United States Court of Appeals
For the First Circuit
No. 04-2236
FIRST STATE INSURANCE GROUP,
Plaintiff, Appellee,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
Michael L. Cohen with whom Michael J. Pollack, Cohen & Buckley
LLP, Arnold Greenhut and Rosen Greenhut Catuogno & Low were on
brief for appellant.
Lloyd A. Gura with whom Lawrence S. Greengrass, Sanjit Shah,
Mound Cotton Wollan & Greengrass and Prince, Lobel, Glovsky & Tye
LLP were on brief for appellee.
March 23, 2005
Per Curiam. Nationwide Mutual Insurance Company
(“Nationwide”) appeals from the district court’s order denying an
award of attorneys’ fees. Nationwide and another insurance
company, Employers Insurance of Wausau (“Wausau”), prevailed in
bringing emergency motions against First State Insurance Group
(“First State”) in the district court. They secured an order
enjoining First State from pursuing its requests in a number of
arbitrations to have those disputes consolidated into just two
arbitrations. Viewing First State’s requests to the arbitrators as
contravening the court’s prior rulings, the court ordered that
First State pay Wausau’s and Nationwide’s costs and attorneys’ fees
in bringing the emergency motions “in a reasonable amount to be
determined by the court on the parties’ submissions.”
Wausau sought reimbursement of $46,312.47; Nationwide
sought $89,012.82. The district court disallowed certain of
Wausau’s expenses and fees and concluded that $35,101 was a
reasonable award. Viewing Nationwide’s request as grossly
excessive for the amount of work involved, the court declined to
make any award to it. The court then denied Nationwide’s motion
for reconsideration, which was accompanied by an application for a
somewhat reduced fee. Nationwide now appeals from the denials of
fees.
We review awards (and denials of awards) of attorneys’
fees for abuse of discretion. See Mullane v. Chambers, 333 F.3d
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322, 337-38 (1st Cir. 2003); New Eng. Reg’l Council of Carpenters
v. Kinton, 284 F.3d 9, 30 (1st Cir. 2002). Where the attorneys’
fees requested are unreasonably excessive, it is within a court’s
discretion to deny fees entirely. See Lewis v. Kendrick, 944 F.2d
949, 958 (1st Cir. 1991); Brown v. Stackler, 612 F.2d 1057, 1059
(7th Cir. 1980).1 The court’s order may be read to overstate the
degree to which Nationwide’s and Wausau’s papers in support of
their emergency motions were duplicative. Nevertheless, after
reviewing the record, we conclude that the district court did not
abuse its discretion by finding Nationwide’s fee request to be so
excessive as to merit outright denial of any fee.
Nationwide’s request sought approximately $60,000 of
compensation for the work its counsel performed on its emergency
motion in the district court. The ultimate product of these
efforts were two (opening and reply) memoranda totaling about 34
pages in length, and attendance and argument at a short hearing.
Related filings in the arbitration proceedings, local counsel fees,
and expenses for travel to attend the hearing brought the total up
to nearly $90,000. Litigation may be expensive but this bill, for
a single narrow dispute about a prior order of the court, is
1
Although they are not applicable here, there are some
statutes governing the award of attorneys’ fees that may provide
district courts with less discretion to deny fees. See, e.g., De
Jesus v. Banco Popular de P.R., 918 F.2d 232, 233-34 (1st Cir.
1990) (Truth in Lending Act).
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excessive by more than a small margin--or so the district court
could reasonably conclude.
Nor did the district court abuse its discretion, see
Douglas v. York County, 360 F.3d 286, 290 (1st Cir. 2004), in
denying Nationwide’s motion for reconsideration even if we assume
dubitante that the somewhat reduced fee request was not a
reasonable order. A fee application may not be used as “an opening
gambit in negotiations to reach an ultimate result.” Lewis, 944
F.2d at 958.
Affirmed.
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