Pimentel v. The Jacobsen

• Court: Court of Appeals for the First Circuit
• Decided: December 24, 1996
• Docket: 96-1384
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


No. 96-1384



                                  CARL P. PIMENTEL,



                                 Plaintiff, Appellee,



                                          v.



                     JACOBSEN FISHING COMPANY, INC., IN PERSONAM,
                                                     ____________

                            AND THE F/V VALKYRIE, IN REM,
                                                  ______



                               Defendants, Appellants.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. Morris E. Lasker,* Senior U.S. District Judge]
                                          __________________________



                                                     
                                 ____________________



                                        Before



                                Selya, Cyr and Lynch,



                                   Circuit Judges.
                                   ______________



                                                     
                                 ____________________


Robert  E. Collins,  with whom  Thomas E.  Clinton and  Clinton &
             __________________              __________________      _________

        Muzyka, P.C. were on brief for appellants.
        ____________

             Lawrence J. Mullen, with whom Timothy R. McHugh and Hoch & McHugh
             __________________            _________________     _____________

        were on brief for appellee.


____________________



                                  December 23, 1996

                                                     
                                 ____________________


____________________



             *Of the Southern District of New York, sitting by designation.



CYR, Circuit  Judge.  Appellants Jacobsen  Fishing Co.,
                    CYR, Circuit  Judge.
                         ______________



          Inc. and the Fishing  Vessel Valkyrie (collectively:  "Jacobsen")



          appeal  from a  district  court judgment  holding them  liable in



          damages for severing a  submerged cable carrying electrical power



          to  a small island owned by plaintiff-appellee Carl Pimentel.  As



          all claims raised on  appeal were either unpreserved or  patently



          meritless,  we  affirm the  district  court  judgment and  impose



          monetary sanctions against Jacobsen  and its counsel as requested



          by appellee. 



                                          I
                                          I



                                      DISCUSSION
                                      DISCUSSION
                                      __________



                    First, Jacobsen has not approached the required  demon-



          stration of clear error  in its frontal attack on the findings of



          fact  made by the  trial judge.   See Johnson  v. Watts Regulator
                                            ___ _______     _______________



          Co.,  63 F.3d 1129, 1138  (1st Cir. 1995)  ("[W]hen there are two
          ___



          permissible  views  of  the  evidence,  the  factfinder's  choice



          between  them cannot  be  clearly erroneous.").   In  particular,



          Pimentel presented testimony by the  Captain of the Valkyrie that



          the helmsman  knew the location  of the  submerged cables.   As a



          general rule, credibility determinations are rather well insulat-



          ed from appellate  challenge.  See Gamma  Audio & Video,  Inc. v.
                                         ___ ___________________________



          Ean-Chea,  11 F.3d 1106, 1115  (1st Cir. 1993)  (noting that "the
          ________



          trial judge is in the best position to assess the credibility  of



          witnesses").  So it is here.1  

                              
          ____________________



               1Similarly, Jacobsen's assault on  the trial judge's refusal

          to draw an  adverse inference from an inadvertent  destruction of

          evidence suggests neither clear error nor an abuse of discretion.



                                          2



Second,  having presented  no evidence  on compensatory
                                               __



          damages, Jacobsen's contention  that the award made  by the trial



          judge  was excessive utterly fails to  establish error, let alone



          clear error.  See Reilly v. United States, 863 F.2d 149, 166 (1st
                        ___ ______    _____________



          Cir. 1988) (noting that trial judge's factual findings, including



          its  "determination of  damages,"  are reviewed  "only for  clear



          error").  Furthermore, Jacobsen's  remaining claims     including



          its  contention that  the  district  court improperly  reimbursed



          Pimentel for costs incurred for the services of an expert witness



             were not preserved below.   See Poliquin v. Garden Way,  Inc.,
                                         ___ ________    _________________



          989 F.2d 527, 531 (1st Cir. 1993).  



                    Accordingly, we  limit further discussion  to the vari-



          able interest rate  calculation employed by the district court in



          awarding  prejudgment  interest.    The  district  court  awarded



          prejudgment interest  at a  variable rate, utilizing  the average



          price of 52-week Treasury Bills for each year within the relevant



          prejudgment  period.   Recourse to  a  variable interest  rate is



          neither unprecedented, see George's  Radio & Television Co., Inc.
                                 ___ ______________________________________



          v. Insurance Co.  of N. Am., 536 F.Supp. 681,  685 (D.Md.), judg-
             ________________________                                 _____



          ment amended, 549 F.Supp. 1014 (D.Md. 1982), nor unreasonable per
          ____ _______                                                  ___



          se,  especially since  the  result normally  will approximate  an
          __



          acceptable average  for the prejudgment period,  see Cement Div.,
                                                           ___ ____________



          Nat'l Gypsum Co. v. City of Milwaukee, 31 F.3d 581, 587 (7th Cir.
          ________________    _________________



          1994), aff'd, 115 S. Ct. 2091 (1995); Ingersoll Milling Mach. Co.
                 _____                          ___________________________



                              
          ____________________



          See Blinzler v.  Marriott Int'l,  Inc., 81 F.3d  1148, 1158  (1st
          ___ ________     _____________________

          Cir. 1996).



                                          3



v. M/V/ Bodena,  829 F.2d 293, 311 (2d  Cir. 1987), cert. denied,
             ___________                                      _____ ______



          484 U.S. 1042 (1988);  Bonsor S.A. DE C.V.  v. Tug L.A.  Barrios,
                                 ___________________     _________________



          796 F.2d 776, 786-87 (5th Cir. 1986).   Indeed, we have suggested



          that utilization  of a  prime rate  average would be  reasonable.



          See City of Boston v. S.S. Texaco Texas, 773 F.2d 1396, 1401 (1st
          ___ ______________    _________________



          Cir. 1985) (dicta).   Moreover, Jacobsen managed no demonstration



          that the variable-rate prejudgment  interest award in the instant



          case  constituted an abuse  of discretion.   See Independent Bulk
                                                       ___ ________________



          Transp., Inc. v. The Vessel "Moriana Abaco", 676 F.2d 23,  25 (2d
          _____________    __________________________



          Cir. 1982). 



                    Lastly,  we consider  Pimentel's motion  for sanctions.



          Federal Rule of Appellate  Procedure 38 states:   "If a court  of



          appeals determines  that an  appeal is  frivolous, it  may . .  .



          award just damages and  single or double costs to  the appellee."



          An appeal is frivolous "if the result is obvious or the arguments
                                                           __



          are 'wholly without merit.'"  Cronin v. Town of Amesbury, 81 F.3d
                                        ______    ________________



          257,  261  (1st  Cir.  1996) (emphasis  added)  (quoting  Wescott
                                                                    _______



          Constr.  Corp. v.  Fireman's Fund of  N.J., 996 F.2d  14, 17 (1st
          ______________     _______________________



          Cir. 1993)).  This, unquestionably, is such a case.



                    The  claim  that  Jacobsen  is not  liable  in  damages



          directly challenged the trial  judge's factual findings,  thereby



          engaging  one of the more formidable standards of review known to



          federal appellate practice.  See Johnson, 63 F.3d at 1138.  Then,
                                       ___ _______



          relying  on even  shakier ground,  Jacobsen mounted  an appellate



          challenge to the size  of the award without having  presented any



          evidence  on damages.  Finally, the arguments Jacobsen raised for


4



the first time on appeal did not begin to suggest "plain  error,"



          see  United States  v. Olano,  507 U.S.  725, 734  (1993),  as no
          ___  _____________     _____



          "miscarriage of justice" obtained.  See Poliquin 989 F.2d at 531.
                                              ___ ________



          Thus, it was clear  from the outset that Jacobsen's  prospects of



          success  on appeal were all but nonexistent, and that no "respon-



          sible  litigant or lawyer should have gone forward with an appeal



          in these straitened circumstances."  La Amiga del Pueblo, Inc. v.
                                               _________________________



          Robles,  937 F.2d 689, 692  (1st Cir. 1991)  (appellate attack on
          ______



          jury  verdict  held  frivolous  given  conflicting  evidence  and



          failure to preserve claims). 



                    Although  at first blush  Jacobsen's brief  suggests an



          appeal with  some substance, the illusion  dissolves upon cursory



          investigation.   Its many citations to  authorities supposedly on



          point frequently turn out to  be readily distinguishable.   Unfa-



          vorable  First  Circuit  authority  frequently  is  bypassed  for



          somewhat less unfavorable  authorities from other  jurisdictions.



          The  unhelpfulness  of  these  litigation  tactics  exposed  both



          Jacobsen and its  counsel to sanctions.2   Commonwealth Elec. Co.
                                                     ______________________



          v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 754 F.2d
             ____________________________________________________

                              
          ____________________



               2Counsel continued  to press these tactics  in opposition to

          the motion  for sanctions,  notwithstanding a prior  warning from

          Pimentel's counsel that a motion for sanctions would be forthcom-

          ing in the event of a frivolous appeal.  Jacobsen's opposition to

          the motion  for sanctions  nonetheless indicated that  though bad

          faith is not  an essential element of frivolousness,  it may be a

          necessary  predicate  for sanctions  under  Fed. R.  App.  P. 38,

          citing as authority a  single case from another  circuit.  In  so

          doing,  counsel conveniently  ignored longstanding  First Circuit

          caselaw which holds, unequivocally, that Rule 38 sanctions may be

          imposed  without a finding of  bad faith.   E.g., Applewood Land-
                                                      ____  _______________

          scape  & Nursery Co. v.  Hollingsworth, 884 F.2d  1502, 1508 (1st
          ____________________     _____________

          Cir. 1989).  



                                          5



46, 49 (1st Cir. 1985) (imposing sanctions on counsel for submit-



          ting  brief  which  "added  a significant  burden  on  appellee's



          counsel and the court"); see also Fed. R. App. P. 38; 28 U.S.C.  
                                   ___ ____



          1927  ("Any attorney . .  . who so  multiplies the proceedings in



          any case  unreasonably  and vexatiously  may be  required by  the



          court  to  satisfy personally  the  excess  costs, expenses,  and



          attorneys' fees reasonably incurred  because of such  conduct.");



          Cronin,  81 F.3d at 261-62 (imposing sanctions under Fed. R. App.
          ______



          P. 38 and 28 U.S.C.   1927 for frivolous appeal).



                                          II
                                          II



                                      CONCLUSION
                                      CONCLUSION
                                      __________



                    The district court judgment  is affirmed.  Double costs



          are  assessed exclusively against Jacobsen; $8,406.00 in attorney



          fees to appellee's counsel  are assessed directly and exclusively



          against appellant's  counsel, the firm of Clinton & Muzyka, P.C.,



          and Messrs. Clinton and Collins, jointly and severally.



                    So ordered.
                    __________


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