United States District Court, D. New Hampshire
Thomas M. Moulton
David Bane and Prime Choice Enterprises, LLC No. 2016 DNH 090
Joseph DiClerico, Jr. United States District Judge
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.
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 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 fees for litigating the CPA claim only. Their interpretation is neither persuasive nor supported by cited authority.
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 Laws Ann. (“M.G.L.A.”) ...