
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,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            John F. Farraher, Jr., with whom David C. Jenkins and Dwyer &            _____________________            ________________     _______        Jenkins, were on brief for appellant McDonough.        _______            Robert L. Hernandez for appellee.            ___________________                                 ____________________                                  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            ______            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                                         -3-                                          3            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                                         -4-                                          4            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                            ___ ___                _______    ______                                            ____________________            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.                                             -5-                                          5            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                                         -6-                                          6            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).                                             -7-                                          7                      Affirmed.2                      Affirmed.                      ________                                            ____________________            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.                                         -8-                                          8
