Moulton v. Bane et al
Filing
157
///ORDER granting 151 Motion for Attorney Fees. Clerk shall enter judgment in accordance with this order and doc. nos. 150 , 109 , 95 , and 28 . So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas M. Moulton
v.
Civil No. 14-cv-265-JD
Opinion No. 2016 DNH 090
David Bane and Prime
Choice Enterprises, LLC
O R D E R
Following a bench trial, the court found in favor of Thomas
M. Moulton on his claim under New Hampshire’s Consumer
Protection Act (“CPA”), RSA chapter 358-A, against David Bane
and Prime Choice Enterprises, LLC (“PCE”) and awarded Moulton
double damages.
Moulton is also entitled to the costs of the
suit, including attorneys’ fees.
RSA 358-A:10, I.
As directed
by the court, Moulton filed a properly supported motion for
costs and fees, and Bane and PCE have objected.
Standard of Review
RSA 358-A:10, I provides that a prevailing plaintiff is
entitled to “an award of reasonable attorney’s fees and costs.”
State v. Mandatory Poster Agency, Inc., 126 A.3d 844, 848 (N.H.
2015).
When considering a request for attorneys’ fees pursuant
to a state statute in a diversity jurisdiction case, state law
governs the award of fees.
In re Volkswagen & Audi Warranty
Extension Litig., 692 F.3d 4, 15-17 (1st Cir. 2012); Dinan v.
Alpha Networks, Inc., 2015 WL 1737734, at *4 (D. Me. Apr. 16,
2015).
Under New Hampshire law, courts consider eight factors
taken from the Code of Professional Responsibility for
determining whether a request for fees is reasonable.
Barrington v. Townsend, 164 N.H. 241, 250 (2012).
Town of
The eight
factors are:
the amount involved, the nature, novelty, and
difficulty of the litigation, the attorney's standing
and the skill employed, the time devoted, the
customary fees in the area, the extent to which the
attorney prevailed, and the benefit thereby bestowed
on his clients.
Id.
Discussion
Moulton requests $230,065.00 in attorneys’ fees and
$9,696.86 in expenses.
He has excluded from that request the
fees and expenses that were previously awarded to Moulton in
this suit totaling $29,842.50.
He has also excluded fees that
were billed to him but were subsequently discounted and other
fees that counsel determined should not be included in the
request.
In support, Moulton provided the declaration of the
2
attorney who represented him during the case, Michele Kenney;
the declaration of another attorney who worked on the case,
Scott Pueschel; and documentation of the fees and expenses,
including invoices and summaries of fees and costs.
Bane and PCE object to the amount of fees and expenses
requested.
They argue that the fees should be reduced by half
because the amount requested is “wholly disproportionate to the
complexity and value” of Moulton’s claims.
They also argue that
because Moulton did not separate the fees incurred in litigating
the CPA claim the requested amount is speculative and should be
reduced by half.
A.
Separation of Work on CPA Claim
Bane and PCE cite no authority to support their assertion
that Moulton is not entitled to attorneys’ fees for work done on
their counterclaims or on his own claims other than the CPA
claims.
They offer only their own novel interpretation of the
provision for attorneys’ fees in RSA 358-A:10, I.
The statute provides that “a prevailing plaintiff shall be
awarded the costs of the suit and reasonable attorney's fees, as
determined by the court.”
RSA 358-A:10, I.
Bane and PCE argue
that the statute means that a prevailing plaintiff is entitled
to the costs incurred in the suit but is entitled to attorney’s
3
fees for litigating the CPA claim only.
Their interpretation is
neither persuasive nor supported by cited authority.1
The New Hampshire Supreme Court considered the issue of the
scope of RSA 358-A:10 in George v. Al Hoyt & Sons, Inc., 162
N.H. 123, 138-39 (2011).
There, the plaintiffs argued that they
were entitled to fees for work on both their CPA claim and their
common law claim, and the defendant argued that only fees for
the CPA claim could be awarded.
The supreme court found that
“the trial court reviewed the plaintiffs’ request for attorney’s
fees in the context of the entire litigation” and that the fee
award included time spent on the breach of contract claim as
well as the CPA claim.
award as reasonable.
Id. at 139.
The court affirmed the fee
Id.
Based on George, it appears that attorneys’ fees under RSA
358-A:10 are awarded based on work done on the case, not just
the CPA claim.
Further, the interpretation of the attorneys’
fees provision in Massachusetts’s CPA, Massachusetts General
On its face, the wording of the statute does not limit the
award of attorneys’ fees to fees incurred in litigating the CPA
claim. A more plausible reading is that it was unnecessary to
repeat “of the suit” and that the legislature intended to
include the fees incurred in the suit.
1
4
Laws Ann. (“M.G.L.A.”) 93A, § 11, supports that result.2
Section
11 provides in pertinent part:
If the court finds in any action commenced hereunder,
that there has been a violation of section two, the
petitioner shall, in addition to other relief provided
for by this section and irrespective of the amount in
controversy, be awarded reasonable attorneys' fees and
costs incurred in said action.
M.G.L.A. 93A, § 11.
In Arthur D. Little Int’l, Inc. v. Dooyang Corp., 995 F.
Supp. 217 (D. Mass. 1998), the defendant challenged the
attorneys’ fees requested under M.G.L.A. 93A in part on the
grounds that § 11 provided for fees only for work on the CPA
claim and not for work on other claims or on the defendant’s
counterclaims.
Arthur D. Little, 995 F. Supp. at 219.
The
court held that the plaintiff was entitled to fees for work done
on all claims because they arose out of the same chain of
events.
Id. at 222.
The court also held that the plaintiff was
entitled to fees for work done on the counterclaims, because
“fees should not be reduced to exclude essential work done to
In interpreting New Hampshire’s CPA, the New Hampshire
Supreme Court relies on case law interpreting M.G.L.A. ch. 93A.
See Remsburg v. Docusearch, Inc., 149 N.H. 148, 160 (2003);
Chase v. Dorais, 122 N.H. 600, 602 (1982); see also Chroniak v.
Golden Inv. Corp., 983 F.2d 1140, 1146 n.11 (1st Cir. 1993);
Gen. Linen Serv., Inc. v. Gen. Linen Serv. Co., Inc., 25 F.
Supp. 3d 187, 195 (D.N.H. 2014).
2
5
combat [the defendant’s] vast expansion of the case through
counterclaims that did not succeed.”
Id. at 224.
Bane and PCE provide no persuasive reason to exclude fees
for work done on Moulton’s other claims and on the counterclaims
in this case.
B.
Reasonableness of Time Spent and Rates
Bane and PCE argue that the fees requested are not
reasonable because the trial lasted only two days, the CPA claim
was not complex, and Moulton did not need four attorneys along
with support staff to work on his case.
They contend that the
amount of fees requested is disproportionate to the amount of
damages and the complexity of the case.
In footnotes, Bane and
PCE assert that the hourly rates are excessive, state that
“numerous entries” are “non-specific as to tasks performed,” and
object to time for travel and settlement negotiations.
1.
Amount involved and nature of the case.
Moulton originally brought claims against Bane and PCE for
breach of contract, fraudulent misrepresentation, breach of the
implied covenant of good faith and fair dealing, violation of
the CPA, and restitution.
In response, Bane and PCE brought
counterclaims for tortious interference with economic
relationships and conversion and brought third-party claims
6
against Eric Emery for tortious interference and conversion, and
against King’s Highway Realty Trust for conversion.
Bane and
PCE later added third-party claims against North Madison Hill
LLC and a claim for injunctive relief.
Moulton then added a
claim against Bane and PCE for promissory estoppel.
The counterclaims and third-party claims brought by Bane
and PCE were resolved against them before trial.
Following
trial, the court found in favor of Moulton on his remaining
claims and awarded damages in the amount of $113,934.09.
Those
damages were doubled under the CPA to $227,868.18.
The number of claims, counterclaims, and third-party claims
show a more complex case than Bane and Moulton acknowledge.
In
addition, Moulton was successful on his claims and in defending
against the counterclaims.
Importantly, the relative amount of
damages compared to the amount of fees requested is immaterial
because the CPA does not require any actual damages for a
prevailing party to be entitled to costs and attorneys’ fees.
Becksted v. Nadeau, 155 N.H. 615, 621 (2007).
Bane and PCE fault Moulton for having four lawyers work on
his case.
Over the course of the litigation, however, Bane and
PCE have employed lawyers in five different firms, with six
lawyers filing appearances on their behalf.
Absent a focused
challenge to specific time spent by Moulton’s lawyers, Bane and
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PCE have not shown that Moulton’s staffing in the case was
excessive.
They provide no basis to cut the fees requested by
half.
2.
Attorneys’ skill and rate charged.
In support of his motion for fees and costs, Moulton
submitted the declarations of his attorneys, Kenney and
Pueschel, who are both partners at Pierce Atwood, LLC.
Kenney
and Pueschel address their own qualifications and hourly rates
and the qualifications and hourly rates of two other partners
who worked on the case.3
Kenney charged $300 per hour until
August 1, 2014, when she discounted her rate to $270 per hour.
Pueschel charged $485 per hour until he discounted his rate to
$415 per hour.
Lawrence M. Edelman, another partner at Pierce
Atwood, charged $385 per hour in 2015 and $395 per hour in 2016.
Kenney was Moulton’s principal attorney in the case. She is
a member of the Litigation Practice Group at Pierce Atwood and
manages the firm’s New Hampshire office. She was assisted by
Lawrence M. Edelman, another litigation partner, with thirtyfour years of experience.
Pueschel is a member of the firm’s Business Practice Group,
who advised Moulton in his business dealings with Bane and PCE
and, based on his knowledge of the facts in the case, also
provided some litigation support. Keith J. Cunningham is the
chair of the firm’s Bankruptcy and Creditors’ Rights group, with
experience in commercial transactions beginning in 1988, and
provided advice with respect to the defenses and counterclaims
involving the Article 9 sale.
3
8
Keith J. Cunningham, the fourth partner who worked on Moulton’s
case, charged $495 per hour.
Bane and PCE do not challenge the standing and skill of
Moulton’s attorneys.
Instead, they assert generally and only in
a footnote that Moulton’s attorneys’ hourly rates are too high.
They point to the rate of $285 per hour charged by their local
counsel, William B. Pribis, who is a partner at a firm in
Concord, New Hampshire, with twenty years of experience.
Kenney’s reduced rate of $270 for this case, which has been
in effect since August 1, 2014, was previously approved by the
court.
Order, doc. no. 119, at 4; Order, doc. no. 114, at 14.
In the first order, the court noted that higher rates could also
be justified.
Kenney stated in her declaration that Edelman’s
hourly rate of $385 was reasonable based on the rates of other
lawyers with similar experience and skill
In his declaration, Pueschel states that his standard
hourly rate in 2014 of $485 was a customary rate for corporate
lawyers with more than twenty years of experience and with a
national practice.
The discounted rate of $415 per hour was
charged for time spent after August 1, 2014.
Pueschel also
states that Cunningham’s hourly rate of $495 in 2014 was
customary for lawyers with his skill and standing in the area of
bankruptcy and creditors’ rights.
9
The rate that counsel ordinarily charges for her services
is “a reliable indicium of market value.”
United States v. One
Star Class Sloop Sailboat, 546 F.3d 26, 40 (1st Cir. 2008).
Bane and PCE provide no authority or persuasive evidence to
counter Moulton’s showing that the hourly rates charged by his
attorneys are reasonable and customary.
comparable to Kenney’s rates.
Pribis’s hourly rate is
Bane and PCE have not shown that
Pribis has the experience or expertise of Pueschel, Edelman, or
Cunningham.
Therefore, the attorneys’ hourly rates are
approved.
The request for fees also includes work done by paralegals.
Bane and PCE do not challenge those hourly rates.
The court
previously found that the hourly rate of $140 for two of the
paralegals was reasonable.
The hourly rate of $140 to $150 for
a third paralegal is also reasonable.
Work done by another
staff support person was billed at $75 per hour, which is
reasonable.
3.
Therefore, those hourly rates are approved.
Time spent.
Moulton’s attorneys provide appropriately detailed invoices
to show the work they did on his behalf in this case and the
time expended.
Bane and PCE do not challenge the time claimed
10
or the work done in the body of their objection.4
Instead, they
state in a footnote that they object to entries in the invoices
that are “non-specific as to tasks performed, time spent in
connection with voluntary settlement negotiations and time spent
in connection with travel.”
Contrary to that criticism, the invoices provide a
statement of what work was done with each time entry.
To the
extent Bane and PCE believe that the entries are insufficient to
explain what work was done, they have not adequately raised that
issue to allow review.
Bane and PCE do not explain why time spent on “voluntary
settlement negotiations” would not be compensable.
They cite no
authority to show that such time cannot be included for purposes
of a fee award, and the court has found none.
They also do not
cite the invoice entries that correspond to that time.
They charge generally that the amount of the fees requested
is disproportionate to the complexity and value of the case and
that Moulton’s attorneys spent too much time on the CPA claim.
In a footnote, Bane and PCE assert that “[a] fine example of
this is that the fact [sic] that Plaintiff submitted a wholly
unnecessary seventy-one (71) page post-trial memorandum.” The
cited memorandum is Moulton’s closing argument, not the CPA
memorandum. Although the court gave both sides the opportunity
to file a written closing argument and a memorandum on the CPA
claim, only Moulton submitted both. Far from being “wholly
unnecessary,” Moulton’s closing argument provided a detailed and
helpful summary and analysis of the case.
4
11
Therefore, Bane and PCE have provided no basis for excluding
time on that ground.
Bane and PCE also object to compensation for time spent in
connection with travel but do not provide citations to the
invoices to show where that time was billed.
The only time the
court found that was billed for travel was Pueschel’s travel to
Concord for trial.
Pueschel states in his declaration, however,
that he wrote off the time spent in connection with the trial.
It appears that Moulton was not billed for that time.
In any
case, Bane and PCE have not shown that the request for fees
should be reduced because of time spent for travel.
Moulton’s request for attorney’s fees in the amount of
$230,065.00 is approved.
C.
Costs
Moulton seeks $9,696.86 in costs.
That amount is well
supported by the invoices and summaries submitted with the
motion.
Bane and PCE do not dispute the amount of costs
requested.
Therefore, costs of $9,696.86 are approved.
Conclusion
For the foregoing reasons, the plaintiff’s request for an
award of costs and attorneys’ fees in the amount of $239,761.86
(document no. 151) is granted.
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The clerk of court shall enter judgment in accordance with
this order; the court’s findings and rulings, document no. 150;
an order on summary judgment, document no. 109; an order on
summary judgment, document no. 95; and an order on a motion to
dismiss, document no. 28.
The pending motion for prejudgment interest will be
resolved when ripe.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
May 4, 2016
cc:
Anna B. Hantz, Esq.
Michele E. Kenney, Esq.
Deborah Ann Notinger, Esq.
William B. Pribis, Esq.
Richard Roth, Esq.
Nathan P. Warecki, Esq.
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