Krewson v. McDonough

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 96-1852



                                  DAVID S. KREWSON,



                                Plaintiff - Appellee,



                                          v.



                                FRANCIS FINN, ET AL.,



                               Defendants - Appellees,



                                 ____________________



                                   JOHN MCDONOUGH,



                                Defendant - Appellant.

                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                [Hon. Walter Jay Skinner, Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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                                 ____________________



            John F. Farraher, Jr., with whom David C. Jenkins and Dwyer &
            _____________________            ________________     _______

        Jenkins, were on brief for appellant McDonough.
        _______

            Robert L. Hernandez for appellee.
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                                 ____________________

                                  February 28, 1997

                                 ____________________

                      Stahl,  Circuit  Judge.    For  the   second  time,
                      Stahl,  Circuit  Judge.
                              ______________



            defendant-appellant  John  McDonough challenges  the district



court's  award of  attorneys' fees.   In  Krewson v.  City of
                                                      _______     _______



            Quincy,  74 F.3d 15 (1st Cir. 1996), McDonough lodged a broad
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            ranging  attack on  the  district court's  award  of fees  to



            plaintiff-appellee   David   Krewson,   arguing    that   the



            excessiveness of  the request made any  award unreasonable on



            its face and  that much of  the time  for which the  district



            court  awarded  fees  was  attributable to  claims  on  which



            Krewson did not succeed.   We remanded to the  district court



            the recalculation  of the fee  award, having agreed  with the



            court that an award was justified.   McDonough, still unhappy



            with  the award the  district court has  made, again appeals.



            For  the  second time  he requests  us  to declare  the award



            facially  unreasonable, or  yet again  to remand  for further



            consideration.  We decline McDonough's request and affirm the



            district court's fee assessment.  



                      This  case  arose  after  the  police   in  Quincy,



            Massachusetts, arrested  David Krewson for the  murder of his



            friend and short-term roommate.   After a brief investigation



            the Quincy police questioned,  charged and detained  Krewson.



            After  a  brief  further  investigation,  the  Quincy  police



            dropped all  charges, having  identified the  person actually



            responsible for the crime.



                      A few  days after his release,  Krewson returned to



            the  police station.    While at  the station  he encountered



            McDonough, then  a Quincy detective who  had investigated the


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murder  and  played a  significant  role in  the  decision to



            arrest  and charge Krewson.   McDonough, apparently concerned



            that Krewson  might take legal action  against him, allegedly



            threatened to  "blow off"  Krewson's kneecaps should  he file



            suit.    



                      Undeterred by  McDonough's threat, Krewson  filed a



            complaint against McDonough, two of his immediate supervisors



            and  the City of Quincy  based on alleged  sloppy police work



            that led  to  his arrest  and based  on the  later threat  by



            McDonough.   Krewson claimed  violations of his  civil rights



            under 42 U.S.C.    1983 and Mass. Gen. Laws ch.  12   11I, as



            well  as negligence  under  Mass. Gen.  Laws  ch. 258,  false



            arrest,   false   imprisonment,  assault   and   battery  and



            intentional infliction of emotional distress.  



                      After a four-day trial, the district court directed



            verdicts in favor of both supervisors on all counts, in favor



            of the  city on all but the negligence count, and in favor of



            McDonough  on  all  counts  except those  pertaining  to  the



            kneecap  threat.    The   jury  found  McDonough  liable  for



            intentional   infliction  of   emotional  distress   and  for



            violating  the Massachusetts  Civil Rights  Act, and  awarded



            Krewson a total of $6,500 in damages.



                      Krewson  filed an  application for  attorneys' fees



            under Mass.  Gen. Laws.  ch. 12    11I.   The district  court



            awarded a total of  $80,649.29 in fees and costs.   McDonough


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appealed the fee award,  and we remanded for  a determination



            of  whether  time  spent  on unsuccessful  claims  should  be



            eliminated  from  the fee  award,  and  whether the  cost  of



            Krewson's  expert, Robert  DiGrazia, should be  eliminated as



            relating solely to the unsuccessful  claims.  See Krewson, 74
                                                          ___ _______



            F.3d at 19-20.  



                      On remand  the district court concluded  that a fee



            award  which included time  spent on unsuccessful  as well as



            successful claims was appropriate, and that DiGrazia's expert



            fee was a justifiable  cost.1  On appeal Krewson  attempts to



            resurrect his  prior argument that the  district court should



            have awarded no attorneys' fees  because the amount sought is



            excessive for the result achieved.  We rejected that argument



            in the  first appeal.  See Krewson,  74 F.3d at 16.   The two
                                   ___ _______



            remaining issues  are whether the district  court should have



            awarded  fees for the hours  spent on unsuccessful claims and



            whether the court should have included DiGrazia's fee as part



            of the award.  We find neither issue compelling.



                      We review the district  court's fee award for abuse



            of discretion.  See id. at 17 (quoting Lipsett v. Blanco, 975
                            ___ ___                _______    ______


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            1.  In  response to  McDonough's general  arguments regarding

            the  size of the fee claimed, the district court did subtract

            98  hours from  Krewson's request  to reflect  excessive pre-

            trial  preparation,  specifically,  time  spent   on  routine

            motions, reading and indexing depositions and  preparing pre-

            trial memoranda.   We note  that, as  adjusted, the  district

            court  awarded  Krewson  attorneys'  fees in  the  amount  of

            $53,117 and costs in the amount of $13,262.29.    



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F.2d  934,  937  (1st  Cir.  1992)).     The  district  court



            identified a sufficient link between Krewson's successful and



            unsuccessful  claims to  support  a fee  award  that was  not



            reduced for time spent on the unsuccessful claims.  The court



            found  that  McDonough's  threat and  conduct  toward Krewson



            "made no sense  at all  except in  the context  of the  prior



            events and the  deficiencies of police procedure which led to



            [Krewson's] arrest."   The  district court concluded  that in



            order to try his successful claims, Krewson would have had to



            try  the  entire case,  including  evidence  relevant to  the



            unsuccessful claims.     "In  reviewing  determinations  that



            claims are or are  not interrelated for purposes of  an award



            of attorneys' fees, we have exhibited great deference to  the



            trial court's discretion."  Lipsett  v. Blanco, 975 F.2d 934,
                                        _______     ______



            941 (1st Cir. 1992).  The events prior to McDonough's threat,



            which formed the basis for the unsuccessful claims, certainly



            could be viewed as  necessarily linked to the portion  of the



            trial  dealing with the threat.   It was  within the district



            court's   discretion  to   determine  that   without  context



            McDonough's  threat  and  conduct  made little  sense.    The



            district   court's   conclusion   falls  within   its   broad



            discretion.



                      The   district   court   further   concluded   that



            DiGrazia's testimony  "was appropriately part  of [Krewson's]



            effort to show why Detective McDonough had legitimate fear of


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a civil suit, which he tried to forestall by an inappropriate



            threat."  At trial, DiGrazia testified that the investigation



            of the  murder lacked  "correct and accepted  standard police



            practices."   In DiGrazia's  opinion,  the investigation  was



            geared  more  toward  quickly  finding  someone  guilty  than



            reaching proper  conclusions as  to the actual  guilty party.



            DiGrazia further testified that  the Quincy police department



            lacked  adequate  training  and  management.     Finally,  he



            testified that  Detective McDonough lacked  adequate training



            in  the  investigation of  homicides.   If the  jury believed



            DiGrazia,  his testimony would  tend to provide  a motive for



            McDonough's  subsequent conduct  toward  Krewson.    On  this



            record it was well within the district court's discretion  to



            conclude  that  DiGrazia's  opinions  also   established  the



            underlying basis for  McDonough's threat, making that  threat



            more believable.



                      Our prior  decision did not mandate  a reduction to



            account  for Krewson's prosecution of the unsuccessful claims



            or DiGrazia's fee.  We simply remanded for the district court



            to consider those  issues.   See Krewson, 74  F.3d at  19-20.
                                         ___ _______



            The  district court has considered them and we do not find an



            abuse of discretion.   See  id. at 17  (noting that  district
                                   ___  ___



            court's fee award is reviewed for abuse of discretion).    


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Affirmed.2
                      Affirmed.
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            2.  Appellee Krewson  requests fees  on appeal.   Appellee is

            directed to submit a properly detailed petition for appellate

            fees  within  10  days  of  the  issuance  of  this  opinion.

            Appellant McDonough  shall have  10 days thereafter  to raise

            objections  to the fee petition.  We will retain jurisdiction

            for purposes of approving any such fee petition.



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