
USCA1 Opinion

	




        April 6, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1439                                SUSAN WARREN, ET AL.,                                Plaintiffs, Appellees,                                          v.                                CITY OF LYNN, ET AL.,                               Defendants, Appellants.                                 ____________________                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                        and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            Austin  M.  Joyce with  whom  Edward  P.  Reardon  and Michael  J.            _________________             ___________________      ___________        Akerson were on brief for appellants.        _______            Geraldine S. Hines with  whom Margaret A. Burnham was on brief for            __________________            ___________________        appellees.                                 ____________________                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.               COFFIN, Senior Circuit Judge.  This appeal is the  aftermath                       ____________________          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                                ______________________               1. The facts.   This appeal initially was filed  on June 14,                  _________          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             _____     __________________________________________          51  (1st  Cir.  1991),  withdrawn  and  superseded  by  Fiore  v.                                  _________  ___  __________  __  _____          Washington County Community Health Center, 960 F.2d 229 (1st Cir.          _________________________________________          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                                           __ ____             _____          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                                        ____________________          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 . . . ."                                         -3-          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.  We then issued another show cause order, pointing          to the fact that,  according to the district court  docket sheet,          the  last order denying a  post-judgment motion in  this case had          been entered  on June 21, 1991.   We noted that  under Fiore, 960                                                                 _____          F.2d at 236, absent  exceptional circumstances, a party's failure          to act within three months of a court's last order in a case will          be  deemed  a waiver  of  application  of the  separate  document          requirement.   Upon receipt  of appellants' response,  we allowed          the appeal to proceed and referred decision on the jurisdictional          issue to the present panel.               2.  Discussion.  In both the panel  and en banc decisions in                   __________                          __ ____          Fiore,  we held that  Rule 58 should apply  to all orders denying          _____          post-judgment motions.    Not  only  did  we  conclude  that  the                                         -4-          language of both Rule  58 and Rule  4(a) requires this, but  also          that there was a  need for an "unambiguous  signal that the  time          for  appeal has begun  to run."   960 F.2d at  233.  The  en banc                                                                    __ ____          court  reaffirmed the  clear holding  of the  panel  that parties          could   not  sleep   on  their   rights  to   separate  documents          indefinitely, but,  barring exceptional circumstances,  must take          action within three months following entry  of judgment, or waive          application  of the  separate  document requirement.   The  court          stated:               If  we  were  to  hold  without  qualification  that  a               judgment is not final until the court issues a separate               document, we  would open  up the possibility  that long               dormant cases could be  revived years after the parties               had considered them to be over.            Id. at 236.           ___               We therefore announced:               We   believe   it   appropriate,   absent   exceptional               circumstances, to  infer waiver where a  party fails to               act within three  months of the  court's last order  in               the case.  . . .   A party wishing to  pursue an appeal               and awaiting the separate document of judgment from the               trial court can,  and should, within that period file a               motion for entry of judgment. Id.                                             ___               Contrary to  appellants' claims, both the panel  and en banc                                                                    __ ____          decisions in Fiore are unambiguous  in outlining the waiver rule.                       _____          And appellants still  waited over  six months after  the en  banc                                                                   __  ____          decision to file their motion.2                                        ____________________          2At oral argument,  when questioned about  this six month  delay,          appellants'  counsel replied:  "I hadn't  read the en  banc Fiore                                                             __  ____ _____          decision.  At that time, we didn't realize that there was a three          month  period  until  it was  brought  to  our  attention by  the          plaintiffs .  . .   shortly  before we filed  the motion."   They          further  stated  that "other  than not  knowing"  of the  en banc                                                                    __ ____          decision in  Fiore, there were no  special circumstances excusing                       _____                                         -5-               Appellants seek refuge under the "exceptional circumstances"          rubric  by pointing to their attempts to raise the clerk's office          to  action by  oral  and letter  requests.   But  inattention  or          inadvertence  by  the court  short  of  active misleading  cannot          excuse  counsel from  his  duty of  diligence.   This  is why  we          specifically have instructed counsel "wishing to pursue an appeal          and awaiting the separate document of judgment," 960 F.2d 236, to          file a motion for entry of judgment.               We therefore must dismiss this  appeal for lack of appellate          jurisdiction.                                No manifest injustice                                _____________________               We add that this  case is not  an example of a  technicality          defeating justice.   We have considered  appellants' arguments on          the merits and find them unimpressive.                 Their  claim that  plaintiffs  were  not prevailing  parties          would have  failed under  Farrar v.  Hobby, 113  S. Ct.  566, 573                                    ______     _____          (1992), in which the Supreme Court held that a plaintiff who wins          nominal damages is  a prevailing  party under 42  U.S.C.    1988.          Here more than nominal damages were awarded.  Meaningful  awards,          payable by individual officers  in recognition of their violation          of plaintiffs' constitutional rights, made this the kind  of case          in   which   "the  court   may   consider   the  vindication   of          constitutional  rights  in  addition  to the  amount  of  damages                                        ____________________          the delay between the time that decision was issued on  March 30,          1992, and the filing  of their motion with the  district court on          October 8, 1992.                                         -6-          recovered."   Riverside  v.  Rivera,  477  U.S. 561,  585  (1986)                        _________      ______          (Powell, J., concurring in judgment).                 Our denial  of  fees to  a plaintiff  who had  won a  $1,000          verdict  in  Lewis v.  Kendrick, 944  F.2d  949 (1st  Cir. 1991),                       _____     ________          cannot  compel  a  finding  that the  district  court  abused its          discretion here.   In Lewis,  the amount won  was less  than half                                _____          that  awarded  here.    More  importantly,  in  contrast  to  the          situation of  the plaintiffs in the  case at bar, the  court felt          that  the plaintiff in Lewis  had "failed entirely  or largely in                                 _____          everything,"    id.  at 955,  and  that  there  had been  extreme                          ___          overreaching in the request for fees, id. at 956.                                                ___               Appellants'   claim   that  judgments   notwithstanding  the          verdicts  should have  been granted  rests on  the  argument that          under  the Massachusetts Civil  Rights Act, Mass.  Gen. Laws Ann.          ch.  12,    11H and 11I (West 1986), interference with a person's          rights under the Constitution or laws of the United States or the          Commonwealth must be by  "threats, intimidation or coercion," and          that there was no evidence of such in this case.               The  Massachusetts  Supreme Judicial  Court,  however, while          holding that there must be  measures directed toward a particular          individual  or   class,  has  found  sufficient  intimidation  or          coercion to satisfy  the Act where  a uniformed security  officer          ordered  a  plaintiff to  stop  soliciting  and distributing  his          political handbills,  see Batchelder v. Allied  Stores Corp., 473                                ___ __________    ____________________          N.E.2d  1128, 1130,  393  Mass. 819,  823  (1985), and  where  an          orchestra canceled its contract with a performer, see Redgrave v.                                                            ___ ________                                         -7-          Boston Symphony Orchestra, Inc., 502 N.E.2d 1375, 1378, 399 Mass.          _______________________________          93,  100 (1987), since the effect of  these actions was to coerce          the  plaintiffs  not  to  exercise  rights  to  which  they  were          entitled.   See  Batchelder, 473  N.E.2d at  1131;  Redgrave, 502                      ___  __________                         ________          N.E.2d at 1379.                When  we review the events  in this case  -- the policemen's          forcible descent on plaintiffs  at their home, the  beatings, the          overnight  incarcerations,  and  a  search  based  on  perjurious          evidence --  we can understand  how the jury,  under instructions          not challenged, could have found the existence of threats of harm          within  the  meaning  of  the  Massachusetts  Civil  Rights  Act,          particularly in  light of plaintiffs' claim  that the policemen's          behavior was aggravated by protest against their arrests.                 We therefore conclude that the serious procedural default of          appellants, resulting in our  lack of appellate jurisdiction, has          not led to any unjust result.                 Affirmed.  A  reasonable attorney's fee of $3,000  and costs               _________  _________________________________________________          are awarded to appellees.          _________________________                                         -8-
