USCA1 Opinion
April 1, 1993 [Opinion reissued as published.]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 92-2151
CATHERINE M. JONES, ET AL.,
Plaintiffs, Appellants,
v.
WINNEPESAUKEE REALTY, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_________________________
David A. Jones for appellants.
______________
_________________________
March 12, 1993
_________________________
SELYA, Circuit Judge. In this appeal, a family of
SELYA, Circuit Judge.
______________
disappointed plaintiffs asks us to overturn the district court's
entry of judgment on a counterclaim and to annul awards covering
attorneys' fees and sanctions. Finding no cognizable error, we
affirm.
I. BACKGROUND
I. BACKGROUND
In early 1989, Catherine M. Jones and her son,
Alexander T. Jones, filed suit to recover amounts allegedly owed
by Reid S. Littlefield in consequence of Littlefield's agreement
to rent a vacation home in Gilford, New Hampshire. Littlefield,
through counsel, answered the complaint and counterclaimed for
breach of contract, assault, and trespass.1 In response to a
pretrial order, the two original plaintiffs filed an amended
complaint in which they joined David A. Jones, an owner of the
property and a signatory to the lease, as a co-plaintiff.2 Soon
thereafter, plaintiffs' attorney moved to withdraw from the case.
On January 2, 1990, the magistrate-judge allowed the motion.
From that point forward, David Jones served as his own counsel
and at times represented his co-plaintiffs.
____________________
1Appellants' suit named a myriad of other defendants. In
the present posture of the case, no useful purpose would be
served by furnishing details relevant to these persons and firms.
2David Jones is Catherine's husband and Alexander's father.
He is also an attorney. He represents the appellants in
connection with this appeal. We note in passing that, although
Alexander Jones is listed in the notice of appeal, brief, and
other documents as an appellant, he is seemingly unaffected by
any of the orders under review. We, therefore, ignore his
presence and treat Catherine and David Jones as if they were the
sole appellants.
2
In April 1990, appellants withdrew most of the causes
of action originally asserted against Littlefield. Buoyed by
this concession, Littlefield moved to dismiss on the ground that
there was no longer a sufficient amount in controversy. Although
the court denied Littlefield's motion and gave appellants
permission to supplement their pleadings, appellants made no
effort to cure the perceived deficiency.3 On August 27, 1990,
the court dismissed their complaint.
Claiming that they had never received notice of the
opportunity to amend their pleadings, and denying (despite a
clear record to the contrary) that they had withdrawn their other
causes of action, appellants sought and obtained the district
court's agreement to reconsider. The court withheld entry of
judgment and set a reconsideration hearing for January 7, 1991.
The appellants did not attend. Instead, they notified the court
a week beforehand that Catherine Jones's medical condition
precluded travel from Pennsylvania to New Hampshire. The court
continued the hearing until June 24, 1991. On that date, only
David Jones appeared, claiming that a daughter's sudden illness
prevented his wife's attendance. The court rescheduled the
hearing for April 6, 1992, but warned appellants that their
failure to attend on the new date would result in dismissal of
the complaint and, possibly, additional sanctions.
____________________
3We use the term "perceived deficiency" advisedly. As the
district court recognized, the amount in controversy, for
purposes of federal diversity jurisdiction, is determined as of
the time the case is first commenced. See Klepper v. First Am.
___ _______ _________
Bank, 916 F.2d 337, 340 (6th Cir. 1990).
____
3
Notwithstanding the court's admonition, no plaintiff
appeared on April 6. Appellants did not communicate directly
with the court but sent a facsimile transmittal to their former
attorney explaining that illness supposedly prevented them from
attending. Its patience exhausted, the district court acted on
its earlier dismissal of the complaint and entered judgment. On
May 5, 1992, the court denied appellants' motion for
reconsideration and, at the same time, granted Littlefield's
motion for entry of a default in respect to the counterclaim.
The court fixed June 3, 1992 for a dual-purpose hearing (i) to
determine damages on the counterclaim, see Fed. R. Civ. P.
___
55(b)(2), (d), and (ii) to consider the possible imposition of
sanctions. Although appellants did not show up for the June 3
hearing, the court received evidence and reserved decision.
On September 8, 1992, the court awarded Littlefield
$2,000 on the counterclaim's assault count, dismissed the
remaining counts of the counterclaim (finding Littlefield's proof
of damages inadequate), awarded Littlefield attorneys' fees in
the amount of $6,338.80, and fined Mr. and Mrs. Jones $5,000
apiece for their consistent failure to attend pretrial hearings
and their bad faith in conducting the litigation. This appeal
followed.
II. DISCUSSION
II. DISCUSSION
Having studied the record, we conclude that none of
appellants' contentions merit relief from the various orders
entered below. In explaining why this is so, we comment briefly
4
on four of appellants' principal points.
A. The Matter of Status.
A. The Matter of Status.
____________________
Throughout most of this litigation, David Jones has
characterized himself as an "involuntary plaintiff." On appeal,
he maintains this characterization, arguing that, as such, he
cannot be forced to pay sanctions. We do not think that Jones's
point is properly preserved.
To be sure, Jones is an involuntary plaintiff in the
sense that, on August 28, 1989, the magistrate-judge ordered the
two original plaintiffs to join him. (Given his relationship to
the property and the lease, he was a necessary, perhaps an
indispensable, party, see Fed. R. Civ. P. 19.) However,
___
subsequent to joinder, Jones made several personal appearances in
the case and also made a number of written submissions. While he
styled himself at various times as an "involuntary plaintiff," he
never asked the district court to drop him as a party. That ends
the matter. In this circuit, "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 Internal Revenue Serv., 865 F.2d 1351, 1352 (1st
_____________________________________
Cir. 1989); accord Dartmouth Rev. v. Dartmouth College, 889 F.2d
______ ______________ _________________
13, 22 (1st Cir. 1989); Aoude v. Mobil Oil Corp., 862 F.2d 890,
_____ _______________
896 (1st Cir. 1988). Thus, here, neither the question of whether
it was error for the magistrate-judge to direct that David Jones
be joined as a plaintiff, nor the related question of whether
5
Jones participated in the suit under unfair compulsion, is before
us.4
B. The Assessment of Damages.
B. The Assessment of Damages.
_____________________________
We next consider Catherine Jones's contention that the
district court improperly assessed damages against her in the sum
of $2,000. The record discloses that, after entering a default
on the counterclaims, the district court scheduled a proof-of-
claim hearing for June 3, 1992, directed Littlefield to submit a
full accounting of his damages in advance, and directed
appellants to respond to this submission before the hearing.
Littlefield filed a written statement of damages and a supporting
memorandum. The appellants filed nothing. They also boycotted
the June 3 hearing. In contrast, Littlefield appeared and
testified. Based upon the evidence before it, the district court
awarded Littlefield $2,000 in damages against Catherine Jones on
the assault counterclaim.
Once the entry of a default establishes the fact of
____
damage, the trial judge, sitting without a jury in a Rule 55
proceeding, has considerable latitude in determining the amount
______
of damages. See Sony Corp. v. Elm State Elecs., Inc., 800 F.2d
___ ___________ ______________________
317, 321 (2d Cir. 1986) (reviewing assessment of damages
following entry of default for abuse of discretion). This
standard dictates the result in the present situation. The
____________________
4Moreover, Jones seems to have been perfectly willing to
reap the benefits of party-plaintiff status. In one motion that
he signed, Jones deemed himself "entitled to all the rights the
statutes and/or case law afford to any Party, voluntary or
involuntary." He cannot, of course, have it both ways.
6
district judge determined that, notwithstanding the default, he
should not rely merely on unverified allegations to determine an
appropriate award of damages in a case not involving a liquidated
amount, see, e.g., Dundee Cement Co. v. Howard Pipe & Concrete
___ ____ _________________ _______________________
Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983); Byrd v. Keene
____________ ____ _____
Corp., 104 F.R.D. 10, 12 (E.D. Pa. 1984), and, therefore,
_____
convened an evidentiary hearing to establish the quantum of the
award. See Al-Kazemi v. General Acceptance & Inv. Corp., 633 F.
___ _________ ________________________________
Supp. 540, 542 (D.D.C. 1986); Systems Indus., Inc. v. Han, 105
____________________ ___
F.R.D. 72, 74-75 (E.D. Pa. 1985).
Absent a sum certain, the district court, in arriving
at the award, could do no more than rely on the evidence before
it. Through no fault of either the court or the counterclaimant,
the evidence produced at the hearing consisted mainly of
Littlefield's statement of damages and sworn testimony.
Reviewing this evidence to the extent possible,5 we perceive no
abuse of discretion in a $2,000 award. Littlefield stated, by
affidavit, that Catherine Jones's threats of violence caused him
to experience fear of physical injury and mental distress. Non-
economic damages for apprehension, emotional distress, and
psychic injury are not easily computed and, therefore,
determinations of this type are extremely fact-sensitive. See,
___
____________________
5Appellants have prosecuted this appeal without procuring a
transcript of the June 3 hearing. They must, therefore, bear the
onus of any uncertainties arising out of an incomplete record on
appeal. See Real v. Hogan, 828 F.2d 58, 60 (1st Cir. 1987);
___ ____ _____
United States v. One Motor Yacht Named Mercury, 527 F.2d 1112,
______________ ______________________________
1113-14 (1st Cir. 1975).
7
e.g., Wagenmann v. Adams, 829 F.2d 196, 216 (1st Cir. 1987)
____ _________ _____
(observing that "there is no scientific formula or measuring
device which can be applied to place a precise dollar value on
matters such as . . . fright, anxiety, . . . or emotional
scarring"). Bearing in mind the incomplete record, see supra
___ _____
note 5, the nature of the alleged damages, the modest amount of
the award, the appellants' failure to submit any information
whatever at or before the proof-of-claim hearing,6 and the
deferential standard of review, we are powerless to undo the
award.
C. The Award of Counsel Fees.
C. The Award of Counsel Fees.
_________________________
It is beyond serious dispute that a federal court
possesses inherent power to shift attorneys' fees when parties
conduct litigation in bad faith. See Roadway Express, Inc. v.
___ ______________________
Piper, 447 U.S. 752, 765-66 (1980) (recognizing "bad faith"
_____
exception to general rule that federal courts cannot ordinarily
make fee-shifting awards); Stefan v. Laurenitis, 889 F.2d 363,
______ __________
370 (1st Cir. 1989) (discussing district court's inherent power
under Roadway doctrine); Peltier v. Peltier, 548 F.2d 1083, 1084
_______ _______ _______
(1st Cir. 1977) (affirming award of attorneys' fees); see also
___ ____
Chambers v. NASCO, Inc., 111 S. Ct. 2123, 2133 (1991). This
________ ____________
power should be used sparingly and reserved for egregious
circumstances.
____________________
6This eschewal is an appropriate consideration on appellate
review of a damage award. See, e.g., Knightsbridge Mktg. Servs.,
___ ____ ___________________________
Inc. v. Promociones Y Proyectos, 728 F.2d 572, 575 (1st Cir.
____ ________________________
1984).
8
The district court, citing the "general non-cooperative
and often contentious manner" in which appellants conducted the
litigation, as well as offering numerous examples of untoward
practice,7 determined that the appellants had surpassed the
threshold of egregiousness. The court made a specific,
meticulously detailed finding of bad faith and exercised its
discretion to shift the burden of Littlefield's fees to the
appellants. We have scrutinized the record on appeal and are
satisfied that, although the court's conclusion of bad faith
might not be inevitable, it is plainly sustainable. When, as in
this instance, there are two plausible views of the record, the
trial court's adoption of one such view cannot constitute clear
error. See United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir.
___ _____________ _______
1992).
Once the court made a supportable finding of bad faith,
it then properly exercised its discretion and shifted the fees.
It considered the essential factor (bad faith), did not add to
the mix any improper factors, and made a plausible judgment call
in weighing the use of its inherent powers. No more was
exigible. See Independent Oil & Chem. Workers, Inc. v. Procter &
___ _____________________________________ _________
Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988). In this age
_______________
of burgeoning litigation expense and overcrowded dockets, neither
a sued defendant nor a busy trial judge should have to tolerate
litigants' repeated efforts to stall a case, harass other
____________________
7We have examined the pleadings described in the district
court's memorandum order. Many of them are patently frivolous.
Others seem to be riddled with demonstrably false allegations.
9
participants, and frustrate the operation of the justice system.
See, e.g., Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co.,
___ ____ ___________________ ______________________________
771 F.2d 5, 12 (1st Cir. 1985), cert. denied, 475 U.S. 1018
_____ ______
(1986); Peltier, 548 F.2d at 1084. The court appropriately
_______
invoked its inherent power.8
D. The Imposition of Sanctions.
D. The Imposition of Sanctions.
___________________________
We discern no abuse of discretion in the lower court's
imposition of monetary sanctions on Catherine Jones and David
Jones, separately, pursuant to its authority under Fed. R. Civ.
P. 16(f).9
Trial judges enjoy great latitude in carrying out case-
management functions. In re San Juan Dupont Plaza Hotel Fire
_________________________________________
Litig., 859 F.2d 1007, 1019 (1st Cir. 1988). When confronted
______
with a party's defiance of its management authority, a district
court is necessarily vested with considerable discretion in
deciding whether to impose sanctions on that party, and, if so,
____________________
8In its fee-shifting order, the district court relied, in
the alternative, on its power under state law. Because we find
that the court had inherent power to award counsel fees, see
___
supra, we need not reach the question of whether, in this
_____
diversity case, New Hampshire law also allowed for fee-shifting.
____
See Chambers, 111 S. Ct. at 2136-38 (explaining that fee-shifting
___ ________
under a federal court's inherent power to redress bad faith
conduct is a matter of vindicating judicial authority, not a
matter of substantive remedy, and is, therefore, permissible in a
diversity case whether or not authorized by state law).
9The rule authorizes a district court to impose sanctions
"as are just" against a party for, inter alia, failure to obey a
_____ ____
scheduling or pretrial order, or for failure to appear at a
scheduling or pretrial conference. Fed. R. Civ. P. 16(f).
Because we conclude that the district court properly imposed
monetary sanctions under Rule 16(f), we take no view of whether
the sanctions were likewise permissible in the exercise of the
court's inherent power.
10
in determining what form the sanctions should take. See Media
___ _____
Duplication Servs., Ltd. v. HDG Software, Inc., 928 F.2d 1228,
_________________________ ___________________
1238 (1st Cir. 1991). Because sanctions are well within the
heartland of the district court's realm, we review a district
court's imposition of them only for manifest abuse of discretion.
See Velazquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1075
___ ________________ ____________________
(1st Cir. 1990); Brockton Sav. Bank, 771 F.2d at 12. Although
__________________
such a deferential approach does not confer carte blanche power
_____ _______
to the district court, see, e.g., Navarro-Ayala v. Nunez, 968
___ ____ _____________ _____
F.2d 1421, 1427 (1st Cir. 1992); Figueroa-Rodriguez v. Lopez-
__________________ ______
Rivera, 878 F.2d 1478, 1491 (1st Cir. 1988), litigants
______
"protesting an order in respect to sanctions bear[] a formidable
burden in attempting to convince the court of appeals that the
lower court erred." United States v. One 1987 BMW 325, ___ F.2d
_____________ ________________
___, ___ (1st Cir. 1993) [No. 92-1827, slip op. at 5]; accord
______
Spiller v. U.S.V. Lab., Inc., 842 F.2d 535, 537 (1st Cir. 1988).
_______ _________________
The record supports an assessment that, throughout the
course of this litigation, appellants regularly defied court
orders directing them to attend pretrial hearings, e.g., both
____
Catherine and David Jones failed to appear at hearings scheduled
for January 7, 1991, April 6, 1992, and June 3, 1992, and
Catherine Jones also failed to appear at a hearing scheduled for
June 24, 1991. Although appellants offered excuses for these
episodes, they offered no irresistibly convincing reasons. To
give one illustration, appellants tried to explain their absences
on April 6 and June 3, 1992, by claiming that, despite all
11
indications to the contrary, they did not receive notice of
scheduled hearings. The district court disbelieved this excuse.
It was entitled to do so. See, e.g., Spiller, 842 F.2d at 537
___ ____ _______
(noting plaintiff's "history of foot-dragging" and rejecting
similar excuse in affirming dismissal of plaintiff's action for
failure to comply with court orders). To give another
illustration, appellants continually claimed illness (theirs or
some other family member's) but the medical records they
eventually proffered were neither timely filed nor served, as
required, on opposing counsel; moreover, the records were by and
large too vague to satisfy appellants' burden. Given this
checkered pattern, and given, further, that the district court
warned appellants on more than one occasion about the likely
consequences of failure to attend, we find that the court acted
within its discretion in levying sanctions under Rule 16(f). See
___
Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit
______________________________________________________ ______
Int'l, Inc., ___ F.2d ___, ___ (1st Cir. 1993) [No. 92-1458, slip
___________
op. at 12-14] (holding that a counterclaimant's unexcused failure
to attend two pretrial conferences after the court had threatened
sanctions for failure to attend warranted dismissal of the
counterclaim under Rule 16(f)); see also Thibeault v. Square D
___ ____ _________ ________
Co., 960 F.2d 239, 246 (1st Cir. 1992) (noting that totality of
___
circumstances for sanction purposes could include events in other
litigation).
We likewise conclude that the sanctions are not
excessive. On this point, the district court, after citing
12
appellants' defiance of two orders directing them to attend
pretrial hearings and noting their chronicled propensity to
engage in similar behavior in earlier proceedings, stated that
the sanctions it chose were fashioned to "deter plaintiffs, and
other litigants, from engaging in the course of conduct displayed
throughout this litigation."10 Deterrence is a widely
recognized basis for determining the amount of a monetary
sanction. See Media Duplication, 928 F.2d at 1242 (approving use
___ _________________
of monetary sanctions under Rule 16(f) as a means of deterring an
attorney's neglect of scheduled proceedings); see also Navarro-
___ ____ ________
Ayala, 968 F.2d at 1426-27 (discussing deterrence as a basis for
_____
gauging monetary sanctions under Rule 11). Having reviewed the
district court's explanation of why it chose the precise sanction
amounts and finding that the amounts are "within the minimum
range reasonably required to deter the abusive behavior," id. at
___
1427, we are constrained to conclude that the court below did not
overspill the banks of its discretion under Rule 16(f).
III. CONCLUSION
III. CONCLUSION
We need go no further.11 In this case, the district
judge exhibited commendable patience. In the end, however, he
found that appellants consistently defied explicit court orders
directing them to attend pretrial hearings hearings
____________________
10In line with the court's goal of deterrence, the sanctions
are to be paid into the registry of the district court.
11Appellants waived many other assignments of error at oral
argument. The rest are utterly lacking in merit and need not be
discussed.
13
necessitated, in the main, by their own absences and requests for
reconsideration of earlier rulings. The judge also found (again,
supportably) that appellants pelted the court with a torrent of
idle motions and submissions, many containing scurrilous
allegations, serving no apparent purpose other than to harass the
court, burden the defendant, and delay a resolution of the case.
Given what the nisi prius roll reveals, together with the
____ _____
district court's record-rooted finding that appellants blatantly
disregarded the federal courts' authority to manage litigation
through reasonable means, there is no principled basis for
vacating the rulings complained of in this appeal.
Affirmed.
________
14