Dowling et al v. Saint-Gobain Performance Plastics Corporation et al

Filing 55

ORDER re defendants' attorneys' fees and costs. Fees and costs as outlined. The clerk shall remand the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Dowling et al.
v.

Civil No. 18-cv-180-JL
Opinion No. 2018 DNH 207

Saint-Gobain Performance
Plastics Corp. et al.
MEMORANDUM ORDER
The plaintiffs initiated these actions as proposed class
actions by filing complaints in this court on December 5, 2016.
After consolidation with other, related cases, and after the
court appointed other counsel as interim class counsel, these
plaintiffs voluntarily dismissed their claims with the stated
intention of refiling those claims in state court.

Though the

court expressed concern that dismissal and refiling would simply
result in the cases returning to this court, resulting in an
unnecessary expenditure of judicial and litigant resources,
plaintiffs’ counsel assured the court that their state-court
complaints would be structured to avoid this court’s subjectmatter jurisdiction under the Class Action Fairness Act.
Despite these assurances, plaintiffs’ state-court complaints

contained several references to “class members.”1

The defendants

removed the actions here on that basis.2
On July 6, 2018, the court granted the plaintiffs’ motions
to remand these consolidated actions to Hillsborough County
Superior Court.3

At the same time, having found that plaintiffs’

counsel’s inartful pleading occasioned the cases’ removal and
defendants’ motions to remand, the court awarded defendants
their “costs and . . . attorney fees occasioned by removing
these actions and opposing the motions to remand them.”4

It

further ordered the parties to attempt to agree on the precise
amount and file a stipulation accordingly.5

The plaintiffs have

reached such an agreement with one of the defendants, the
Merrimack Village District Water Works.6

They have been unable

to do so with defendants Saint-Gobain Performance Plastics
Corp., Gwenael Busnel, and Chris Gilman (collectively, Saint-

Compl. (doc. no. 1-1) ¶¶ 102, 105, 107, 108, 114; Civil Action
No. 18-cv-181, doc. no. 1-1, ¶¶ 4-6, 85, 88, 90-91, 97.
1

Notice of Removal (doc. no. 1) ¶¶ 3-14; Civil Action No. 18-cv181, doc. no. 1, ¶¶ 3-14.
2

Order of July 6, 2018 (doc. no. 45). The court described the
progress of the case that led to its remand order in that order,
and does not repeat that here. See id. at 3-5.
3

4

Id. at 10.

5

Id.

6

Joint Status Report (doc. no. 49).

2

Gobain).

These defendants seek an award of more than $85,000,

though have indicated a willingness to accept $55,000.7

The

plaintiffs, on the other hand, deem an award of around $6,000
more appropriate.8

Having been informed of this impasse, and at

the request of both parties,9 the court ordered the defendants to
produce their counsels’ relevant billing record for in camera
review.10
“The calculation of shifted attorneys’ fees generally
requires courts to follow the familiar lodestar approach.”
Cent. Pension Fund of the Int'l Union of Operating Eng’rs &
Participating Emp’rs v. Ray Haluch Gravel Co., 745 F.3d 1, 5
(1st Cir. 2014) (citing Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 551–52 (2010)).

Under that approach, “the first step

is to calculate the number of hours reasonably expended by the
attorneys for the prevailing party, excluding those hours that
are ‘excessive, redundant, or otherwise unnecessary.’”

Id.

(quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

The

court then determines “a reasonable hourly rate or rates--a
determination that is often benchmarked to the prevailing rates

Defendants’ Response to Plaintiffs’ Status Report (doc. no. 53)
at 1.
7

8

Plaintiffs’ Status Report (doc. no. 51) at 5.

9

Id. at 8; Defendants’ Status Report (doc. no. 50) at 4.

10

Memorandum Order of August 21, 2018.

3

in the community for lawyers of like qualifications, experience,
and competence.

The product of the hours reasonably worked

times the reasonable hourly rate(s) comprises the lodestar,”
which may then “be further adjusted based on other
considerations.”

Id.

In this case, the court awarded defendants their “costs and
. . . attorney fees occasioned by removing these actions and
opposing the motions to remand them.”11

As a first step,

therefore, the court reviewed defense counsel’s billing records.
It removed from consideration any entries post-dating the filing
of the defendants’ objection to the motion to remand on April 4,
2018.

Though the court’s order perhaps could have been more

clear, it did not contemplate an award of fees for counsel’s
work drafting a surreply12 or in negotiating the fee award.13

11

Order of July 6, 2018 (doc. no. 45) at 10.

During a telephone conference held March 22, 2018, the court
proposed a solution to the apparent drafting error by
plaintiffs’ counsel that occasioned removal in the first place.
Specifically, it proposed that if the defendants would consent
to remand, they may be awarded costs related to removing the
actions to this court. The defendants rejected this proposal.
Because the defendants were afforded an opportunity to avoid
incurring the costs associated with objecting to the motion to
remand, let alone a surreply, the court is disinclined to award
fees related to the latter brief.
12

The defendants’ entitlement to these fees is not, as they
suggest, “well settled.” See Defendants’ Response to
Plaintiffs’ Status Report (doc. no. 53) at 9. While “[a]
prevailing party in a civil rights action normally is entitled
to attorneys' fees incurred in the pursuit of fees under section
13

4

Within the window from February 19, 2018 to April 4, 2018,
the court then removed from consideration records reflecting
actions that defendants’ counsel would have taken, even had the
plaintiffs’ complaints not contained class-related language,
such as reviewing the complaints and drafting answers.

It also

removed records occasioned by the court’s own actions, such as
those related to responding to consolidation notices, preparing
for and attending the March 22, 2018 telephone conference, and
motions for pro hac vice appearances.
Finally, a dozen of defense counsel’s entries within that
timeframe lacked sufficient detail for the court to determine
whether those tasks related to removal or objecting to the
motion to remand, as opposed to other tasks.

Where a party

awarded fees “furnishes time records that are ill-suited for
evaluative purposes, the court is hampered in ascertaining
whether those hours were excessive, redundant, or spent on
irrelevant issues” and may therefore “adjust those entries to
achieve an equitable result.”

Torres-Rivera v. O’Neill-Cancel,

524 F.3d 331, 340 (1st Cir. 2008).

Because approximately half

of defense counsel’s entries related to tasks for which the

1988,” Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331, 340 (1st
Cir. 2008), this is not a civil-rights action and the defendants
have not prevailed.

5

court intended to award fees, the court considers half of the
3.7 hours accounted for in those entries.
These calculations resulted in consideration of a total of
13 hours completed by partners, 67.1 hours of work completed by
associates and counsel, and 0.9 hours of work completed by
paralegals.14
At the second step, the court determines “a reasonable
hourly rate or rates,” which is “often benchmarked to the
prevailing rates in the community for lawyers of like
qualifications, experience, and competence.”
Fund, 745 F.3d at 5.

Cent. Pension

In doing so in this case, the court

attributed to all partners a rate commensurate with that of an
experienced partner in the New Hampshire legal market-specifically, the rate charged by Attorney Bruce Felmly ($525.00
per hour)--and to all associates and counsel a rate commensurate
with that of a senior associate in the New Hampshire legal
market--specifically, the rate charged by Attorney Nicholas
Casolaro ($270.00 per hour).

And, it attributed to all

paralegals a rate of $137 per hour.15

Multiplying the total

In calculating these total numbers, the court relied on the
defendants’ “adjusted hours,” which appears to be the basis for
their own fees calculation, rather than their “invoice hours.”
14

See National Association of Legal Assistants, 2016 National
Utilization & Compensation Survey Report,
https://www.nala.org/sites/default/files/files/banner/2016%20NAL
15

6

hours remaining after the first step by the rates established in
the second results in a lodestar of $25,065.30:
Position
Partner
Associate
Paralegal
Total

Hours
13
67.1
0.9

Rate
$525.00
$270.00
$137.00

Total
$6,825.00
$18,117.00
$123.30
$25,065.30

The final step allows the court to “further adjust” the
lodestar calculation “based on other considerations.”
Pension Fund., 745 F.3d at 5.

Cent.

Here, the defendants proposed to

reduce their rates by a further 25%.16

The court therefore

likewise discounts the lodestar total by 25%, for a final award
of $18,799.00 in fees.
Defendants are also entitled to $2,063.00 in costs
associated with removing the case.
The clerk shall remand the case.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

October 30, 2018

Kirk C. Simoneau, Esq.
David P. Slawsky, Esq.

A%20Utilization%20Compensation%20Survey%20Report.pdf (average
2016 hourly billing rate for paralegals in New England).
Defendants’ Response to Plaintiffs’ Status Report (doc.
no. 53) at 8-9.
16

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Lawrence A. Vogelman, Esq.
Patrick J. Lanciotti, Esq.
Tate J. Kunkle, Esq.
Lincoln D. Wilson, Esq.
Douglas E. Fleming, III, Esq.
Mark Cheffo, Esq.
Nicholas F. Casolaro, Esq.
Paul E. LaFata, Esq.
Sheila L. Birnbaum, Esq.
Bruce W. Felmly, Esq.
Thomas B.S. Quarles, Jr., Esq.
Chad W. Higgins, Esq.
Christina Ann Ferrari, Esq.
Christopher D. Hawkins, Esq.
Katherine A. Joyce, Esq.
Roy W. Tilsley, Jr., Esq.

8