Krewson v. Quincy

• Court: Court of Appeals for the First Circuit
• Decided: January 23, 1996
• Docket: 92-2437
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 92-2437



                                  DAVID S. KREWSON,

                                Plaintiff - Appellee,



                                          v.



                               CITY OF QUINCY, 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,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                             and Young,* District Judge.
                                         ______________



                                _____________________



               David C. Jenkins, with whom Grady and Dwyer was on brief for
               ________________            _______________

          appellant.

               Robert LeRoux Hern ndez for appellee David S. Krewson.
               _______________________


____________________



                                   January 23, 1996

                                 ____________________



                              
          ____________________



          *  Of the District of Massachusetts, sitting by designation.



YOUNG, District  Judge.   David S.  Krewson ("Krewson")
                    YOUNG, District  Judge.
                           _______________



          originally brought  this action against Quincy  Police Lieutenant



          John  McDonough ("McDonough"),  McDonough's two  immediate super-



          visors, and the City of Quincy (the "City") pursuant to 42 U.S.C.



             1983 and Mass. Gen.  L. ch. 12,    11I for violating his civil



          rights  during the  course of  Krewson's arrest and  detention on



          murder charges.1   Krewson's  complaint also stated  claims under



          Mass. Gen. L.  ch. 258  (negligence) and common  law theories  of



          false arrest, false imprisonment,  assault and battery, malicious



          prosecution, and intentional infliction of emotional distress. 



                    After a  four-day  trial, the  district  court  granted



          directed  verdicts to both supervisors on all counts, to the City



          on all counts except  negligence under Mass. Gen. L. ch. 258, and



          to  McDonough on all  counts but those arising  out of certain of



          his actions  on October 12, 1986.   The jury found  that the City



          was not liable for negligence, and returned a verdict in favor of



          McDonough on Krewson's federal civil rights claim.  The jury held



          McDonough liable, however, for intentionally inflicting emotional



          distress  on  Krewson (awarding  $5,000)  and  for violating  the



          Massachusetts Civil  Rights Act, awarding Krewson  $1,500 on this



          latter claim.   Judgment entered on March 20, 1992.   None of the



          parties appealed this judgment.



                    Thereafter,  Krewson filed  an application  under Mass.



          Gen. L. ch. 12,    11I, seeking $67,387 in attorneys' fees (based



          on 305.9 attorney hours and 154.7 law clerk hours) and $13,262.29

                              
          ____________________



          1  The charges against Krewson were ultimately dismissed.



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in costs, for a total of $80,649.29.  McDonough's counsel made no



          objection  to  this  application  despite  Massachusetts District



          Court Local Rule 7.1(B)(2), which requires the filing  of written



          objection to such  a motion within  fourteen days after  service.



          The district judge allowed the  fee application by written  order



          which, in its entirety, reads:



                      I  find that  the attorney  did  the work

                      certified, that his client prevailed, and

                      that the rates charged are reasonable and

                      representative of rates in  the community

                      for  comparable  legal  services.     The

                      petition is allowed.



          Margin Endorsement  of Petition for Fees,  Addendum to Appellee's



          Brief at 1.



                    This was  enough to catch the  attention of McDonough's



          counsel,  who  promptly   moved  for  reconsideration,  belatedly



          briefing the  relevant issues.    The district  judge denied  the



          motion, and this appeal followed.


I.  STANDARD OF REVIEW 
                               I.  STANDARD OF REVIEW 
                               ______________________


When,  in determining  a  fee award,  a district  court



          carefully "weigh[s] the factors to be considered and arrive[s] at



          an award within a supportable range, the appellate court will not



          interfere."  See Nydam v. Lennerton,  948 F.2d 808, 813 (1st Cir.
                       ___ _____    _________



          1991)  (quoting Wojtkowski v. Cade,  725 F.2d 127,  131 [1st Cir.
                          __________    ____



          1984]).  Thus, this Court  will reverse "only for mistake  of law



          or abuse  of discretion."  Lipsett  v. Blanco, 975 F.2d  934, 937
                                     _______     ______



          (1st Cir. 1992); United States v. Metropolitan Dist.  Comm'n, 847
                           _____________    __________________________



          F.2d 12, 14-15 (1st Cir. 1988).



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II.  ANALYSIS
                                    II.  ANALYSIS
                                    _____________


Where a  request for  attorneys' fees comprises  a sub-



          stantive  part of the state-law  remedy for a  state-law cause of



          action,  the  proper rule  of  decision  governing the  award  is



          derived from  Massachusetts, rather than federal,  practice.  See
                                                                        ___



          Northern Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 475 (1st
          ___________________    __________________



          Cir. 1988) (applying Massachusetts law to the award of attorneys'



          fees in diversity  action).  Thus, because Krewson here prevailed



          on his state civil rights  claims and not his   1983  claims, the



          proper statutory reference is Mass. Gen. L. ch. 12,   11I. 



                    The Massachusetts Civil Rights Act provides that:



                      [a]ny   aggrieved  person   .  .   .  who

                      prevail[s]  in  an  action authorized  by
                      __________

                      this  section  shall  be entitled  to  an

                      award of  the costs of the litigation and

                      reasonable attorneys' fees  in an  amount
                      __________

                      to be fixed by the court.



          Mass. Gen. Laws Ann.  12,   11I (West 1986)  (emphasis supplied).



          McDonough  here argues  both that  Krewson  is not  a "prevailing



          party"  within the  meaning  of the  statute  and that  the  fees



          awarded were not  "reasonable" in  light of the  small amount  of



          money awarded  Krewson by  the jury.   Further,  McDonough argues



          that  the  trial court  committed  reversible  error by  awarding



          Krewson  costs,  including  expert  witness fees,  in  an  action



          arising under state law.



                    1.  "Prevailing party" -- The Supreme Judicial Court of
                    1.  "Prevailing party" -- 



          Massachusetts  has "conclude[d]  that  the  Legislature  intended



          'prevail' to have the  same meaning [in ch. 12    11I] as it does


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in  42 U.S.C.    1988."  Batchelder  v. Allied Stores  Corp., 393
                                   __________     ____________________



          Mass. 819, 822 (1985).   As a "plaintiff who wins nominal damages



          is a prevailing party under    1988," Farrar v. Hobby, 113 S. Ct.
                                                ______    _____



          566,  573 (1992), the district court did not abuse its discretion



          in  ruling  that the  jury's award  of  $1,500 was  sufficient to



          entitle  Krewson to  prevailing party status  under Massachusetts



          law.   See also  Wilcox v. City  of Reno,  42 F.3d 550  (9th Cir.
                 ___ ____  ______    _____________



          1994) (upholding a  $66,535 fee  award to plaintiff,  loser of  a



          barroom  brawl with  police, who  won $1  on his  excessive force



          claim under   1988). 



                    2. "Reasonableness" -- Although there is no controlling
                    2. "Reasonableness" --



          authority   on  the   Massachusetts  standard   for  "reasonable"



          attorneys' fees  under the  state civil  rights act, courts  have



          held  that,  with  respect  to  other  fee-shifting  statutes  in



          Massachusetts, there is "no  pat formula for computation of  fee-



          shifting  awards."   See, e.g.,  Peckham v.  Continental Casualty
                               ___  ____   _______     ____________________



          Ins.  Co.,  895  F.2d  830,  841-42  (1st  Cir.  1990)  (awarding
          _________



          attorneys'  fees  for  violation of  Mass.  Gen.  L.  ch. 93A  in



          diversity  action).    Rather,  courts should  "focus[]  on  what



          [counsel's] services were objectively worth."  Id. at 842 (citing
                                                         ___



          Heller  v.  Silverbranch  Constr.   Co.,  376  Mass.  621  [1978]



          [Hennessey,  C.J.]).   In  making this  determination courts  may



          consider  a variety of factors, including the nature of the case,



          the  time and labor required, the amount of damages involved, the



          result obtained,  the experience and reputation  of the attorney,



          the  usual price charged by other attorneys for similar work, and


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the amount of awards  granted in other  cases.  See Linthicum  v.
                                                          ___ _________



          Archambault, 379 Mass. 381, 388-89 (1979).
          ___________



                    Despite the brevity  of his  endorsement, the  district



          judge  here explicitly found that  "the attorney did  the work as



          certified, that his client prevailed, and that  the rates charged



          are reasonable and representative  of rates in the community  for



          comparable legal  services."  Margin Endorsement  of Petition for



          Fees,  Addendum to  Appellee's  Brief at  1.   In  so doing,  the



          district judge  adopted the calculation proffered  by plaintiff's



          attorney.  This is sufficient to constitute a "clear  explanation



          of the reasons undergirding . . .  [the] fee award," and entitles



          the trial court's determination to deference.  Peckham,  895 F.2d
                                                         _______



          at 842;  see also  Stowe v.  Bologna, 417  Mass. 199, 203  (1994)
                   ___ ____  _____     _______



          (stating that the  trial court  should start from  the amount  of



          time  documented  by the  plaintiff's  attorney  and then  decide



          whether these  calculations are  reasonable, taking  into account



          the  public interest  in having  persons with  meritorious claims



          adequately represented) (fee award  for violation of rent control



          statute);  Fontaine,  415  Mass.  at  324  ("[t]he  amount  of  a
                     ________



          reasonable  attorney's fee,  awarded  on the  basis of  statutory



          authority . . . is largely  discretionary with the judge, who  is



          in  the best position to  determine how much  time was reasonably



          spent on a case, and the fair value of the attorney's services");



          Deary v.  City of  Gloucester, 9  F.3d 191,  197 (1st Cir.  1993)
          _____     ___________________



          (stating  that appellate  courts should  defer to  any thoughtful



          rationale articulated  by the  trial court when  reviewing a  fee


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award); United States v. Metropolitan Dist. Comm'n, 847 F.2d  12,
                  _____________    _________________________



          20  (1st  Cir. 1988)  ("The district  court --  which  . .  . has



          frequently lived  with the litigation  and the  lawyers for  long



          periods of time, and which is likely to be more familiar with the



          marketplace -- has the best coign of vantage").



                    Moreover, where Massachusetts  courts have reviewed fee



          awards  pursuant  to remedial  statutes, they  have held  that an
                               ________



          award  of reasonable  attorneys' fees  should  not be  reduced to
                                                         ___



          reflect the actual amount of the jury award.  See, e.g., Sanitoy,
                                                        ___  ____  ________



          Inc.  v. Ilco Unican Corp., 413 Mass. 627, 633-34 (1992) (holding
          ____     _________________



          that because of  the nature of the  case and the public  interest



          served   by   the   "citizen   enforcement"   provision   of  the



          Massachusetts hazardous  waste statute, courts may  not reduce an



          award of reasonable attorneys' fees  by a percentage of  response



          costs recovered); Olmstead v. Murphy, 21 Mass. App. Ct. 664, 666,
                            ________    ______



          rev.  denied, 397 Mass. 1102  (1986) ("[w]hen the  public has, as
          ____________



          here,  a particular interest in the vindication of a legal right,



          the  market  value  of  legal  services  .  .  .  should  not  be



          automatically discounted  because that value is  high in relation



          to the amount recovered") (fee award under Mass. Gen. L. ch. 215,



             34A); see  also Fontaine  v. Ebtec  Corp., 415 Mass.  309, 325
                   _________ ________     ____________



          (1993) (determining that in employment discrimination case, "fair



          market  rates  for  time  reasonably spent  should  be  the basic



          measure of  reasonable fees, and  should govern unless  there are



          special  reasons  to depart  from them")  (fee award  pursuant to



          Mass. Gen. L. ch. 151B,   9).


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Because  the policy  interests  underlying  fee  awards



          under  federal  civil  rights   statutes  are  similar  to  those



          underlying fee  awards in Massachusetts civil  rights cases, case



          law under   1988 provides additional guidance.  The Supreme Court



          has recognized that  a plaintiff  who obtains relief  in a  civil



          rights  lawsuit, especially  "in  the area  of individual  police



          misconduct," acts as a  private attorney general deterring future



          violations and  that,  therefore, consistent  with  congressional



          intent, "reasonable  attorney's fees  . .  . are  not conditioned



          upon and need not be proportionate to an award of money damages."



          City  of  Riverside  v.  Rivera,  477  U.S.  561,  574-76  (1986)
          ___________________      ______



          (upholding  $245,456.25   fee  award  based  on   jury  award  of



          compensatory and  punitive damages of $13,300  for federal claims



          and  $20,050 for state claims).  Likewise, courts in this circuit



          have held that  in federal civil rights cases a  fee award is not



          limited  by  the size  of the  recovery  but may,  in appropriate



          circumstance, greatly exceed it.  See Lewis v. Kendrick, 944 F.2d
                                            ___ _____    ________



          949, 957 (1st Cir. 1991);  Gonz les v. Jillson, 642 F.  Supp. 908
                                     ________    _______



          (D. Mass. 1986) (Tauro,  J.) (finding in a police  brutality case



          that the award  of $30,922.50  in attorneys' fees  when the  jury



          awarded  plaintiff   $1,000  was  not  excessive  because  "[t]he



          significance of the  monetary award [was]  outweighed by the  im-



          portant  public   interests  vindicated   by  the   general  jury



          verdict").   "No  other result  could comport with  the principle



          that  plaintiffs  should  have  an  unrestricted  opportunity  to



          vindicate their civil rights."   Lewis, 944 F.2d at 957.    Thus,
                                           _____


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as a remedial civil  rights statute,   11I is entitled  to a more



          liberal  construction  of  its  terms  than  other  fee  shifting



          statutes  such as Mass.  Gen. L.  ch. 93A.   See  Batchelder, 393
                                                       ___  __________



          Mass. at 822.



                    3.    Successful  vs.  unsuccessful claims  --  In  one
                    3.    Successful  vs.  unsuccessful claims  --  



          respect, however,  the summary endorsement of  the district judge



          was totally silent.   Krewson  submitted a  fee application  that



          claimed  recompense  for  the  entire  time  his  attorney  spent



          pursuing the case.   In fact, he "prevailed" on  but a portion of



          his  claims,  and those  but modestly.    The endorsement  of the



          district judge nowhere considers the time Krewson spent advancing



          unsuccessful  theories  of  liability.     With  respect  to  the



          analogous fee shifting  provision of  Mass. Gen. L.  ch. 93A,  we



          have held  that if a plaintiff prevails on some of his claims and



          loses on others,  the fee award may be limited  to the time spent



          proving  the successful claims, unless  it can be  shown that the
                       __________



          claims  were interconnected.   See  Peckham,  895 F.2d  at 841-42
                                         ___  _______



          (citing Hanner v. Classic Auto Body, Inc., 10 Mass. App. Ct. 121,



          123-24 [1980]);  Equitable Life Assoc.  Soc. v. Porter-Englehart,
                           ___________________________    ________________



          867  F.2d 79,  91 (1st  Cir. 1989)  (where Chapter  93A violation



          proven, fees recoverable only for "any meaningful amount of legal



          work  . . . independently required" by the dereliction); Whyte v.
                                                                   _____



          Connecticut Mut. Life  Ins. Co.,  818 F.2d 1005,  1011 n.20  (1st
          _______________________________



          Cir.  1987)  (similar).    Here, Krewson  claimed  false  arrest,



          assault and battery, and false imprisonment -- among other things



          -- arising out  of certain  events taking place  on October  5-6,


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1986.   He  lost all these  claims.   This, his  counsel told the



          jury,  was one half  of his case;  the events of  October 12 com-



          prised the  other half.   App., vol. III  at 4-95.   The district



          judge  so charged the jury,  keeping the claims  distinct just as



          Krewson's counsel had argued.  Id. at 4, 104-06.
                                         ___



                    On  this record,  there is  no adequate basis  for con-



          cluding  that all  Krewson's  claims are  so sufficiently  inter-



          connected as to warrant a  fee award in the total sum  claimed by



          Krewson.  Compare Wagenmann v. Adams, 829 F.2d 196, 225 (1st Cir.
                    _______ _________    _____



          1987) (ruling that  the suit at  issue could not  be viewed as  a



          series of discrete claims for purposes of  fee award under   1988



          where "[a]ll of the triable issues arose out of a short,  visibly



          linked  series of events").  Indeed, particularly having in  mind



          that  the  burden  is  upon Krewson  to  show  an interconnection



          between  the failed claims and  the successful one,  not only did



          they, on their face, appear separate, but they were so presented.



          Krewson  cannot   try  on   the  basis  of   separateness,  which



          facilitated the jury's finding in  his favor on at least  part of



          the case, and then, when it comes to fees, contend connectedness.



                    This is not  to say  that some of  the depositions  and



          other preparations were not related both to the events of October



          5-6 and those of October 12.   So long as the attorney's work was



          reasonably  necessary  for  the  prosecution of  the  October  12



          claims, the  district judge  can properly  charge  these fees  to



          McDonough.   As we  said in Peckham,  "in the  last analysis, the
                                      _______



          fee-shifting anodyne  focuses on 'what  [counsel's] services were


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objectively  worth.'"  Peckham, 895 F.2d at 843, citing Heller v.
                                 _______                          ______



          Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978).
          __________________________



                    4.   Costs -- The failure  to consider apportionment as
                    4.   Costs -- 



          between successful  and unsuccessful claims infects  the issue of



          costs as well.   McDonough argues that the district  court abused



          its  discretion in including expert witness fees and costs in the



          award.  The award of costs in this case is not governed by   1988



          as asserted by McDonough.   Rather, this Court applies  the state



          standard  in  evaluating  claims   for  costs  if  the  plaintiff



          prevailed  only on  the parallel  state claims.   See  Freeman v.
                                                            ___  _______



          Package Mach. Co., 865  F.2d 1331, 1347 (1st Cir. 1988).   Where,
          _________________



          as here,  the Commonwealth  has granted explicit  statutory cost-



          shifting authority,  there is a presumption  in Massachusetts law



          favoring   the awarding  of expert witness fees.   Id. at 1347-49
                                                             ___



          (upholding the granting of  expert witness fees under Mass.  Gen.



          L. ch. 151B,   9) (citing Linthicum, 379 Mass. at 379).  In light
                                    _________



          of  that presumption,  this Court  concludes that  expert witness



          fees may be  properly awarded  in a successful  action under  the



          Massachusetts Civil  Rights Act.  Freeman  does suggest, however,
                                            _______



          that an  expert witness' fee can be  prorated to reflect the work



          performed for certain claims.  863 F.2d at 1350.  Here, McDonough



          appears  to  make a  persuasive  argument that  the  testimony of



          expert Robert  DiGrazia  was limited  to issues  relating to  the



          first half of the  case -- the arrest  on October 5th  (testimony



          which was later stricken) and the liability of  the City.  Having



          remanded the fee  award to the district court  for apportionment,


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however,  we  deem  it  appropriate  likewise  to  remand  to the



          district judge the  issue of  costs for resolution  in the  first



          instance.



                    Accordingly, the fee award is vacated and the matter of
                                                  _______



          appropriate attorney's fees and costs is remanded to the district
                                                   ________



          court for further proceedings consistent with this opinion.


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