UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David Tuck
v. Civil No. 22-cv-152-LM Opinion No. 2024 DNH 061 P Gene Shroyer, et al.
ORDER
After a trial in this court, the jury awarded plaintiff David Tuck all of his
unpaid wages, as well as liquidated damages, against defendant Gene Shroyer and
three corporate defendants: US Construction Corporation, US Specialty
Corporation, and US Shared Services Corporation (together, the “Corporations”).
Tuck originally brought two claims under the Fair Labor Standards Act (“FLSA”),
one claim under the New Hampshire wage law, one claim for breach of contract, and
one claim for quantum meruit. The case proceeded to a jury trial on the state law
claims only, and the jury returned a verdict in Tuck’s favor on the state wage law
claim.1 Tuck now moves for an award of attorney fees and costs in the amount of
$227,783.88, pursuant to Federal Rule of Civil Procedure 54(d) and RSA 275:53, III.
Doc. no. 77. Defendants object, arguing that Tuck is not entitled to a fee award and
disputing the amount of fees and costs Tuck requests.
For the following reasons, the court grants Tuck’s motion for attorney fees
and costs, but in a reduced amount.
1 Given the verdict in Tuck’s favor on this claim, the jury did not return verdicts
on the breach of contract claim or the quantum meruit claim. JURISDICTION
Although neither party raises the issue of subject-matter jurisdiction, the
court has an independent obligation to address it. ST Eng’g Marine, Ltd. v.
Thompson, Maccoll & Bass, LLC, P.A., 88 F.4th 27, 32 (1st Cir. 2023). The court had
federal question jurisdiction over Tuck’s FLSA claims, see 28 U.S.C. § 1331, and
supplemental jurisdiction over his state law claims, see 28 U.S.C. § 1367(a). Tuck
voluntarily dismissed the federal claims on the eve of trial. See doc. no. 57. Rather
than dismiss the state law claims pursuant to 28 U.S.C. § 1367(c), after the parties
had expended substantial resources in preparing for trial, the court elected to retain
jurisdiction over Tuck’s state law claims. See 28 U.S.C. § 1367(c) (providing that the
court “may” decline to exercise supplemental jurisdiction when all claims over
which it had original jurisdiction have been dismissed); Camelio v. Am. Fed’n, 137
F.3d 666, 672 (1st Cir. 1998) (explaining that, where all federal claims have been
dismissed, a court must “engag[e] in a pragmatic and case-specific evaluation” to
determine whether to retain supplemental jurisdiction, considering factors such as
“the interests of fairness, judicial economy, [and] convenience”).
The court likewise exercises supplemental or ancillary jurisdiction over this
post-trial fee dispute because the issues are so closely related to the underlying case
that the dispute can be considered part of the same case or controversy. Cf. Law
Offs. of David Efron v. Matthews & Fullmer L. Firm, 782 F.3d 46, 52 (1st Cir. 2015)
(explaining, in a case involving only state law claims, that federal courts may
exercise “authority under the doctrine of ancillary jurisdiction to resolve fee
2 disputes between parties and their attorneys that arise out of the underlying
litigation”); see also Knauss v. Atrium Med. Corp., --- F. Supp. 3d ---, No. 18-cv-
1187-LM, 2023 WL 6216608, at *2 (D.N.H. Sept. 25, 2023) (noting, in a case
involving only state law claims and non-diverse parties, that “[g]enerally, . . . the
court only has ancillary jurisdiction to fix the amount of costs and attorney fees to
be paid from one party in the case to another[]”); Wright & Miller, 13 Fed. Prac. &
Proc. § 3523 (3d ed. Apr. 2023 update) (“Today, the terms ‘ancillary,’ ‘pendent,’ and
‘supplemental’ are all used, essentially interchangeably.”).
BACKGROUND
Tuck filed this suit in May 2022, seeking damages for unpaid wages from the
Corporations and from Shroyer, the Chief Executive Officer of the Corporations.
Tuck alleged that defendants failed to pay him his salary as the Chief Financial
Officer (“CFO”) of the Corporations. After the court granted partial summary
judgment for defendants—limiting Tuck’s available damages under the FLSA to the
federal minimum wage—Tuck abandoned his FLSA claims on the eve of trial.
Tuck’s three state law claims proceeded to a jury trial in January 2024.
On January 26, 2024, the jury returned a verdict in Tuck’s favor. The jury
indicated on a special verdict form that defendants owed Tuck $169,278.72 in
unpaid wages for violating the New Hampshire wage law. The jury further found
that the defendants willfully and without good cause violated the wage law, which
entitled Tuck to a liquidated damages award equal to his unpaid wages under RSA
275:44, IV. Additionally, because the parties stipulated that Shroyer acted on behalf
3 of the Corporations and the jury found the violation was willful, Shroyer is
personally liable for the judgment. See RSA 275:42, I, V.
Attorneys Robert Berluti and Michael Bednarz, partners at the law firm
Berluti McLaughlin & Kutchin LLP, represented Tuck. Throughout the pendency of
this case, a parallel lawsuit in Georgia state court regarding the parties’ ownership
interest in the Corporations’ holding company has been ongoing. Berluti and
Bednarz, working with local counsel in Georgia, also represent Tuck in that
litigation.
After the jury returned a verdict in Tuck’s favor in the instant case, Tuck
moved for attorney fees. Defendants object on numerous grounds. The court
requested supplemental briefing from the parties explaining (1) the extent to which
Tuck sought fees for the litigation in Georgia, and why such a request would be
reasonable; and (2) the extent to which hours billed for work on the FLSA claim
could be separated from hours worked on the New Hampshire wage law claim. Both
parties filed supplemental briefs.
DISCUSSION
I. Tuck’s Entitlement to Attorney Fees and Costs
Having prevailed at trial, Tuck now seeks attorney fees. Under New
Hampshire law, a request for attorney fees “must be grounded upon statutory
authorization, a court rule, an agreement between the parties, or an established
exception to the rule that each party is responsible for paying his or her own counsel
fees.” In the Matter of Hampers & Hampers, 154 N.H. 275, 289 (2006) (quotation
4 omitted). Here, Tuck contends that attorney fees should be awarded pursuant to the
New Hampshire wage law. See RSA 275:53, III. Under that statute, when a plaintiff
obtains a judgment in his favor, a court may “allow costs of the action, and
reasonable attorney’s fees, to be paid by the defendant.” Id. The New Hampshire
Supreme Court has held that, when a plaintiff succeeds on a wage law claim, the
trial court “should exercise its statutory discretion by awarding reasonable counsel
fees, unless the court further finds particular facts that would render such an award
inequitable.” Ives v. Manchester Subaru, Inc., 126 N.H. 796, 804 (1985). New
Hampshire courts interpret the wage law, “and the attorney’s fees provision in
particular, to effectuate the [wage law’s] broad purpose of protecting employees.”
Demers Agency v. Widney, 155 N.H. 658, 664 (2007).
Given Tuck’s success on his wage law claim, the court should award him
reasonable attorney fees unless doing so would be inequitable. Defendants argue
that a fee award would be inequitable because the liquidated damages award
already doubles Tuck’s recovery under the New Hampshire wage law, see RSA
275:44, IV, and an additional award of attorney fees would be a windfall.
Defendants further contend that a fee award will bankrupt Shroyer, since the
Corporations are now defunct. Finally, defendants assert that the litigation “was a
battle between two sophisticated businessmen,” rather than a “David and Goliath
battle” that the wage law is ordinarily intended to cover. Doc. no. 82 at 3.
Defendants fail to demonstrate that an award of reasonable attorney fees
would be inequitable. Tuck’s damages under the New Hampshire wage law—the
5 value of his unpaid wages—amount to $169,278.72. Tuck was also awarded an
equal amount of liquidated damages based on the jury’s finding of a willful violation
of the wage law. See RSA 275:44, IV. Despite this considerable award, if Tuck’s
attorneys deducted their fee from the total award of unpaid wages and liquidated
damages, Tuck would likely recoup damages below the value of the unpaid wages he
sought to recover in this case. Such an outcome would not effectuate the wage law’s
“broad purpose of protecting employees.” Demers, 155 N.H. at 664. This is especially
true where the jury found that defendants willfully violated the wage law.2 See doc.
no. 74 at 11-12 (jury instructions) (explaining that wage law defendants act
“willfully and without good cause” when they fail to pay wages “despite knowing
their obligation to pay and despite their financial ability to pay”).
Therefore, Tuck is entitled to his reasonable attorney fees and costs.
A. Calculating the Amount of Tuck’s Fee Award
New Hampshire state courts use “eight guiding factors” to determine a
reasonable fee award. E.g., Toy v. City of Rochester, No. 2020-0426, 2021 WL
3013470, at *1 (N.H. June 8, 2021); Town of Barrington v. Townsend, 164 N.H. 241,
250 (2012). The factors are: “(1) the amount involved; (2) the nature, novelty, and
difficulty of the litigation; (3) the attorney’s standing; (4) the skill employed; (5) the
2Indeed, Shroyer’s and Tuck’s relative parity in bargaining positions, as emphasized by defendants, supports an award of fees. Shroyer is a sophisticated businessman represented by counsel who was able to weigh the risks of trial, and the court presumes Shroyer was aware of the possibility that a defeat at trial could lead to an award of fees.
6 time devoted; (6) the customary fees in the area; (7) the extent to which the attorney
prevailed; and (8) the benefit bestowed on the clients.” Toy, 2021 WL 3013470 at *1.
Federal courts generally apply the lodestar analysis. Wells Fargo Bank, Nat’l
Ass’n as Tr. for Option One Mortg. Loan Tr. 2007-2, Asset-Backed Certificates,
Series 2007-2 v. Moskoff, No. 1:17-CV-136-JL, 2021 WL 4798102, at *2 (D.N.H. Oct.
14, 2021), aff’d, Nos. 21-1985 & 21-1986, 2023 WL 3839392 (1st Cir. Mar. 3, 2023).
The “lodestar” is the product of the reasonable number of hours counsel spent on a
matter multiplied by the reasonable hourly rate for counsel’s services. Cent.
Pension Fund of the Int’l Union of Operating Eng’rs & Participating Emps. v. Ray
Haluch Gravel Co., 745 F.3d 1, 5 (1st Cir. 2014). To calculate the lodestar, the court
must determine both the reasonable hourly rates for counsel and the number of
hours reasonably spent on the action. Id. “The lodestar may be further adjusted
based on other considerations.” Id. “Prominent among these considerations is the
degree of a prevailing party’s success.” Id.
Tuck suggests that the court use a modified version of the lodestar
approach—using the lodestar method while also considering the New Hampshire
factors—to determine whether the proposed fee is reasonable. Defendants do not
object to this approach. Because New Hampshire’s eight guiding factors are not
inconsistent with the lodestar analysis, Wells Fargo, 2021 WL 4798102, at *3, the
court will use both the lodestar approach and the state factors to assess the
reasonableness of Tuck’s fee request.
7 B. Reasonable Hourly Rates
The hourly rate determination under New Hampshire law and federal law is
similar. A reasonable hourly rate for an attorney or a legal professional is based on
“prevailing rates in the community for lawyers [and legal professionals] of like
qualifications, experience, and competence.” Cent. Pension Fund, 745 F.3d at 5; see
Funtown USA, Inc. v. Town of Conway, 129 N.H. 352, 356-57 (1987); Couture v.
Mammoth Groceries, Inc., 117 N.H. 294, 297 (1977) (listing reasonableness factors,
including “customary fees in the area”). The burden is on the party seeking fees to
“establish the market rate for comparable services with satisfactory evidence.” de
Laire v. Voris, No. 21-cv-131-JD, 2022 WL 433068, at *3 (D.N.H. Jan. 14, 2022)
(quotation omitted); Townsend, 164 N.H. at 251 (“‘[C]ustomary fees in the area’ is a
factor to consider in determining the reasonableness of the overall fee . . . .”). First
Circuit “precedent allows a court to choose counsel’s standard rate, or the prevailing
market rate in the forum, or a reasonable rate in between.” Gross v. Sun Life
Assurance Co. of Can., 880 F.3d 1, 24 (1st Cir. 2018) (internal quotation marks and
quotation omitted); cf. Townsend, 164 N.H. at 251 (“[T]he absence of . . . evidence [of
customary rates in the community] does not render [a] trial court’s conclusion
incorrect.”).
In support of his request for fees, Tuck submitted an affidavit from Berluti,
law firm website biographies for Berluti and Bednarz, and invoices for the services
rendered. See doc. no. 77-1. Berluti billed between $475 and $550 per hour; his
hourly rate increased annually. He is a senior partner at the Boston-based law firm
8 of Berluti McLaughlin & Kutchin LLP. He has been a member of the Massachusetts
bar since 1980 and is also a member of the New Hampshire bar. Berluti’s website
biography charts a lengthy history of trial experience in business and employment
cases. Berluti’s affidavit states that he focuses his practice on business, commercial,
and employment litigation.
Bednarz is also a partner at Berluti McLaughlin & Kutchin LLP and has
been a member of the Massachusetts bar since 2013. Bednarz similarly practices in
business, commercial, and employment litigation, and his biography outlines his
civil trial experience. He billed between $400 and $450 per hour, as his hourly rate
increased annually as well.
Tuck also seeks fees for two legal professionals: paralegals April Jastrzebska
and Victoria Wissa. Jastrzebska and Wissa are paralegals at Berluti McLaughlin &
Kutchin. Jastrzebska has been working as a paralegal since 1996, and Wissa since
2019. Jastrzebska began the matter billing at an hourly rate of $175, and at various
other times billed at $200.3 Wissa billed at an hourly rate of $150.
In his affidavit, Berluti represents that the requested rates are consistent
with rates charged for comparable counsel in New Hampshire and the greater
Boston area for similar matters. In support of his fee request, Tuck cites cases in
Massachusetts state courts in which courts awarded fees ranging from $210 to
3 Although Jastrzebska’s rate appeared to increase annually as well, her rate
dipped from $200 in 2023 back to $175 in 2024. Tuck did not explain the rate increases or decreases with respect to any of the professionals working on his case.
9 $885. See doc. no. 77 at 5 n.3 (collecting cases). Tuck also cites cases in which
reasonable paralegal hourly rates ranged from $110 per hour to $195 per hour. Id.
Defendants do not object to the requested rates.
Given the attorneys’ background practicing in employment law and the
comparable rates in the New Hampshire and Boston markets, the court finds the
requested fee rates for Berluti and Bednarz reasonable. See de Laire, 2022 WL
433068, at *3 n.2 (“Hourly rate of $500 may be a reasonable rate for a lawyer in
Boston under demonstrated circumstances.”); Wells Fargo, 2021 WL 4798102, at *3
(approving $400 hourly rates for partners at a large law firm); Townsend, 164 N.H.
at 251; see also Sparks v. Allstate Med. Equip., Inc., No. 1:14-cv-166, 2016 WL
5661758, at *2 (D. Idaho Sept. 29, 2016) (“The fact that hourly rates have increased
since Plaintiff's counsel worked for the same firm, is not surprising nor
unreasonable.”). The requested fee rates for the paralegals in this case are also
reasonable. See Howarth v. Carsanaro Landscaping, Inc., No. 22-cv-10998-DLC,
2023 WL 5978298, at *9 (D. Mass. July 21, 2023) (determining the hours attributed
to a paralegal were reasonable and “billed at a relatively modest average rate of
$200 per hour”); Wells Fargo, 2021 WL 4798102, at *3 (approving a paralegal rate
of $150); Townsend, 164 N.H. at 251. The court will therefore use Tuck’s requested
rates in calculating an appropriate fee award.
C. Reasonable Number of Hours Worked
Having determined that the rates Tuck seeks are reasonable under both state
and federal law, the court must determine the number of hours reasonably spent by
10 Tuck’s counsel, and exclude all hours that are excessive, redundant, or otherwise
unnecessary. Cent. Pension Fund, 745 F.3d at 5. Tuck seeks to recover fees for the
following hours of legal work:
• 193.5 hours for Attorney Berluti;
• 296.86 hours for Attorney Bednarz;
• 149 hours for Paralegal Jastrzebska; and
• 21.5 hours for Paralegal Wissa.
• Total: 660.86 hours.
Tuck contends that the hours requested are reasonable, particularly in light
of his proposal to reduce his fee award by 15% to account for any inadvertent
redundancies or overcharges.4 Rather than accept Tuck’s off-the-top reduction,
defendants urge the court to strike some of the requested hours. First, defendants
argue that hours spent on discovery in this case overlap with hours spent on
discovery in the pending litigation in Georgia state court. Second, defendants argue
that any hours involving Attorney Kerry Northup, an attorney at plaintiff’s
counsels’ firm, should be stricken because Northup previously represented the
Corporations. Third, defendants argue that the court should strike hours spent on
Tuck’s FLSA claim because Tuck abandoned that claim before trial. Finally,
defendants contend that some of counsel’s hours are irrelevant, excessive, or
unnecessary.
The court will address each of these arguments in turn.
4 Multiplying the proposed rates by the proposed hours yields a total fee of
$256,229.50. A 15% reduction leaves a proposed fee of $217,795.07.
11 1. Discovery Involving Both the New Hampshire Case and the Georgia Case
Defendants first argue that counsels’ work on discovery in this case is
duplicative of the discovery in the litigation in Georgia, which would mean that
Tuck seeks fees for work done in a different case. Tuck responds that the fees for
the Georgia litigation were separately billed and were not submitted to this court.
He contends that the only fees sought concern the review of documents in the
instant litigation, the depositions of Tuck and Shroyer, and the admissions that
were produced in this case. The parties also apparently stipulated that the
depositions of Tuck and Shroyer would be used in both cases as a cost-saving
measure.
Defendants are “willing to take Tuck’s attorneys’ word” that the only fees
submitted to the court are for the instant litigation. Doc. no. 87 at 1. But they
maintain that the court should, at a minimum, divide in half the fees associated
with discovery to account for the Georgia litigation.
The court has carefully reviewed the attorneys’ invoices and the parties’
briefing. The bills submitted reflect the work of Tuck’s counsel in this litigation, and
Tuck’s supplemental briefing sufficiently identifies the specific categories of work
done in discovery. Specifically, Tuck notes that he only seeks fees for gathering and
reviewing documents, drafting requests for admission, preparing for and
participating in the depositions of Tuck and Shroyer, and working on third-party
subpoenas in this case. See doc. no. 86. The court finds the fees sought for discovery
12 are reasonable and supported by the timesheets. Therefore, the court will not strike
hours spent on discovery.
2. Timesheet Entries Involving Attorney Northup
Defendants next argue that any timesheet entries mentioning Northup
should be stricken because he formerly represented the Corporations and therefore
owed them a fiduciary duty. Some of the hours for which Tuck requests fees include
time his attorneys spent corresponding or working with Northup. In other words,
some entries for the work of Berluti and Bednarz mention Northup. But Tuck
contends that he is not seeking fees for Northup’s hours and excludes those hours
from the proposed fee award. Defendants cite no authority to support their position
that certain hours billed by Berluti and Bednarz must be stricken because those
hours involved correspondence or work with Northup. The court finds no basis to
strike the hours in which Northup is merely mentioned.
3. Hours Billed for Tuck’s FLSA Claim
Defendants’ third argument is that the court should subtract all fees related
to the FLSA claim, which Tuck abandoned just before trial. Generally, “no fee may
be awarded for services on [an] unsuccessful claim.” Bogan v. City of Boston, 489
F.3d 417, 428 (1st Cir. 2007) (quoting Hensley, 461 U.S. at 435). This rule does not
apply, however, “where both the successful and unsuccessful claims arose from the
same common core of facts or were based on related legal theories.” Id. Fees for
unsuccessful claims are, therefore, excluded from the lodestar calculation only when
the claims rely on distinct facts or legal theories. Id.
13 Defendants identified specific time entries attributed to the FLSA claim.
Bednarz spent 2.5 hours researching an FLSA exemption and potential defamation
claim. Defendants also identify 7.3 hours of Berluti’s time attributed in part to the
FLSA claim. Each of Berluti’s line items, however, includes work done on matters
other than the FLSA claim.
The court declines to reduce the bill for time Tuck’s attorneys spent on the
FLSA claim. The FLSA claim and the New Hampshire wage law claim stem from
the same set of facts. Both claims arose out of defendants’ failure to pay Tuck his
salary for working as the Corporations’ CFO. Under both the FLSA and the New
Hampshire wage law, Tuck could obtain damages for at least some of his unpaid
wages. The key difference in the claims is the amount of wages Tuck could recover.
Under the FLSA, Tuck could only recoup his unpaid salary up to the federal
minimum wage. Under the New Hampshire wage law, however, Tuck could obtain
damages for the full value of his salary. Thus, the claims arose out of a common
factual core and relied on similar legal theories. For these reasons, the court finds
no reason to reduce the fee award for time spent on this claim.
4. Excessive or Unnecessary Hours
Defendants’ final argument is that some of the hours billed are excessive or
unnecessary. Where the prevailing party provides timesheets that are difficult to
evaluate, “the court is hampered in ascertaining whether those hours were
excessive, redundant, or spent on irrelevant issues. In such a circumstance, the
14 court may adjust those entries to achieve an equitable result.” Torres-Rivera v.
O'Neill-Cancel, 524 F.3d 331, 340 (1st Cir. 2008) (internal citation omitted).
Defendants object to (1) a duplicative charge for 4.1 hours ($2,050 in fees) for
Berluti to attend Tuck’s deposition; (2) hours billed related to an April 2023
settlement proposal, purportedly solely in the Georgia matter; and (3) hours billed
from a mediation which also involved the Georgia litigation.5
First, as to the duplicative charge, the line item for Berluti’s time appears
identical to another 4.1-hour charge. Tuck does not, however, address the
duplicative charge in his briefing. Because Tuck has failed to account for this
seemingly duplicative charge, the court strikes as unnecessary 4.1 hours of Berluti’s
time, or $2,050 in fees.
Second, with respect to the April 2023 settlement proposal, defendants
contend that the settlement only applied to the Georgia litigation. Tuck does not
respond to this argument. The timesheet line items for the settlement proposal are
threadbare. Those entries indicate that Bednarz spent 0.4 hours “[c]orrespond[ing]
with opposing counsel regarding depositions and settlement,” and “[f]orward[ing]
[the] settlement offer to [his] client.” Doc. no. 82-1 at 40. Bednarz then spent
another 0.4 hours “[c]orrespond[ing] with [his] client regarding [the] offer to settle.”
Id. Without more, the court is unable to determine whether these entries are
5 Defendants also object to time apparently spent on a different matter, see
doc. no. 77-1 at 52, and hours an attorney spent scanning documents, see doc. no. 77- 1 at 45. In both instances, the work was done by an attorney for whom Tuck does not seek fees. Therefore, the court need not consider these objections.
15 inappropriately billed to the New Hampshire litigation, as defendants contend. The
court therefore strikes the 0.8 hours, or $340.00, Bednarz spent working on the
settlement proposal.
Third and finally, as to the mediation, the timesheet entries do not
distinguish between time spent on the instant litigation and time spent on the
Georgia case. Tuck maintains that, with the mediation, the parties sought a “global
resolution” of all claims. Doc. no. 77 at 5. However, Tuck’s assertion about the
intended outcome of the mediation does not account for the time his attorneys
actually spent preparing for and mediating the distinct lawsuits. The court is
therefore unable to determine the extent to which Tuck’s attorneys devoted their
time to the Georgia litigation instead of the New Hampshire case. The court reduces
the fees requested for mediation by 50%, which equals 30.35 hours or $12,050. See
Torres-Rivera, 524 F.3d at 340.
With these combined reductions, the court concludes that the hours Tuck’s
attorneys reasonably expended representing him in this action are as follows:
• 177.7 hours for Attorney Berluti;
• 281.71 hours for Attorney Bednarz;
• 144.7 hours for Paralegal Jastrzebska; and
• Total: 625.61 hours.
To calculate the lodestar, the court multiplies the reasonable hours expended by the
reasonable rates for Tuck’s counsel. This brings the lodestar figure to $243,279.50.
16 D. Reasonableness Under New Hampshire Law
All eight of the “guiding factors” under New Hampshire law support the
court’s lodestar analysis and the reasonableness of Tuck’s requested fees. A brief
discussion of each factor illustrates the overlap in the court’s analysis of the
lodestar.6
1. The Amount Awarded
As explained above, Tuck sought to recover roughly one year’s worth of his
unpaid six-figure salary, and an award of liquidated damages for the willful nature
of the violation. Tuck succeeded on both fronts and the jury awarded him a total of
$338,557.44. Considering that the fee is not outsized in proportion to the jury’s
award, this factor suggests that the amount is reasonable. Cf. Townsend, 164 N.H.
at 251 (“[I]t was within the trial court’s discretion, given its involvement in the
ongoing proceedings, to find that the time claimed to have been spent on successful
issues was reasonable.”).
2. Novelty
On the surface, these claims seem like typical employment law and contract
disputes. The New Hampshire wage law claim, however, involved a complex multi-
factor test used to determine whether Tuck worked as an employee or an
independent contractor. See RSA 275:42, II(a)-(g). Thus, the relative complexity of
6 Although it appears as though the court has considered only five of the eight
factors, the court has consolidated similar factors: the third combines attorney time, skill, and standing; and the fifth combines the attorneys’ success and the benefit bestowed.
17 the New Hampshire wage law claim bolsters the reasonableness of the lodestar
figure. See Funtown, 129 N.H. at 357 (affirming a fee award, in part because “[t]he
proceedings were long and convoluted, and required substantial amounts of lawyer
and paralegal time”).
3. Attorney Standing, Skill, and Time
As noted above, Tuck’s attorneys—two partners in a Boston law firm—have
extensive experience in similar employment litigation. They both have years of
experience in practice generally, and in trial specifically. Tuck’s counsel also
litigated this case over the course of almost two years. The attorneys conducted
discovery, participated in motion practice on the parties’ cross-motions for summary
judgment, and litigated Tuck’s claims through trial. Although Tuck did not pursue
his FLSA claims at trial, his attorneys tried the New Hampshire wage law claim,
the breach of contract claim, and the quantum meruit claim. The submitted time
sheets reflect the time and effort expended by Tuck’s counsel. See Funtown, 129
N.H. at 357; Demers, 155 N.H. at 665 (“Based upon the amount of work reflected by
the record [of counsel’s work] before the trial court, we cannot say that the trial
court unsustainably exercised its discretion [in awarding fees.]”). Thus, the
attorneys’ effort and experience support the reasonableness of the lodestar.
4. Customary Fees
As discussed above, the fees are commensurate with the customary rates in
this region and line of practice. See Funtown, 129 N.H. at 356-57.
18 5. Attorneys’ Success and the Benefit Conferred to Their Client
As noted above, Tuck’s counsel prevailed on the underlying wage law claim to
the full extent ($169,278.72) and succeeded in persuading the jury that the violation
was willful and worthy of a doubling of the damages for a total of $338,557.44. The
success of Tuck’s counsel strongly supports the reasonableness of the lodestar
amount. See Townsend, 164 N.H. at 251.
For all of the above reasons, the court finds the lodestar ($243,279.50)
reasonable. Tuck, however, only requests $217,795.07 in attorney fees. Because his
requested fees are less than the lodestar, Tuck’s requested fees are clearly
reasonable. The court, therefore, grants Tuck’s motion for attorney fees in Tuck’s
requested amount of $217,795.07.
II. Amount of Costs Awarded
Tuck also moves to recover costs in this matter. Under Federal Rule of Civil
Procedure 54(d)(1), “costs—other than attorney's fees—should be allowed to the
prevailing party.” Fed. R. Civ. P. 54(d)(1); cf. Bosse v. Litton Unit Handling Sys.,
Div. of Litton Sys., Inc., 646 F.2d 689, 695 (1st Cir. 1981) (holding that Rule 54(d)
governs fee disputes in cases premised on diversity jurisdiction). A successful
litigant may recover:
(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
19 (5) Docket fees under section 1923 of this title; [and] (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
28 U.S.C. § 1920.
Costs are narrowly defined in this statute. See, e.g., Taniguchi v. Kan Pac.
Saipan, Ltd., 566 U.S. 560, 573 (2012). As explained by the Supreme Court in
Taniguchi, “costs are limited to relatively minor, incidental expenses as is evident
from § 1920, which lists such items as clerk fees, court reporter fees, expenses for
printing and witnesses, expenses for exemplification and copies, docket fees, and
compensation of court-appointed experts.” Id. As recently as 2016, Judge McAuliffe
could locate no authority “which stands for the proposition that attorney expenses
are taxable as costs.” Onge v. Town of Weare, No. 14-CV-214-SM, 2016 WL
11690245, at *4 (D.N.H. May 11, 2016). The undersigned has likewise found no
authority to support that proposition.
Tuck requests $9,988.81 in costs, the line items for which are contained in
the timesheets Tuck submitted to the court. See doc. no. 77-1. Defendants object to
the following:
• $3,495 in discovery storage and hosting expenses;
• $1,237.50 for mediation services; and
• $1,284.40 in costs for attorneys’ travel to the mediation, including Northup’s flight.
With respect to discovery storage and hosting expenses, Tuck explains that
such costs are attributable to the large number of documents maintained in this
20 case. The First Circuit, however, “has not permitted costs for overhead expenses for
centralized litigation services.” Dana-Farber Cancer Inst., Inc. v. Ono Pharm. Co.,
No. 1:15-CV-13443-PBS, 2021 WL 8566000, at *1 (D. Mass. Mar. 23, 2021).
Discovery storage does not fall within any of the enumerated categories of taxable
costs in § 1920. The court finds such storage costs are akin to the overhead expenses
that Judge Saris disallowed in Dana-Farber. See id. Tuck has not explained how
these costs are recoverable as reasonable costs under either federal or state law.
The court therefore denies the request for discovery storage costs.
With respect to Tuck’s mediation expenses—including flights—Tuck fails to
explain how these expenses fit within either § 1920 or the New Hampshire wage
law. Attrezzi, LLC v. Maytag Corp., 436 F.3d 32, 43 (1st Cir. 2006) (“[E]xpenses for
items such as attorney travel and computer research are not deemed ‘costs’ within
the meaning of the federal statute that provides for recovery of costs by a prevailing
party.”); Gary Brown & Assocs., Inc. v. Ashdon, Inc., 268 Fed. Appx. 837, 846 (11th
Cir. 2008) (“[The prevailing party’s] requests for mediation expenses, meals,
courier/postage, Lexis-Nexis research, air fare, and lodging are not included under
§ 1920.”). Tuck has not met his burden of showing entitlement to these costs.
The court finds Tuck’s remaining costs (totaling $3,971.91) are, however,
proper under § 1920 and are supported by Tuck’s invoices. And defendants do not
object to any of these costs.
The court therefore grants Tuck’s request for costs, but in the reduced
amount of $3,971.91.
21 CONCLUSION
Tuck’s motion for attorney fees and costs (doc. no. 77) is granted in part. Tuck
is awarded $217,795.07 in attorney fees and $3,971.91 in costs.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
July 24, 2024
cc: Counsel of Record