
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.                    __________                                          6
