1Marisol's only claim was for loss of consortium, which was

dismissed without prejudice.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Michael MacDonald and

Marisol MacDonald

v. Civil No. 06-245-JD

Daniel Clark, Town of Windham,

and Randy Guilbault

O R D E R

Michael MacDonald brought civil rights claims, pursuant to

42 U.S.C. §§ 1983 and 1985, and Michael and Marisol MacDonald

brought state law claims against Daniel Clark, a police officer

in Windham, New Hampshire; the Town of Windham, and Randy

Guilbault, Marisol's former husband.1 On November 16, 2007, the

court granted the defendants' motions for summary judgment on the

federal claims and declined to extend supplemental jurisdiction

to the state law claims, which were dismissed without prejudice. 

The defendants move pursuant to 42 U.S.C. § 1988(b) for an award

of attorneys' fees and costs. The MacDonalds oppose an award of

fees but do not oppose the motion for costs.

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 1 of 21
2

Background

Marisol and Randy Guilbault were married for five and one

half years, before they divorced, and they have two children. 

Marisol then married Michael MacDonald in August of 2004. During

the events that were at issue in this case, which occurred

between April and August of 2004, the parties were embroiled in

custody and visitation disputes, particularly involving the

Guilbault children's visits with their father. 

Guilbault had court-ordered visitation rights, but Marisol 

disapproved of the children visiting with their father. As a

result, a number of confrontations occurred. Guilbault sought

assistance from the Windham police with the process of exchanging

the children for visits. Guilbault called the Windham police

twenty-six times between April 30 and the end of July in 2004. 

Michael MacDonald videotaped the interactions involving himself,

Marisol, and Guilbault when they were exchanging children for

visitations and attending the children's baseball games.

On July 8, 2004, at a youth baseball game, the MacDonalds

videotaped Guilbault after he brought his sons to the game and

stayed to watch. Guilbault called the Windham police to report

that Michael MacDonald was harassing him by videotaping him. 

Officer Clark responded. MacDonald videotaped Clark as he

approached and also videotaped part of the exchange that

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 2 of 21
3

followed, in which Michael MacDonald can be heard talking in loud

and angry tones to Guilbault and Clark, while Guilbault and Clark

remained calm and spoke quietly. A woman sitting near the stands

asked them to stop arguing because children were in the area. 

Clark decided not to arrest MacDonald at the baseball field

because he was a coach and the players and their parents were

nearby.

Clark began to write a report of the baseball field

incident. He discussed the incident with other officers and

decided that probable cause existed to arrest Michael MacDonald. 

During this time, visitation exchanges of the Guilbault children

were being made at the Windham police station. On July 20,

Guilbault called his attorney, the Windham police, and a witness

to the baseball field incident. Clark completed his report on

July 23, 2004. 

On July 26, Clark completed an affidavit in support of his

request for a warrant to arrest Michael MacDonald on a disorderly

conduct charge, a violation of RSA § 644:2. Clark received an

arrest warrant the same day. On August 1, Clark and another

officer went to MacDonald's home to arrest him. He was in the

process of making dinner when the officers arrived. MacDonald

was arrested, transported to the station, held in a cell, and

then released on bail. He was found not guilty following a oneCase 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 3 of 21
2The MacDonalds are represented by counsel. In addition,

Michael MacDonald is a practicing attorney.

4

day bench trial on January 18, 2005. 

The MacDonalds filed their complaint on June 30, 2006.2

Marisol brought only a state law claim for loss of consortium,

which is not at issue here, and therefore, this order refers to

the claims brought by Michael MacDonald ("MacDonald"). 

In Count I, brought pursuant to 42 U.S.C. § 1983, MacDonald

alleged that Clark committed a laundry list of misconduct related

to his arrest and prosecution. MacDonald alleged that Clark's

misconduct violated his federal constitutional rights,

"including, but not limited to, freedom from unreasonable seizure

of his person under the Fourth Amendment, freedom of liberty,

freedom from false accusations, due process and equal protection

under the Fifth and Fourteenth Amendments, privileges and

immunities under Article IV and the Fourteenth Amendment, freedom

from malicious prosecution and freedom from intimidation and

humiliation." Compl. ¶ 56. He also alleged that Clark conspired

to deprive MacDonald of his constitutional rights. 

Count II was brought under 42 U.S.C. § 1985. MacDonald

alleged that Clark and Guilbault conspired "for the purposes of

obstructing justice and depriving [MacDonald] of several

constitutional rights." Compl. ¶ 60. The constitutional rights

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 4 of 21
3Similarly, in their final pretrial statement the MacDonalds

characterized Michael's civil rights claims as "seeking

compensatory damages for financial losses, emotional distress and

other damages, including punitive damages, against the Defendants

for violating Michael's constitutional rights by arresting him

without probable cause." F. Pre. St. 1-2. 

5

are the same as those alleged in paragraph 56 of Count I, which

is quoted above. MacDonald alleged a claim against Windham under

§ 1983 in Count III, again reciting the same alleged torts

arising out of MacDonald's arrest and suggesting vicarious

liability for Clark's actions.

As the court noted in the order granting summary judgment,

despite the prolix nature of their complaint, the MacDonalds'

objection to summary judgment focused on the single

constitutional issue of a lack of probable cause to arrest

Michael on a charge of disorderly conduct. MacDonald argued that

a single incident could support municipal liability and ignored

the defendants' challenge to his claim in Count II under § 1985. 

The remaining constitutional issues raised in the complaint were

deemed waived.3 Summary judgment was granted in favor of Clark,

Windham, and Guilbault on the federal claims because MacDonald

failed to show a factual dispute as to whether he suffered a

constitutional violation actionable under the civil rights laws.

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 5 of 21
6

Standard of Review

"Prevailing defendants in an action brought under 42 U.S.C.

§ 1983 may be granted attorneys' fees only upon a finding that

the plaintiff's action was frivolous, unreasonable, or without

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

Rossello-Gonzalez v. Acevedo-Vila, 483 F.3d 1, 6 (1st Cir. 2007)

(internal quotation marks omitted). In making that assessment,

the plaintiff's claims are to be viewed at the time the complaint

was filed, not in light of the plaintiffs' ultimate lack of

success on the claims. Id. A claim is frivolous if the

plaintiff lacked factual support for the essential elements of

the claim at the time the complaint was filed. Andrade v.

Jamestown Housing Auth., 82 F.3d 1179, 1192-93 (1st Cir. 1996).

I. Randy Guilbault

As is noted above, MacDonald alleged pursuant to § 1985 that

Guilbault conspired with Clark "for the purpose of obstructing

justice and depriving Plaintiff Mr. MacDonald of several

constitutional rights." Compl. Count II. Summary judgment was

granted in Guilbault's favor because MacDonald failed to show a

material factual dispute as to whether a constitutional violation

had occurred. Guilbault contends that the claim against him was

frivolous.

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 6 of 21
7

Section 1985 prohibits conspiracies in particular

circumstances, which are addressed in the three subparts of the

statute. See Donahue v. City of Boston, 304 F.3d 110, 122 n.9

(1st Cir. 2002). Section 1985(1) pertains to preventing federal

officers from performing their duties, which is not applicable to

the circumstances alleged in the complaint. Section 1985(2)

pertains to conspiracies to interfere with federal court

proceedings and conspiracies to interfere with state court

proceedings "with intent to deny any citizen the equal protection

of the laws." Section 1985(3) pertains to conspiracies for the

purpose of "depriving, either directly or indirectly, any person

or class of persons of the equal protection of the laws." Claims

under § 1985(2) pertaining to state court proceedings and under §

1985(3) must allege "that the conspiracy was motivated by some

racial or perhaps otherwise class-based, invidiously

discriminatory animus." Maymi v. P.R. Ports Auth., --- F.3d ---,

2008 WL 240376 at *7 (1st Cir. Jan. 30, 2008) (internal quotation

marks omitted); Diva's Inc. v. City of Bangor, 411 F.3d 30, 38-39

(1st Cir. 2005).

MacDonald did not specify which part of § 1985 he intended

to rely on in support of his claim against Guilbault. The parts

of § 1985 that pertain to federal court proceedings have no

relevance to MacDonald's claim. The complaint includes no

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 7 of 21
8

allegations that MacDonald is a member of a racial minority or

any suspect class that would be protected by § 1985 or that

Guilbault was motivated by invidiously discriminatory animus. 

Therefore, MacDonald's conspiracy claim under § 1985 against

Guilbault was patently frivolous when the complaint was filed. 

See Hennessy v. City of Melrose, 194 F.3d 237, 244 (1st Cir.

1999); Andrade, 82 F.3d at 1192 (awarding attorneys' fees to

defendant due to frivolous claim under § 1985). 

Guilbault is entitled to an award of his reasonable

attorneys' fees and costs expended in defense of MacDonald's

claim against him.

II. Officer Clark and the Town of Windham

Acknowledging the high standard applicable to awarding fees

to prevailing defendants, Clark and Windham contend that they are

entitled to an award because MacDonald's theory that probable

cause was lacking to arrest him was frivolous in light of his own

videotape of the incident. Clark and Windham also point out that

MacDonald is a practicing attorney who is familiar with the

concept of probable cause. In response, MacDonald asserts that

he disagrees that the videotape shows that he raised his voice

and emphasizes that he was found not guilty on the charges

brought against him. He argues, again, that probable cause was

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 8 of 21
4MacDonald alleged a conspiracy against Clark under § 1983

in Count I, along with the § 1985 conspiracy in Count II. The

only federal claim against Guilbault is the § 1985 conspiracy.

9

lacking for the arrest.

A. Clark

MacDonald alleged federal claims against Clark in Count I,

under § 1983, and in Count II, under § 1985. As is discussed

above, the conspiracy claim under § 1985 in Count II is

frivolous. In responding to the motion for summary judgment,

MacDonald jettisoned most of his allegations against Clark in

Count I, limiting his claim to the issues of whether probable

cause existed to support his arrest and Clark's alleged

conspiracy with Guilbault to arrest and prosecute MacDonald.4 

1. Conspiracy

"To demonstrate conspiracy under § 1983, plaintiff must show

an actual abridgement of some federally-secured right." TorresRosado v. Rotger Sabat, 335 F.3d 1, 14 (1st Cir. 2003). In

addition, the plaintiff must allege an agreement between the

defendants to inflict a violation of the plaintiff's

constitutional rights. Earle v. Benoit, 850 F.2d 836, 844 (1st

Cir. 1988). A conspiratorial agreement is "defined as a

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 9 of 21
10

combination of two or more persons acting in concert to commit an

unlawful act, or to commit a lawful act by unlawful means, the

principal element of which is an agreement between the parties to 

inflict a wrong or injury upon another." Alexis v. McDonald's

Rests. of Mass., 67 F.3d 341, 356 (1st Cir. 1995).

In a paragraph titled "Evidence of a conspiracy," MacDonald

argued that his conspiracy theory was factually sound because

Guilbault made twenty-six calls to the Windham police between

April and July of 2004, because Clark attempted to help Guilbault

regain visitation rights, because another Windham police officer

who was called for one of the visitation incidents told the

MacDonalds that Clark was angry at Michael, because a third

officer "baselessly claimed that Marisol had assaulted him," and

because Guilbault said to MacDonald, "Go ahead, take a swing at

me." Obj. at 6. Even if true, none of those allegations support

an agreement between Clark and Guilbault to violate MacDonald's

constitutional rights. 

Guilbault's calls to the police for assistance during the

visitation exchanges have a legitimate explanation in light of

the hostile reception he faced from the MacDonalds, as shown on

the videotape. The participation of different police officers,

not Clark alone, in those incidents undermines an inference of a

conspiracy between Guilbault and Clark. The statement by another

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 10 of 21
5The videotape shows Marisol angrily arguing with and

gesticulating toward a Windham police officer. Marisol admits

having touched the officer's arm in the course of her argument

with him. The MacDonalds apparently dispute the police officer's

interpretation of Marisol's actions as assault.

6They cite Clark's deposition. Contrary to the MacDonalds'

statement, Clark testified that after a rancorous encounter with

Marisol and Michael about Guilbault's visitation with his

children, Guilbault asked Clark what he could do to report the

living conditions for his children because Marisol was then

challenging Guilbault's visitation rights. Clark contacted DCYF

and explained both situations. The parties have agreed that

Guilbault had visitation rights, so there was no need for

Guilbault to ask Clark to help him regain rights he already had.

11

officer, not Clark, that Marisol assaulted him also does not

support a conspiracy theory.5 The charge that Clark "called DCYS

to see what Guilbault could do in order to regain his visitation

rights" is not supported by the record.6

2. Constitutional Violation 

To state a colorable claim that he was arrested without

probable cause in violation of the Fourteenth Amendment,

actionable under § 1983, MacDonald was required to allege facts

to show that Clark lacked probable cause to arrest him for

disorderly conduct. See Cox v. Hainey, 391 F.3d 25, 30 (1st Cir.

2004); Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 9 (1st Cir.

2004). MacDonald rehashes his arguments made in opposition to

summary judgment to show that he was arrested without probable

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 11 of 21
12

cause. As noted in detail in the court's order granting summary

judgment in favor of the defendants, MacDonald's view of the

incident differs from that portrayed on his own videotape. 

The verdict in MacDonald's favor on the charge of disorderly

conduct does not undermine the previous probable cause

determination. "Probable cause for an arrest exists when the

arresting officer, acting upon apparently trustworthy

information, reasonably concludes that a crime has been (or is

about to be) committed and that the putative arrestee likely is

one of the perpetrators." United States v. Brown, 500 F.3d 48,

56 (1st Cir. 2007). In contrast, an accused will be found guilty

on a charge of disorderly conduct only if the fact finder

concludes beyond a reasonable doubt that he committed the

offence. State v. Gaffney, 147 N.H. 550, 554 (2002). Therefore,

probable cause can exist when the circumstances do not support a

guilty verdict.

Probable cause, however is an amorphous concept that does

not have a technical or precise definition, and MacDonald

perceived the events at the baseball field in a different light. 

See Maryland v. Pringle, 540 U.S. 366, 370-71 (2003). MacDonald

also makes much of the delay between the July 8 incident and

Clark's decision to arrest him. It appears that those engaged in

disorderly conduct are generally arrested on the spot, which

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 12 of 21
13

would support MacDonald's view that the delay was unusual. See,

e.g., Abraham v. Nagle, 116 F.3d 11, 13 (1st Cir. 1997); Parker

v. City of Nashua, N.H., 76 F.3d 9, 11 (1st Cir. 1996);

Malachowski v. City of Keene, 787 F.2d 704, 713 (1st Cir. 1986). 

Taking into account the imprecise template for probable cause,

MacDonald's view of the incident at the baseball field, and the

delay between the incident and the arrest, MacDonald's § 1983

claim against Clark was colorable and, therefore, not frivolous. 

However, at best this was a very close question. 

In summary, MacDonald's conspiracy claims under § 1985 and §

1983 against Clark were frivolous. The claim under § 1983

against Clark that MacDonald was arrested without probable cause

was unsuccessful but not patently frivolous. 

B. Windham

In support of his § 1983 claim against Windham, MacDonald

alleged that Clark was an agent, servant, or employee of the town

and was acting within the scope of his employment under

established town policies, rules, regulations, and customs. He

further alleged that Windham participated in a pattern of

negligent or intentional conduct, which was the same list of

misconduct as alleged in Count I against Clark. MacDonald

asserted that the town "knew or should have known of the fact

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 13 of 21
14

that this pattern of conduct was being carried out by its agents,

servants, and/or employees and in particular Clark . . . ." 

Compl. ¶ 71. MacDonald also alleged that the town's failure to

train its officers was "a sign of recklessness and gross

negligence and exhibits deliberate indifference . . . which is a

shock to the conscience of all people." Compl. at ¶ 73.

A claim under § 1983 against a municipality cannot be based

on a theory of vicarious liability. Monell v. Dep't Social

Servs., 436 U.S. 658, 691 (1978). Instead, a municipality may be

liable under § 1983 only when actions pursuant to its policies or

customs caused a constitutional violation. Whitfield v.

Melendez-Rivera, 431 F.3d 1, 9 (1st Cir. 2005). "A city's policy

of inadequately training its police force can serve as a basis

for § 1983 liability if the city's failure to train amounts to

deliberate indifference to the rights of persons with whom the

police come into contact." Id. at 9-10 (internal quotation marks

omitted). Deliberate indifference means that the town failed to

provide adequate training "notwithstanding an obvious likelihood

that inadequate training will result in the violation of

constitutional rights." Id. at 10. The lack of training must

also cause constitutional injury. Id.

As stated, MacDonald's claim against Windham lacks factual

allegations to support municipal liability and, instead, is based

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 14 of 21
15

on a theory of vicarious liability, which is frivolous. To the

extent MacDonald suggested in the complaint that he was arrested

without probable cause based on a town policy or lack of adequate

training, he provided no factual allegations to support that

theory or to show the required element of deliberate

indifference. MacDonald has not demonstrated or even suggested

in the objection to the motion for fees that at the time the

complaint was filed he had facts to support the claim against

Windham. Therefore, the claim against Windham was frivolous when

the complaint was filed.

III. Award of Fees and Costs

Whether to award attorneys' fees to prevailing defendants is

a matter left to the court's discretion. Rossello-Gonzalez, 483

F.3d at 6-7. A defendant may be awarded attorneys' fees when

some, although not all, of the claims against him were frivolous. 

See Andrade, 82 F.3d at 1193 & n.9. In addition, certain

circumstances particularly support an award of fees. See Tang v.

State of R.I., Dept. of Elderly Affairs, 163 F.3d 7, 14 (1st Cir.

1998) ("finding bad faith makes a fee award to the defendant more

likely"); Andrade, 82 F.3d at 1185-86 (granting defendants

attorneys' fees on frivolous claims despite plaintiff's success

on other claims).

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 15 of 21
16

The court is well aware of the circumstances underlying the

claims in this case that involve a rancorous family dispute over

child custody and visitation rights in a highly-charged

relationship between the parents. The Windham police wisely

advised Michael MacDonald not to get involved in Marisol's

dispute with Guilbault about their children, but he failed to

follow that advice. Instead, he became embroiled in the family's

problems and behaved in a confrontational manner with the police

and Guilbault. These circumstances strongly suggest that the

MacDonalds might have pursued the claims against Clark, Windham,

and Guilbault because of their hostility toward the defendants,

who, based on the facts presented to the court, behaved in a

remarkably restrained manner under difficult circumstances.

Although not all of the claims brought against the defendants in

this case were patently frivolous, an award of attorneys' fees to

Clark and Windham is appropriate for the time expended defending

the frivolous claims. 

42 U.S.C. § 1988(b) allows the court to award a prevailing

party in an action brought pursuant to § 1983 and § 1985 "a

reasonable attorney's fee." The amount awarded is calculated by

the lodestar method that requires scrutiny of the attorneys'

contemporaneous billing records to find the number of compensable

hours which, once determined, is multiplied by the prevailing

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 16 of 21
17

hourly rate in the community. Bogan v. City of Boston, 489 F.3d

417, 426 (1st Cir. 2007). The prevailing rate in the community

is based on the qualifications, experience, and specialized

competence of the attorneys representing the prevailing parties. 

Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st

Cir. 2001); Andrade, 82 F.3d at 1190. The lodestar amount may

then be adjusted to reflect other factors such as the degree of

success achieved. Bogan, 489 F.3d at 426.

A. Guilbault

Guilbault's attorney, Steven A. Bolton, states that he spent

92.5 hours on this case and represents that his usual billing

rate is $200 per hour. He seeks a total of $18,500 for his fees,

$75.00 for one hour of paralegal time, and $1090.75 in costs. In

support of his hourly rate, Bolton states only that he is a

member of the New Hampshire bar and the bar of this court and

that he has been practicing since 1981. 

The MacDonalds do not contest the hourly rate for Bolton's

core work on the case. They do contest the adequacy of his

billing records. In particular, the MacDonalds argue that the

records impermissibly bill the full hourly rate for both core and

noncore work, that the records are incomplete, and that they lack

sufficient descriptions of the work done.

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 17 of 21
7Bolton filed the billing records in an oversized format, in

violation of the local rules, which made them difficult to

access. LR 5.1(a).

18

In scrutinizing the attorney's billing records, the court

must exclude duplicative, unproductive, and excessive time that

was billed. Bogan, 489 F.3d at 426. Generally time spent by an

attorney on less productive tasks is not compensated at the full

hourly rate. Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.

1993). The party seeking fees bears the burden of showing that

the amount requested is reasonable. Cerqueira v. Am. Airlines,

Inc., 484 F. Supp. 2d 241, 250 (D. Mass. 2007). 

Bolton submitted his affidavit in support of Guilbault's

request for attorney's fees. With the affidavit, Bolton filed

three exhibits which provide his billing records for the case.7

Guilbault did not respond to the MacDonalds' objection that the

billing records are insufficient to support the request for fees. 

After reviewing Bolton's records, the court agrees that they are

not sufficiently differentiated among subject matter and include

billing for time that should not have been billed at the full

rate, such as time spent on telephone calls and traveling. 

Guilbault seeks a total of $18,575.00 in fees. That amount

is reduced by twenty-five percent to account for the time spent

on non-core activities. Attorney's fees are awarded in the

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 18 of 21
19

amount of $13,931.25, and costs of $1090.75 are also awarded.

B. Clark and Windham

Clark and Windham were represented by the same counsel,

Brian J. S. Cullen, who is an attorney with the law firm of

Devine, Millimet, and Branch, P.A. Other lawyers in that firm

also worked on the case. The hourly rates charged by counsel

were: Donald E. Gardner - $170, Brian J. S. Cullen - $165,

Danielle L. Pacik - $130, Heidi D. Ames - $130, Shelagh C.

Michaud - $155, and Catherine M. Costanzo - $150. A paralegal

also worked on the case and charged $78.97 per hour. Clark and

Windham seek a total of $34,806.50 in fees and $826.74 in costs.

The MacDonalds dispute the hourly rates charged by Ames,

Michaud, and Costanzo as not being properly supported by

affidavits. Clark and Windham acknowledged the dispute in their

reply but did not provide any further support for those rates

other than to argue that the rates are similar to those charged

by the MacDonalds' counsel for an associate's time. Although the

hourly rates were not properly supported, they do not appear to

be out of line with the norm in this district. Furthermore, the

time spent on the case by those three attorneys was minimal.

The MacDonalds also dispute the amount charged for noncore

matters. Clark and Windham respond that their counsel's rates

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 19 of 21
20

are already discounted so that no further discount would be

warranted. Clark and Windham are mistaken that their counsel are

entitled to the full hourly rate for work involving noncore

matters such as travel, administrative work, and preparing the

fee application. 

Clark and Windham submitted twenty-seven pages of billing

records with between fifteen and twenty entries per page. Review

of counsel's billing records shows many entries for time spent on

matters that cannot be compensated at the full hourly rate. 

Therefore, the time claimed will be discounted for time spent on

matters that should not be billed at the full hourly rate.

Clark and Windham seek $34,806.50 in fees and $826.74 in

costs. To account for the time spent on the nonfrivolous claim

against Clark, the requested fees award is reduced by 20%. The

amount is then further reduced by 10% to account for time spent

on noncore matters. The amount of attorneys' fees awarded is

$24,364.55, and the costs requested, $826.74, are also awarded.

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 20 of 21
21

Conclusion

For the foregoing reasons, the defendants' motions for

attorneys' fees and costs (documents no. 67 and 68) are granted

to the extent that Guilbault is awarded $13,931.25 in fees and

$1090.75 in costs, and Clark and Windham are awarded $24,364.55

in fees and $826.74 in costs. The plaintiffs' motion for leave

to file a surreply (document no. 83) is granted, and the surreply

was considered.

 

SO ORDERED.

/s/Joseph A. DiClerico, Jr.

Joseph A. DiClerico, Jr.

United States District Judge

February 26, 2008

cc: 

Benjamin L. Falkner, Esq.

James B. Krasnoo, Esq.

Paul J. Klehm, Esq.

Brian J.S. Cullen, Esq.

Steven A. Bolton, Esq.

Case 1:06-cv-00245-JD Document 87 Filed 02/26/08 Page 21 of 21