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.

YOUNG, District Judge.
_______________

David S.

Krewson ("Krewson")

originally brought

John

this action against Quincy

McDonough ("McDonough"),

Police Lieutenant

McDonough's two

immediate super-

visors, and the City of Quincy (the "City") pursuant to 42 U.S.C.

1983 and Mass. Gen.

rights

during the

murder charges.1

Mass. Gen. L.

L. ch. 12,

course of

Krewson's

ch. 258

11I for violating his civil

Krewson's arrest and

detention on

complaint also stated

claims under

(negligence) and common

false arrest, false imprisonment,

law theories

of

assault and battery, malicious

prosecution, and intentional infliction of emotional distress.

After a

directed

four-day

trial, the

district

court

granted

verdicts to both supervisors on all counts, to the City

on all counts except

negligence under Mass. Gen. L. ch. 258, and

to

counts but those arising

McDonough on all

his actions

on October 12, 1986.

out of certain of

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

Massachusetts Civil

latter claim.

$5,000)

and

for violating

Rights Act, awarding Krewson

the

$1,500 on this

Judgment entered on March 20, 1992.

None of the

parties appealed this judgment.

Thereafter,

Gen. L. ch. 12,

Krewson filed

an application

under Mass.

11I, seeking $67,387 in attorneys' fees (based

on 305.9 attorney hours and 154.7 law clerk hours) and $13,262.29
____________________

The charges against Krewson were ultimately dismissed.

-2-

in costs, for a total of $80,649.29.

objection

to

this

application

McDonough's counsel made no

despite

Massachusetts District

Court Local Rule 7.1(B)(2), which requires the filing

objection to such

a motion within

The district judge allowed the

fourteen days after

find that

service.

fee application by written

which, in its entirety, reads:

of written

the attorney

did

the work

certified, that his client prevailed, and

that the rates charged are reasonable and

order

representative of rates in
for

comparable

legal

the community

services.

The

petition is allowed.

Margin Endorsement

of Petition for Fees,

Addendum to Appellee's

Brief at 1.

This was

counsel,

who

briefing the

enough to catch the

promptly

moved

for

relevant issues.

attention of McDonough's

reconsideration,

The district

belatedly

judge denied

the

motion, and this appeal followed.

I. STANDARD OF REVIEW
I. STANDARD OF REVIEW
______________________

When,

in determining

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."

1991)

See Nydam v. Lennerton,

___ _____
_________

(quoting Wojtkowski v. Cade,

__________
____

1984]).

Thus, this Court

or abuse

of discretion."

948 F.2d 808, 813 (1st Cir.

725 F.2d 127,

131 [1st Cir.

will reverse "only for mistake

Lipsett
_______

v. Blanco, 975 F.2d

______

of law

934, 937

(1st Cir. 1992); United States v. Metropolitan Dist. Comm'n, 847

_____________
__________________________

F.2d 12, 14-15 (1st Cir. 1988).

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II. ANALYSIS
II. ANALYSIS
_____________

Where a

stantive

action,

request for

part of the state-law

the

derived from

proper rule

of

attorneys' fees comprises

remedy for a

decision

a sub-

state-law cause of

governing the

Massachusetts, rather than federal,

award

practice.

is

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).

on his state civil rights

Thus, because Krewson here prevailed

claims and not his

1983

proper statutory reference is Mass. Gen. L. ch. 12,

claims, the

11I.

The Massachusetts Civil Rights Act provides that:

[a]ny

aggrieved

person

who

prevail[s]
__________
this

in

section

award of

an

action authorized

shall

be entitled

by

to

an

the costs of the litigation and

reasonable attorneys' fees

__________

in an

amount

to be fixed by the court.

Mass. Gen. Laws Ann.

McDonough

party"

here argues

within the

awarded were not

money awarded

that

the

Krewson

12,

both that

meaning

Krewson

of the

"reasonable" in

Krewson by

trial court

costs,

11I (West 1986)

is not

statute

the jury.

the

fees

small amount

Further,

reversible

expert

a "prevailing

and that

light of the

committed

including

(emphasis supplied).

of

McDonough argues

error by

witness fees,

in

awarding

an

action

arising under state law.

1.
1.

Massachusetts

"Prevailing party" -- The Supreme Judicial Court of

"Prevailing party" --

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."

Mass. 819, 822 (1985).

Batchelder
__________

As a "plaintiff who wins nominal damages

is a prevailing party under

566,

in

v. Allied Stores Corp., 393

____________________

1988," Farrar v. Hobby, 113 S. Ct.

______
_____

573 (1992), the district court did not abuse its discretion

ruling

that the

jury's award

of

$1,500 was

sufficient to

entitle

law.

Krewson to

See also
___ ____

prevailing party status

Wilcox v. City of Reno,

______
_____________

1994) (upholding a

barroom

$66,535 fee

brawl with

claim under

police, who

under Massachusetts

42 F.3d 550

award to plaintiff,

won $1

on his

(9th Cir.

loser of

excessive force

1988).

2. "Reasonableness" -- Although there is no controlling

2. "Reasonableness" --

authority

on

the

attorneys' fees

held

that,

Massachusetts

under the

with

respect

Massachusetts, there is "no

shifting

Ins. Co.,
_________

awards."

895

F.2d

state civil

to

other

for

"reasonable"

rights act, courts

fee-shifting

statutes

pat formula for computation of

See, e.g.,
___ ____

830,

standard

Peckham v.
_______

841-42

(1st

have

in

fee-

Continental Casualty
____________________

Cir.

1990)

(awarding

attorneys'

fees

diversity

for

action).

violation of

Rather,

Mass.

Gen.

courts should

L.

ch. 93A

"focus[]

on

in

what

[counsel's] services were objectively worth."

Id. at 842 (citing

___

Heller

Mass.

v.

Silverbranch

[Hennessey,

consider

the

C.J.]).

Co.,

making this

376

621

[1978]

determination courts

may

a variety of factors, including the nature of the case,

time and labor required, the amount of damages involved, the

result obtained,

the

In

Constr.

the experience and reputation

of the attorney,

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

judge

of his

here explicitly found that

endorsement, the

"the attorney did

certified, that his client prevailed, and that

are reasonable and representative

comparable legal

Fees,

services."

Addendum to

district judge

attorney.

Appellee's

district

the work as

the rates charged

of rates in the community

Margin Endorsement

Brief at

1.

In

adopted the calculation proffered

for

of Petition for

so doing,

the

by plaintiff's

This is sufficient to constitute a "clear

explanation

of the reasons undergirding . . .

[the] fee award," and entitles

the trial court's determination to deference.

at 842;

see also
___ ____

(stating that the

time

documented

whether these

the

Stowe v.
_____

Bologna, 417
_______

trial court

by the

public interest

in having

statute);

reasonable

Fontaine,
________

415

attorney's fee,

authority . . . is largely

in

Mass.

the best position to

attorney

persons with

(1994)

the amount

and then

reasonable, taking

adequately represented) (fee award

895 F.2d

Mass. 199, 203

should start from

plaintiff's

calculations are

Peckham,
_______

of

decide

into account

meritorious claims

for violation of rent control

at

awarded

324

("[t]he

on the

amount

basis of

of

statutory

discretionary with the judge, who

determine how much

is

time was reasonably

spent on a case, and the fair value of the attorney's services");

Deary v.
_____

City of Gloucester, 9
___________________

(stating

that appellate

rationale articulated

F.3d 191,

courts should

by the

197 (1st Cir.

defer to

trial court when

1993)

any thoughtful

reviewing a

fee

award); United States v. Metropolitan Dist. Comm'n, 847 F.2d

_____________
_________________________

12,

-6-

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

awards

award

pursuant

to remedial
________

of reasonable

courts have reviewed fee

statutes, they

attorneys' fees

should

reflect the actual amount of the jury award.

Inc.
____

not be
___

that an

reduced to

See, e.g., Sanitoy,

___ ____ ________

v. Ilco Unican Corp., 413 Mass. 627, 633-34 (1992) (holding

_________________

that because of

served

have held

by

the

the nature of the

"citizen

Massachusetts hazardous

case and the public

enforcement"

provision

waste statute, courts may

award of reasonable attorneys' fees

interest

of

the

not reduce an

by a percentage of

response

costs recovered); Olmstead v. Murphy, 21 Mass. App. Ct. 664, 666,

________

______

rev. denied, 397 Mass. 1102

____________

here,

the

(1986) ("[w]hen the

public has, as

a particular interest in the vindication of a legal right,

market

value

of

automatically discounted

legal

services

because that value is

should

not

be

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

measure of

special

for

time

reasonably spent

reasonable fees, and

reasons

to depart

Mass. Gen. L. ch. 151B,

be

the basic

should govern unless

there are

from them")

9).

-7-

should

(fee award

pursuant to

Because

under

federal

underlying fee

law under

civil

interests

rights

statutes

underlying

are

awards in Massachusetts civil

1988 provides additional guidance.

has recognized that

rights

the policy

a plaintiff

lawsuit, especially

misconduct," acts as a

"in

similar

to

awards

those

rights cases, case

The Supreme Court

who obtains relief

the area

fee

in a

of individual

civil

police

private attorney general deterring future

violations and

that,

intent, "reasonable

therefore, consistent

attorney's fees

. .

with

. are

congressional

not conditioned

upon and need not be proportionate to an award of money damages."

City of Riverside
___________________

(upholding

Rivera,
______

$245,456.25

compensatory and

and

v.

fee

award

limited

by

based

561,

on

of the

(D. Mass. 1986) (Tauro,

award

of

for federal claims

recovery

but may,

fee award is not

in appropriate

See Lewis v. Kendrick, 944 F.2d

___ _____
________

Gonz les v. Jillson, 642 F.

________
_______

J.) (finding in a police

of $30,922.50

(1986)

Likewise, courts in this circuit

circumstance, greatly exceed it.

949, 957 (1st Cir. 1991);

574-76

jury

in federal civil rights cases a

the size

that the award

U.S.

punitive damages of $13,300

$20,050 for state claims).

have held that

477

in attorneys' fees

Supp. 908

brutality case

when the

jury

awarded

plaintiff

$1,000

significance of the

portant

public

verdict").

that

"No

plaintiffs

was

not

excessive

monetary award [was]

interests

vindicated

by

the

could comport with

should

an

vindicate their civil rights."

unrestricted

im-

general

jury

the principle

opportunity

Lewis, 944 F.2d at 957.

_____

-8-

"[t]he

outweighed by the

other result

have

because

to

Thus,

as a remedial civil

liberal

statutes

rights statute,

construction

of

such as Mass.

its

terms

Gen. L.

11I is entitled

than

other

ch. 93A.

See
___

to a more

fee

shifting

Batchelder, 393
__________

Mass. at 822.

3.
3.

Successful
Successful

respect, however,

recompense

pursuing the case.

his

claims,

unsuccessful claims
unsuccessful claims

the summary endorsement of

was totally silent.

claimed

vs.
vs.

Krewson

for

the

submitted a

entire

but modestly.

In

one

the district judge

fee application

time

his

In fact, he "prevailed" on

and those

---

that

attorney

spent

but a portion of

The endorsement

of the

district judge nowhere considers the time Krewson spent advancing

unsuccessful

theories

analogous fee shifting

of

liability.

provision of

With

respect

Mass. Gen. L.

to

ch. 93A,

the

we

have held

that if a plaintiff prevails on some of his claims and

loses on others,

proving

claims

the fee award may be limited

the successful claims, unless

__________

were interconnected.

See
___

to the time spent

it can be

Peckham,
_______

shown that the

895 F.2d

at 841-42

(citing Hanner v. Classic Auto Body, Inc., 10 Mass. App. Ct. 121,

123-24 [1980]);

867

F.2d 79,

Equitable Life Assoc. Soc. v. Porter-Englehart,

___________________________
________________

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.,

_______________________________

Cir.

1987)

(similar).

818 F.2d 1005,

Here, Krewson

claimed

1011 n.20

false

(1st

arrest,

assault and battery, and false imprisonment -- among other things

-- arising out

of certain

events taking place

on October

5-6,

-9-

1986.

jury,

He

was one half

prised the

judge

lost all these

claims.

of his case;

other half.

This, his

the events of

App., vol. III

so charged the jury,

Krewson's counsel had argued.

counsel told the

October 12 com-

at 4-95.

keeping the claims

Id. at 4, 104-06.
___

The district

distinct just as

On

cluding

this record,

that all

Krewson's

connected as to warrant a

Krewson.

there is

no adequate basis

claims are

for con-

so sufficiently

fee award in the total sum

claimed by

Compare Wagenmann v. Adams, 829 F.2d 196, 225 (1st Cir.

_______ _________
_____

1987) (ruling that

the suit at

issue could not

series of discrete claims for purposes of

be viewed as

fee award under

where "[a]ll of the triable issues arose out of a short,

linked

that

series of events").

the

between

inter-

burden

is

1988

visibly

Indeed, particularly having in

upon Krewson

the failed claims and

to

show

mind

an interconnection

the successful one,

not only did

they, on their face, appear separate, but they were so presented.

Krewson

cannot

try

on

the

facilitated the jury's finding in

basis

of

separateness,

his favor on at least

which

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.

reasonably

necessary

for

claims, the

district judge

McDonough.

As we

fee-shifting anodyne

So long as the attorney's work was

the

prosecution of

can properly

said in Peckham,
_______

focuses on 'what

-10-

the

charge

"in the

October

12

these fees

to

last analysis, the

[counsel's] services were

objectively

worth.'"

Peckham, 895 F.2d at 843, citing Heller v.

_______
______

Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978).

__________________________

4.
4.

Costs -- The failure

Costs --

between successful

costs as well.

its

to consider apportionment as

and unsuccessful claims infects

the issue of

McDonough argues that the district

court abused

discretion in including expert witness fees and costs in the

award.

The award of costs in this case is not governed by

as asserted by McDonough.

standard

prevailed

in

evaluating

only on

Rather, this Court applies

claims

the parallel

for

costs

state claims.

if

the

See
___

1988

the state

plaintiff

Freeman v.
_______

Package Mach. Co., 865

_________________

as here,

F.2d 1331, 1347 (1st Cir. 1988).

the Commonwealth

shifting authority,

favoring

there is a presumption

the awarding

of

this Court

concludes that

in a successful

Rights Act.

Freeman
_______

expert witness' fee can be

performed for certain claims.

appears

to

expert Robert

Id. at 1347-49
___

expert witness fees under Mass.

properly awarded

Massachusetts Civil

that an

in Massachusetts law

9) (citing Linthicum, 379 Mass. at 379).

_________

that presumption,

fees may be

statutory cost-

of expert witness fees.

(upholding the granting of

L. ch. 151B,

has granted explicit

make a

persuasive

DiGrazia

Where,

In light

expert witness

action under

the

does suggest, however,

prorated to reflect the work

863 F.2d at 1350.

argument that

was limited

Gen.

to issues

Here, McDonough

the

testimony of

relating to

the

first half of the

case -- the arrest

on October 5th

which was later stricken) and the liability of

remanded the fee

award to the district court

(testimony

the City.

Having

for apportionment,

-11-

however,

we

deem

district judge the

instance.

it

appropriate

issue of

likewise

to

costs for resolution

remand

in the

to the

first

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-