Forsberg v. Kearsarge School District

2013 DNH 028

• Court: District Court, D. New Hampshire
• Decided: March 12, 2013
• Docket: 12-CV-027-SM
• Status: Published

Opinion

Forsberg v. Kearsarge School District 12-CV-027-SM 3/12/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Charles P. Forsberg. Plaintiff

v. Case No. 12-cv-27-SM Opinion No. 2013 DNH 028 Kearsarge Regional School District, Defendant

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. 2J5) must be

denied. 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

without foundation." 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 PI. Obj. to Motion to Dismiss (document no. 22). Plaintiff

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. It

was ill-informed and superficial, because it did not account for

nuances and complexities in the application of those legal

principles. 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

support." 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. Nor

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)).

2 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. There "would

appear," therefore, "to be little cause to seek to deter [him]

from similar conduct in the future." Id.

All of this is not to say, of course, that the court's broad

discretion - and patience - is without limit. This is

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.

SO ORDERED.

Sjzfeven J./McAuliffe ./McAulif fe United States District Judge (United

March 12, 2013

cc: Charles P. Forsberg, pro se Barbara F. Loughman, Esq. Matthew G. Mavrogeorge, Esq.