OFF THE WIRE
http://www.seacoastonline.com/articles/20110324-NEWS-110329880
Harley dealer wants group to repay $8K in legal costs
By Elizabeth Dinan edinan@seacoastonline.com
March 24, 2011 12:40 PM PORTSMOUTH — A local Harley-Davidson dealer wants a group of motorcycle noise opponents to pay $8,807 in costs for a federal case that never went to trial.
Through attorney Gregory Holmes, Seacoast Motorcycles Inc. of North Hampton filed a motion with the U.S. District Court of New Hampshire seeking the legal fees for a case filed by New Hampshire Citizens Against Loud Motorcycles. The underlying dispute involves a Superior Court lawsuit filed by Seacoast Motorcycles in opposition to North Hampton's new ordinance regulating decibel levels emitted by motorcycles.
NH CALM brought the case to the federal court, which on Feb. 4 remanded it back to Rockingham County Superior Court and ordered the motorcycle noise opponents pay the bike dealer's legal fees. Holmes reported to the court that he worked on the federal case for 27 hours at his $325-an-hour rate.
“It's an excessive amount of money to file a motion to remand,” said NH CALM's attorney Bob Shaines, who has objected to the motorcycle dealer's bill. Shaines said case law for similar legal actions prove his point and that he expected the bill would be “a hell of a lot less.”
The case was brought to the federal court by Shaines for New Castle resident and NH CALM founder Bill Mitchell. The dispute involves a federal statute and should be judged in the federal court, Mitchell said at the time.
A federal judge disagreed on the basis that NH CALM intervened in the case involving Seacoast Motorcycles and the town of North Hampton. Because the town did not join NH CALM in its motion to have the case heard in the federal court, the judge wrote, the court lacked jurisdiction over the dispute.
“Without formally analyzing the issue, the court observes that NH CALM's claim for federal-question jurisdiction appears to be exceptionally weak,” Judge Landya McCafferty wrote.
In its Superior Court suit, the dealership asks a judge to file a restraining order preventing North Hampton from enforcing the motorcycle noise ordinance, to declare that state law trumps the local ordinance in terms of motorcycle noise and to award attorney's fees.
North Hampton Police Chief Brian Page has called the ordinance unenforceable.
Mitchell was so annoyed by loud motorcycles roaring past his home that he used his own money to buy the New Castle Police Department a decibel meter last year. He later learned it takes three officers to take an accurate decibel reading from a stopped motorcycle, so he founded NH CALM.
The group legally formed as a corporation, retained Shaines and its stated goal is to raise awareness, publicity and legal defense funds.
The Harley dealership claims in its suit that the ordinance bans motorcycles from town without EPA labels on exhaust systems, “even though the motorcycles comply with the state's noise level limit of 106 decibels.”
“The ordinance has the effect of making the majority of Seacoast's (Harley dealership) entire used motorcycle inventory illegal,” according to the suit. The Harley dealership also notes that aftermarket exhaust pipes, which are popular among Harley owners, also do not have EPA stickers.
Last year the N.H. House killed a bill that would have mandated EPA stickers on motorcycle pipes as “inexpedient to legislate.” The bill was sponsored by state Rep. Judith Day, D-North Hampton, who has since joined NH CALM.
