Moulton v. Bane, et al.

2016 DNH 090

• Court: District Court, D. New Hampshire
• Decided: May 4, 2016
• Docket: 14-cv-265-JD
• Status: Published

Opinion

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. Town of

Barrington v. Townsend, 164 N.H. 241, 250 (2012). 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. Id. at 139. The court affirmed the fee

award as reasonable. 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

1 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.

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

2 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).

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

7 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.

3 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 thirty- four 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.

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. Pribis’s hourly rate is

comparable to Kenney’s rates. 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. Therefore, those hourly rates are approved.

3. 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.

4 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.

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.

12 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.