UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Dowling et al.

v. Civil No. 18-cv-180-JL Opinion No.

Saint-Gobain Performance Plastics Corp. et al.

MEMORANDUM ORDER

The 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.”1 The defendants

removed the actions here on that basis.2

On July 6, 2018, the court granted the plaintiffs’ motions

to remand these consolidated actions to Hillsborough County

Superior Court.3 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.”4 It

further ordered the parties to attempt to agree on the precise

amount and file a stipulation accordingly.5 The plaintiffs have

reached such an agreement with one of the defendants, the

Merrimack Village District Water Works.6 They have been unable

to do so with defendants Saint-Gobain Performance Plastics

Corp., Gwenael Busnel, and Chris Gilman (collectively, Saint-

1 Compl. (doc. no. 1-1) ¶¶ 102, 105, 107, 108, 114; Civil Action No. 18-cv-181, doc. no. 1-1, ¶¶ 4-6, 85, 88, 90-91, 97. 2 Notice of Removal (doc. no. 1) ¶¶ 3-14; Civil Action No. 18-cv- 181, doc. no. 1, ¶¶ 3-14. 3 Order of July 6, 2018 (doc. no. 45). The court described the progress of the case that led to its remand order in that order, and does not repeat that here. See id. at 3-5. 4 Id. at 10. 5 Id. 6 Joint Status Report (doc. no. 49).

2 Gobain). These defendants seek an award of more than $85,000,

though have indicated a willingness to accept $55,000.7 The

plaintiffs, on the other hand, deem an award of around $6,000

more appropriate.8 Having been informed of this impasse, and at

the request of both parties,9 the court ordered the defendants to

produce their counsels’ relevant billing record for in camera

review.10

“The 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.,

(1st Cir. 2014) (citing Perdue v. Kenny A. ex rel. Winn,

, 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.’”

(quoting Hensley v. Eckerhart,

(1983)). The

court then determines “a reasonable hourly rate or rates--a

determination that is often benchmarked to the prevailing rates

7 Defendants’ Response to Plaintiffs’ Status Report (doc. no. 53) at 1. 8 Plaintiffs’ Status Report (doc. no. 51) at 5. 9 Id. at 8; Defendants’ Status Report (doc. no. 50) at 4. 10 Memorandum Order of August 21, 2018.

3 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.” Id.

In this case, the court awarded defendants their “costs and

. . . attorney fees occasioned by removing these actions and

opposing the motions to remand them.”11 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 a surreply12 or in negotiating the fee award.13

11 Order of July 6, 2018 (doc. no. 45) at 10. 12During a telephone conference held March 22, 2018, the court proposed a solution to the apparent drafting error by plaintiffs’ counsel that occasioned removal in the first place. Specifically, it proposed that if the defendants would consent to remand, they may be awarded costs related to removing the actions to this court. The defendants rejected this proposal. Because the defendants were afforded an opportunity to avoid incurring the costs associated with objecting to the motion to remand, let alone a surreply, the court is disinclined to award fees related to the latter brief. 13The defendants’ entitlement to these fees is not, as they suggest, “well settled.” See Defendants’ Response to Plaintiffs’ Status Report (doc. no. 53) at 9. While “[a] prevailing party in a civil rights action normally is entitled to attorneys' fees incurred in the pursuit of fees under section

4 Within 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 vice appearances.

Finally, 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,

(1st Cir. 2008). Because approximately half

of defense counsel’s entries related to tasks for which the

1988,” Torres-Rivera v. O’Neill-Cancel,

(1st Cir. 2008), this is not a civil-rights action and the defendants have not prevailed.

5 court intended to award fees, the court considers half of the

3.7 hours accounted for in those entries.

These 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

paralegals.14

At the 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,

. 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 hour.15 Multiplying the total

14In calculating these total numbers, the court relied on the defendants’ “adjusted hours,” which appears to be the basis for their own fees calculation, rather than their “invoice hours.” 15See National Association of Legal Assistants, 2016 National Utilization & Compensation Survey Report, https://www.nala.org/sites/default/files/files/banner/2016%20NAL

6 hours remaining after the first step by the rates established in

the second results in a lodestar of $25,065.30:

Position Hours Rate Total Partner 13 $525.00 $6,825.00 Associate 67.1 $270.00 $18,117.00 Paralegal 0.9 $137.00 $123.30 Total $25,065.30

The final step allows the court to “further adjust” the

lodestar calculation “based on other considerations.” Cent.

Pension Fund.,

. Here, the defendants proposed to

reduce their rates by a further 25%.16 The court therefore

likewise discounts the lodestar total by 25%, for a final award

of $18,799.00 in fees.

Defendants are also entitled to $2,063.00 in costs

associated with removing the case.

The clerk shall remand the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: October 30, 2018

cc: Kirk C. Simoneau, Esq. David P. Slawsky, Esq.

A%20Utilization%20Compensation%20Survey%20Report.pdf (average 2016 hourly billing rate for paralegals in New England). 16Defendants’ Response to Plaintiffs’ Status Report (doc. no. 53) at 8-9.

7 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.

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