Forsberg v. Kearsarge Regional School District et al
ORDER denying 25 defendant's motion for attorney's fees. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Charles P. Forsberg,
Case No. 12-cv-27-SM
Opinion No. 2013 DNH 028
Kearsarge Regional School District,
O R D E R
Although it presents a reasonable claim, having lingered
over its relative merit for some time, it is evident that
defendant’s motion for attorney’s fees (document no. 25) must be
Defendant has not carried the heavy, but necessary,
burden to show that the court’s inherent authority to award fees
should be exercised because plaintiff brought his federal claims
in bad faith, see Donovan v. Whalen, 2008 WL 1882950, at *2
(D.N.H. April 24, 2008), or, for purposes of 42 U.S.C. § 1988,
that the claims were entirely “frivolous, unreasonable, or
Amatucci v. Hamilton, 2007 WL 2993824, at
*1 (D.N.H. Oct. 11, 2007).
Plaintiff’s legal argument against claim preclusion, as set
out in his opposition to the motion to dismiss, is revealing.
See Pl. Obj. to Motion to Dismiss (document no. 22).
argued for application of broad, and long-standing, equitable
exceptions to preclusion.
To that extent, certainly, plaintiff’s
argument in support of his claims was not wholly frivolous.
was ill-informed and superficial, because it did not account for
nuances and complexities in the application of those legal
That circumstance, however, does not give rise to an
inference that plaintiff was acting in bad faith, but, rather,
that he “is less than fully capable of distinguishing between
legally meritorious” arguments and “those . . . lacking in
Amatucci, 2007 WL 2993824, at *6.
In the end, whether plaintiff’s conduct in pursing this
federal case shades into bad faith, given the history, and
whether the claims were legally frivolous, are close calls.
Although plaintiff was well-advised by defendant’s counsel to
voluntarily dismiss this suit, and plaintiff cavalierly put
himself at risk by proceeding, still, the court cannot conclude
that defendant has met its heavy burden to show bad faith.
has it shown this case to be one of those “rare” situations
calling for an award of fees to defendant under Section 1988.
See Amatucci, 2007 WL 2993824, at * 1 (“T]he court of appeals for
this circuit has made it perfectly clear that ‘decisions to grant
defendants their fees [under Section 1988] are, and should be,
rare.’”) (quoting Tang v. Dept. of Elderly Affairs, 163 F.3d 7,
13 (1st Cir. 1988)).
In addition, to the extent defendant seeks an award of fees
to deter further lawsuits, plaintiff “has no history of vexatious
or harassing litigation in this court.”
Id. at *6.
appear,” therefore, “to be little cause to seek to deter [him]
from similar conduct in the future.”
All of this is not to say, of course, that the court’s broad
discretion - and patience - is without limit.
plaintiff’s first, and the court expects, last, challenge in the
federal courts to the same municipal processes he has challenged
twice in state court.
He is fairly warned that it is time to put
this issue to rest — additional litigation involving the same
matter will likely tip the balance in a different, and
potentially costly direction.
Steven J. McAuliffe
United States District Judge
March 12, 2013
Charles P. Forsberg, pro se
Barbara F. Loughman, Esq.
Matthew G. Mavrogeorge, Esq.
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