
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2437                                  DAVID S. KREWSON,                                Plaintiff - Appellee,                                          v.                               CITY OF QUINCY, 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,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Young,* District Judge.                                         ______________                                _____________________               David C. Jenkins, with whom Grady and Dwyer was on brief for               ________________            _______________          appellant.               Robert LeRoux Hern ndez for appellee David S. Krewson.               _______________________                                 ____________________                                   January 23, 1996                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    YOUNG, District  Judge.   David S.  Krewson ("Krewson")                    YOUNG, District  Judge.                           _______________          originally brought  this action against Quincy  Police Lieutenant          John  McDonough ("McDonough"),  McDonough's two  immediate super-          visors, and the City of Quincy (the "City") pursuant to 42 U.S.C.             1983 and Mass. Gen.  L. ch. 12,    11I for violating his civil          rights  during the  course of  Krewson's arrest and  detention on          murder charges.1   Krewson's  complaint also stated  claims under          Mass. Gen. L.  ch. 258  (negligence) and common  law theories  of          false arrest, false imprisonment,  assault and battery, malicious          prosecution, and intentional infliction of emotional distress.                     After a  four-day  trial, the  district  court  granted          directed  verdicts to both supervisors on all counts, to the City          on all counts except  negligence under Mass. Gen. L. ch. 258, and          to  McDonough on all  counts but those arising  out of certain of          his actions  on October 12, 1986.   The jury found  that the City          was not liable for negligence, and returned a verdict in favor of          McDonough on Krewson's federal civil rights claim.  The jury held          McDonough liable, however, for intentionally inflicting emotional          distress  on  Krewson (awarding  $5,000)  and  for violating  the          Massachusetts Civil  Rights Act, awarding Krewson  $1,500 on this          latter claim.   Judgment entered on March 20, 1992.   None of the          parties appealed this judgment.                    Thereafter,  Krewson filed  an application  under Mass.          Gen. L. ch. 12,    11I, seeking $67,387 in attorneys' fees (based          on 305.9 attorney hours and 154.7 law clerk hours) and $13,262.29                                        ____________________          1  The charges against Krewson were ultimately dismissed.                                         -2-          in costs, for a total of $80,649.29.  McDonough's counsel made no          objection  to  this  application  despite  Massachusetts District          Court Local Rule 7.1(B)(2), which requires the filing  of written          objection to such  a motion within  fourteen days after  service.          The district judge allowed the  fee application by written  order          which, in its entirety, reads:                      I  find that  the attorney  did  the work                      certified, that his client prevailed, and                      that the rates charged are reasonable and                      representative of rates in  the community                      for  comparable  legal  services.     The                      petition is allowed.          Margin Endorsement  of Petition for Fees,  Addendum to Appellee's          Brief at 1.                    This was  enough to catch the  attention of McDonough's          counsel,  who  promptly   moved  for  reconsideration,  belatedly          briefing the  relevant issues.    The district  judge denied  the          motion, and this appeal followed.                               I.  STANDARD OF REVIEW                                I.  STANDARD OF REVIEW                                ______________________                    When,  in determining  a  fee award,  a district  court          carefully "weigh[s] the factors to be considered and arrive[s] at          an award within a supportable range, the appellate court will not          interfere."  See Nydam v. Lennerton,  948 F.2d 808, 813 (1st Cir.                       ___ _____    _________          1991)  (quoting Wojtkowski v. Cade,  725 F.2d 127,  131 [1st Cir.                          __________    ____          1984]).  Thus, this Court  will reverse "only for mistake  of law          or abuse  of discretion."  Lipsett  v. Blanco, 975 F.2d  934, 937                                     _______     ______          (1st Cir. 1992); United States v. Metropolitan Dist.  Comm'n, 847                           _____________    __________________________          F.2d 12, 14-15 (1st Cir. 1988).                                         -3-                                    II.  ANALYSIS                                    II.  ANALYSIS                                    _____________                    Where a  request for  attorneys' fees comprises  a sub-          stantive  part of the state-law  remedy for a  state-law cause of          action,  the  proper rule  of  decision  governing the  award  is          derived from  Massachusetts, rather than federal,  practice.  See                                                                        ___          Northern Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 475 (1st          ___________________    __________________          Cir. 1988) (applying Massachusetts law to the award of attorneys'          fees in diversity  action).  Thus, because Krewson here prevailed          on his state civil rights  claims and not his   1983  claims, the          proper statutory reference is Mass. Gen. L. ch. 12,   11I.                     The Massachusetts Civil Rights Act provides that:                      [a]ny   aggrieved  person   .  .   .  who                      prevail[s]  in  an  action authorized  by                      __________                      this  section  shall  be entitled  to  an                      award of  the costs of the litigation and                      reasonable attorneys' fees  in an  amount                      __________                      to be fixed by the court.          Mass. Gen. Laws Ann.  12,   11I (West 1986)  (emphasis supplied).          McDonough  here argues  both that  Krewson  is not  a "prevailing          party"  within the  meaning  of the  statute  and that  the  fees          awarded were not  "reasonable" in  light of the  small amount  of          money awarded  Krewson by  the jury.   Further,  McDonough argues          that  the  trial court  committed  reversible  error by  awarding          Krewson  costs,  including  expert  witness fees,  in  an  action          arising under state law.                    1.  "Prevailing party" -- The Supreme Judicial Court of                    1.  "Prevailing party" --           Massachusetts  has "conclude[d]  that  the  Legislature  intended          'prevail' to have the  same meaning [in ch. 12    11I] as it does                                         -4-          in  42 U.S.C.    1988."  Batchelder  v. Allied Stores  Corp., 393                                   __________     ____________________          Mass. 819, 822 (1985).   As a "plaintiff who wins nominal damages          is a prevailing party under    1988," Farrar v. Hobby, 113 S. Ct.                                                ______    _____          566,  573 (1992), the district court did not abuse its discretion          in  ruling  that the  jury's award  of  $1,500 was  sufficient to          entitle  Krewson to  prevailing party status  under Massachusetts          law.   See also  Wilcox v. City  of Reno,  42 F.3d 550  (9th Cir.                 ___ ____  ______    _____________          1994) (upholding a  $66,535 fee  award to plaintiff,  loser of  a          barroom  brawl with  police, who  won $1  on his  excessive force          claim under   1988).                     2. "Reasonableness" -- Although there is no controlling                    2. "Reasonableness" --          authority   on  the   Massachusetts  standard   for  "reasonable"          attorneys' fees  under the  state civil  rights act, courts  have          held  that,  with  respect  to  other  fee-shifting  statutes  in          Massachusetts, there is "no  pat formula for computation of  fee-          shifting  awards."   See, e.g.,  Peckham v.  Continental Casualty                               ___  ____   _______     ____________________          Ins.  Co.,  895  F.2d  830,  841-42  (1st  Cir.  1990)  (awarding          _________          attorneys'  fees  for  violation of  Mass.  Gen.  L.  ch. 93A  in          diversity  action).    Rather,  courts should  "focus[]  on  what          [counsel's] services were objectively worth."  Id. at 842 (citing                                                         ___          Heller  v.  Silverbranch  Constr.   Co.,  376  Mass.  621  [1978]          [Hennessey,  C.J.]).   In  making this  determination courts  may          consider  a variety of factors, including the nature of the case,          the  time and labor required, the amount of damages involved, the          result obtained,  the experience and reputation  of the attorney,          the  usual price charged by other attorneys for similar work, and                                         -5-          the amount of awards  granted in other  cases.  See Linthicum  v.                                                          ___ _________          Archambault, 379 Mass. 381, 388-89 (1979).          ___________                    Despite the brevity  of his  endorsement, the  district          judge  here explicitly found that  "the attorney did  the work as          certified, that his client prevailed, and that  the rates charged          are reasonable and representative  of rates in the community  for          comparable legal  services."  Margin Endorsement  of Petition for          Fees,  Addendum to  Appellee's  Brief at  1.   In  so doing,  the          district judge  adopted the calculation proffered  by plaintiff's          attorney.  This is sufficient to constitute a "clear  explanation          of the reasons undergirding . . .  [the] fee award," and entitles          the trial court's determination to deference.  Peckham,  895 F.2d                                                         _______          at 842;  see also  Stowe v.  Bologna, 417  Mass. 199, 203  (1994)                   ___ ____  _____     _______          (stating that the  trial court  should start from  the amount  of          time  documented  by the  plaintiff's  attorney  and then  decide          whether these  calculations are  reasonable, taking  into account          the  public interest  in having  persons with  meritorious claims          adequately represented) (fee award  for violation of rent control          statute);  Fontaine,  415  Mass.  at  324  ("[t]he  amount  of  a                     ________          reasonable  attorney's fee,  awarded  on the  basis of  statutory          authority . . . is largely  discretionary with the judge, who  is          in  the best position to  determine how much  time was reasonably          spent on a case, and the fair value of the attorney's services");          Deary v.  City of  Gloucester, 9  F.3d 191,  197 (1st Cir.  1993)          _____     ___________________          (stating  that appellate  courts should  defer to  any thoughtful          rationale articulated  by the  trial court when  reviewing a  fee                                         -6-          award); United States v. Metropolitan Dist. Comm'n, 847 F.2d  12,                  _____________    _________________________          20  (1st  Cir. 1988)  ("The district  court --  which  . .  . has          frequently lived  with the litigation  and the  lawyers for  long          periods of time, and which is likely to be more familiar with the          marketplace -- has the best coign of vantage").                    Moreover, where Massachusetts  courts have reviewed fee          awards  pursuant  to remedial  statutes, they  have held  that an                               ________          award  of reasonable  attorneys' fees  should  not be  reduced to                                                         ___          reflect the actual amount of the jury award.  See, e.g., Sanitoy,                                                        ___  ____  ________          Inc.  v. Ilco Unican Corp., 413 Mass. 627, 633-34 (1992) (holding          ____     _________________          that because of  the nature of the  case and the public  interest          served   by   the   "citizen   enforcement"   provision   of  the          Massachusetts hazardous  waste statute, courts may  not reduce an          award of reasonable attorneys' fees  by a percentage of  response          costs recovered); Olmstead v. Murphy, 21 Mass. App. Ct. 664, 666,                            ________    ______          rev.  denied, 397 Mass. 1102  (1986) ("[w]hen the  public has, as          ____________          here,  a particular interest in the vindication of a legal right,          the  market  value  of  legal  services  .  .  .  should  not  be          automatically discounted  because that value is  high in relation          to the amount recovered") (fee award under Mass. Gen. L. ch. 215,             34A); see  also Fontaine  v. Ebtec  Corp., 415 Mass.  309, 325                   _________ ________     ____________          (1993) (determining that in employment discrimination case, "fair          market  rates  for  time  reasonably spent  should  be  the basic          measure of  reasonable fees, and  should govern unless  there are          special  reasons  to depart  from them")  (fee award  pursuant to          Mass. Gen. L. ch. 151B,   9).                                         -7-                    Because  the policy  interests  underlying  fee  awards          under  federal  civil  rights   statutes  are  similar  to  those          underlying fee  awards in Massachusetts civil  rights cases, case          law under   1988 provides additional guidance.  The Supreme Court          has recognized that  a plaintiff  who obtains relief  in a  civil          rights  lawsuit, especially  "in  the area  of individual  police          misconduct," acts as a  private attorney general deterring future          violations and  that,  therefore, consistent  with  congressional          intent, "reasonable  attorney's fees  . .  . are  not conditioned          upon and need not be proportionate to an award of money damages."          City  of  Riverside  v.  Rivera,  477  U.S.  561,  574-76  (1986)          ___________________      ______          (upholding  $245,456.25   fee  award  based  on   jury  award  of          compensatory and  punitive damages of $13,300  for federal claims          and  $20,050 for state claims).  Likewise, courts in this circuit          have held that  in federal civil rights cases a  fee award is not          limited  by  the size  of the  recovery  but may,  in appropriate          circumstance, greatly exceed it.  See Lewis v. Kendrick, 944 F.2d                                            ___ _____    ________          949, 957 (1st Cir. 1991);  Gonz les v. Jillson, 642 F.  Supp. 908                                     ________    _______          (D. Mass. 1986) (Tauro,  J.) (finding in a police  brutality case          that the award  of $30,922.50  in attorneys' fees  when the  jury          awarded  plaintiff   $1,000  was  not  excessive  because  "[t]he          significance of the  monetary award [was]  outweighed by the  im-          portant  public   interests  vindicated   by  the   general  jury          verdict").   "No  other result  could comport with  the principle          that  plaintiffs  should  have  an  unrestricted  opportunity  to          vindicate their civil rights."   Lewis, 944 F.2d at 957.    Thus,                                           _____                                         -8-          as a remedial civil  rights statute,   11I is entitled  to a more          liberal  construction  of  its  terms  than  other  fee  shifting          statutes  such as Mass.  Gen. L.  ch. 93A.   See  Batchelder, 393                                                       ___  __________          Mass. at 822.                    3.    Successful  vs.  unsuccessful claims  --  In  one                    3.    Successful  vs.  unsuccessful claims  --            respect, however,  the summary endorsement of  the district judge          was totally silent.   Krewson  submitted a  fee application  that          claimed  recompense  for  the  entire  time  his  attorney  spent          pursuing the case.   In fact, he "prevailed" on  but a portion of          his  claims,  and those  but modestly.    The endorsement  of the          district judge nowhere considers the time Krewson spent advancing          unsuccessful  theories  of  liability.     With  respect  to  the          analogous fee shifting  provision of  Mass. Gen. L.  ch. 93A,  we          have held  that if a plaintiff prevails on some of his claims and          loses on others,  the fee award may be limited  to the time spent          proving  the successful claims, unless  it can be  shown that the                       __________          claims  were interconnected.   See  Peckham,  895 F.2d  at 841-42                                         ___  _______          (citing Hanner v. Classic Auto Body, Inc., 10 Mass. App. Ct. 121,          123-24 [1980]);  Equitable Life Assoc.  Soc. v. Porter-Englehart,                           ___________________________    ________________          867  F.2d 79,  91 (1st  Cir. 1989)  (where Chapter  93A violation          proven, fees recoverable only for "any meaningful amount of legal          work  . . . independently required" by the dereliction); Whyte v.                                                                   _____          Connecticut Mut. Life  Ins. Co.,  818 F.2d 1005,  1011 n.20  (1st          _______________________________          Cir.  1987)  (similar).    Here, Krewson  claimed  false  arrest,          assault and battery, and false imprisonment -- among other things          -- arising out  of certain  events taking place  on October  5-6,                                         -9-          1986.   He  lost all these  claims.   This, his  counsel told the          jury,  was one half  of his case;  the events of  October 12 com-          prised the  other half.   App., vol. III  at 4-95.   The district          judge  so charged the jury,  keeping the claims  distinct just as          Krewson's counsel had argued.  Id. at 4, 104-06.                                         ___                    On  this record,  there is  no adequate basis  for con-          cluding  that all  Krewson's  claims are  so sufficiently  inter-          connected as to warrant a  fee award in the total sum  claimed by          Krewson.  Compare Wagenmann v. Adams, 829 F.2d 196, 225 (1st Cir.                    _______ _________    _____          1987) (ruling that  the suit at  issue could not  be viewed as  a          series of discrete claims for purposes of  fee award under   1988          where "[a]ll of the triable issues arose out of a short,  visibly          linked  series of events").  Indeed, particularly having in  mind          that  the  burden  is  upon Krewson  to  show  an interconnection          between  the failed claims and  the successful one,  not only did          they, on their face, appear separate, but they were so presented.          Krewson  cannot   try  on   the  basis  of   separateness,  which          facilitated the jury's finding in  his favor on at least  part of          the case, and then, when it comes to fees, contend connectedness.                    This is not  to say  that some of  the depositions  and          other preparations were not related both to the events of October          5-6 and those of October 12.   So long as the attorney's work was          reasonably  necessary  for  the  prosecution of  the  October  12          claims, the  district judge  can properly  charge  these fees  to          McDonough.   As we  said in Peckham,  "in the  last analysis, the                                      _______          fee-shifting anodyne  focuses on 'what  [counsel's] services were                                         -10-          objectively  worth.'"  Peckham, 895 F.2d at 843, citing Heller v.                                 _______                          ______          Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978).          __________________________                    4.   Costs -- The failure  to consider apportionment as                    4.   Costs --           between successful  and unsuccessful claims infects  the issue of          costs as well.   McDonough argues that the district  court abused          its  discretion in including expert witness fees and costs in the          award.  The award of costs in this case is not governed by   1988          as asserted by McDonough.   Rather, this Court applies  the state          standard  in  evaluating  claims   for  costs  if  the  plaintiff          prevailed  only on  the parallel  state claims.   See  Freeman v.                                                            ___  _______          Package Mach. Co., 865  F.2d 1331, 1347 (1st Cir. 1988).   Where,          _________________          as here,  the Commonwealth  has granted explicit  statutory cost-          shifting authority,  there is a presumption  in Massachusetts law          favoring   the awarding  of expert witness fees.   Id. at 1347-49                                                             ___          (upholding the granting of  expert witness fees under Mass.  Gen.          L. ch. 151B,   9) (citing Linthicum, 379 Mass. at 379).  In light                                    _________          of  that presumption,  this Court  concludes that  expert witness          fees may be  properly awarded  in a successful  action under  the          Massachusetts Civil  Rights Act.  Freeman  does suggest, however,                                            _______          that an  expert witness' fee can be  prorated to reflect the work          performed for certain claims.  863 F.2d at 1350.  Here, McDonough          appears  to  make a  persuasive  argument that  the  testimony of          expert Robert  DiGrazia  was limited  to issues  relating to  the          first half of the  case -- the arrest  on October 5th  (testimony          which was later stricken) and the liability of  the City.  Having          remanded the fee  award to the district court  for apportionment,                                         -11-          however,  we  deem  it  appropriate  likewise  to  remand  to the          district judge the  issue of  costs for resolution  in the  first          instance.                    Accordingly, the fee award is vacated and the matter of                                                  _______          appropriate attorney's fees and costs is remanded to the district                                                   ________          court for further proceedings consistent with this opinion.                                         -12-
