Wilson v. Port City Air, Inc.

2015 DNH 053

• Court: District Court, D. New Hampshire
• Decided: March 16, 2015
• Docket: 13-cv-129-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

George Wilson

v. Civil No. 13-cv-129-LM Opinion No. 2015 DNH 053 Port City Air, Inc.

O R D E R

Before the court is Port City’s motion for the court to

reconsider its order on attorney’s fees, document no. 106.

According to Port City, the court erred by: (1) awarding Wilson

excessive fees for opposing summary judgment; (2) declining to

segregate fees Wilson incurred in pursuing his successful

retaliation-by-suspension claims from fees he incurred in

pursuing other unsuccessful claims when it was, in fact,

possible to do so; and (3) giving too much weight to the

societal importance of Wilson’s two successful claims. Based

upon those three asserted errors, Port City asks the court to

“reconsider its Order, exclude $9,000.00 from the Lodestar, then

downwardly adjust the fee by 90%.” Def.’s Mem. of Law (doc. no.

107-1) 2. Wilson objects. For the reasons detailed below, Port

City’s motion for reconsideration is denied.

I. Discussion

Port City first asks the court to reduce the award of fees

to Wilson for opposing summary judgment. It argues that the amount of time devoted to that task, 80 hours, was excessive.

Indeed, the court did observe that “[t]here [was] a strong

argument to be made that 80 hours for drafting an objection to

summary judgment is excessive.” Order (doc. no. 106) 19.1 But,

contrary to Port’s City’s assertion, the court did not

“identify[ ] the Plaintiff’s 80 hours as unreasonable,” Def.’s

Mem. of Law 3. It did not do so because Port City made no such

argument in its objection to Wilson’s request for fees. As a

result, Wilson had no chance to make any counter argument. In

the absence of any argument on this point one way or the other,

the court operated on the assumption that Port City had conceded

the reasonableness of the number of hours Wilson claimed.

Because Port City has identified no authority for the

proposition that the court was obligated to give it the benefit

of an argument it never made, the court committed no “manifest

error of law,” L.R. 7.2(d), regarding the fees it awarded Wilson

for opposing summary judgment. Accordingly, on this point, Port

City’s motion to reconsider is denied.

Next, Port City argues that the court erroneously concluded

that it, Port City, “had not carried its burden of showing a

basis for segregating Wilson’s unsuccessful discrimination and

1 See Wilson v. Port City Air, Inc., No. 13-cv-129-LM, 2014 WL 7333016, at *7 (D.N.H. Dec. 19, 2014) (citing Dixon v. Int’l Bhd. of Police Officers, 434 F. Supp. 2d 73, 82 (D. Mass. 2006)).

2 retaliation claims from his successful retaliation claims.”

Order (doc. no. 106) 27. While Port City is quite clear about

its disagreement with the court’s conclusion, it does not

identify a “manifest error of fact or law,” LR 7.2(d), that

resulted in that conclusion.

But, more importantly, as the court made clear in the

section of its order devoted to calculating its downward

adjustment of the lodestar, the United States Supreme Court has

expressly disapproved of the method advocated by Port City,

which involves “a mathematical approach [that] compare[s] the

total number of issues in the case with those actually prevailed

upon.” Hensley v. Eckerhart, 461 U.S. 424, 435 n.11 (1983). It

is the court’s reliance upon Hensley, rather than Port City’s

failure to establish a basis for segregating fees, that caused

the court not to implement the 90% downward adjustment of the

lodestar that Port City asked for.

Given this court’s rejection of an approach that depends

upon segregability of claims, and its reliance upon a balancing

test, Port City’s ability to segregate claims was irrelevant to

the court’s calculation of an adjustment to the lodestar. In

other words, the downward adjustment of 90% that Port City

sought was off the table for reasons independent of the court’s

determination that Port City could not demonstrate

3 segregability. Accordingly, as to Port City’s second argument,

its motion to reconsider is denied.

Finally, Port City argues that the court gave too much

weight to the legal right that Wilson vindicated by prevailing

on his retaliation-by-suspension claims. Again, Port City has

identified neither a manifest error or law or fact that taints

the court’s ruling on that issue or its calculation of the

amount of its downward adjustment of the lodestar. Port City

undoubtedly values the right Wilson vindicated less highly than

the court does, but it has not shown that the court’s

determination of that value resulted from either a legal or

factual error. So, as with the first two issues, Port City’s

motion to reconsider is denied.

II. Conclusion

For the reasons described above, Port City’s motion for

reconsideration, document no. 107, is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

March 16, 2015 cc: Matthew T. Broadhead, Esq. Jacob John Brian Marvelley, Esq. Paul McEachern, Esq. Christine M. Rockefeller, Esq.