UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jeffrey Bennett and

The Bennett Law Firm, P.A.

ME Civil No. 04-cv-212-GNZ

v. NH Civil No. 04-ds-401-PB

St. Paul Fire and Marine

Insurance Co.

O R D E R

 Plaintiffs move for an award of attorney’s fees associated

with Counts II, V and VII of their second amended complaint. 

Defendant objects. 

Background

Judge Barbadoro’s “Memorandum and Order” of May 12, 2006

details the background facts of the lawsuit. It is unnecessary

to repeat them here. 

It is clear that, with the exception of Count II and Count

VII as it relates to Count II, every count of the amended

complaint was either withdrawn, moot (see document no. 70, n.8)

or decided in favor of defendant on Summary Judgment. Document

no. 70, p.19. Put another way the plaintiffs failed to prevail

on eight of the nine counts in the complaint. Despite having

failed to prevail on Counts V and the bulk of Count VII on

summary judgment and again on Count V in its request for

Case 1:04-ds-00401-PB Document 88 Filed 06/25/07 Page 1 of 5
1While Judge Barbadoro did state that Bennett failed to

state a claim for relief under § 2436-A his grant of summary

judgment on Count VII did not exclude legal fees for plaintiffs

on Count II if they prevailed.

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reconsideration (document no. 70, Order of may 3, 2007),

plaintiffs seek legal fees as a prevailing party on Counts V and

VII. 

Count II involved reimbursement for $4,900 in transcripts. 

Because of an unresolved factual dispute the claim was not

resolved by summary judgment. Defendant made it abundantly clear

in its motion to amend its answer that the cost of defending

Count II exceeded the value of the claim. Document no. 71. It

yielded “a small point to the other party in the interest of

economy” and amended its answer to not contest the claim. 

Discussion

Plaintiffs lost Counts V and at least part of Count VII1 on

summary judgment. They lost a motion to reconsider on Count V

and it is too late to seek reconsideration on the portion of

Count VII which was lost. I deny the claim for fees as the

prevailing party on either count. Fees as a prevailing party are

denied on all portions of Count VII other than as it relates to

Count II. 

Plaintiffs did get a judgment on Count II for the $4,900 of

Case 1:04-ds-00401-PB Document 88 Filed 06/25/07 Page 2 of 5
2Arguments as they relate to Count V are not considered as

that Count was dismissed by summary judgment. 

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transcripts. They prevailed because defendant conceded the claim

as a matter of economics and judicial economy. The motion,

document no. 81, states in pertinent part that they are the

“‘prevailing party’ as to Count II . . . pursuant to Tile 24-A

M.R.S.A. § 2436-A (Count VII).” If any fees are payable as a

prevailing party under § 2436-A it is because of the judgment on

Count II. 

a. Title 24-A § 2436-A

Plaintiffs’ claim for fees is, according to plaintiffs,

“found in Title 24-A § 2436-A”. Plaintiffs have not set forth

which portion of § 2436-A they say was violated by defendant. 

The gist of their claim seems to be that defendant “initially

cinch(ed) its purse tightly in the face of Bennett’s defense

counsel’s request for payment toward the cost of transcripts

deemed by him to be necessary to Bennett’s defense . . . .” 

Document no. 81.12 This claim does not appear to fit within any

of the provisions of § 2436-A and plaintiffs have made no effort

to show that it does. “It is not the job of this, or any other,

court to construct arguments . . . on behalf of a party.” 

The failure to pay for transcripts simply does not fit into

Case 1:04-ds-00401-PB Document 88 Filed 06/25/07 Page 3 of 5
3See Document no. 70, ¶ 9, n.7-8 (each issue of Count I was

dealt with in turn.

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the language of any subdivision of § 2436-A. The motion, as it

relates to § 2436-A, is therefore denied. 

b. 24-A M.R.S.A. § 2436-B

Count II is a breach of contract claim, not a declaratory

judgment claim. Plaintiffs did not prevail on the declaratory

judgment claim (Count I)3 and 24-A M.R.S.A. § 2436-B applies only

to such claims. Thus, § 2436-B claim, as part of the summary

judgment order, was already dismissed. Plaintiffs are not

prevailing parties on the declaratory judgment claim. The motion

is denied as to § 2436-B. 

Conclusion

In conclusion, plaintiffs have failed to show any legal

basis for attorney’s fees on Count II and are not “prevailing

parties” on any other count. 

The motion (document no. 81) is denied. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 25, 2007

Case 1:04-ds-00401-PB Document 88 Filed 06/25/07 Page 4 of 5
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cc: Jens-Peter W. Bergen, Esq.

 Robert A. Chaney, Esq.

 Paul S. Douglass, Esq.

 Jeffrey A. Goldwater, Esq.

 U.S. District Court-ME, Clerk

 John S. Whitman, Esq.

Case 1:04-ds-00401-PB Document 88 Filed 06/25/07 Page 5 of 5