
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 97-1343                   SPECIALIZED PLATING, INC. AND PETER D. PREVETT,                               Plaintiffs, Appellants,                                          v.                    FEDERAL ENVIRONMENTAL SERVICES, INC., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                              _________________________               Peter D. Prevett on brief pro se.               ________________                              _________________________                                   October 14, 1997                              _________________________                    Per Curiam.  Attorney Peter D. Prevett appeals from the                    Per Curiam.                    __________          imposition of a sanction in the  amount of $5,250, payable to the          court.1   In a previous unpublished opinion, Specialized Plating,                                                       ____________________          Inc. v. Federal Environmental Servs., Inc., No. 97-1343, slip op.          ____    __________________________________          (1st Cir. July 22,  1997) (per curiam), we retained  jurisdiction          and remanded for a more detailed explanation of the basis for the          monetary sanction.    In response,  the  district court  filed  a          Report dated August 25, 1997.  In the  Report, the district court          identified  two purposes underlying  the monetary sanction:   "to          reimburse the taxpayers for the abuse of the judicial system" and          "to  deter Mr.  Prevett from  further  abuse."   Prevett filed  a          supplemental   memorandum   challenging  the   district   court's          reasoning and findings in various respects.                    We do not dwell on the merits other than to say that we          credit the findings  contained in the Report and  conclude that a          monetary  sanction  is  appropriate to  deter  repetition  of the          conduct which the  district court found to be  unacceptable.  See                                                                        ___          supra note 1.  We turn, then, to the size of the sanction.          _____                    Appellate review of the size  of a monetary sanction is          for  abuse of  discretion.   In that  regard, "When  the district          court settles upon a monetary sanction and fixes a dollar amount,          a  reviewing tribunal should  defer, within broad  limits, to the                                        ____________________               1The district court apparently imposed the sanction pursuant          to Fed.  R.  Civ. P.  16(f).   The incident  giving  rise to  the          sanction  occurred  when the  attorney  failed  to  appear for  a          scheduled bench  trial (without  any satisfactory  excuse).   The          court  sanctioned him  as  a condition  of  vacating the  ensuing          dismissal.                                          2          district   court's   exercise   of   its   informed   discretion.          Nevertheless, the court of appeals  must be careful not merely to          `rubber-stamp  the decisions of  the district court.'   Appellate          review of the appropriateness of  a sanction cannot be allowed to          deteriorate  into a perfunctory ritual."  Navarro-Ayala v. Nunez,                                                    _____________    _____          968 F.2d 1421, 1426 (1st Cir. 1992) (citation omitted).                    A monetary penalty  payable to the court is  a suitable          sanction  for a  Rule 16(f)  violation that  interferes with  the          court's  management of  its docket.   See Jones  v. Winnepesaukee                                                ___ _____     _____________          Realty, 990  F.2d 1,  5 (1st Cir.  1993).   Still, we  think that          ______          Prevett raises a valid question as to the amount of the impost in          this instance.                    In   assessing  the   reasonableness  of   a  sanction,          "proportionality is often a proxy for appropriateness."  Navarro-                                                                   ________          Ayala, 968 F.2d at 1427.  In  such purlieus, it is important that          _____          "the  punishment should  be  reasonably  suited  to  the  crime."          Anderson  v. Beatrice  Foods Co.,  900  F.2d 388,  395 (1st  Cir.          ________     ___________________          1990).  With  due respect for  the district court's  considerable          discretion, we find the imposition of a $5,250  fine in this case          to be  substantially disproportionate and,  therefore, excessive.          We explain briefly.                    We  believe   that  we   must  evaluate  the   sanction          principally from  the standpoint of  deterrence.2  It  is settled                                        ____________________               2While  a  district  court  may  sometimes  tie  a  monetary          sanction  to  specific   non-court  costs  that  bear   a  direct          relationship  to sanctionable  misconduct,  see,  e.g.,  Eash  v.                                                      ___   ____   ____          Riggins  Trucking, Inc.,  757 F.2d  557, 560  (3d Cir.  1985) (en          _______________________          banc), the  district court  here used an  approach to  such costs                                          3          that a "monetary sanction aimed at deterrence is appropriate only          when the  amount of the  sanction falls within the  minimum range          reasonably required  to deter  the abusive  behavior."   Navarro-                                                                   ________          Ayala, 968 F.2d at 1427; accord In re Kunstler, 914 F.2d 505, 523          _____                    ______ ______________          (4th Cir. 1990).  Here, given Prevett's representations about the          extent of his law practice, there is  no reason to believe that a          sum somewhat smaller  than $5,250 would not be  a fully effective          deterrent.    As  in  Navarro-Ayala,  "[t]he  violation  deserved                                _____________          punishment,  but  the   sting  of  the   lash  could  have   been          communicated  emphatically through a  more modest penalty."   968          F.2d at 1428.                    Where,  as here,  a  monetary  sanction,  viewed  as  a          vehicle for  deterrence against the  backdrop of the record  as a          whole, is excessive  in amount, we have a choice of anodynes.  We          may, of course,  remand to permit the district  court to refigure          the amount of the sanction, but we  are not constrained to follow          such a course.   See id. (citing  Coats v. Pierre, 890  F.2d 728,                           ___ ___          _____    ______          734 (5th Cir.  1989), and Cheek  v. Doe, 828  F.2d 395, 398  (7th                                    _____     ___          Cir. 1987) (per curiam)).  In this instance, the record on appeal          is reasonably  complete and too  much judicial  time has  already          been spent on counsel's regrettable lapse.  Accordingly, this may          properly be  classified as  a case in  which an  appellate court,          rather than remanding,  ought simply to recast the  amount of the          sanction.  Believing, as we do,  that an amount of $1,000 "stands                                        ____________________          that  we  find problematic.    We  therefore concentrate  on  the          district court's alternative ground:  deterrence.                                          4          at the  outer periphery of  permissible sanctions in  this case,"          Navarro-Ayala,  968 F.2d  at 1428,  we reduce  the amount  of the          _____________          sanction from $5,250 to $1,000.                    We need go  no further.3  We affirm the imposition of a          monetary sanction payable to the  court, but reduce the amount of          the sanction to $1,000.                    Affirmed as modified.  No costs.                    Affirmed as modified.  No costs.                    ____________________   _________                                        ____________________               3Prevett's   request   for  rescission   of   the  so-called          "answering  service" sanction is moot because that requirement is          no longer in effect.                                          5
