UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Patricia A. Donovan,

Plaintiff

v. Civil No. 05-cv-211-SM

Opinion No. 2008 DNH 088

Linda Whalen,

Defendant

O R D E R

In the summer of 2005, pro se plaintiff Patrician Donovan, a

resident of New Hampshire, filed a 23-count complaint against a

police officer and a county prosecutor from Anderson, Indiana

(the “Indiana defendants”), and Linda Whalen, a resident of

Texas. Eventually, after approximately 18 months of motion

practice, Donovan withdrew all claims against all defendants. In

response, Whalen filed a motion seeking an award of $12,420 in

attorney’s fees, asserting that Donovan’s complaint lacked merit

and was filed in bad faith and for the purpose of harassment. 

For the reasons set forth below, that motion is granted in part,

and denied in part. 

Background

In what can best be described as a rambling complaint,

Donovan chronicles a wide variety of insults and slights she

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claims to have suffered as a result of postings allegedly made by

Whalen in various Internet chat rooms. Donovan also complains

about numerous e-mails and telephone calls in which Whalen

allegedly made false accusations about her. As a result of

Whalen’s alleged conduct, Donovan claims to have suffered damage

to her reputation and experienced difficulties with law

enforcement officers in both Indiana and New Hampshire. For the

substantial injuries she claimed to have sustained, Donovan

sought correspondingly substantial compensation in the amount of

five million dollars ($5,000,000). 

The 23 counts advanced in Donovan’s complaint included

claims of false arrest, false imprisonment, intentional

infliction of emotional distress, and defamation. Eventually,

Donovan withdrew the claims against the Indiana defendants and,

in response to Whalen’s motion to dismiss, the court thinned

Donovan’s remaining claims against Whalen to just three (Whalen

never moved for summary judgment). Then, as trial approached,

Donovan neglected to submit her pretrial materials and, without

notice to the court, failed to attend the final pretrial

conference. Instead, she filed a motion to withdraw all

remaining claims against Whalen, without prejudice - a strategy

Whalen suggests was designed to prolong Donovan’s frivolous

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litigation against her while, at the same time, avoiding the need

to actually go to trial. In support of that motion, Donovan said

only that she wished to re-file her claims against Whalen in

Texas, “where defendant resides and where the third party [of

unknown relevance to this case] resides.” Plaintiff’s motion to

dismiss (document no. 72). 

The court denied Donovan’s motion to withdraw her claims

without prejudice. And, because she failed to attend the final

pretrial conference (and neglected to inform the court that she

would not be in attendance), the court rescheduled trial and

issued an order directing Donovan to show cause why her case

should not be dismissed, with prejudice, for failure to

prosecute. Donovan objected. 

Nevertheless, on the eve of trial, Donovan again moved to

withdraw all remaining claims against Whalen, this time with

prejudice. As justification for her desire to withdraw the

claims she had so aggressively pursued (and for which she sought

$5 million in damages), Donovan offered a new explanation: “the

sudden failing health of [her] mother and [her changed]

priorities.” That motion was granted and all of Donovan’s

remaining claims were dismissed with prejudice. In the wake of

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that action, Whalen now seeks an award of reasonable attorney’s

fees, asserting that Donovan’s complaint lacked merit and was

brought in bad faith and with the intent to harass. 

Discussion

I. The Court’s Authority to Award Attorney’s Fees.

The well-established “American Rule” on fee-shifting

provides that, ordinarily, attorney’s fees are not recoverable by

a prevailing party unless specifically authorized by statute or

contract. Mullane v. Chambers, 333 F.3d 322, 337 (1st Cir.

2003). See also Alyeska Pipeline Serv. v. Wilderness Soc’y, 421

U.S. 240, 247 (1975). There is, however, an exception to that

rule. Courts possess the inherent authority to award attorney’s

fees to a prevailing party when its opponent has “acted in bad

faith, vexatiously, wantonly, or for oppressive reasons.” 

Chambers v. NASCO, 501 U.S. 32, 33 (1991). Importantly, however,

“because of their very potency, inherent powers must be exercised

with restraint and discretion, and thus should be used sparingly

and reserved for egregious circumstances.” Mullane, 333 F.3d at

338 (citations and internal punctuation omitted). 

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As this court (Barbadoro, J.) has noted, the party seeking

to invoke the so-called “bad faith” exception to the American

rule on fee-shifting bears a heavy burden and must: 

establish by clear and convincing evidence that its

opponent has acted in bad faith, vexatiously, or for

wanton or oppressive reasons. Because the exception is

intended as a sanction to remedy a display of bad

faith, its invocation requires more than a showing of a

weak or legally inadequate case. Rather, the movant

must demonstrate that the challenged actions were

entirely without color and were taken for reasons of

harassment or delay or for other improper purposes.

Dubois v. United States Dep’t of Agriculture, No. 95-cv-050-B,

slip op. at 5 (D.N.H. July 17, 1998) (citations and internal

punctuation omitted). Although Donovan’s conduct during the

course of this litigation has been disturbing, Whalen has failed

to demonstrate, by clear and convincing evidence, that this case

presents one of those rare and egregious circumstances in which

the exception to the American rule on fee-shifting may properly

be invoked.

II. Limited Award of Attorney’s Fees.

In support of her motion for attorney’s fees, Whalen points

to the manner in which pro se plaintiff Donovan pursued this

case, and relies upon numerous statements Donovan allegedly made

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in various Internet chat rooms about the case (and her intent to

force Whalen to incur substantial attorney’s fees). 

First, Whalen points out that Donovan failed to file her

pretrial materials and, instead, filed a motion seeking to

withdraw all claims against Whalen, without prejudice. As

justification for that request, Donovan made no reference to her

mother’s illness. Instead, she simply said she would prefer to

pursue her claims against Whalen in Texas, where Whalen lives - a

curious request, given that Donovan lives in New Hampshire and,

when she filed suit, she chose this as the forum in which to

bring her complaints. Subsequently, without notice to the court

or Whalen, Donovan failed to appear for the scheduled final pretrial conference - conduct Whalen says reveals Donovan’s true

intention: to never pursue her claims to trial. Donovan’s

conduct in that regard was plainly unacceptable, and warrants an

award of attorney’s fees to Whalen for costs associated with

counsel’s preparation for, and attendance at, the final pre-trial

conference. 

When her motion to withdraw all claims against Whalen

without prejudice was denied, Donovan filed a new motion to

withdraw those claims, this time with prejudice. In support of

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that motion, Donovan invoked a new justification: the illness of

her mother and her own “changed priorities,” implying that she no

longer had either the time or the interest to pursue her claims

against Whalen. 

For her part, Whalen argues that such conduct is, to say the

least, suspicious. Why, for example, would Donovan not simply

seek a continuance of the trial, particularly if she in good

faith believed that Whalen’s conduct had caused her $5 million in

damages. The answer, says Whalen, is that Donovan never intended

this case to go to trial and filed suit merely to harass,

intimidate, and annoy Whalen. Donovan, says Whalen, engaged in a

calculated effort to force her to divert her time to this case,

and to incur substantial attorney’s fees defending against what

were baseless claims from the outset. 

In support of her motion for fees, Whalen also points to

several logs of various Internet chat rooms. But, Whalen has not

subpoenaed or filed with the court official records of America

Online (the host of the chat rooms in question) or secured an

affidavit from a representative of that company attesting to the

fact that various screen names used were linked to the account

maintained by Donovan. Instead, Whalen points out that earlier

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in this case Donovan admitted, under oath, to using two of the

three screen names at issue (“RES JUDICATA” and

“TigersDictionary”). Whalen also asserts that the content and

context of the statements attributed to Donovan clearly

demonstrate that the writer was, in fact, Donovan. And, along

with her Renewed Motion for Attorney’s Fees, Whalen has submitted

an affidavit in which she states that the submitted chat room

logs and conversations are true and accurate printouts, as they

appeared on her computer screen, and that they have not been

altered or manipulated in any way. See Affidavit of Linda Whalen

(document no. 85-4) at paras. 3-5. 

Parenthetically, the court notes that although Whalen’s

request for attorney’s fees rests, at least in part, on the

assertion that Donovan’s claims were frivolous, Whalen has failed

to carry her burden of proof on that issue. See Defendant’s

motion (document no. 85) at para. 4 (asserting that plaintiff’s

claims had “little or no merit”). See also Americana Indus. v.

Wometco de Puerto Rico, 556 F.2d 628, 628 (1st Cir. 1977)

(“Invocation of the bad faith exception to the normal federal

rule that attorney’s fees may not be recovered requires more than

a showing of a weak or legally inadequate case.”). Three of

Donovan’s claims were sufficiently well drafted to survive

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Whalen’s motion to dismiss and Whalen has not attempted to

demonstrate that any one or more of those three claims was so

lacking in merit as to be frivolous. The primary focus of

Whalen’s motion for attorney’s fees is her claim that Donovan

pursued this case or, at a minimum, filed various motions “for

the sole purpose of costing Whalen attorney’s fees.” Defendant’s

motion (document no. 85) at 4. 

In response, Donovan first asserts that Whalen should not be

permitted to:

allege that it was a frivolous lawsuit after the court

dismissed the case with prejudice without hearing any

evidence. By dismissing the lawsuit the Plaintiff is

deprived the ability to prove it did have merit.

Plaintiff’s supplemental response (document no. 83) at 3. For

obvious reasons, that argument is not terribly compelling. It

was plaintiff herself who, on the eve of trial, moved the court

to dismiss all of her claims against Whalen with prejudice. In

granting Donovan’s motion, the court did not “deprive” her of

anything. 

Next, Donovan seeks to turn the tables, suggesting that she

should not be held liable for Whalen’s attorney’s fees because

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Whalen engaged in uncivil, discourteous, and even threatening

behavior in various Internet chat rooms which was directed toward

her. While at least some of Donovan’s claims about Whalen’s

behavior are likely true (among other things, logs of various

chat room conversations reveal that neither party has

distinguished herself as being either particularly civil or

courteous), they are, in the context of the pending motion for

fees, not of significant weight. Nor is Donovan’s claim that, by

harassing Donovan in various Internet chat rooms, Whalen

(allegedly) violated the terms of a state-issued restraining

order. At this juncture, the court’s focus is necessarily on

Donovan’s conduct and determining whether she pursued her claims

against Whalen knowing that they were frivolous, and/or otherwise

engaged in vexatious, wanton, or oppressive conduct. In other

words, the fact that Whalen may have behaved badly (or even

menacingly) toward Donovan in various Internet chat rooms would

not entitle Donovan to pursue frivolous legal claims against her. 

Nor would it excuse vexatious, wanton, or oppressive conduct in

the course of pursing even meritorious legal claims. 

Donovan’s final argument in opposition to Whalen’s motion is

the most solid. In response to Whalen’s assertion that the

various logs of Internet chat room conversations chronicle

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numerous statements made by Donovan, Donovan has submitted an

affidavit in which she: (1) denies having filed this suit for

frivolous purposes, “including but not limited to costing the

defendant legal fees;” and (2) denies having ever said, either

orally or in writing, that she pursued her claims against Whalen

for the purpose of causing her to incur legal fees. Affidavit of

Patricia Donovan (document no. 86-26) at 1. Plainly, then, there

is a genuine dispute as to whether Donovan authored the

statements in question and, if so, what was meant by them. 

Even assuming that the chat room statements identified by

Whalen are attributed to Donovan, it is plausible that those

statements simply reflect Donovan’s satisfaction in knowing that

Whalen was incurring legal fees. Such subjective sentiments are

not, standing alone, grounds for an award of attorney’s fees in

this case. Provided he or she is acting in good faith in

pursuing litigation, that a plaintiff takes some personal

satisfaction from the knowledge that the party who (allegedly)

caused her harm is experiencing some financial burden in

defending the litigation is not grounds for imposing an

obligation to pay those fees. Here, the statements Whalen

attributes to Donovan are plainly childish, silly, and, at times,

vulgar and confrontational. But, even if Whalen had

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demonstrated, by clear and convincing evidence, that Donovan made

those statements, they do not reveal an intention to: (1)

knowingly pursue frivolous claims; or (2) intentionally act in a

manner designed to cause Whalen to incur unnecessary additional

legal fees. As noted earlier, three of Donovan’s claims survived

Whalen’s motion to dismiss. 

In light of the foregoing, the court concludes that Whalen

is entitled to an award of reasonable costs and attorney’s fees

associated with her attorney’s preparation for, and attendance

at, the pretrial conference Donovan failed to attend (without

giving notice to either the court or opposing counsel). She has

not, however, demonstrated that she is entitled to an award of

all costs and fees incurred during this litigation. 

III. Reasonableness of the Requested Fees.

Michael Sheehan, Whalen’s attorney, has submitted an

affidavit in support of her motion for attorney’s fees in which

he states that he billed Whalen at a rate of $200 per hour for

his legal services. That rate is entirely consistent with the

prevailing rate for attorneys in this area of comparable skill

and expertise. The court is familiar with Attorney Sheehan’s

work and concludes that his fee of $200 per hour for legal work

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associated with this case is entirely reasonable. Donovan does

not suggest otherwise. 

Based upon a review of the records submitted by Attorney

Sheehan, it appears that he spent approximately 4.8 hours

preparing for, and attending, the final pretrial conference and

addressing Donovan’s response to the court’s show cause order. 

Whalen is, then, entitled to an award of $960. 

Conclusion

In light of the foregoing, defendant’s Renewed Motion for

Attorney’s Fees (document no. 85) is granted in part and denied

in part. Patricia Donovan, is hereby ordered to pay defendant,

Linda Whalen, the sum of Nine Hundred Sixty Dollars ($960) as

reasonable attorney’s fees and costs. 

Plaintiff’s Motion for the Court to Order the Defendant to

Submit Her Hard Drive for Forensic Examination (document no. 95)

is denied. Plaintiff’s Motion to Dismiss (document no. 98) is

also denied. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 24, 2007

cc: Patricia A. Donovan, pro se

Daniel J. Mullen, Esq.

David A. Arthur, Esq.

Michael J. Sheehan, Esq.

Robert G. Whaland, Esq.

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