ADAMS v. PENOBSCOT COMMUNITY HEALTH CARE et al

Filing 61

ORDER ON DEFENDANTS' APPLICATION FOR AWARD OF ATTORNEY FEES denying 60 Motion for Attorney Fees By JUDGE LANCE E. WALKER. (CJD)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

CLAIRE ADAMS,

)
)
Plaintiff
)
)
v.
)
)
PENOBSCOT COMMUNITY HEALTH )
CARE, ATHENAHEALTH, INC., AND )
)
DAVID LOXTERKAMP, MD,
)
Defendants

No. 1:17-CV-00229-LEW

ORDER ON DEFENDANTS’ APPLICATION FOR
AWARD OF ATTORNEYS’ FEES
Defendants Penobscot Community Health Care and David Loxterkamp, MD,
collectively represented by the law firm of Verrill Dana LLP, ask for an award of roughly
$32,000 in attorneys’ fees, pursuant to a provision of the False Claims Act that reads as
follows:
If the Government does not proceed with the action and the person bringing the
action conducts the action, the court may award to the defendant its reasonable
attorneys’ fees and expenses if the defendant prevails in the action and the court
finds that the claim of the person bringing the action was clearly frivolous,
clearly vexatious, or brought primarily for purposes of harassment.
31 U.S.C.A. § 3730(d)(4).
Defendants sought, and received, an extension permitting them to file their fee
application on or before February 20, 2020. On February 20, they filed the anticipated
application. In their application, Defendants explain why they believe Plaintiff’s false claims
action was frivolous, vexatious, or meant to harass, but they did not substantiate the fee

component of their request, by affidavit. The failure to substantiate the fee request is a
violation of Local Rule 7(a), which reads, in relevant part:
(a) Submissions of Motions and Supporting Memoranda
Every motion shall incorporate a memorandum of law, including citations and
supporting authorities. Any affidavits and other documents setting forth or
evidencing facts on which the motion is based must be filed with the motion. …
D. Me. Loc. R. 7(a).
Instead, Defendants have advised the Court that, “[o]nce liability is established,
Defendants will submit under an appropriate protective order documents establishing
their reasonable fees.” Application for Attorneys’ Fees at 2 (ECF No. 60).
The problem with this approach is that the Rules do not entitle a fee applicant
to a bifurcated fee-shifting procedure that addresses the merits first and the lodestar
analysis second. In opposing Defendants’ application, Plaintiff is entitled to challenge
both the merits of the request and the reasonableness of the fee requested. Defendants
have received more than ample time to substantiate the fee request with affidavits
supporting their request. I am not inclined to grant any further extension.
Defendants’ Application for Attorneys’ Fees is DENIED.
SO ORDERED.
Dated this 28th day of February, 2020

/S/ Lance E. Walker
LANCE E. WALKER
UNITED STATES DISTRICT JUDGE

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