United States District Court, D. New Hampshire
Dowling et al.
Saint-Gobain Performance Plastics Corp. et al.
Lawrence A. Vogelman, Esq. Patrick J. Lanciotti, Esq. Tate J.
Kunkle, Esq. Lincoln D. Wilson, Esq. Douglas E. Fleming, III,
Esq. Mark Cheffo, Esq. Nicholas F. Casolaro, Esq. Paul E.
LaFata, Esq. Sheila L. Birnbaum, Esq. Bruce W. Felmly, Esq.
Thomas B.S. Quarles, Jr., Esq. Chad W. Higgins, Esq.
Christina Ann Ferrari, Esq. Christopher D. Hawkins, Esq.
Katherine A. Joyce, Esq. Roy W. Tilsley, Jr., Esq.
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
plaintiffs initiated these actions as proposed class actions
by filing complaints in this court on December 5, 2016. After
consolidation with other, related cases, and after the court
appointed other counsel as interim class counsel, these
plaintiffs voluntarily dismissed their claims with the stated
intention of refiling those claims in state court. Though the
court expressed concern that dismissal and refiling would
simply result in the cases returning to this court, resulting
in an unnecessary expenditure of judicial and litigant
resources, plaintiffs' counsel assured the court that
their state-court complaints would be structured to avoid
this court's subject-matter jurisdiction under the Class
Action Fairness Act. Despite these assurances,
plaintiffs' state-court complaints contained several
references to “class members.” The defendants removed the
actions here on that basis.
6, 2018, the court granted the plaintiffs' motions to
remand these consolidated actions to Hillsborough County
Superior Court. At the same time, having found that
plaintiffs' counsel's inartful pleading occasioned
the cases' removal and defendants' motions to remand,
the court awarded defendants their “costs and . . .
attorney fees occasioned by removing these actions and
opposing the motions to remand them.” It further ordered the
parties to attempt to agree on the precise amount and file a
stipulation accordingly. The plaintiffs have reached such an
agreement with one of the defendants, the Merrimack Village
District Water Works. They have been unable to do so with
defendants Saint-Gobain Performance Plastics Corp., Gwenael
Busnel, and Chris Gilman (collectively, Saint- Gobain). These
defendants seek an award of more than $85, 000, though have
indicated a willingness to accept $55, 000. The plaintiffs, on the
other hand, deem an award of around $6, 000 more
Having been informed of this impasse, and at the request of
both parties,  the court ordered the defendants to
produce their counsels' relevant billing record for in
calculation of shifted attorneys' fees generally requires
courts to follow the familiar lodestar approach.”
Cent. Pension Fund of the Int'l Union of Operating
Eng'rs & Participating Emp'rs v. Ray Haluch
Gravel Co., 745 F.3d 1, 5 (1st Cir. 2014) (citing
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
551-52 (2010)). Under that approach, “the first step is
to calculate the number of hours reasonably expended by the
attorneys for the prevailing party, excluding those hours
that are ‘excessive, redundant, or otherwise
unnecessary.'” Id. (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). The court then
determines “a reasonable hourly rate or rates--a
determination that is often benchmarked to the prevailing
rates in the community for lawyers of like qualifications,
experience, and competence. The product of the hours
reasonably worked times the reasonable hourly rate(s)
comprises the lodestar, ” which may then “be
further adjusted based on other considerations.”
case, the court awarded defendants their “costs and . .
. attorney fees occasioned by removing these actions and
opposing the motions to remand them.” As a first step,
therefore, the court reviewed defense counsel's billing
records. It removed from consideration any entries
post-dating the filing of the defendants' objection to
the motion to remand on April 4, 2018. Though the court's
order perhaps could have been more clear, it did not
contemplate an award of fees for counsel's work drafting
or in negotiating the fee award.
the window from February 19, 2018 to April 4, 2018, the court
then removed from consideration records reflecting actions
that defendants' counsel would have taken, even had the
plaintiffs' complaints not contained class-related
language, such as reviewing the complaints and drafting
answers. It also removed records occasioned by the
court's own actions, such as those related to responding
to consolidation notices, preparing for and attending the
March 22, 2018 telephone conference, and motions for pro hac
a dozen of defense counsel's entries within that
timeframe lacked sufficient detail for the court to determine
whether those tasks related to removal or objecting to the
motion to remand, as opposed to other tasks. Where a party
awarded fees “furnishes time records that are
ill-suited for evaluative purposes, the court is hampered in
ascertaining whether those hours were excessive, redundant,
or spent on irrelevant issues” and may therefore
“adjust those entries to achieve an equitable
result.” Torres-Rivera v. O'Neill-Cancel,
524 F.3d 331, 340 (1st Cir. 2008). Because approximately half
of defense counsel's entries related to tasks for which
the court intended to award fees, the court considers half of
the 3.7 hours accounted for in those entries.
calculations resulted in consideration of a total of 13 hours
completed by partners, 67.1 hours of work completed by
associates and counsel, and 0.9 hours of work completed by
second step, the court determines “a reasonable hourly
rate or rates, ” which is “often benchmarked to
the prevailing rates in the community for lawyers of like
qualifications, experience, and competence.” Cent.
Pension Fund, 745 F.3d at 5. In doing so in this case,
the court attributed to all partners a rate commensurate with
that of an experienced partner in the New Hampshire legal
market-- specifically, the rate charged by Attorney Bruce
Felmly ($525.00 per hour)--and to all associates and counsel
a rate commensurate with that of a senior associate in the
New Hampshire legal market--specifically, the rate charged by
Attorney Nicholas Casolaro ($270.00 per hour). And, it
attributed to all paralegals a rate of $137 per
Multiplying the total hours remaining after the first step by
the rates established in the second results in a lodestar of
final step allows the court to “further adjust”
the lodestar calculation “based on other
considerations.” Cent. Pension Fund., 745 F.3d at 5.
Here, the defendants proposed to reduce their rates by a
further 25%. The court therefore likewise discounts
the lodestar total by 25%, for a final award of $18, 799.00
are also entitled to $2, 063.00 in costs associated ...