USCA1 Opinion
April 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1439
SUSAN WARREN, ET AL.,
Plaintiffs, Appellees,
v.
CITY OF LYNN, ET AL.,
Defendants, Appellants.
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[Hon. Edward F. Harrington, U.S. District Judge]
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Pettine,* Senior District Judge.
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Austin M. Joyce with whom Edward P. Reardon and Michael J.
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Akerson were on brief for appellants.
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Geraldine S. Hines with whom Margaret A. Burnham was on brief for
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appellees.
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*Of the District of Rhode Island, sitting by designation.
COFFIN, Senior Circuit Judge. This appeal is the aftermath
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of a lawsuit brought by six members of the Warren family against
members of the Lynn Police Department and the city of Lynn to
redress violations of the Warrens' federal and state civil rights
suffered when five family members were arrested, and the family
home unlawfully searched, on August 16, 1985. On that evening, a
convenience store in East Lynn was robbed at gunpoint. In
following up on this robbery, defendant members of the Lynn
police force ended up at the Warren home, over a mile and a half
away from the store. There, they ultimately arrested five family
members, engaged in an illegal search of their home and their
persons, and falsely imprisoned at least one family member.
Plaintiffs were not prosecuted in connection with the robbery,
and were acquitted of various charges of assault and disorderly
conduct in connection with their arrests.
A jury found five of the Lynn policemen guilty of various
violations of the Warrens' federal and state civil rights. The
city of Lynn and some half dozen other officers received
defendants' verdicts. Punitive damages had been waived;
compensatory damages were awarded in the amount of $2,500.
Plaintiffs sought an award of $85,566.25 in counsel fees, and
costs of $4,094.71. The court awarded costs and $50,000 for
counsel fees.
Appellants challenge the court's denial of their motion for
judgment notwithstanding the verdicts and the award of attorney's
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fees and costs. Before we can address the merits, however, we
must face the issue of our appellate jurisdiction.
Appellate Jurisdiction
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1. The facts. This appeal initially was filed on June 14,
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1991. On July 3, 1991, noting a number of potentially fatal
jurisdictional defects (including the pendency of an additional
post-judgment motion and the lack of separate documents of
judgment), we issued an order to show cause why this appeal
should not be dismissed. We cited to our court's panel decision
in Fiore v. Washington County Community Health Center, 936 F.2d
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51 (1st Cir. 1991), withdrawn and superseded by Fiore v.
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Washington County Community Health Center, 960 F.2d 229 (1st Cir.
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1992) (en banc), in which, confronted with the question of how
the "separate document" requirement of Fed. R. Civ. P. 58 should
be applied in the context of post-judgment motions, we concluded
that meticulous compliance was necessary.1
Shortly before our show cause order, on June 21, 1991, the
district court denied the remaining post-judgment motion. On
July 15, 1991 the defendants voluntarily dismissed their appeal.
On March 30, 1992, we issued our en banc decision in Fiore, which
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reaffirmed the basic position originally adopted by the panel,
requiring "meticulous compliance" with the separate document
rule, and holding that when a party fails to pursue an appeal
within three months of the court's last order in the case, waiver
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1Rule 58 requires that "[e]very judgment shall be set forth on a
separate document," and provides that "[a] judgment is effective
only when so set forth . . . ."
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of the separate document requirement should be inferred. 960
F.2d at 231, 236. Appellants still took no action for over two
more months. In June and July, 1992, they made several feckless
attempts, by letters and conversations, to obtain separate
documents from the clerk's office; nothing was forthcoming. Not
until October 8, 1992, fifteen and one half months after the last
order in the case was issued by the district court, and fifteen
months after our show cause order, did appellants file a motion
for entry of judgment and for issuance of separate documents.
On March 25, 1993, the district court allowed the motion for
entry of judgment, but, in a margin order, denied the motion
requesting that the court's post-trial orders be entered on
separate documents. On April 14, 1993, the appellants filed a
second appeal. We then issued another show cause order, pointing
to the fact that, according to the district court docket sheet,
the last order denying a post-judgment motion in this case had
been entered on June 21, 1991. We noted that under Fiore, 960
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F.2d at 236, absent exceptional circumstances, a party's failure
to act within three months of a court's last order in a case will
be deemed a waiver of application of the separate document
requirement. Upon receipt of appellants' response, we allowed
the appeal to proceed and referred decision on the jurisdictional
issue to the present panel.
2. Discussion. In both the panel and en banc decisions in
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Fiore, we held that Rule 58 should apply to all orders denying
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post-judgment motions. Not only did we conclude that the
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language of both Rule 58 and Rule 4(a) requires this, but also
that there was a need for an "unambiguous signal that the time
for appeal has begun to run." 960 F.2d at 233. The en banc
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court reaffirmed the clear holding of the panel that parties
could not sleep on their rights to separate documents
indefinitely, but, barring exceptional circumstances, must take
action within three months following entry of judgment, or waive
application of the separate document requirement. The court
stated:
If we were to hold without qualification that a
judgment is not final until the court issues a separate
document, we would open up the possibility that long
dormant cases could be revived years after the parties
had considered them to be over.
Id. at 236.
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We therefore announced:
We believe it appropriate, absent exceptional
circumstances, to infer waiver where a party fails to
act within three months of the court's last order in
the case. . . . A party wishing to pursue an appeal
and awaiting the separate document of judgment from the
trial court can, and should, within that period file a
motion for entry of judgment. Id.
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Contrary to appellants' claims, both the panel and en banc
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decisions in Fiore are unambiguous in outlining the waiver rule.
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And appellants still waited over six months after the en banc
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decision to file their motion.2
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2At oral argument, when questioned about this six month delay,
appellants' counsel replied: "I hadn't read the en banc Fiore
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decision. At that time, we didn't realize that there was a three
month period until it was brought to our attention by the
plaintiffs . . . shortly before we filed the motion." They
further stated that "other than not knowing" of the en banc
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decision in Fiore, there were no special circumstances excusing
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Appellants seek refuge under the "exceptional circumstances"
rubric by pointing to their attempts to raise the clerk's office
to action by oral and letter requests. But inattention or
inadvertence by the court short of active misleading cannot
excuse counsel from his duty of diligence. This is why we
specifically have instructed counsel "wishing to pursue an appeal
and awaiting the separate document of judgment," 960 F.2d 236, to
file a motion for entry of judgment.
We therefore must dismiss this appeal for lack of appellate
jurisdiction.
No manifest injustice
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We add that this case is not an example of a technicality
defeating justice. We have considered appellants' arguments on
the merits and find them unimpressive.
Their claim that plaintiffs were not prevailing parties
would have failed under Farrar v. Hobby, 113 S. Ct. 566, 573
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(1992), in which the Supreme Court held that a plaintiff who wins
nominal damages is a prevailing party under 42 U.S.C. 1988.
Here more than nominal damages were awarded. Meaningful awards,
payable by individual officers in recognition of their violation
of plaintiffs' constitutional rights, made this the kind of case
in which "the court may consider the vindication of
constitutional rights in addition to the amount of damages
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the delay between the time that decision was issued on March 30,
1992, and the filing of their motion with the district court on
October 8, 1992.
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recovered." Riverside v. Rivera, 477 U.S. 561, 585 (1986)
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(Powell, J., concurring in judgment).
Our denial of fees to a plaintiff who had won a $1,000
verdict in Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991),
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cannot compel a finding that the district court abused its
discretion here. In Lewis, the amount won was less than half
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that awarded here. More importantly, in contrast to the
situation of the plaintiffs in the case at bar, the court felt
that the plaintiff in Lewis had "failed entirely or largely in
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everything," id. at 955, and that there had been extreme
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overreaching in the request for fees, id. at 956.
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Appellants' claim that judgments notwithstanding the
verdicts should have been granted rests on the argument that
under the Massachusetts Civil Rights Act, Mass. Gen. Laws Ann.
ch. 12, 11H and 11I (West 1986), interference with a person's
rights under the Constitution or laws of the United States or the
Commonwealth must be by "threats, intimidation or coercion," and
that there was no evidence of such in this case.
The Massachusetts Supreme Judicial Court, however, while
holding that there must be measures directed toward a particular
individual or class, has found sufficient intimidation or
coercion to satisfy the Act where a uniformed security officer
ordered a plaintiff to stop soliciting and distributing his
political handbills, see Batchelder v. Allied Stores Corp., 473
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N.E.2d 1128, 1130, 393 Mass. 819, 823 (1985), and where an
orchestra canceled its contract with a performer, see Redgrave v.
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Boston Symphony Orchestra, Inc., 502 N.E.2d 1375, 1378, 399 Mass.
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93, 100 (1987), since the effect of these actions was to coerce
the plaintiffs not to exercise rights to which they were
entitled. See Batchelder, 473 N.E.2d at 1131; Redgrave, 502
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N.E.2d at 1379.
When we review the events in this case -- the policemen's
forcible descent on plaintiffs at their home, the beatings, the
overnight incarcerations, and a search based on perjurious
evidence -- we can understand how the jury, under instructions
not challenged, could have found the existence of threats of harm
within the meaning of the Massachusetts Civil Rights Act,
particularly in light of plaintiffs' claim that the policemen's
behavior was aggravated by protest against their arrests.
We therefore conclude that the serious procedural default of
appellants, resulting in our lack of appellate jurisdiction, has
not led to any unjust result.
Affirmed. A reasonable attorney's fee of $3,000 and costs
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are awarded to appellees.
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