Warren v. City of Lynn
Opinion
USCA1 Opinion
April 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1439
SUSAN WARREN, ET AL.,
Plaintiffs, Appellees,
v.
CITY OF LYNN, ET AL.,
Defendants, Appellants.
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[Hon. Edward F. Harrington, U.S. District Judge]
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Pettine,* Senior District Judge.
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Austin M. Joyce with whom Edward P. Reardon and Michael J.
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Akerson were on brief for appellants.
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Geraldine S. Hines with whom Margaret A. Burnham was on brief for
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appellees.
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*Of the District of Rhode Island, sitting by designation.
COFFIN, Senior Circuit Judge. This appeal is the aftermath
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of a lawsuit brought by six members of the Warren family against
members of the Lynn Police Department and the city of Lynn to
redress violations of the Warrens' federal and state civil rights
suffered when five family members were arrested, and the family
home unlawfully searched, on August 16, 1985. On that evening, a
convenience store in East Lynn was robbed at gunpoint. In
following up on this robbery, defendant members of the Lynn
police force ended up at the Warren home, over a mile and a half
away from the store. There, they ultimately arrested five family
members, engaged in an illegal search of their home and their
persons, and falsely imprisoned at least one family member.
Plaintiffs were not prosecuted in connection with the robbery,
and were acquitted of various charges of assault and disorderly
conduct in connection with their arrests.
A jury found five of the Lynn policemen guilty of various
violations of the Warrens' federal and state civil rights. The
city of Lynn and some half dozen other officers received
defendants' verdicts. Punitive damages had been waived;
compensatory damages were awarded in the amount of $2,500.
Plaintiffs sought an award of $85,566.25 in counsel fees, and
costs of $4,094.71. The court awarded costs and $50,000 for
counsel fees.
Appellants challenge the court's denial of their motion for
judgment notwithstanding the verdicts and the award of attorney's
-2-
fees and costs. Before we can address the merits, however, we
must face the issue of our appellate jurisdiction.
Appellate Jurisdiction
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1. The facts. This appeal initially was filed on June 14,
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1991. On July 3, 1991, noting a number of potentially fatal
jurisdictional defects (including the pendency of an additional
post-judgment motion and the lack of separate documents of
judgment), we issued an order to show cause why this appeal
should not be dismissed. We cited to our court's panel decision
in Fiore v. Washington County Community Health Center, 936 F.2d
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51 (1st Cir. 1991), withdrawn and superseded by Fiore v.
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Washington County Community Health Center, 960 F.2d 229 (1st Cir.
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1992) (en banc), in which, confronted with the question of how
the "separate document" requirement of Fed. R. Civ. P. 58 should
be applied in the context of post-judgment motions, we concluded
that meticulous compliance was necessary.1
Shortly before our show cause order, on June 21, 1991, the
district court denied the remaining post-judgment motion. On
July 15, 1991 the defendants voluntarily dismissed their appeal.
On March 30, 1992, we issued our en banc decision in Fiore, which
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reaffirmed the basic position originally adopted by the panel,
requiring "meticulous compliance" with the separate document
rule, and holding that when a party fails to pursue an appeal
within three months of the court's last order in the case, waiver
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1Rule 58 requires that "[e]very judgment shall be set forth on a
separate document," and provides that "[a] judgment is effective
only when so set forth . . . ."
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of the separate document requirement should be inferred. 960
F.2d at 231, 236. Appellants still took no action for over two
more months. In June and July, 1992, they made several feckless
attempts, by letters and conversations, to obtain separate
documents from the clerk's office; nothing was forthcoming. Not
until October 8, 1992, fifteen and one half months after the last
order in the case was issued by the district court, and fifteen
months after our show cause order, did appellants file a motion
for entry of judgment and for issuance of separate documents.
On March 25, 1993, the district court allowed the motion for
entry of judgment, but, in a margin order, denied the motion
requesting that the court's post-trial orders be entered on
separate documents. On April 14, 1993, the appellants filed a
second appeal.
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