Witty v. Dukakis

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 93-1238

                                 PAUL WITTY, ET AL.,
                                Plaintiffs, Appellees,

                                          v.

                          MICHAEL S. DUKAKIS, ETC., ET AL.,
                                Defendants, Appellees.
                              _________________________

                              GERALD S. KRAMER, ET AL.,
                               Plaintiffs, Appellants.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                              _________________________

                                        Before

                           Selya and Stahl, Circuit Judges,
                                            ______________
                             and Fuste,* District Judge.
                                         ______________

                              _________________________

               Mary Winstanley  O'Connor with  whom Gaffin  & Krattenmaker,
               _________________________            _______________________
          P.C. was on brief, for appellants.
          ____
               Margaret Monsell, Assistant  Attorney General,  Commonwealth
               ________________
          of  Massachusetts, with whom Scott Harshbarger, Attorney General,
                                       _________________
          was on brief, for defendants-appellees.

                              _________________________

                                  September 2, 1993

                              _________________________

          ________________
          *Of the District of Puerto Rico, sitting by designation.

SELYA, Circuit  Judge.   After failing to  strike while
                    SELYA, Circuit  Judge.
                           ______________

          the  iron  was hot,  appellants  invited  the district  court  to

          overlook their lassitude and award them attorneys' fees  under 42

          U.S.C.   1988.  The district court demurred.  We find the court's

          declination of appellant's invitation, premised on the  lack of a

          timely fee petition, to be appropriate.  Consequently, we affirm.

                                          I
                                          I

                    We need not  dwell on the provenance of  the underlying

          suit.    For present  purposes, it  suffices  merely to  say that

          parents of several  mentally and physically handicapped  children

          brought suit  in a Massachusetts  state court charging  the named

          defendants, state officials, with dereliction of duty and seeking

          injunctive relief.  The  original plaintiffs averred in substance

          that the  state  had an  obligation  to continue  the  children's

          special education past age twenty-two; that the state legislature

          appropriated  money to  accomplish this  objective; and  that the

          executive branch then wrongfully impounded the funds.  Plaintiffs

          later added  a claim pursuant to  42 U.S.C.    1983.  Appellants,

          parents  of similarly  situated children,  moved to  intervene as

          parties plaintiff, making virtually identical claims.  On October

          10, 1989, a state judge granted their motion.

                    On  October 18,  defendants removed  the action  to the

          federal   district  court.     All   plaintiffs,  including   the

          appellants, moved to remand.   On January 24, 1990,  the district

          court,  in  an order  reminiscent  of the  precedent  proposed by

          Solomon to resolve  conflicting claims of parentage, see  2 Kings
                                                               ___    _____

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3:16-18, remanded the state-law  claims but retained jurisdiction

          over  the section 1983 claim.  The parties subsequently reached a

          settlement resolving all the state-law claims.  By virtue of this

          settlement,  the plaintiffs, and  all persons similarly situated,

          including appellants, achieved complete relief.

                    On  January  15, 1991,  plaintiffs  asked the  district

          court  for  attorneys'  fees  pursuant  to  42  U.S.C.     1988.1

          Appellants did not file a similar application.  On June 21, 1991,

          the  judge   issued  a   memorandum  order   awarding  plaintiffs

          $147,288.17.   On August 12,  1991, final judgment  entered.  The

          judgment commemorated the fee  award and dismissed the underlying

          claims as moot.  On the same date, the case was  administratively

          closed.

                    On  April  23,  1992,  appellants  stirred  from  their

          apparent  slumber and applied for fees.  On July 17, the district

          court denied the application  as untimely under D. Mass.  Loc. R.

          54.3,  which requires a  prevailing party to  move for attorneys'

          fees  within thirty days next following the entry of judgment, on

          pain of  preclusion.  Appellants moved for  reconsideration.  The

          court denied that motion on December 7.  Appellants then  tried a

          different route, moving for entry of judgment pursuant to Fed. R.

          Civ.  P. 54(b).  Appellants  contended that, because the district

          court's earlier  entry of  judgment did not  specifically mention

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               142  U.S.C.     1988 provides  in  pertinent  part that,  in
          actions brought under the aegis of 42 U.S.C.   1983,  "the court,
          in its  discretion,  may  allow the  prevailing  party .  .  .  a
          reasonable attorney's fee as part of the costs."

                                          3

"intervenors,"  it "adjudicate[d] fewer than all the claims . . .

          of  fewer  than  all  the   parties,"  and  therefore  failed  to

          "terminate the  action."  Fed. R.  Civ. P. 54(b).2   By virtue of

          this maneuver, appellants hoped to restart the clock in regard to

          the filing of  an application for counsel fees.   On December 31,

          1992, the district court granted the motion for entry of judgment

          stating explicitly, however, that  it was doing so  "with respect

          to the  only issue remaining, [appellants']  claim for attorney's

          fees."  A judgment commemorative of the December 31 order entered

          on January 4, 1993.   The district court subsequently  refused to

          amend either the  new or  the old  judgment and,  by order  dated

          February 3, 1993, again denied appellants' request for attorneys'

          fees.  This appeal ensued.

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               2Rule 54(b) provides in pertinent part:

                    When  more  than  one  claim  for  relief  is
                    presented  in  an  action,  .  .  .  or  when
                    multiple parties are involved, the  court may
                    direct the  entry of  a final judgment  as to
                    one or more but fewer  than all of the claims
                    or parties only upon an express determination
                    that there  is no  just reason for  delay and
                    upon an  express direction  for the  entry of
                    judgment.      In   the   absence   of   such
                    determination  and  direction,  any order  or
                    other form of  decision, however  designated,
                    which  adjudicates fewer than  all the claims
                    or the  rights and liabilities of  fewer than
                    all  the  parties  shall  not  terminate  the
                    action as  to any  of the claims  or parties,
                    and the  order or  other form of  decision is
                    subject to revision  at any  time before  the
                    entry of judgment adjudicating all the claims
                    and the  rights  and liabilities  of all  the
                    parties.

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II
                                          II

                    Ordinarily, a  prevailing plaintiff  in a  section 1983

          case is  entitled to  recover reasonable attorneys'  fees "unless

          special  circumstances  would  render  such  an   award  unjust."

          Blanchard  v. Bergeron,  489 U.S.  87, 89  n.1 (1989);  Newman v.
          _________     ________                                  ______

          Piggy  Park Enters., Inc., 390 U.S.  400, 402 (1968).  Local Rule
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          54.3 conditions  this entitlement by requiring prevailing parties

          to  file fee applications  within thirty days  next following the

          entry  of judgment  or  else  forever  hold  their  peace.    The

          genealogy  of this  timeliness  requirement is  impeccable.   See
                                                                        ___

          White v. New  Hampshire Dep't of Empl't  Sec., 455 U.S. 445,  454
          _____    ____________________________________

          (1981)  (suggesting  that  courts  adopt such  rules);  Baird  v.
                                                                  _____

          Bellotti, 724 F.2d 1032, 1037 n.6 (1st Cir. 1984) (similar).
          ________

                    In general,  rules limiting  the time within  which fee

          claims  may be  filed are  enforceable according to  their tenor.

          Here, appellants do not question the propriety of such rules.  By

          like token,  appellants have  shown insufficient reason  why they

          should  be  excused  from  the  operation  of  Local  Rule  54.3.

          Nevertheless,  appellants weave an imaginative tapestry featuring

          manifold  reasons why  the district  court erred  in refusing  to

          entertain their fee petition.   Having pulled each asseverational

          thread, we find the fabric to be unserviceable.

                    First,  appellants  say  that,  inasmuch  as  the  1991

          judgment  made no particular mention  of them, it  could not have

          been a final judgment within the meaning of  the Civil Rules and,

          therefore,  the 30-day time  period specified in  Local Rule 54.3

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did  not begin to  run until January  4, 1993 (when  the district

          court, at  appellants' behest,  entered another judgment).   But,

          appellants proceed from a mistaken assumption.

                    A  judgment is final "when  the court enters a decision

          resolving the contested matter, leaving nothing to be done except

          execution of  the judgment."  United States v. Metropolitan Dist.
                                        _____________    __________________

          Comm'n, 847 F.2d 12, 14  (1st Cir. 1988).3  Since  appellants had
          ______

          intervened  as parties  plaintiff  and  their substantive  claims

          matched  those  of  the   original  plaintiffs,  the  action  was

          effectively ended when  the court  dismissed plaintiffs'  federal

          claims  as  moot.   See  7C  Charles A.  Wright  et  al., Federal
                              ___                                   _______

          Practice and Procedure   1920, at 488 (1983) (explaining that, as
          ______________________

          a  general rule,  "the intervenor  is treated  as if  he  were an

          original  party   and  has  equal  standing   with  the  original

          parties").  At that  point in the proceedings, then,  appellants'

          claims had no independent life.

                    We  add a postscript.  We think that the 1991 judgment,

          by dint  of plain language  and surrounding context,  disposed of

          all  remaining claims.   If, however,  any ambiguity  existed, we

          would be bound  to defer  to a reasonable  interpretation of  the

          judgment's meaning and effect  elucidated by the judicial officer

          who  authored it.  See, e.g., Metropolitan Dist. Comm'n, 847 F.2d
                             ___  ____  _________________________

          at   14;   Martha's   Vineyard  Scuba   Headquarters,   Inc.   v.
                     _________________________________________________
                              
          ____________________

               3It  is,  of  course,  well   settled  that  a  judgment  is
          considered "final" if  it resolves the  merits, despite the  fact
          that it leaves claims for attorneys' fees to be adjudicated  at a
          later  date.   See White,  455 U.S.  at 452  & n.14;  Crossman v.
                         ___ _____                              ________
          Maccoccio, 792 F.2d 1, 2-3 (1st Cir. 1986) (per curiam).
          _________

                                          6

Unidentified, Wrecked and Abandoned  Steam Vessel, 833 F.2d 1059,
          _________________________________________________

          1066-67  (1st Cir. 1987); Lefkowitz  v. Fair, 816  F.2d 17, 22-23
                                    _________     ____

          (1st Cir. 1987); Advance Fin. Corp. v. Isla Rica Sales, Inc., 747
                           __________________    _____________________

          F.2d  21, 26 n.10 (1st Cir. 1984).   Here, the district judge, in

          denying  the fee application  as untimely, made  it crystal clear

          that  she believed  the 1991  judgment disposed of  all remaining

          claims, appellants' included, and  that she intended the judgment

          to  have precisely that culminative effect.  Because the district

          judge's   reading  is,   far   and  away,   the  most   plausible

          interpretation that  can be  placed on the  judgment, appellants'

          attempt to argue otherwise can only be  viewed as a prime example

          of disappointed litigants elevating hope above reason.

                    Second,  appellants asseverate  that the  30-day period

          specified in Local Rule 54.3 began to run  anew when the district

          court entered another judgment on January 4, 1993.  This argument

          is  also flawed.    To  the extent  it  relies  upon the  alleged

          incompleteness  or lack of  finality of the  earlier judgment, it

          fails  on the  basis of  what we  have already  written.   To the

          extent that  this argument  has  a somewhat  different focus,  it

          conveniently  overlooks  that   the  1993  judgment   entered  at

          appellants'  express   request.     From  the  district   court's

          standpoint, the judgment's only  effect was to put a tidy  end to

          appellants' belated quest  for fees.4   A party  confronted by  a

          set period for taking  an action cannot allow  the time to  lapse
                              
          ____________________

               4The  district court made this abundantly  clear both in the
          wording of its order  and in holding fast to  its earlier refusal
          to grant fees.

                                          7

and  then  resurrect his  rights merely  by  asking the  court to

          reconsider  or to confirm what the court  has already done.  See,
                                                                       ___

          e.g., Fisichelli v.  City, Etc.  of Methuen, 884  F.2d 17,  18-19
          ____  __________     ______________________

          (1st Cir. 1989); Rodriguez-Antuna  v. Chase Manhattan Bank Corp.,
                           ________________     __________________________

          871 F.2d 1, 2 (1st Cir. 1989); see also Browder v. Director, Ill.
                                         ___ ____ _______    ______________

          Dep't  of Corrections, 434 U.S. 257,  263 n.7 (1978).  After all,
          _____________________

          "[t]he law  ministers to the vigilant not to those who sleep upon

          perceptible  rights."  Puleio v.  Vose, 830 F.2d  1197, 1203 (1st
                                 ______     ____

          Cir. 1987), cert. denied, 485 U.S. 990 (1988).
                      _____ ______

                    Third, appellants  argue that the 1991  judgment had no

          dispositive  effect  because  they  received  no  contemporaneous

          notice of its entry.  This suggestion ignores an abecedarian rule

          of   civil  practice:    parties  to  an  ongoing  case  have  an

          independent obligation  to monitor  all developments in  the case

          and  cannot rely on the  clerk's office to  do their homework for

          them.  See Vargas v. Gonzalez, 975 F.2d 916, 917 (1st Cir. 1992);
                 ___ ______    ________

          Spiller v. U.S.V. Labs., Inc., 842 F.2d 535, 537 (1st Cir. 1988);
          _______    __________________

          cf. Fed. R. Civ. P. 77(d)  (providing that "lack of notice of the
          ___

          entry [of  a judgment] by the  clerk does not affect  the time to

          appeal").  Had appellants exercised  even a modicum of diligence,

          they would have known that proceedings were in progress to assess

          attorneys'  fees and, thereafter, that  the case had been closed.

          In  sum,  appellants'  professed  lack  of  awareness  cannot  be

          permitted to frustrate the 30-day time limit limned in Local Rule

          54.3.

                    Next,  appellants  assert  that  the  district  court's

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denial  of fees was inexplicit   it did not particularly describe

          the "special  circumstances" that rendered a  fee award "unjust,"

          Blanchard, 489 U.S. at 89 n.1   and,  therefore, defective.  This
          _________

          assertion blinks reality.   The pertinent  facts are as  follows.

          The district court initially rebuffed appellants' fee application

          on  July 17,  1992.   The  court's order  explained that  the fee

          request was time  barred.  Appellants  later made two  subsequent

          motions that, in effect, asked the court to revisit the matter of

          fees.  The  district court denied these  motions without comment;

          the  operative  orders  were  entered  on  December  7,  1992 and

          February 3, 1993, respectively.

                    Appellants urge us to set aside the last two orders for

          lack  of  findings.   We see  no need  to do  so.   So long  as a

          district court's reason for denying fees or monetary sanctions is

          (1)  well  founded, (2)  sufficient to  the  stated end,  and (3)

          apparent on the face of the record, a reviewing tribunal will not

          insist  on unnecessary  punctilio.   See, e.g.,  Figueroa-Ruiz v.
                                               ___  ____   _____________

          Alegria, 905 F.2d 545, 549 (1st Cir. 1990) (requiring explanation
          _______

          only  when  reason for  denial of  sanctions  is "not  obvious or

          apparent from  the record"); Morgan v.  Massachusetts Gen. Hosp.,
                                       ______     ________________________

          901 F.2d 186, 195 (1st Cir. 1990) (similar); see also Brewster v.
                                                       ___ ____ ________

          Dukakis, ___ F.2d ___, ___ (1st Cir. 1993) [No. 92-2399, slip op.
          _______

          at 11-12] (affirming reduction in claimed attorneys' fees despite

          absence of explicit findings);  Jacobs v. Mancuso, 825 F.2d  559,
                                          ______    _______

          564  (1st   Cir.  1987)   (acknowledging  that  there   are  some

          circumstances  in which judges confronted by fee requests may "be

9

allowed to draw  conclusions . .  . without full  articulation").

          The case  at bar  comes squarely  within this  principle.  It  is

          perfectly  clear  that  the  district court's  thinking  had  not

          changed  between July 17 and  December 7, and  that the denial of

          fees  on the  latter date,  and thereafter  in February  of 1993,

          stemmed from  the court's  steadfast,  unarguably correct  belief

          that  the time for filing  a viable fee  application had expired.

          Because  the  record  clearly  confirms  the  existence  of  this

          "special circumstance," no more is exigible. 

                    Finally,  appellants  claim that  the  district court's

          failure to grant their motion for postjudgment relief in a manner

          that would have opened  a new 30-day window constituted  an abuse

          of discretion.  But the district court's discretion under Fed. R.

          Civ.  P. 60(b) is  "wide," Cotto v. United  States, 993 F.2d 274,
                                     _____    ______________

          277 (1st Cir. 1993);  accord Valley Citizens for a  Safe Env't v.
                                ______ _________________________________

          Aldridge,  969 F.2d 1315, 1317  (1st Cir. 1992),5  and we discern
          ________

          no abuse  in this instance.   Whether  the district  court, as  a

          matter  of grace, might have had discretion to vacate and reenter

          the 1991 judgment or otherwise relieve appellants from the burden

          of Local Rule 54.3 is not the issue.  Here, the judge did not see

          fit to extend  discretionary relief   and we can hardly fault her

          for  refusing to extricate appellants from a self-dug hole.  See,
                                                                       ___
                              
          ____________________

               5It makes no difference that appellants also invoked Fed. R.
          Civ.  P. 59(e).  The same expansive discretion inheres under that
          rule.   See Mackin  v. City of  Boston, 969 F.2d  1273, 1279 (1st
                  ___ ______     _______________
          Cir. 1992), cert. denied,  113 S. Ct. 1043 (1993);  United States
                      _____ ______                            _____________
          v. Land  at 5 Bell Rock  Rd., 896 F.2d 605, 611  (1st Cir. 1990);
             _________________________
          Appeal  of Sun Pipe  Line Co., 831  F.2d 22, 25  (1st Cir. 1987),
          _____________________________
          cert. denied, 486 U.S. 1055 (1988).
          _____ ______

                                          10

e.g.,  Zaklana v. Mt.  Sinai Med. Ctr.,  906 F.2d 645,  649 (11th
          ____   _______    ____________________

          Cir. 1990)  (affirming trial court's  denial of fee  petition for

          applicant's  failure  to comply  with timeliness  requirements of

          local rule; stating, inter  alia, "[p]ractitioners must adhere to
                               _____  ____

          applicable local rules  in order  for those local  rules to  have

          effect  and  federal  courts  by enforcement  will  preserve  the

          integrity  of local  rules, absent  problems of  a constitutional

          dimension").

                                         III
                                         III

                    We  need go  no further.   Local  Rule 54.3  provides a

          reasonable period of time following  the entry of judgment within

          which a prevailing party may bring an application  for attorneys'

          fees.   Appellants dawdled well  past the deadline;  they did not

          file their application until eight months after judgment entered.

          The district court acted  well within its discretion in  refusing

          to entertain so stale an entreaty.

Affirmed.
          Affirmed.
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