USCA1 Opinion
March 1, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1478
SHANTEE MONGA, ET AL.,
Plaintiffs, Appellants,
v.
GLOVER LANDING CONDOMINIUM TRUST, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Shantee Monga and Dharam D. Monga on brief pro se.
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Philip C. Curtis, Peter L. Ebb and Ropes & Gray on brief for
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appellees.
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Per Curiam. The plaintiffs/appellants, Dharam and
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Shantee Monga, are attorneys representing themselves pro se.
They are appealing an order of the district court awarding
the defendants/appellees attorneys' fees and costs in the
amount of $301,709.56. The fee award arose from a multiple
count complaint filed by the Mongas, in 1988, against the
condominium trust that manages the condominium complex where
the Mongas are owner/occupants, and two individuals - an
officer of that trust and the business manager of the
complex. When their case was called for trial in February
1992, the district court denied their second request for a
continuance and Mr. Monga stated that he was unready for
trial. The Mongas' complaint was then dismissed for failure
to prosecute. Similarly, we dismissed their appeal from that
order of dismissal, in May 1992, for want of prosecution.
Monga v. Glover Landing Condominium Trust, No. 92-1288 (1st
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Cir. May 27, 1992). Thus, what is presently before us is
solely the appeal from the separate, and subsequent, order
awarding fees and costs to the defendants.
The Mongas have filed an extensive brief contending,
inter alia, that the defendants' fee petition is excessive
and inadequately supported and that the district court order
granting the petition is too terse to stand upon review. The
Mongas' appellate arguments fail to scale a threshold barrier
of their own making, however. Although they had the
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opportunity, they failed to file any objection in the
district court in response to the quite-detailed request for
fees and costs.1 All the arguments vis-a-vis that petition
that the Mongas are now making on appeal could have, and
should have, been made to the district court. It is well
settled and oft-repeated in this circuit that "issues not
raised in the district court may not be raised for the first
time on appeal." Calvary Holdings, Inc. v. Chandler, 948
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F.2d 59, 64 (1st Cir. 1991). To the point is Blum v.
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Stenson, 465 U.S. 886, 892 n.5 (1984) (a party's failure to
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challenge in the district court the accuracy and
reasonableness of the hours claimed in a fee petition or the
facts asserted in the affidavits accompanying that petition
waives her right to challenge on appeal the district court's
determination that the number of hours billed was
reasonable). See also Magicsilk Corp. of New Jersey v.
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Vinson, 924 F.2d 123, 125 (7th Cir. 1991) (by failing to
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raise any objection to the fee petition in the district
court, either prior to or after the court's ruling on that
petition, fee target has waived right to argue the issue of
fees on appeal).
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1. Contrast Foster v. Mydas Assocs., Inc., 943 F.2d 139 (1st
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Cir. 1991). In Foster, the losing plaintiffs filed an
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opposition to the fee request and sought a hearing (which
never materialized) in the district court. Id. at 141. They
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had properly preserved, therefore, a challenge to the
district court's determination.
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The Mongas' complaint concerning the district court's
otherwise unexplicated endorsement of the fee petition as
reasonable fees and costs fares no better. Having failed to
object to the petition prior to the district court's action,
the Mongas further failed to ask for reconsideration and
elucidation from the district court when it entered the
order, the deficiencies of which they presently argue at
length. "[I]t is black letter law that it is a party's first
obligation to seek any relief that might fairly have been
thought available in the district court before seeking it on
appeal." Beaulieu v. United States I.R.S., 865 F.2d 1351,
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1352 (1st Cir. 1989).
While we may dispense with the raise-or-waive rule in an
exceptional case to avoid a gross miscarriage of justice,
United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992), we
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find no basis for the exercise of that power here. The
Mongas offer no persuasive explanation for their failure to
object below. They say that, after the court dismissed their
case for failure to prosecute, they continued settlement
negotiations2 with the defendants and that the defendants
indicated that, contingent upon execution of a settlement
agreement, they would withdraw the fee petition. No
agreement executed by both Mongas was ever reached.
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2. The defendants dispute the Mongas' characterization of
the post-judgment communications as settlement
"negotiations."
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That the Mongas were hoping to resolve this matter by
agreement does not excuse their failure to object to a
pending fee petition of which they were aware. Throughout
the four year odyssey of this litigation, the Mongas always
promptly and aggressively opposed motions filed by the
defendants, including a prior motion for attorneys' fees
sought in connection with a discovery dispute between the
parties. In the present instance, at the very least, they
could have, and should have, informed the district court of
the ongoing communications and asked for an extension of time
to respond to the petition or to hold the petition in
abeyance for a short period of time. To the extent that the
Mongas' present explanation implies that they were misled
during these post-judgment communications into believing that
they need not object to the fee petition, nonetheless, there
is no excuse for their failure to seek reconsideration from
the district court after it granted the petition.
Even were we to excuse the Mongas' failure to object to
the fee petition, our resulting review of the district
court's determination that the defendants' request
represented reasonable fees and costs would necessarily be
circumscribed by the procedural posture which the Mongas,
themselves, have effectuated. The facts concerning the
Mongas' conduct of this litigation, outlined in the
defendants' fee petition, are unopposed and, in any event,
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are abundantly supported even by a superficial reading of the
record. We mention but a few here to illustrate:
(1) The Mongas resisted discovery until enforced by an
order of compulsion;
(2) They moved to reassign the case to another judge,
which was denied; whereupon they moved for
reconsideration, which was also denied;
(3) They moved to disqualify defendants' counsel, which
was denied; whereupon they moved for reconsideration,
which was also denied;
(4) When the court granted the Mongas' request of March
26, 1991 to continue the trial then scheduled for April
1, 1991, they were ordered to pay the expenses of one of
the defendants, who had traveled to Boston in
anticipation of, and preparation for, the April 1st
trial date. Despite repeated requests for payment by
the defendants and the court's denial of their motion
for reconsideration of this order, those expenses were
not paid until, in response to a motion for contempt
filed by defendants, the court, on October 8, 1991,
issued a further order directing the Mongas to pay the
expenses by November 1, 1991 or risk dismissal of the
case; And, finally,
(5) when the case was called for trial on Monday,
February 3, 1992, Mr. Monga, appearing alone, requested
another continuance, saying that his wife was sick and
he was not ready to try the case. None of the dozens of
proposed witnesses for the Mongas were present.
According to Mr. Monga, his wife would not be available
that week, but he hoped she would be available in the
next 30 days. When the court asked what was wrong with
her, Mr. Monga replied that she was not in the hospital
but, "I understand that she is depressed and she has
some injury." Although Mr. Monga and defendants'
counsel had engaged in settlement negotiations that
immediately preceding weekend, Mr. Monga had made no
mention of his wife's illness.
We hasten to add that we are not suggesting that
challenging discovery requests by an opposing party, filing
certain motions, such as a motion to reassign the case or to
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disqualify opposing counsel, or moving to reconsider may not
be, in ordinary circumstances, appropriate litigation options
or are filed only at the risk of penalization. In these
circumstances, however, we have no cause to review the merits
of any of these motions filed by the Mongas. Their failure
to prosecute their appeal from the order dismissing their
complaint effectively forecloses any present argument that
the district court erred in any of the underlying rulings.
We could find no error in a conclusion by a district court,
with its firsthand experience with the parties, that an award
of attorneys' fees was appropriate under the sources of
authority propounded by the defendants. See, e.g.,
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Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22
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(1978) (a district court can award fees to a prevailing
defendant upon finding that the plaintiff's action was
frivolous, unreasonable, vexatious, or without foundation, or
that the plaintiff continued to litigate after it clearly
became so)3; Chambers v. NASCO, Inc., 111 S. Ct. 2123, 2133
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(1991) (the assessment of attorney's fees to sanction a
litigant for bad-faith conduct, such as delaying or
disrupting litigation, is within a court's inherent power).
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3. Christiansburg involved attorney's fees pursuant to Title
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VII, but the standards for assessing fees under Title VII and
42 U.S.C. 1988 are identical. Hensley v. Eckerhart, 461
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U.S. 424, 433 n.7 (1983).
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Similarly, where the Mongas failed to challenge the
defendants' affidavit that the hourly rates charged were
their normal and customary billing rates or to challenge the
number of hours attested as spent on this litigation, we
would be hard pressed to find plain error or abuse of
discretion in a district court's acceptance of those
uncontested allegations as well. See McDonald v. McCarthy,
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966 F.2d 112, 118-19 (3d Cir. 1992) (where a party fails to
contest the accuracy and reasonableness of the fees
requested, it waives its right to do so and the district
court is not free to disregard uncontested affidavits and
reduce the award requested unless the order is based on the
court's personal knowledge as to the time expended on the
case).
While the district court's review is "to ensure that a
fee award, overall, is justified, and that the amount of the
award comes within the realm of reasonableness, broadly
defined[,]" it is not "the court's job either to do the
target's homework or to take heroic measures aimed at
salvaging the target from the predictable consequences of
self-indulgent lassitude." Foley v. Lowell, 948 F.2d 10, 20-
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21 (1st Cir. 1991).4 The Mongas' present complaint that the
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4. In Foley, supra, at 19, a case involving public funding,
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we endorsed the right of the district court to review a
prevailing plaintiff's fee petition and to award an amount
reduced from that sought, despite a perfunctory objection by
the losing municipality. Similarly, in Wojtkowski v. Cade,
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district court's failure to articulate the basis for the
award has placed them "at a considerable disadvantage to
attack the reasonableness of the award" is disingenuous.
They had the opportunity to attack the reasonableness of the
award in the district court but rebuffed that opportunity by
failing to object or seek reconsideration. Their transparent
attempt to deflect blame for their present position onto the
district court is unconvincing. In these circumstances, we
cannot fault the district court's succinct granting of the
request in full as reasonable fees and costs. See Richmark
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Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1482 (9th
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Cir. 1992) (where fee target does not object to the amount of
fees claimed, the district court is not required to make
written findings on the twelve factors which it otherwise
ought to consider when calculating a fee award), cert.
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dismissed, 61 U.S.L.W. 3060, 3155 (U.S. Oct. 29, 1992).
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The Mongas having failed to preserve for appellate
review any issue with respect to the fee award, the district
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725 F.2d 127, 130 (1st Cir. 1984), we upheld the authority of
the district court to trim an inadequately supported fee
request, despite the lack of opposition to the request from
the losing municipal officers. Compare also Weinberger v.
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Great N. Nekoosa Corp., 925 F.2d 518 (1st Cir. 1991), where
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we found the inclusion of a clear sailing agreement,
ancillary to a class action settlement, required heightened
judicial oversight.
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court order of March 13, 1992 is, therefore, affirmed.5
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Costs to defendants/appellees. We deny their request for
attorneys' fees with respect to this appeal.
Affirmed.
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5. Although the Mongas' notice of appeal purported also to
appeal the May 1, 1991 order directing them to pay the travel
expenses of one of the defendants in connection with the
continuance from the original trial date of April 1, 1991,
that claim is barred from review.
First, the order complained of became final and
appealable upon entry of the district court judgment
dismissing the case for failure to prosecute. The Mongas let
their appeal from that judgment lapse in this court and we
dismissed the appeal for want of prosecution in May 1992.
They cannot resurrect that claim in this appeal from the
subsequent entry of judgment as to attorneys' fees. See,
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e.g., Hamilton v. Daley, 777 F.2d 1207, 1210 (7th Cir. 1985).
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In any event, having exhausted the allowed 50 pages in
their appellate brief, they attempt to raise this argument on
page 50 solely by reference to, and purported incorporation
of, record documents. As we have repeatedly said, "issues
adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived."
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.
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denied, 494 U.S. 1082 (1990).
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