Manchester Mfg. v. Dylex Ltd. CV-92-752-SD 04/11/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Manchester Manufacturing Acquisitions, Inc., et al

v. Civil No. 91-752-SD

Dylex Limited, et al

O R D E R

This order addresses the issues raised by certain pending

post-trial motions.

1. Plaintiffs' Motion for Attorney Fees and Costs (document 183)

Claiming them to be "reasonable", plaintiffs here move for

an award of attorney fees in the amount of $733,689, together

with costs of $69,744. Document 183. The defendants object.

Document 196.1

Plaintiffs have filed a motion to file a replication to the defendants' objection (document 200), to which the defendants have filed an objection (document 201). Defendants' objection is herewith overruled, the motion is granted, and the replication is herewith ordered filed. a. The Attorneys' Fees Claim

Plaintiffs' fees claim is grounded on their success on Count

III of their complaint. Therein plaintiffs alleged a violation

of the "Blue-Sky" law of New Hampshire. Revised Statutes

Annotated (RSA) 421-B:3. Damages recoverable thereunder include

"the actual damages sustained plus interest from the date of

purchase or sale, costs, and reasonable attorney's fees." RSA

421-B:25, II.

Defendants' hosts of objections include the limited scope of

plaintiffs' success, the duplicative nature of many services, and

the lack of proper documentation.2 Plaintiffs respond with the

familiar chant that the entire litigation included a common core

of facts based on related legal theories. See Lipsett v. Blanco,

975 F .2d 934, 940 (1st Cir. 1992).

Where, as is here the case, an award of fees and costs rests

on state law, that law also controls the method of calculating

the award. Blanchette v. Cataldo,

(1st Cir.

1984). Under New Hampshire law, the task of determining the

reasonableness of reguested fees is entirely a matter of judicial

discretion. Drop Anchor Realty Trust v. Hartford Fire Ins.,

,

(1985).

2Plaintiffs' replication provides much of the documentation of which defendants complain in their original objection.

2 As RSA 421-B:25, II, does not describe a particular method

for calculation of attorney's fees, the court considers the eight

factors adopted by New Hampshire courts, i.e.,

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) the fee customarily charged in the locality for similar legal services. (4) the amount involved and the results obtained. (5) the time limitations imposed by the client or by the circumstances. (6) the nature and length of the professional relationship with the client. (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

McCabe v. Arcidy,

,

(1983)

(quotation omitted). Of course, the weight to be accorded to

each of the foregoing factors depends on the circumstances of

each particular case.

Covering the period between March 4, 1991, and November 21,

1995, the 178 pages of billing seek recovery of 3,008.35 hours of

attorney partner time; 471.40 hours of attorney associate time;

3 and 2,134.5 hours of paralegal time. The hourly rate sought for

partners is $175, for associates $100, and for paralegals $75.

Interestingly, however, the April 4, 1991, contingent fee

agreement between plaintiffs and counsel details attorney fee

charges at $90-$125 hourly and paralegal fees at $50. Granted

that inflation has had some upward effect on these fees over the

course of this litigation, the court finds and rules that the

reasonable hourly fee for partners is $150, for associates $100,

and for paralegals $60.

Close scrutiny of the detailed billings and consideration of

the factors and circumstances of the case hereinabove detailed

satisfies the court that there was considerable duplication of

efforts, i.e., two lawyers present at depositions, many

conferences between and among lawyers and paralegals, and

excessive time spent in drafting and editing of discovery

documents, legal memos, and other pleadings. The court finds and

rules that a fifty percent reduction of hours in all categories

is accordingly warranted for the purpose of computation of

attorney fees.

The court's final computation of hours and fees is as

follows.3

3The hourly numbers set forth below represent fifty percent of the total computation of hours for each attorney or paralegal.

4 Randall F. Cooper 658 .225 hrs X $150 $ 98, 733.75

Mary E. Maloney 926. 925 hrs X $150 139, 038.75

Dorcas Deans 4.25 hrs X $150 637.50

Kenneth Cargill 1. 65 hrs X $150 247.50

Robert Frank 55. 6 hrs X $100 5, 560.00

Deborah Fauver 2.4 hrs X $100 240.00

L. Breckenridge Hayes-Snow 173.1265 hrs X $100 17, 312.65

Deborah Hotte 163.25 hrs X $ 60 9, 795.00

Bryan Morin 891.575 hrs X $ 60 53, 494.50

TOTAL $325, 059.65

b. The Costs Claim

Turning to the items of costs, these are governed in New

Hampshire by medium of Rule 8 7 (c) of the Rules of the New

Hampshire Superior Court.4 Included are "fees of the clerk, fees

for service of process, witness fees, expense of view, cost of

transcripts, and such other costs as may be provided by law."

Additionally, within its discretion the court may allow

"other costs including, but not limited to, actual costs of

expert witnesses, if the costs were reasonably necessary to the

litigation."

4Rule 87 (c) largely tracks the now-repealed statutory provisions for costs which were formerly contained in RSA 525:14- a (1974) (repealed 1989).

5 The phrase "actual costs of expert witnesses" is limited to

those expenses directly related to a witness's appearance and

testimony in court. Flanagan v. Prudhomme,

,

(1994); Cutter v. Town of Farmington,

,

(1985); State v. Wilson,

,

(1975). Review of the itemized costs

indicates that the following costs items should be awarded in the

instant case.

12/24/91 Filing fees, U.S. District Court $ 120.00

1/27/92 Secretary of State 15.00

1/24/93 Middlesex County Deputy Sheriffs 50 .00

1/18/94 Belknap County Sheriff's Department 21.75

9/14/95 Carl Barbelotti Witness Fee 130.00

9/14/95 Robert Ehrenberg Witness Fee 58 .00

9/14/95 Dennis Joos Witness Fee 126.00

9/14/95 Mike Russell Witness Fee 40.00

9/14/95 John Rohde Witness Fee 40.00

9/15/95 Russell Ingram Witness Fee 60.40

10/20/95 Dean Ingram Witness Fee 125.00

11/8/95 Elvin L. Balch Witness Fee 100.00

11/15/95 Mark McKinsey Expert Fee 2,000.00

11/15/95 Jack Ketchum Expert Fee 3, 530 .00

11/15/95 Allen McCausland Expert Fee 5, 334 .00

6 11/15/95 John Georges Expert Fee 1,067.50

TOTAL $12,817.65

2. Plaintiffs' Motion to Modify Judgment, document 177

In its order of December 6, 1995 (document 180), the court

vacated the earlier-entered judgment of November 22, 1995

(document 17 6). The reason was to permit the court to receive

and review the claim of attorneys' fees and costs.

That

issue having now been determined, and the court having, in the

course of its order of January 4, 1996, ruled on the method of

computation and offset of interest (document 195, at 17, 18), the

clerk is herewith directed to prepare and enter an order of

judgment to include the award of attorney fees of $325,059.65 and

of costs in the amount of $12,817.65, and to compute interest in

accordance with said order, indicating the method of so doing,

together with offset of interest.

Thus computed, the figures will differ from those set forth

in plaintiffs' motion to modify judgment, which motion is

accordingly herewith granted in part and denied in part.5

5In arriving at its conclusion, the court has considered the objections raised by defendant in its motion objecting to plaintiffs' motion to modify judgment. Document 178.

7 3. Plaintiffs' Motion for Supersedeas Bond, document 182

This motion is, as defendants correctly point out in their

objection (document 194), premature at the time of this writing.

Although defendants have indicated their intention to file an

appeal from the judgment, such appeal is not due, as the final

judgment is just now being entered. Accordingly, the motion is

denied without prejudice to the plaintiffs' right to renew same

when defendants actually appeal in this matter.

4. Conclusion

For reasons hereinabove indicated, the court has entered an

order awarding plaintiffs attorneys' fees in the amount of

$325,059.65, together with costs in the amount of $12,817.65.

The motion to modify judgment is granted in part and denied in

part in accordance with the court's directions to the clerk as to

entry of judgment, and the motion for supersedeas bond is denied

as premature, without prejudice to the plaintiffs' right to renew

same when defendants appeal in this matter.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 11, 1996

8 cc: Randall F. Cooper, Esq. Steven J. Kantor, Esq. John L. Putnam, Esq. Kenneth H. Merritt, Esq.

9