wildlife habitat and productivity); an evaluation 

 13 It is impossible for the undersigned to know the length of Dr. Kruczynski’s 

expert report since the United States did not attach to its motion the entire report. (See id.) What 

the undersigned does know, however, is that Dr. Kruczynski spent the first ten and one-half 

pages of his report discussing other matters and the middle of page 18 of his report through an 

unknown number of pages (to the end of his report) discussing “Loss of Ecological Functions 

Due to Filling and Creation of Impoundments on the Property” and the like. (See id.)

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of the roads/dams under the 404(f) exemption (including all the Best Management 

Practices and the recapture provision); and a proposed remedy that set forth a detailed 

restoration plan.”)). Moreover, it is similarly impossible for the undersigned to 

“believe” or find that Ms. Sitton spent $20,000.00 reviewing “aerial photographs” and 

providing “supporting analysis for Dr. Kruczynski’s significant nexus work.” (See Doc. 

117, Exhibit 12, at ¶ 2.) Over and above the relevant observations made by Smith in his 

opposition (Doc. 136, at 6 (“The only reference Plaintiff states in its motion with regard 

to Ms. Sitton’s work is that ‘Dr. Kruczynski also illustrated his opinions and delineated 

the streams and wetlands on aerial photographs with the assistances of Mary Sitton.’”)), 

any supporting analysis provided by Sitton to Kruczynski could not have been much 

because the report was authored not by Sitton and Kruczynski but only Kruczynski (see 

Doc. 117, Exhibit 7) and Sitton supplied her own report which apparently mentioned 

the jurisdictional waters issue only one time (see Doc. 136, at 6). As for her review of 

“aerial photographs,” the undersigned simply cannot fathom how such review would 

have encompassed anywhere near the time contemplated by Sitton’s billable 

“estimate.” Finally, the straw that breaks the camel’s back with respect to the Sitton 

“estimate” is that it is inherently unreasonable to believe that Sitton would have billed 

more time (by $4,500.00) than the expert specifically charged with the significant nexus 

analysis. 

As previously indicated, the undersigned may have been able to get past the 

declaration “beliefs” of Dr. Kruczynski and Ms. Sitton had the United States provided 

those experts’ itemized billings—including dates of work performed, a description of 

work performed on each date, the amount of time spent on each date performing the 

work described, and the hourly rate billed—but that, obviously, did not happen. Had 

such evidence been provided, of course, the Court could have discerned for itself 

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whether any double billing occurred for the same work and, otherwise, whether the 

billings were excessive, redundant, or unnecessary. Cf. Hensley v. Eckerhart, 461 U.S. 424, 

434, 103 S.Ct. 1933, 1939-1940, 76 L.Ed.2d 40 (1983) (in the context of considering an 

award of attorney’s fees under § 1988, the Supreme Court advised district courts to 

exclude excessive, redundant, or otherwise unnecessary hours); Jean v. Nelson, 863 F.2d 

759, 772-773 (11th Cir. 1988) (discussing the reasonableness of the hours expended in 

the context of contentions by the government that the fee requests were not supported 

by sufficient documentation and often involved a duplication of effort), judgment aff'd, 

496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).

In light for the foregoing, the undersigned is placed in a position of “arriving” at 

a reasonable award of expenses to plaintiff for being forced to establish that Creeks A, 

B, and E (and adjacent wetlands) were jurisdictional waters of the United States. In 

consideration of the relevant pleadings in this case the undersigned recommends that 

the Court award to the United States reasonable expenses in the amount of $10,000.00. 

Even if the Court determines that the government should be able to recover some of the 

Sitton expense for her review of aerial photographs and supporting analysis, the 

undersigned is confident that an award of $10,000.00 will comfortably cover Sitton’s 

reasonable expenses and those of Dr. Kruczynski in kayaking the waters around the site 

and penning seven pages of a report of untold pages—but, conservatively, three times 

seven pages in length—that cost the government a total of $23,000.00. 

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CONCLUSION

The Magistrate Judge RECOMMENDS that plaintiff’s motion for reimbursement 

of expenses pursuant to Fed.R.Civ.P. 37(c)(2) (Doc. 117) be GRANTED IN PART, with 

plaintiff being awarded reasonable expenses totaling $10,000.00 rather than the 

$35,495.00 requested.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D.ALA. L.R. 72.4. The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review to plain error review of the 

magistrate judge’s factual findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013) (emphasis in original). In order to be specific, an objection must identify the 

specific finding or recommendation to which objection is made, state the basis for the 

objection, and specify the place in the Magistrate Judge’s report and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 4th day of November, 2014. 

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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