UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Patricia A. Donovan,

Plaintiff

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

Opinion No. 2007 DNH 120

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 reasonable 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 denied, but without

prejudice to refiling. 

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. It also details numerous

e-mails and telephone calls in which Whalen allegedly made false

accusations about her. As a result of Whalen’s alleged conduct,

Donovan claimed 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). 

Originally, the complaint’s 23 counts advanced claims that

included false arrest, false imprisonment, intentional infliction

of emotional distress, and defamation. Eventually, Donovan

withdrew the claims against the Indiana defendants and, in

response to defendant Whalen’s motion to dismiss, the court

thinned plaintiff’s remaining claims against Whalen to just

three. Then, as trial approached, Donovan failed to file 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 litigation against her while, at the same

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time, avoiding the need to actually go to trial. In support of

that motion, Donovan said only that she wished to re-file those

claims 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 Donovan 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 Plaintiff’s mother and Plaintiff’s

[changed] priorities.” That motion was granted and all of

Donovan’s remaining claims were dismissed with prejudice. In the

wake of that action, Whalen now seeks an award of reasonable

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

and was brought in bad faith and with the intent to harass. 

Discussion

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. Co. 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, Inc., 501 U.S. 32, 45-46 (1991)

(quoting Alyeska, 421 U.S. at 258-59). 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). This case

would appear to present one of those rare and egregious

circumstances, with one caveat.

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

advances several arguments relating to the manner in which pro se

plaintiff Donovan pursued this case, and calls the court’s

attention to numerous statements Donovan allegedly made about the

case in Internet chat rooms - statements expressly stating her

desire to use this litigation to accomplish little more than

harass Whalen and force her to incur substantial attorney’s fees. 

While the documents Whalen has appended to her motion

provide a disturbing view into Donovan’s (apparent) purpose in

filing this litigation, and suggest that Donovan pursued what she

knew were frivolous claims solely for the purpose of forcing

Whalen to incur substantial legal fees, there is a substantial

problem with Whalen’s filings. There is little indication that

they are authentic. An affidavit from Whalen attesting to the

fact that the submitted documents are accurate, unaltered

printouts of chat room conversations probably would have been

sufficient, absent contradiction. Unfortunately, however,

Whalen’s motion is unaccompanied by any such affidavits, and

otherwise fails to establish a basis upon which to conclude that

the documents are reliable. 

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Whalen’s motion for attorney’s fees is grounded on records

that were not a part of the underlying litigation. On the one

hand, if her submissions are true and authentic, they support

Whalen’s assertion that this is one of those rare cases in which

an exception to the “American Rule” is warranted and an award of

attorney’s fees is appropriate. On the other hand, while Donovan

does not specifically deny that she authored the statements in

question, she indirectly implies as much, by asserting that the

logs could easily have been falsified. 

Conclusion

Absent a firm basis upon which to determine material and

undisputed facts supporting Whalen’s claim, the court is

reluctant to grant her motion for attorney’s fees. Accordingly,

that motion (document no. 80) is denied, without prejudice. 

Defendant Whalen is hereby afforded until October 26, 2007, to

review her motion, if she desires, by refiling it, supported by

admissible evidence, properly presented by affidavit or

otherwise. Plaintiff Donovan shall then have until November 23,

2007, to file a response, if she so chooses. If it appears that

material facts regarding the claim are genuinely disputed, the

court will schedule an evidentiary hearing on the matter, at

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which defendant, as the moving party, will be required to meet

her burden of proof. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

September 24, 2007

cc: Patricia A. Donovan, pro se

Daniel J. Mullen, Esq.

David A. Arthur, Esq.

Robert G. Whaland, Esq.

Michael S. Sheehan, Esq.

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