UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Josephine Amatucci,

Plaintiff

v. Civil No. 05-cv-259-SM

Opinion No. 2007 DNH 126

Officer Charles Hamilton

and Officer James O’Brien,

Defendants

O R D E R

By order dated June 25, 2007, the court granted defendants’

motion for summary judgment as to plaintiff’s section 1983 claim

that defendants violated her Fourth Amendment rights when, in

order to obtain warrants for her arrest in 2002 and again in

2003, they withheld exculpatory information from the issuing

judge. The court also granted defendants’ motion for summary

judgment as to plaintiff’s state law claims of intentional

infliction of emotional distress, negligent infliction of

emotional distress, battery, and malicious prosecution. Invoking

the provisions of Fed. R. Civ. P. 54(d) and 42 U.S.C. § 1988(b),

defendants now move for an award of approximately $33,000 in

costs and attorney’s fees. For the reasons set forth below, that

motion is granted in part, and denied in part. 

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Standard of Review

Although section 1988 vests the court with discretion to

award costs and fees to a “prevailing party,” the court of

appeals for this circuit has made it perfectly clear that

“decisions to grant defendants their fees are, and should be,

rare.” Tang v. Department of Elderly Affairs, 163 F.3d 7, 13

(1st Cir. 1998). The Supreme Court has held, as well, that,

before a court may award attorney’s fees to a prevailing

defendant under section 1988, it must first conclude that the

plaintiff’s action was “frivolous, unreasonable, or without

foundation, even though not brought in subjective bad faith.” 

Hughes v. Rowe, 449 U.S. 5, 14 (1980) (quoting Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). The Court went

on to observe:

The plaintiff’s action must be meritless in the sense

that it is groundless or without foundation. The fact

that a plaintiff may ultimately lose his case is not in

itself a sufficient justification for the assessment of

fees. As we stated in Christiansburg, . . . . “a

plaintiff should not be assessed his opponent’s

attorney’s fees unless a court finds that his claim was

frivolous, unreasonable, or groundless, or that the

plaintiff continued to litigate after it clearly became

so.” 

Hughes, 449 U.S. at 14-15. 

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If a prevailing defendant demonstrates that he or she is

entitled to an award of attorney’s fees, the defendant must then

establish the reasonableness of the fee award sought. In this

circuit, the preferred method of calculating fee awards is the

“lodestar method,” by which “the number of hours reasonably

expended on the litigation [are] multiplied by a reasonable

hourly rate.” Coutin v. Young & Rubicam Puerto Rico, Inc., 124

F.3d 331, 337 (1st Cir. 1997)(quoting Hensley v. Eckerhart, 461

U.S. 424, 433 (1983)). See also In re Thirteen Appeals Arising

out of the San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d

295, 305 (1st Cir. 1995). 

Discussion

I. Aspects of Plaintiff’s Complaint were Plainly Frivolous.

In support of their motion for costs and attorney’s fees,

defendants advance a persuasive, well-supported argument that,

long before she initiated this litigation, plaintiff knew (or

certainly should have known) that at least some of her claims

against them were frivolous, unreasonable, and groundless but,

nevertheless, pursued them with great vigor. Because plaintiff

does not contest the factual underpinnings of defendants’ motion,

the court has assumed that those facts are undisputed. Cf. Local

Rule 7.2(b)(2) (uncontested material facts are deemed admitted).

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Among other things, defendants point out that during pretrial motion practice, plaintiff filed more than fifty motions -

most of which were denied, but all of which required a response. 

As an example of plaintiff’s frivolous and/or harassing conduct,

defendants point to her obstinate refusal to accept the court’s

decision to preclude her from introducing any expert witness

testimony. 

Plaintiff’s expert disclosure deadline was August 1,

2007. She did not disclose an expert, and

consequently, Defendants moved to exclude expert

testimony on November 16, 2006. See Document No. 52.

The Court granted this motion on December 15, 2006. 

Plaintiff unsuccessfully moved for reconsideration. 

Unwilling to accept the Court’s decision, Plaintiff

went on to file four (4) additional motions asking the

Court to permit her to introduce expert testimony. On

February 27, 2007, Plaintiff filed a Motion to Extend

the Deadline for Expert Witness for Testimony. See

Document No. 81. The Court denied this motion on

February 28, 2007. Ignoring the Court’s order,

Plaintiff filed a “Disclosure of Experts” on March 1,

2007. See Document No. 84. Then, on March 8, 2007,

the Plaintiff again filed a Motion to Extend Time for

Expert Testimony. See Document No. 88. The Court

denied this motion, informing the Plaintiff: “You have

three prior rulings on this issue.” See Order dated

March 9, 2007. Despite this clear ruling, Plaintiff

filed another motion seeking to introduce experts

entitled “Motion to Include Two Witnesses for Trial.” 

See Document No. 105. The Court denied this motion on

April 27, 2007. 

Defendant’s memorandum at 6-7. 

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Defendants also point out that, prior to initiating this

lawsuit, plaintiff asked the New Hampshire Attorney General’s

Office to investigate her claim that Officer Hamilton arrested

her without the benefit of an underlying warrant. 

Before filing this lawsuit, Plaintiff reported her

claims to the Attorney General’s Office, which

conducted an investigation about the arrest warrants. 

On October 20, 2004, an investigator from the Attorney

General’s Office wrote to the Plaintiff to inform her

that an investigation revealed her complaints to be

“unfounded.” See Letter dated October 20, 2004,

attached hereto as Exhibit 1. Plaintiff again

contacted the Attorney General’s Office regarding the

warrant. On April 7, 2005, Plaintiff was informed that

her complaints against the Wolfeboro Police Department

and Officer Charles Hamilton were “unfounded” because

Judge Varney completed an affidavit authenticating that

he signed the arrest warrant on October 30, 2002. See

Letter dated April 7, 2005 attached hereto as Exhibit

2. The Attorney General’s Office provided the

Plaintiff a copy of an affidavit from Judge Varney,

which verified his signature and explained that he

signed it at his law office and not the courthouse. 

See Affidavit of Judge Varney, attached hereto as

Exhibit 3.

Even though the Plaintiff was in possession of the

warrant for the November 7, 2002 arrest, an affidavit

of Judge Varney and two letters from the Attorney

General’s Office, Plaintiff filed a federal lawsuit

against Officer Hamilton for failing to have a warrant

for her arrest on November 7, 2002. Moreover,

Plaintiff failed to include a copy of the arrest

warrant with her Complaint so that the Court could

accurately assess her claims on preliminary review. 

Her lawsuit was frivolous. Her conduct was

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unreasonable. Plaintiff’s pro se status does not

excuse such conduct.

Defendant’s memorandum at 3 (footnote omitted). 

Plaintiff’s claim that Officer Hamilton arrested her without

the benefit of an underlying warrant was plainly frivolous. And,

given the prior investigation performed by the Attorney General’s

office, and the two reports provided to plaintiff by that office,

plaintiff knew or should have known that her claim was frivolous. 

The court also concludes that a good deal of plaintiff’s motion

practice was frivolous and/or pursued simply as a means by which

to harass defendants. As defendants point out, plaintiff’s

intent to harass them, as well as any witnesses they might call

at trial, is evidenced by the motion she filed, captioned “Motion

re: Defendants’ Witnesses and Their Lies” (document no. 156). In

that document, plaintiff wrote: “Defendant[s] should warn [their

witnesses] that if they lie under oath, they will be sued, and

before this case is over, each and every liar will get what’s

coming to them. . . . [G]o ahead and call them, but warn them,

this is war.” 

There are, however, aspects of plaintiff’s complaint that,

while meritless, were not so plainly frivolous, unreasonable, or

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groundless as to support an award of attorney’s fees. For

example, plaintiff’s claim against Officer O’Brien, arising out

of plaintiff’s violation of a restraining order (and dealing with

the distinction between “family members” and “household members”)

falls comfortably within the category of meritless claims, but

short of frivolous. Given plaintiff’s strained, but notentirely-implausible, interpretation of the state court’s oral

explanation of the restraining order, this court cannot fairly

conclude that plaintiff’s claims against Officer O’Brien were so

outlandish or unsupported as to be frivolous, notwithstanding the

fact that they were without legal merit. 

The court need not detail the factual support defendants

provide for their motion. It is sufficient to observe that it is

persuasive. It does, however, bear noting that there were

certainly some aspects of plaintiff’s complaint that did not

cross the threshold into the realm of frivolity, just as there

were aspects of her pre-trial motion practice that were not

harassing. 

It also probably bears noting that it appears plaintiff is

more than simply unwilling to see the weakness of her claims; she

seems incapable of coming to (or being lead to) that realization. 

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For example, in her initial objection to defendants’ motion for

fees, plaintiff writes: 

Plaintiff would like Attorney $$$Lisa [sic] Lee [cocounsel for defendants] to reflect and determine who is

really responsible for the Plaintiff’s Complaint to go

forward in the courts. Plaintiff only wrote a

Complaint to the court, but it was [Magistrate] Judge

Muirhead, with the approval of [Senior Judge] Joseph A.

DiClerico Jr. who got the summons and authorized the

United States Marshall to effect service of the summons

upon Defendants. They set the action of this case. 

They accused the defendants of violating Plaintiff’s

Fourth and Fourteenth Amendment rights of due process

by subjecting her to false arrest and detention. . . .

So if the claim is frivolous, unreasonable, or

groundless, the lawyers should be sending their bill to

[Magistrate] Judge Muirhead and Judge DiClerico, Jr. 

* * *

So if Judge McAuliffe has stated that Plaintiff’s

claims were groundless he is really saying that the two

judges made a manifest error of law when they went

forward with this case. They cost the lawyers all this

money for nothing. They had no right to approve such a

frivolous Complaint if it was not Constitutional. They

are guilty of indiscretion, and as Attorney Lisa Lee

states, the claims lacked merit, and the claim was

brought to harass or embarrass the defendants. The

judges are guilty of all this indiscretion. They made

false statements when they supported Plaintiff’s

claims. etc. etc. etc. They broke the law, they should

be prosecuted by the lawyers. 

Plaintiff’s objection (document no. 167) at 1-2. 

The court notes plaintiff’s somewhat unusual response

because it raises an interesting question: when, if ever, is it

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appropriate to award attorney’s fees against a party who is

incapable of distinguishing between frivolous and meritorious

claims, particularly in a case (like this) where the plaintiff

does not have a documented history of frivolous or vexatious

litigation and the circumstances prompting her suit were fairly

unique and, therefore, unlikely to be repeated. That is to say,

plaintiff does not appear to be a serial litigator, or a person

who needs to be dissuaded from pursuing frivolous or vexatious

federal litigation in the future. 

As defendants candidly acknowledge, courts have recognized

that in certain circumstances involving pro se plaintiff’s and

fee requests, an effort should be made to determine whether the

plaintiff actually appreciated (or had the capacity to

appreciate) the difference between a meritorious claim and one

that was entirely frivolous. See, e.g., Hughes, 449 U.S. at 15;

Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 620 (9th

Cir. 1987); Greenier v. Pace, Local No. 1188, 245 F. Supp. 2d

247, 250 (D.Me. 2003). Here, based upon a review of the content

of plaintiff’s voluminous filings, as well as the various

correspondences authored by plaintiff and contained in the

record, the court is persuaded that she is not entirely capable

of distinguishing between meritorious and frivolous legal claims. 

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While that fact does not excuse plaintiff’s inappropriate and

improper conduct in this case, it certainly helps to explain it. 

And, given the totality of circumstances presented in this case,

the court is persuaded that principles of equity and fairness

counsel against ordering plaintiff to compensate defendants for

all of their costs and legal fees. Moreover, as discussed below,

defendants have failed to adequately document those expenses -

another factor that counsels in favor of a reduced award of fees. 

II. Defendants’ Submissions are Deficient.

To prevail on their request for an award of attorney’s fees,

defendants must first demonstrate that this is one of those rare

cases in which an award is warranted. As discussed above, they

have done so. In addition, however, they must also establish the

reasonableness of: (1) the time billed by their attorneys for

various tasks related to this case; and (2) the rates charged for

those legal services. 

As to the former, defendants must provide sufficiently

detailed contemporaneous records of the time their attorneys

spent and tasks they performed to allow the court to determine

their reasonableness. See Tennessee Gas Pipeline Co. v. 104

Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994). They have not

Case 1:05-cv-00259-SM Document 177 Filed 10/11/07 Page 10 of 15
1 The court is not inclined to review counsel’s pleadings

and, if it finds them deficient in some way, offer suggestions as

to how they might be supplemented or made more persuasive. This

is, after all, an adversarial system, not a negotiation. If

counsel believes a legal argument or an element of evidence is

necessary to support their client’s position, they should submit

that material to the court. They should not expect the court to

be soliciting additional legal argument or factual support it

thinks might be persuasive. See generally International Tape v.

Technicote, 97-cv-084-SM (April 21, 2000) (“But the court cannot

act as [one party’s] lawyer. At the very least, the other

parties could legitimately complain, and it would not be

appropriate for a judge to review the sufficiency of legal

arguments he or she has posited. Besides, the court has more

than enough to do considering and deciding the legal matters

properly presented in scores of other cases. In short, the court

cannot assume the role of adviser, advocate, or legal counsel to

any of the parties. Counsel is no doubt busy and anxious to

practice in as efficient a manner as possible, but shifting

research, pleading, and briefing responsibilities to the court is

not a viable option.”) (citations omitted). 

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done so. Instead, defendants suggest that, “[s]hould the Court

wish to see Defendants’ itemized bills, Defendants ask that they

be permitted to submit them in camera.” Defendants’ motion

(document no. 166) at 8.1 

Defendants do not indicate why their itemized bills should

not be part of the public record in this case, nor have they

submitted them to the court along with an accompanying motion to

seal. It should go without saying that, absent those itemized

time charges, the court has no way of accurately determining

whether all of the time for which counsel seeks reimbursement was

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reasonable. See generally Hensley v. Eckerhart, 461 U.S. 424,

433 (1983) (“The most useful starting point for determining the

amount of a reasonable fee is the number of hours reasonably

expended on the litigation multiplied by a reasonable hourly

rate. This calculation provides an objective basis on which to

make an initial estimate of the value of a lawyer's services. 

The party seeking an award of fees should submit evidence

supporting the hours worked and rates claimed. Where the

documentation of hours is inadequate, the district court may

reduce the award accordingly.”); Grendel’s Den, Inc. v. Larkin,

749 F.2d 945, 952 (1st Cir. 1984) (“[H]enceforth, in cases

involving fee applications for services rendered after the date

of this opinion, the absence of detailed contemporaneous time

records, except in extraordinary circumstances, will call for a

substantial reduction in any award or, in egregious cases,

disallowance.”). 

Additionally, it probably bears noting that defendants have

also failed to adequately support their assertion that the hourly

rates at which their attorneys billed their services are

reasonable. Ordinarily, counsel demonstrate the reasonableness

of their hourly billing rates by submitting an affidavit (or

affidavits) from other attorneys in the community who are

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familiar with their work product and reputation and who affirm

that counsels’ hourly rates are reasonable and comparable to

those charged by similarly skilled attorneys in the area. Of

course, there are other ways an attorney might demonstrate the

reasonableness of his or her billing rate. For example, counsel

might provide the court with citations to (or copies of) other

cases, involving similar issues, in which the court approved his

or her request for fees and concluded that the hourly billing

rate was reasonable. 

Here, defendants have provided the court with the affidavit

of one of their own attorneys, who simply represents that the

fees charged by him and his associate are reasonable and

consistent with those charged by attorneys of comparable skill

and training, and that the overall fees charged in this case are

reasonable. Plainly, more is necessary. 

Conclusion

This case presents an unusual mix of factors. Defendants

have persuasively argued that some of plaintiff’s claims were

patently frivolous and a reasonable person would have recognized

them as such long before filing a federal civil rights suit. 

Defendants have also established that a good deal of plaintiff’s

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pre-trial motion practice was unnecessary, flew in the face of

prior orders from this court, and might well have been pursued

with an intent to harass defendants (particularly Officer

Hamilton, at whom plaintiff has directed numerous venomous

rants). 

On the other hand, not all of plaintiff’s claims can

properly be viewed as having been frivolous or unfounded. And,

while the court has no way of knowing plaintiff’s subjective

motivations in pursuing this case, her behavior, as reflected in

her numerous filings, suggests that she is less than fully

capable of distinguishing between legally meritorious claims and

those that are so lacking in support as to be frivolous. Given

that plaintiff has no history of vexatious or harassing

litigation in this court, there would appear to be little cause

to seek to deter her from similar conduct in the future. 

Finally, as noted above, defendants have not adequately supported

their request for attorney’s fees insofar as they have not

demonstrated the reasonableness of the time counsel devoted to

various matters related to this case, or the reasonableness of

the rate at which counsel billed for their work. 

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For the foregoing reasons, and based on the totality of

circumstances presented in this case, the court, in the exercise

of its discretion, concludes that an award of attorney’s fees is

warranted in this case, albeit a substantially reduced award. 

The sum of $5,000 represents a fair, just, and equitable award of

costs and fees to defendants given the circumstances discussed

above. Accordingly, defendants’ motion for attorney’s fees

(document no. 166) is granted in part, and denied in part. 

Pursuant to 42 U.S.C. § 1988, plaintiff is hereby ordered to pay

defendants the sum of Five Thousand Dollars ($5,000.00) as

reasonable attorney’s fees and costs. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

October 11, 2007

cc: Josephine Amatucci, pro se

R. Matthew Cairns, Esq.

Lisa Lee, Esq.

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