
USCA1 Opinion

	




          March 1, 1993         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1478                                            SHANTEE MONGA, ET AL.,                               Plaintiffs, Appellants,                                          v.                      GLOVER LANDING CONDOMINIUM TRUST, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Shantee Monga and Dharam D. Monga on brief pro se.               _____________     _______________               Philip C. Curtis, Peter L. Ebb and Ropes & Gray on brief for               ________________  ____________     ____________          appellees.                                  __________________                                  __________________                 Per  Curiam.    The  plaintiffs/appellants,  Dharam  and                 ___________            Shantee Monga, are attorneys representing themselves  pro se.            They are  appealing an order  of the district  court awarding            the defendants/appellees  attorneys' fees  and  costs in  the            amount of $301,709.56.   The fee award arose from  a multiple            count complaint  filed by the  Mongas, in  1988, against  the            condominium trust that manages  the condominium complex where            the  Mongas are  owner/occupants,  and two  individuals -  an            officer  of that  trust  and  the  business  manager  of  the            complex.   When their case  was called for  trial in February            1992,  the district court  denied their second  request for a            continuance  and Mr.  Monga stated  that he  was unready  for            trial.  The Mongas' complaint was then dismissed for  failure            to prosecute.  Similarly, we dismissed their appeal from that            order of  dismissal, in May  1992, for  want of  prosecution.            Monga v.  Glover Landing Condominium Trust,  No. 92-1288 (1st            _____     ________________________________            Cir. May 27,  1992).  Thus,  what is  presently before us  is            solely the  appeal from  the separate, and  subsequent, order            awarding fees and costs to the defendants.                 The  Mongas have  filed an  extensive brief  contending,            inter alia,  that the  defendants' fee petition  is excessive            and inadequately supported and  that the district court order            granting the petition is too terse to stand upon review.  The            Mongas' appellate arguments fail to scale a threshold barrier            of  their  own  making,  however.    Although  they  had  the                                         -2-            opportunity,  they  failed  to  file  any  objection  in  the            district court in response  to the quite-detailed request for            fees and costs.1   All the arguments  vis-a-vis that petition            that  the Mongas  are now  making on  appeal could  have, and            should have,  been made  to the district  court.  It  is well            settled  and oft-repeated  in this  circuit that  "issues not            raised in the district court may not be raised for the  first            time  on appeal."   Calvary Holdings,  Inc. v.  Chandler, 948                                _______________________     ________            F.2d  59, 64  (1st  Cir. 1991).    To the  point  is Blum  v.                                                                 ____            Stenson, 465 U.S. 886,  892 n.5 (1984) (a party's  failure to            _______            challenge  in   the   district   court   the   accuracy   and            reasonableness  of the hours claimed in a fee petition or the            facts asserted  in the affidavits accompanying  that petition            waives her right to challenge  on appeal the district court's            determination   that   the  number   of   hours   billed  was            reasonable).    See also  Magicsilk  Corp. of  New  Jersey v.                            ________  ________________________________            Vinson,  924 F.2d  123, 125  (7th Cir.  1991) (by  failing to            ______            raise  any objection  to  the fee  petition  in the  district            court,  either prior to or  after the court's  ruling on that            petition, fee target has  waived right to argue the  issue of            fees on appeal).                                            ____________________            1.  Contrast Foster v. Mydas Assocs., Inc., 943 F.2d 139 (1st                         ______    ___________________            Cir.  1991).   In  Foster,  the  losing plaintiffs  filed  an                               ______            opposition to the  fee request  and sought  a hearing  (which            never materialized) in the district court.  Id. at 141.  They                                                        ___            had  properly  preserved,  therefore,  a  challenge  to   the            district court's determination.                                         -3-                 The  Mongas' complaint  concerning the  district court's            otherwise unexplicated  endorsement  of the  fee petition  as            reasonable  fees and costs fares no better.  Having failed to            object to the petition prior to the district court's  action,            the  Mongas further  failed  to ask  for reconsideration  and            elucidation  from  the district  court  when  it entered  the            order,  the deficiencies  of  which they  presently argue  at            length.  "[I]t is black letter law that it is a party's first            obligation  to seek  any relief  that might fairly  have been            thought available in the district court  before seeking it on            appeal."   Beaulieu v.  United States I.R.S.,  865 F.2d 1351,                       ________     ____________________            1352 (1st Cir. 1989).                 While we may dispense with the raise-or-waive rule in an            exceptional  case to  avoid a  gross miscarriage  of justice,            United States  v. Slade, 980 F.2d 27,  31 (1st Cir. 1992), we            _____________     _____            find no  basis for  the exercise  of that  power  here.   The            Mongas offer  no persuasive explanation for  their failure to            object below.  They say that, after the court dismissed their            case  for  failure  to prosecute,  they  continued settlement            negotiations2  with the  defendants and  that the  defendants            indicated  that, contingent  upon execution  of a  settlement            agreement,  they  would  withdraw   the  fee  petition.    No            agreement executed by both Mongas was ever reached.                                            ____________________            2.  The  defendants dispute  the Mongas'  characterization of            the     post-judgment     communications    as     settlement            "negotiations."                                         -4-                 That the Mongas  were hoping to  resolve this matter  by            agreement  does  not excuse  their  failure  to  object to  a            pending fee  petition of which  they were aware.   Throughout            the four  year odyssey of this litigation,  the Mongas always            promptly  and  aggressively  opposed  motions  filed  by  the            defendants,  including a  prior  motion  for attorneys'  fees            sought  in connection  with a  discovery dispute  between the            parties.   In the present  instance, at the  very least, they            could have, and should  have, informed the district court  of            the ongoing communications and asked for an extension of time            to  respond  to  the petition  or  to  hold  the petition  in            abeyance for a short period of  time.  To the extent that the            Mongas'  present explanation  implies that  they were  misled            during these post-judgment communications into believing that            they need not object to the fee petition,  nonetheless, there            is  no excuse for their  failure to seek reconsideration from            the district court after it granted the petition.                 Even  were we to excuse the Mongas' failure to object to            the  fee  petition,  our  resulting review  of  the  district            court's   determination   that   the    defendants'   request            represented reasonable  fees and  costs would  necessarily be            circumscribed  by  the procedural  posture which  the Mongas,            themselves,  have  effectuated.    The  facts concerning  the            Mongas'  conduct   of  this  litigation,   outlined  in   the            defendants' fee  petition, are  unopposed and, in  any event,                                         -5-            are abundantly supported even by a superficial reading of the            record.  We mention but a few here to illustrate:                 (1)  The Mongas resisted discovery until enforced by  an                 order of compulsion;                 (2)  They moved  to reassign the case  to another judge,                 which    was   denied;   whereupon    they   moved   for                 reconsideration, which was also denied;                 (3)  They moved to disqualify defendants' counsel, which                 was  denied; whereupon  they moved  for reconsideration,                 which was also denied;                 (4)  When the court granted the Mongas' request of March                 26, 1991  to continue the trial then scheduled for April                 1, 1991, they were ordered to pay the expenses of one of                 the   defendants,  who   had   traveled  to   Boston  in                 anticipation  of, and  preparation  for,  the April  1st                 trial date.   Despite  repeated requests for  payment by                 the defendants  and the  court's denial of  their motion                 for reconsideration of this  order, those expenses  were                 not  paid until, in  response to  a motion  for contempt                 filed  by defendants,  the  court, on  October 8,  1991,                 issued a further order  directing the Mongas to pay  the                 expenses by  November 1, 1991  or risk dismissal  of the                 case; And, finally,                 (5)  when  the  case was  called  for  trial on  Monday,                 February 3, 1992, Mr. Monga, appearing  alone, requested                 another continuance,  saying that his wife  was sick and                 he was not ready to try the case.  None of the dozens of                 proposed   witnesses  for   the  Mongas   were  present.                 According to  Mr. Monga, his wife would not be available                 that  week, but he hoped  she would be  available in the                 next 30 days.   When the court asked what was wrong with                 her,  Mr. Monga replied that she was not in the hospital                 but, "I  understand that  she is depressed  and she  has                 some  injury."    Although  Mr.  Monga  and  defendants'                 counsel  had  engaged  in settlement  negotiations  that                 immediately preceding  weekend, Mr.  Monga  had made  no                 mention of his wife's illness.                 We  hasten  to  add  that we  are  not  suggesting  that            challenging discovery  requests by an  opposing party, filing            certain motions, such as a motion  to reassign the case or to                                         -6-            disqualify opposing counsel, or  moving to reconsider may not            be, in ordinary circumstances, appropriate litigation options            or are  filed only  at the  risk of  penalization.   In these            circumstances, however, we have no cause to review the merits            of any of these motions filed  by the Mongas.  Their  failure            to  prosecute their  appeal from  the order  dismissing their            complaint  effectively forecloses  any present  argument that            the  district court erred  in any of  the underlying rulings.            We could find no error  in a conclusion by a district  court,            with its firsthand experience with the parties, that an award            of  attorneys'  fees was  appropriate  under  the sources  of            authority  propounded   by  the   defendants.    See,   e.g.,                                                             ___________            Christiansburg  Garment Co.  v.  EEOC, 434  U.S. 412,  421-22            ___________________________      ____            (1978)  (a district  court  can award  fees  to a  prevailing            defendant  upon  finding  that  the  plaintiff's  action  was            frivolous, unreasonable, vexatious, or without foundation, or            that  the plaintiff  continued to  litigate after  it clearly            became so)3;  Chambers v. NASCO, Inc., 111 S. Ct. 2123,  2133                          ________    ___________            (1991)  (the  assessment of  attorney's  fees  to sanction  a            litigant  for   bad-faith  conduct,   such  as   delaying  or            disrupting litigation, is within a court's inherent power).                                            ____________________            3.  Christiansburg involved attorney's fees pursuant to Title                ______________            VII, but the standards for assessing fees under Title VII and            42  U.S.C.   1988 are  identical.  Hensley  v. Eckerhart, 461                                               _______     _________            U.S. 424, 433 n.7 (1983).                                         -7-                 Similarly,  where  the Mongas  failed  to  challenge the            defendants' affidavit  that  the hourly  rates  charged  were            their normal and customary billing  rates or to challenge the            number of  hours attested  as  spent on  this litigation,  we            would  be  hard  pressed to  find  plain  error  or abuse  of            discretion  in   a  district  court's  acceptance   of  those            uncontested allegations  as well.  See  McDonald v. McCarthy,                                               ___  ________    ________            966  F.2d 112, 118-19 (3d Cir. 1992)  (where a party fails to            contest   the  accuracy  and   reasonableness  of   the  fees            requested,  it waives  its right  to do  so and  the district            court  is not  free to  disregard uncontested  affidavits and            reduce the award requested  unless the order is based  on the            court's  personal knowledge  as to the  time expended  on the            case).                 While  the district court's review is  "to ensure that a            fee  award, overall, is justified, and that the amount of the            award  comes  within  the  realm  of  reasonableness, broadly            defined[,]"  it  is not  "the court's  job  either to  do the            target's  homework  or  to  take  heroic  measures  aimed  at            salvaging  the target  from the  predictable consequences  of            self-indulgent lassitude."  Foley v. Lowell, 948 F.2d 10, 20-                                        _____    ______            21  (1st Cir. 1991).4  The Mongas' present complaint that the                                            ____________________            4.  In Foley, supra, at 19,  a case involving public funding,                   _____  _____            we  endorsed  the right  of the  district  court to  review a            prevailing plaintiff's  fee petition  and to award  an amount            reduced from that sought,  despite a perfunctory objection by            the losing  municipality.  Similarly, in  Wojtkowski v. Cade,                                                      __________    ____                                         -8-            district  court's failure  to  articulate the  basis for  the            award  has placed  them  "at a  considerable disadvantage  to            attack  the reasonableness  of  the award"  is  disingenuous.            They had the opportunity to attack the reasonableness of  the            award in the district court  but rebuffed that opportunity by            failing to object or seek reconsideration.  Their transparent            attempt to deflect  blame for their present position onto the            district court  is unconvincing.  In  these circumstances, we            cannot fault  the district  court's succinct granting  of the            request in full as  reasonable fees and costs.   See Richmark                                                             ___ ________            Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1482 (9th            _____    __________________________            Cir. 1992) (where fee target does not object to the amount of            fees claimed,  the district  court  is not  required to  make            written  findings on  the twelve  factors which  it otherwise            ought  to  consider  when  calculating a  fee  award),  cert.                                                                    _____            dismissed, 61 U.S.L.W. 3060, 3155 (U.S. Oct. 29, 1992).            _________                 The  Mongas  having  failed  to  preserve  for appellate            review  any issue with respect to the fee award, the district                                            ____________________            725 F.2d 127, 130 (1st Cir. 1984), we upheld the authority of            the  district court  to  trim an  inadequately supported  fee            request, despite the lack  of opposition to the request  from            the losing  municipal officers.   Compare also  Weinberger v.                                                            __________            Great N. Nekoosa Corp.,  925 F.2d 518 (1st Cir.  1991), where            ______________________            we  found  the  inclusion   of  a  clear  sailing  agreement,            ancillary to  a class action  settlement, required heightened            judicial oversight.                                         -9-            court  order  of March  13,  1992  is, therefore,  affirmed.5                                                               _________            Costs  to defendants/appellees.   We  deny their  request for            attorneys' fees with respect to this appeal.                 Affirmed.                 _________                                            ____________________            5.  Although the  Mongas' notice of appeal  purported also to            appeal the May 1, 1991 order directing them to pay the travel            expenses  of one  of the  defendants in  connection  with the            continuance from  the original trial  date of April  1, 1991,            that claim is barred from review.                 First,  the   order  complained  of   became  final  and            appealable  upon   entry  of  the  district   court  judgment            dismissing the case for failure to prosecute.  The Mongas let            their  appeal from that judgment  lapse in this  court and we            dismissed the  appeal for want  of prosecution  in May  1992.            They  cannot resurrect  that claim  in  this appeal  from the            subsequent entry  of judgment  as to  attorneys' fees.   See,                                                                     ____            e.g., Hamilton v. Daley, 777 F.2d 1207, 1210 (7th Cir. 1985).            ____  ________    _____                 In any event, having exhausted  the allowed 50 pages  in            their appellate brief, they attempt to raise this argument on            page 50  solely by reference to,  and purported incorporation            of, record  documents.  As  we have repeatedly  said, "issues            adverted to  in a  perfunctory manner, unaccompanied  by some            effort  at  developed   argumentation,  are  deemed  waived."            United  States v. Zannino, 895  F.2d 1, 17  (1st Cir.), cert.            ______________    _______                               _____            denied, 494 U.S. 1082 (1990).            ______                                         -10-
