United States Court of Appeals
For the First Circuit
No. 03-1201
PHALY POY,
Plaintiff, Appellant,
v.
JOHN BOUTSELIS, ET AL.,
Defendants, Appellees.
No. 03-1243
JOHN BOUTSELIS, ET AL.,
Defendants, Appellants,
v.
PHALY POY,
Plaintiff, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Thomas J. Freda with whom Joseph W. Monahan, III and Monahan
& Padellaro were on brief for John Boutselis.
Mark W. Miller with whom Howard B. Wernick was on brief for
Phaly Poy.
December 19, 2003
COFFIN, Senior Circuit Judge. These appeals arise out of an
incident on February 16, 1997 involving plaintiff Phaly Poy1 in an
arrest, a scuffle with a Lowell, Massachusetts, police officer,
defendant Boutselis, a booking at the police station, and emergency
hospital treatment for a laceration. Plaintiff was charged with
several offenses, including disturbing the peace and assault and
battery. After being acquitted by a jury, he brought suit on
February 16, 2000 against Boutselis and another officer present at
the scene, Conroy, and the Lowell Chief of Police, Davis, as well
as the city of Lowell, citing 42 U.S.C. § 1983, and a variety of
state claims. Also included as a defendant was one Neov, owner of
the premises where the incident occurred and the temporary employer
of Boutselis.
After denial of a motion to dismiss on statute of limitations
grounds, a seven day jury trial in 2002 resulted in a verdict for
plaintiff against defendant Boutselis in his personal capacity,
granting him $5,000 to compensate for the use of excessive force,
$5,000 to compensate for severe emotional distress, and $25,000 in
punitive damages. In addition, the court allowed prejudgment
interest in the amount of $31,013.33. All other claims against all
parties were dismissed. Post trial, the district court denied
1
At its inception, there was an additional plaintiff, Toeur
Em, whose failure to appear for scheduled depositions resulted in
dismissal of his claims. We shall refer only to a singular
plaintiff, Poy.
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Boutselis' motion for new trial and declined to award any counsel
fees to any party.
Both plaintiff and Boutselis have appealed. Boutselis has
challenged the rejection of his statute of limitations defense, the
denial of his motion for a new trial, and denial of defendant
Conroy's motion for attorney's fees. Poy appeals from the court's
refusal to award him attorney's fees and costs. We affirm the
court's rulings as to Boutselis and Conroy; we vacate the court's
orders denying Poy's motions for attorney's fees and costs and
remand for reconsideration in light of this opinion.
We first describe the incident giving rise to these cases,
giving the version of facts and inferences favorable to plaintiff-
appellant Poy. We then discuss defendant-appellant Boutselis'
appeal, following with our deliberations as to Poy's appeal.
I. The Incident
At about 11:30 p.m. on February 16, 1997, Poy, a 24-year-old
man of Cambodian origin, and three friends went to a club, The
Golden Swan, and proceeded along a hallway to a dance or function
room. Barred from entering by a doorman, Poy looked inside to see
if he knew anyone there. Soon officer Boutselis, specially
employed by the club owner Neov, approached Poy, telling him in
abusive language to leave before "I fucking pound your fucking
head." As Poy was peacefully leaving, Boutselis pushed him from
behind. Poy fell on the floor. Boutselis, six feet tall and
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weighing 240 pounds, sat on him, struck him above his right eye,
and handcuffed his hands behind him, the right hand being brought
over his shoulder and the left hand being drawn across his back and
up. Two of Poy's friends testified that Boutselis, using the
handcuffs as brass knuckles, repeatedly hit Poy on the head.
Poy was dragged to a police van and taken to the police
station, helped by a policewoman to sign his name, and was charged
with four counts: disorderly conduct; assault and battery on a
police officer; assault and battery with a dangerous weapon; and
resisting arrest. He was then taken to a hospital where he
received five stitches to close a laceration over his right eye,
leaving a scar observed by the jury. He returned to the police
station where he remained for a number of hours until he was
bailed. Poy testified that he felt pain lasting some two months in
his shoulder, back, wrist, and head, and had difficulty sleeping
and eating.
The above account is diametrically contradicted by the
testimony of Officer Boutselis at every critical point —
provocation, resistance, efforts to subdue, and extent of injury.
But the jury was not required to accept his version.
II. Appeal of Boutselis
A. Statute of Limitations
Boutselis argues that Poy's suit, filed on the third
anniversary of the key events, was one day late. Boutselis urges
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us to reject both Mass. R. Civ. P. 6(a) and Fed. R. Civ. P. 6(a) by
counting the limitations period of three years inclusive of the
date of accrual,2 so that the final day for bringing suit would
fall one day before the third anniversary. It is an argument which
upon analysis reveals less than meets the eye.
The argument begins with the recitation of propositions
accepted by both parties: a § 1983 claim, according to 42 U.S.C. §
1988, borrows the appropriate state law governing limitations
unless contrary to federal law, Wilson v. Garcia, 471 U.S. 261, 267
(1984); since the claims against Boutselis were for the use of
excessive force, assault, battery, etc., the limitations period for
personal injury is the appropriate analogue, id. at 273; the
Massachusetts statute governing personal injury claims is Mass.
Gen. Laws ch. 260, § 2A, providing that actions shall be commenced
"within three years next after the cause of action accrues."
Federal law controls the determination of when the cause of action
accrues, Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir.
1994). Both federal and Massachusetts law agree that a § 1983
claim accrues when a plaintiff knows or has reason to know of his
injury. See Nieves v. McSweeney, 241 F.3d 46, 52 (1st Cir. 2001);
Riley v. Presnell, 565 N.E.2d 780, 784, 409 Mass. 239, 243 (1991).
2
Fed. R. Civ. P. 6(a) provides: "In computing any period of
time prescribed or allowed by . . . any applicable statute, the
day of the act, event or default from which the designated period
of time begins to run shall not be included." Mass. R. Civ. P.
6(a) mirrors this language.
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Massachusetts begins counting on the day following the day of the
incident, with the last day for filing suit being the anniversary
date of the event, in accordance with Mass. R. Civ. P. 6(a). See
Ciampa v. January, 1992 Mass. App. Div. 204 (1992). We refer to
Rule 6(a) as the Massachusetts application rule.
At this point, appellant advances two parallel arguments –
both strained - in support of his contention that the claim is time
barred.
First, Boutselis argues that while we may borrow the
limitations period in Mass. Gen. Laws ch. 260 § 2A, we are
prohibited from borrowing the application rule in Mass. R. Civ. P.
6(a). Under Boutselis' reading of precedent, borrowing the
Massachusetts application rule contradicts the Supreme Court's
directive in West v. Conrail, 481 U.S. 35, 39 (1987), which advised
federal courts that if a state statute of limitations must be
borrowed for a federal cause of action, the court is to borrow "no
more than necessary." Second, even if we were permitted to borrow
the state rule of application, Boutselis maintains that
Massachusetts utilizes a different application rule for § 1983
claims than for those arising under state law.
With respect to his first argument - that we may not borrow
the Massachusetts application rule - Boutselis attempts to derail
as precedent our opinion in Carreras-Rosa v. Alves-Cruz, 127 F.3d
172 (1st Cir. 1997), but in doing so contradicts the Supreme
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Court's decision in Wilson, 471 U.S. at 269, which holds that "the
length of the limitations period, and closely related questions of
tolling and application, are to be governed by state law." In
Carreras, we recognized Wilson's teaching and looked to a Puerto
Rico statute and a ruling of the Puerto Rico Supreme Court to
determine the timeliness of a § 1983 action. See Carreras, 127
F.3d at 174. Boutselis suggests, however, that this holding
encompasses only those instances in which a state statute, rather
than a rule of procedure, sets forth the application rule.3 In
advancing this pained distinction, he also ignores our disagreement
in Carreras with dicta equating "the date of accrual with the first
day of the limitations period," id. at 175.
Boutselis' second argument urges us to hold that Massachusetts
uses a different rule of application for § 1983 claims than for
claims arising under state law. Boutselis concedes that
Massachusetts generally excludes the accrual date in calculating
the limitations period of tort claims, see Ciampa, 1992 Mass. App.
Div. at 204, but he maintains that under Pagliuca v. City of
3
Boutselis cites no relevant precedent for this distinction,
other than our decision in McIntosh v. Antonino, 71 F.3d 29 (1st
Cir. 1995), which deals with the inapposite question of adopting
state rules of filing. In McIntosh, we declined to borrow a
Massachusetts rule permitting filing by mail when there was no
legitimate reason to depart from the established principle that
federal rules of procedure prevail in federal courts. See Hanna v.
Plummer, 380 U.S. 460 (1965). Boutselis' reliance on McIntosh
disregards the Supreme Court's explicit authorization to look to
state law regarding questions of application. See Wilson, 471 U.S.
at 269.
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Boston, 626 N.E.2d 625, 35 Mass. App. Ct. 820 (1993), the statute
of limitations for § 1983 claims begins running on (and therefore
is inclusive of) the date of the wrongful acts. In Pagliuca, the
court was dealing with the question of whether a § 1983 action
accrues on the date of the wrongful acts or a later date when the
effects of the acts were felt. Its decision about the beginning
and ending dates of the limitations period cited no Massachusetts
authority and relied solely on our decision in Altair v. Pesquera
de Busquets, 769 F.2d 30, 32 (1st Cir. 1985). We specifically
abrogated Altair in Carreras, 127 F.3d at 174, borrowing instead
the Puerto Rico law which calculated the limitations period
exclusive of the date of accrual.
Most importantly, Boutselis ignores the strong indication of
a beginning date in the "next after" language of Mass. Gen. Laws
ch. 260 § 2A as well as longstanding Massachusetts precedent
excluding the date of accrual from the calculation of the
limitations period. See Pierce v. Tiernan, 280 Mass. 180, 182, 182
N.E. 292, 293 (1932) (interpreting prior Mass. Gen. Laws. ch. 260
§ 4, which contained the same "next after" language as the current
Mass. Gen. Laws. ch. 260 § 2A, to mean that in "computing [the]
limit of time, the day upon which the cause of action accrued is to
be excluded"); see also Bemis v. Leonard, 118 Mass. 502, 506 (1875)
("In this Commonwealth, the general rule, as applied in a variety
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of circumstances, and now well established, is, that in computing
time from the date . . . the day of the date is to be excluded.").
We thus hold that in determining the accrual and limitations
period of a § 1983 claim, we borrow Mass. Gen. Laws ch. 260, § 2A
as well as Mass. R. Civ. P. 6(a). We note also that there cannot
be any inconsistency with federal law since the rules of the two
jurisdictions are identical. See Wilson, 471 U.S. at 269;
Carreras, 127 F.3d at 174 n.1. The district court therefore did
not err in finding that Poy's anniversary date filing was timely.
B. Motion for New Trial
In his motion for a new trial, Boutselis made one allegation,
namely, that the amount of damages for the intentional or reckless
infliction of emotional distress ($5,000) and for punitive damages
($25,000) was excessive and the result of prejudice or sympathy.
In the memorandum submitted to the district court, the argument
widened to an assertion of a complete absence of evidence
supporting two jury findings. With reference to the state law
claim involving emotional distress, appellant argued that there was
no medical or psychiatric evidence, and no testimony from the
plaintiff specifically mentioning emotional distress. With
reference to the § 1983 claim for punitive damages, appellant
argued that the jury had made a special finding that he, Boutselis,
had not acted maliciously and sadistically for the purpose of
causing harm, that there was no evidence of evil intent, and that
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the incident was an isolated one. The district court denied the
motion, ruling that there was "a genuine dispute of fact for
decision by the jury."
Appellant faces a formidable burden in trying to persuade us
to reverse a district judge's denial of a motion for new trial.
Our review of such an issue is "extremely circumscribed." Correa
v. Hospital San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995). In
assessing whether or not there is a reasonable basis for the jury's
decision, we take "both the facts and the reasonable inferences
therefrom in the light most hospitable to the jury's verdict." Id.
at 1188.
First of all, both the claims for intentional or reckless
infliction of emotional distress and for punitive damages require
proof of similarly extreme conduct. The former requires evidence
of conduct that is "extreme and outrageous." Nancy P. v. D'Amato,
517 N.E.2d 824, 827, 401 Mass. 516, 518 (1988). The latter
requires either evidence of evil intent or "reckless or callous
indifference to the federally protected rights of others." Smith
v. Wade, 461 U.S. 30, 56 (1983). In this case the jury answered a
carefully constructed series of questions. After it had found that
Boutselis had used excessive physical force, despite an absence of
resistance, threats, or attempt to flee on the part of Poy, it went
on to find that his conduct "violated contemporary standards of
decency and is repugnant to the conscience of the community," was
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"unnecessarily wanton or excessive," extended "beyond the scope of
his capacity as a police officer," and took place "with reckless
disregard for the likelihood that it would cause Poy to suffer
severe emotional distress." We agree with the district court that
at the very least the evidence presented factual questions as to
Boutselis' conduct which could be and were resolved by the jury.
As for the evidence of resulting emotional distress, although
there was no medical or psychiatric evidence, there was
considerable testimony, not only from plaintiff but from two other
witnesses, of the following facts: Poy was struck repeatedly on his
face and back, being knocked to the floor and pinioned by
Boutselis; his hands were locked behind him and handcuffs were used
as brass knuckles, striking him repeatedly on the forehead; a
resulting wound required sutures at a hospital and left visible
evidence of a scar which the jury observed; the incident was
followed by two months of pain in his shoulder, back, wrist, and
head. A jury could reasonably infer from such humiliation, long
continued pain, and facial disfigurement a condition of severe
emotional distress. Cf. Wagenmann v. Adams, 829 F.2d 196,216 (1st
Cir. 1987)(upholding compensatory damages of $225,000 for a 36-hour
incident involving false arrest, bringing of charges, handcuffing,
thrusting into police vehicle, arraignment, and a night in a mental
hospital, but no physical injury).
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On this record, the district court's denial of the motion for
new trial is far from an abuse of discretion, not to mention "a
manifest abuse of discretion." Joia v. Jo-Ja Service Corp., 817 F2d
908, 918 (1st Cir. 1987).
C. Conroy's Motion for Attorney's Fees
In the district court, defendant Conroy sought attorney's fees
on the ground that he was kept in the case long after the claims of
plaintiff Toeur Em, whom he had arrested, had been dismissed. The
district court denied the motion. Whether or not this decision
might have been vulnerable - and we do not suggest that it was — it
is not before us. The notice of appeal filed by Boutselis makes no
mention of Conroy, and lists only the two issues we have just
discussed. Failure to include this third issue in the notice is
fatal to our jurisdiction. Lehman v. Revolution Portfolio L.L.C.,
166 F.3d 389, 395 (1st Cir. 1999).
III. Appeal of Poy
The question posed by this appeal is whether, on the facts of
this case, the district court was within its discretion in denying
any attorney's fee award at all to Poy, although he obtained a
verdict and not insignificant money damages against a city police
officer.
A. Proceedings Below
The proceedings leading to this appeal involve several
hearings. The first was held shortly after the conclusion of the
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jury trial, on October 18, 2002, to consider motions for attorney's
fees. Poy's two attorneys each submitted a motion containing
statements totaling some $98,631 and covering over four and a half
years of representation by the senior counsel as well as work in
preparation for the recent trial by the junior counsel. The court
expressed its reactions that both motions were excessive, commented
on what it thought wasteful duplication of lawyer presence and
effort by Poy's team, questioned the apparent inappropriateness of
including fees for the pursuit of claims on behalf of the
disappearing Em and against officer Conroy, and heard an argument
that Poy's lawyers' records did not appear to be contemporaneous in
two specific entries in which conversations with Boutselis'
attorney Freda were noted at a time prior to his association with
his present firm. The court then set another date for further
presentations, giving an opportunity for counsel to amend their
affidavits.
Poy's counsel responded to the court's invitation with several
submissions. One was from junior counsel Miller, affirming that
all billing records had been reviewed and a good faith attempt made
to locate errors and exclude excessive items. He rehearsed the
work performed, principally in discovery, depositions, meeting with
plaintiffs, and trial. He asserted that plaintiff Em's claims and
claims against the city of Lowell involved the "common core of
facts" and "related legal theories" deemed legitimate in successful
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claims by plaintiffs in Aubin v. Fudala, 782 F.2d 287, 291 (1st
Cir. 1986). Finally, he signified his willingness to take a ten
percent cut, reducing his request from $44,102 to $39,611.
Poy's senior attorney, Wernick, explained the allocation of
work between him, with 25 years experience, and Miller, with six,
in which discovery matters were handled largely by Miller, and
depositions largely by Wernick. Both were in attendance at trial
as were the two lawyer teams representing Boutselis and the city.
Attorney Wernick also voluntarily reduced his request from $63,562
to $47,206, saying this was a ten percent cut. In reality this
would be a cut in excess of 25 percent and is clearly an error.4
A third submission addressed the two entries recording a
conversation with Boutselis' attorney Freda at a time prior to his
association with his firm. Photocopies of the original time
records were submitted purporting to show that conversations with
an unnamed Boutselis attorney had indeed been made on the cited
dates.
A second hearing was soon held, on November 15, 2002. In
replying to counsel's query why the court was not inclined to award
any attorney's fees to either party, though plaintiff had prevailed
against Boutselis, the court said, "[B]ecause you prevailed in
4
If a ten percent reduction were made, Wernick's request
would be for $57,206, not $47,206. His figures represent a cut of
$16,356 or approximately 26 percent. If a 10 percent reduction
were made, his share would be $6,356, and Miller's $4,410, totaling
$10,766.
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part, but only in part, and very substantially did not prevail.
Each of you overclaimed very, very substantially." Instead of
spending a great deal of time with more submissions and repetitive
arguments, the court concluded, "I should simply say that since
neither of you prevailed in the sense that justifies an award of
attorney's fees or costs, I will not give it to either side as
between the plaintiff and Boutselis."
A third hearing was held on January 10, 2003. In the course
of it the court said, "[T]here is not any prevailing party in the
sense required for an attorney's fees award in this case because
each party won in some significant respect and lost in some
significant respect." The court further affirmed that this was the
only basis of its decision. When its memorandum and order
memorializing the results of the hearing was issued, however, Poy's
request for attorney's fees was disposed of because the request was
"plainly excessive," and even considering the attorneys' voluntary
ten percent reduction, the fault had not been remedied. A second
basis for denying fees in toto was that "there are strong
indications the records given to this court were not
contemporaneous records." The court also denied plaintiff all his
costs except the $150 filing fee, partly because they were not
listed in 28 U.S.C. § 1920(1) and partly because deposition
transcripts were not shown to be necessary or paid for.
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B. Law of Prevailing Parties
We begin with the threshold principle enunciated by the
Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983),
endorsing our formulation in Nadeau v. Helgemoe, 581 F.2d 275, 278-
279 (1st Cir. 1978), that "plaintiffs may be considered 'prevailing
parties' for attorney's fees purposes if they succeed on any
significant issue in litigation which achieves some of the benefit
the parties sought in bringing suit." We have noted the permissive
phrasing but have concluded that "awards in favor of prevailing
civil rights plaintiffs are virtually obligatory." Gay Officers
Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 2001).
Prevailing party status, we have recognized, might be denied
if success on a claim was "purely technical or de minimis," id. at
294 (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 792 (1989)). Another basis for denying fees
to a prevailing plaintiff is the presence of "special circumstances
[which] would render such an award unjust." Hensley, 461 U.S. at
429 (quoting Newman v. Piggie Park Enters., 390 U.S. 400, 402
(1968)). In such a case, we require "findings of fact and
conclusions of law identifying the special circumstances and
explaining why an award would be inappropriate." De Jesus v. Banco
Popular de Puerto Rico, 918 F.2d 232, 234 (1st Cir. 1990).
Appellee Boutselis invokes Lewis v. Kendrick, 944 F.2d 949
(1st Cir. 1991), where we reversed an award of attorney's fees to
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a plaintiff who had been awarded $1,000 compensatory damages in
connection with a false arrest. The circumstances of that case
demonstrate a coalescence of extremes in terms of litigation
judgment, expenditure of time, and overclaiming: an incident
involving merely a 15-minute investigation by police, an hour and
three quarters detention awaiting bail, and the fastening of
handcuffs too tightly, resulting in a demand for $250,000 in actual
damages and $50,000 in punitive damages, and an initial request for
$132,788 in attorney's fees for a time record of 952 hours, or half
a billing year. Even so, total denial of fees caused then Judge
Breyer to dissent, recommending at least a token fee. See id. at
956.
In the light of these precedents, we now look at this case.
We are in sympathy with the plight of the district court, which is
faced with a tedious and unpleasant task. It must determine time
reasonably spent, the reasonable rates applicable, assess the
significance of any success, and finally ascertain if special
circumstances trump such calculations. There is no easy way. In
this process counsel have an obligation to "make a good faith
effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434.
But in the end, the biases, pressures, self interest, and
perspective of parties and their counsel make the task of the trial
court central and indispensable.
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Our task now is to review the district court's decision for
"manifest abuse of discretion." Gay Officers Action League, 247
F.3d at 292. "Apart from mistakes of law ... we will set aside a
fee award only if it clearly appears that the trial court ignored
a factor deserving significant weight, relied upon an improper
factor, or evaluated all the proper factors (and no improper ones),
but made a serious mistake in weighing them." Id. at 292-93.
C. The Record
The basic requirement that a plaintiff prevail on a
significant issue is clearly met. The district court recognized
this in commenting that "each party won in some significant respect
and lost in some significant respect." Poy's victory was for his
core claim of false arrest, the use of excessive force, and the
infliction of emotional distress against the one individual whose
acts were in issue. He obtained $10,000 in compensatory damages
and two and one half times that amount in punitive damages. This
was not only a personal victory but a recognition that
professional, civil standards must be vigilantly maintained in law
enforcement. To the extent that the district court may have deemed
plaintiff's success de minimis, we disagree, deeming this a defect
in weighing.
But before this could be considered serious, we must see
whether the observations of the district court rise to the level of
special circumstances sufficient to deny any attorney's fee as
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unjust. We look at the record to ascertain the extent to which the
district court's views of overclaiming, unsuccessful claims, and
lack of contemporaneous records are supported.
We have looked at the fee applications submitted to us. In
form they appear quite meticulous and disclose fairly the object
and amount of the time spent. We think it likely, from our
somewhat removed vantage point, that the plaintiff's explanation
of the misnaming of the attorney representing Boutselis in two
entries reveals only an inadvertence in preparing the fee
application from original records. We have no indication of any
other instance suggesting lack of contemporaneity.
Although Poy's attorneys volunteered a ten percent reduction
in their fee to respond to the court's concerns, this was not tied
to any attempt to excise redundant or unnecessary work, unlike the
more responsive action of counsel in Gay Officers Action League,
247 F.3d at 292. It may have been viewed merely as a token
gesture. Nevertheless, the significance of the proffered reduction
is borne out by further scrutiny of the fee applications. Much has
been made of plaintiff Em's early abandonment of his case and of
the failure of plaintiff to prevail in his claims against the city
and its chief of police. In reviewing the fee applications, we
deleted all time attributed to either Em's claims or claims against
the city. This revealed a total fee attribution to these two sets
of claims in the amount of some $8,400. As for claims against
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officer Conroy, a matter of some concern to the district court, our
review indicates almost no time charges addressed to them. The
proffered ten percent reduction in fee, according to our admittedly
preliminary calculation, amounts to approximately $10,750 or well
in excess of the unsuccessful claims by or against dismissed
parties. See supra n.3.
A number of state causes of action and defendant parties were
dismissed. They include assault and battery on the part of
officers Boutselis and Conroy. It appears to us that whatever work
was relevant to these claims arguably may have had to be done in
connection with plaintiff's claims of false arrest, excessive force
and emotional distress against Boutselis. There were three claims
against Neov, the owner of the site of the incident, The Golden
Swan, for negligent hiring (of Boutselis) and supervision,
respondeat superior, and premises liability. We have found no
indication of time spent or charges allocated to supporting these
claims. And the claims of unconstitutional policy or custom and
negligence against the chief and the city, even if unrelated to
plaintiff's claims against Boutselis, may fall within the proffered
ten percent reduction. These are only our preliminary impressions;
definitive resolution of the issue of relatedness is better left to
the informed judgment of the district court.
Another area of concern to the district court was the
possibility of wasteful redundancy of effort by plaintiff's two
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attorneys. Attorney Wernick explained that in pre-trial matters
such as discovery, most of the work was done by his junior, Miller.
He himself did most of the deposition work. While the district
court may eventually reject this explanation, it is at least
facially plausible. There remains the important and intense period
of trial when both were in attendance much of the time. The
requested fees for this period are indeed very substantial. We
note, however, that both the city (including Chief Davis) and
Boutselis were at the same time represented by teams of two
attorneys. We cannot improve on the advice we gave in Gay Officers
Action League, 247 F.3d at 297: "[A] court should not hesitate to
discount hours if it sees signs that a prevailing party has
overstaffed a case ....On the other hand ... [g]iven the complexity
of modern litigation, the deployment of multiple attorneys is
sometimes an eminently reasonable tactic." In short, the district
court must weigh and consider the claim of overstaffing, using its
intimate knowledge of the case, and make specific findings thereon.
As a result of this analysis and based on this record, we see
no "special circumstances" justifying the elevation of this case to
that rarified level of irresponsible litigation strategy, minimal
accomplishment, and intolerable overclaiming which merits denial of
any fees whatsoever to a prevailing party. In short, our
conclusion is that a serious mistake in weighing was made, aided by
the complete discounting of the relevant prevailing party factor.
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We therefore must remand this issue to the district court for
consideration in accordance with this opinion. It should examine
any claim of interrelatedness between work done on unsuccessful
claims and the claims on which plaintiff was successful. It should
examine the reasonableness of time spent and rates charged,
including the possibility of overstaffing. Counsel are urged to be
as forthcoming and cooperative as possible. In the final analysis,
the court must make its judgment and support it with sufficient
specificity. We add that it should also review plaintiff's request
for reimbursement of costs, not being restricted to the
specifications of 28 U.S.C. § 1920, see System Management, Inc. v.
Loiselle, 154 F. Supp.2d 195, 204 (D. Mass. 2001) (holding that
"reasonable out-of-pocket expenses incurred by the attorney and
normally charged to the client" could be awarded pursuant to
statutory authority of § 1988).
We therefore vacate the sections of the court's order of
January 10, 2003 relating to plaintiff's request for fees and
costs, as well as Boutselis' motion to reduce any attorney's fees
awarded to plaintiff. We remand the case to the district court for
determination of an appropriate attorney's fee for plaintiff. This
shall not alter the date of judgment concerning the awards of
damages, but we suggest that the amount of prejudgment interest be
revisited to insure accuracy.
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Appellant is entitled to his reasonable attorney's fees and
costs on appeal.
Affirmed in part, vacated in part, and remanded.
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