MISC 18-000565

December 10, 2018

Essex, ss.




On November 1, 2018, Plainitff Michael Becker (Becker) and Defendant Paulie Graves, as Trustee of the Messina L. Amenta Family Trust (Graves), appeared before this court (Lombardi, J.) to argue Becker's Motion for Lis Pendens and Graves's Special Motion to Dismiss. This court issued on November 14, 2018, Order Allowing Special Motion to Dismiss and Denying Motion for Lis Pendens (November 14 order). Accordingly, Graves filed Defendant's Motion for Award of Attorneys' Fees and Costs (G.L. c. 184 § 15 (c)) (Award motion) on November 26, 2018. In support of the Award motion, Graves submitted a memorandum of law as well as affidavits of Graves and Attorneys Alan E. Lipkind (Attorney Lipkind), Bernard T. Sexton, Brian M. Hurley, Robert E. McLaughlin, Sr., and William R. Moriarty. On December 5, 2018, Becker filed an opposition to the Award motion and an affidavit of Attorney David Glod. The parties appeared and argued the Award motion the following day.

In her motion, Graves seeks an award of $22,902.99 for attorney's fees and costs between October 26 and November 20, 2018. Time entries were made by Attorney Lipkind, Attorney Gregory Paonessa (Attorney Paonessa), and Jason Brandenburg (Brandenburg), a paralegal at Burns & Levinson LLP. Becker argues the award should be approximately $11,906.24.


The standard a court must apply when awarding attorney's fees is a familiar one. In exercising its discretion, the court considers

the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation, and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.

Linthicum v. Archambault, 379 Mass. 381 , 388-389 (1979). "Under the approved 'lodestar' method, the judge is to establish the time reasonably expended and multiply it by a reasonable hourly rate, taking into account factors such as 'complexity, the result obtained, and the experience, reputation, and ability of the lawyer." Smith v. Bell Atlantic, 63 Mass. App. Ct. 702 , 725 (2005), quoting Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306 , 324 (2003).

In the case at bar, only half of the lodestar equation is in dispute. Becker does not contest the reasonableness of the billing rates. [Note 1] As for the time entries, Becker objects to multiple entries, including all but one of those made after October 31. These objections are discussed in more detail below.

A. Block Billing

In his opposition, Becker accepts all of Attorney Lipkind's itemized entries. He objects, however, to entries that are presented in a "block billing" fashion, which he describes as billing large blocks of time for multiple tasks without specifying how much time was spent on each task.

This court finds that Becker raises a legitimate concern about block billing. Courts have criticized the practice of block billing and have frequently reduced time entries where there has been insufficient time itemization on individual functions. See, e.g,. Miller vs. A2 Medical, LLC, Super. Ct., No. 2013-191-BLS2 (June 5, 2015) (Roach, J.); Evans vs. Lorillard Tobacco Co., Super. Ct., No. SUCV200402840 (Dec. 2, 2011) (Fahey, J.); Eastern Holding Corp. vs. Congress Financial Corp. (New England), Super. Ct., No. 04 3148 BLS1 (June 25, 2007) (van Gestel, J.); Ellis vs. Varney, Super. Ct., No. 9801397 (Mar. 22, 2005) (Fecteau, J.).

None of the so-called block entries pertaining to this action contains an undue number of tasks. The amount of time charged for those block entries ranges from three tenths of an hour to seven hours with the average of the entries being less than two and one-half hours. Becker asks that the block entries be reduced at least 30%. Considering the relatively minor scope of the block entries, this court shall reduce the time for those entries by 10%. [Note 2]

B. Time Entries Following the Special Motion to Dismiss

Becker further agrees that Graves is entitled to an award for Attorney Lipkind's time preparing for and attending the November 1 hearing. After the oral argument, Becker submitted additional papers to this court, and Graves decided to respond. This court does not disagree with that judgment call. With an adjustment for block billing as discussed above, the award will include the billings by Attorney Lipkind and Attorney Paonessa between November 1 and November 6.

In his affidavit, Attorney Lipkind includes a footnote stating that it was impossible to produce an accurate bill for time spent on November 26. He estimates that he spent more than three hours on a number of tasks related to preparing documents in support of the Award motion. Attorney Lipkind also estimated Attorney Paonessa spent approximately three hours on legal work related to the same motion. In his affidavit, Attorney Lipkind attributes the sum of $2,580.00 to the time spent on November 26.

An attorney seeking an award of fees "must submit to the court a detailed record of the time spent on the case and the duties performed." King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir. 1977). November 26 was ten days prior to the hearing on the Award motion. Graves did not seek leave to submit a supplemental filing for the time incurred in preparing the Award motion supporting documents. See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411 , 432 (2005). In the absence of complete time records, this court cannot issue any award for the time spent on November 26.

As for the remaining time entries related to requesting the attorney's fees and costs, a line of cases has concluded that "time spent in establishing and defending a fee . . . should be included in the final calculation of the award. Exclusion of such services would dilute the value of the award." Stratos v. Department of Pub. Welfare, 387 Mass. 312 , 325 (1982). Those cases, however, are based upon civil rights or discrimination statutes. The controlling statute here mandates the court to "award the moving party costs and reasonable attorneys fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery." G. L. c. 184, § 15 (c). The statute is silent on the matter of time following a decision on a special motion to dismiss.

Neither this court nor counsel is aware of any case suggesting that a party who is entitled to an award of legal fees under G. L. c. 184, § 15, is also entitled to include in that award request the time it takes to put together and argue a motion for attorney's fees. No appellate court has ruled that the same public policy considerations present for civil rights and discrimination cases apply to a lis pendens special motion to dismiss. Consequently, the time entries of November 15, 19, and 20 on Invoice Number 962823 are disallowed. Furthermore, this court disallows the entry of November 14 on the same invoice, which pertains to the sale of the property underlying this dispute to a third party on November 15.


Based upon the foregoing, this court allows the Award motion and awards Graves legal fees in the amount of $17,947.13 and costs of $68.99, for a total award of $18,016.12. Becker shall pay the award in full within 21 days of this order.

A judgment shall enter accordingly.



[Note 1] The hourly billing rates are as follows: for Attorney Lipkind, $535.00; for Attorney Paonessa, $325.00; and for Brandenburg, $235.00.

[Note 2] The entries being reduced by 10% are as follows: 10/26 AEL, 10/27 GSP, 10/29 AEL, GSP, and JB, 10/31 GSP, 11/1 GSP, and 11/6 AEL.