NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 18

- 1047

_____________ W. JAMES MAC NAUGHTON, Appellant v. SHAI HARMELECH ; CABLE AMERICA, INC., d/b/a Satellite America and USA Satellite & Cable, Inc.; USA S ATELLITE & CABLE, INC.

______________ Appeal from the United States District Court for the District of New Jersey (District Court No. 2

- 09

- c v - 0 5450 ) District Judge: Honorable Kevin McNulty

______________ Submitted Under Third Circuit L.A.R. 34.1(a)

March 9, 2020

______________ Before: McKEE, AMBRO, and PHIPPS, Circuit Judges

.

(Opinion filed: June 23, 2020 )

_______________________ OPINION *

______________________ McKee, Circuit Judge Attorney W. James M ac Naughton appeals the denial of his motion for pro se attorney’s fees. Mac Naughton argues that the New Jersey Supreme Court’s decision in

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Segal v. Lynch, 48 A.3d 328 (N.J. 2012) , does not prevent him from recovering such fees and non

- taxable litigation costs because it does not apply retroactively

. The District Court denied Mac Naughton’s motion in a well

- r easoned Memorandum Opinion 1 that a dopted and supplemented the Magistrate Ju dge’s thorough R eport and R ecommendation

. 2 After a plenary review, 3 we agree with the District Court’s assessment. Thus, for the reasons set forth in the Memorandum Opinion , as well as our independent assessment of Mac Naughton’s retroactivity argument , we will affirm

. 4

The Segal Court held that pro se attorney

- litigants cannot recover attorneys’ fees under a fee

- shifting statute. 5 However, t he New Jersey Supreme Court did not specifically decide whether Segal applies retroactively or whether pro se attorney

- litigants are barred from collecting contractually

- based non - taxable costs. Mac Naughton raises these two points in his arguments on appeal. He argues that Segal does not retroactively apply to his
2009 con tract for pro se attorney’s fees, or at least does not apply to the time he spent acting pro se before Segal

. 6 He also argues that Segal does not apply to his contractually

1 A

- 3

- 7. 2 A

- 8

- 18. 3 Raab v. City of Ocean City , 833 F.3d 286, 292 (3d Cir. 2016) (“We review a district court’s denial of attorney’s fees for abuse of discretion. . . . However, if the fee application was denied based on the district court’s conclusions on questions of law, our review is plenary.” (citation omitted) )

. 4 The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. 5 Segal v. Lynch , 48 A.3d 328, 346

– 48 (N.J. 2012). 6 Id. at 9. As Mac Naughton does not argue that Segal does not apply to contractuall y based attorney’s fees, we will not address that issue. See Appellant Br., 9.3

based litigation costs. Resolving t h ese question s requires us to predict how the New Jersey Supreme Court would handle th ese issue s
. 7 New Jersey follows the traditional rule of “a presumption in favor of retrospectivity.” 8 To determine whether a “ new rule of law” should be applied retroactively
or prospe ctively, New Jersey courts consider the following policy factors: “(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effec t a retroactive application would have on the administration of justice.” 9 Applying these factors, we conclude Segal should be applied retroactively.
First, Segal did not create a new rule of law, rather the Segal court reconciled a split:

“ The conflicting decisions found in our trial and appellate courts express a variety of policy considerations in support of or in opposition to permitting attorneys to be awarded counsel fees for representing themselves. ” 10 Second, the goals of Segal are served by retroactive application. All pro se litigants will be treated equally and thereby maintain public confidence in the judicial system. 11 Third, retroactive application of Segal does not cause substantial inequitable results. As there was a split of authori ty on this issue, pro se

7 Hunt v. U

. S

. Tobacco Co. , 538 F.3d 217, 220

– 21 (3d Cir. 2008)

. 8 Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment , 711 A.2d 282, 287 (N.J. 1998). See also In re Contest of Nov. 8, 2011 Gen. Election of Office of New Jersey Gen. Assembly , 40 A.3d 684, 707 (N.J. 2012). 9 Twp. of Stafford , 711 A.2d at 287

– 88 ( quoting State v. Knight , 678 A.2d 642 , 651

– 52 ( N.J. 1996) ). 10 Segal , 48 A.3d at 346

– 48 (citing appellate and trial level decisions between 1994 and 20 11 that fluctuated between permitting or barring pro se attorney’s fees). 11 Id. at 347

- 48.4

attorney

- litigants cannot reasonably argue their detrimental reliance on now overturned precedent. Moreover, as to Mac Naughton specifically, given that he argued for the application of Illinois law before the District Court, he ca nnot now argue that he detrimentally relied on pre

- Segal case law when drafting the promissory agreement and litigating its enforcement. 12 Finally, as to Mac Naughton ’s claim that Segal does not apply to his non - taxable litigation costs , we also find his argument does not have merit. S imilarly situated pro se litigants who are not attorneys would not be able to recover those fees or costs . Thus, Segal ’s emphasis on not creating two classes of pro se litigants with different remedies bars Mac Nau ghton’s recovery

. 13 For the foregoing reasons, we will affirm the District Court’s opinion and the pro

se application for attorney’s fees and non

- taxable costs is denied.

12 See Appellant Br., 10, 14; see also A

- 12. 13 Segal , 48 A.3d at 347 (quoting Gruber & Colabella, P.A. v. Erickson , 784 A.2d 758, 761 (N.J. Super. Law. Div. 2001)) (“Most significantly, one court emphasized that ‘to hold otherwise would in effect create two separate classes of pro se litigants

— those who are attorneys and those who are not

— and grant different rights and remedies to each.’” (internal quotation mark s omitted)).