RTR Technologies, Inc. v. Helming

United States Court of Appeals
For the First Circuit

Nos. 11-2252
12-1362
12-1363

RTR TECHNOLOGIES, INC. ET AL.,

Plaintiffs, Appellants/Cross-Appellees,

v.

CARLTON HELMING ET AL.,

Defendants, Appellees/Cross-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin,* Selya and Stahl,

Circuit Judges.

James C. Donnelly, Jr., with whom John T. McInnes, Amanda
Marie Baer, and Mirick, O'Connell, DeMallie & Lougee, LLP were on
brief, for plaintiffs.
Steven J. Bolotin, with whom Tory A. Weigand and Morrison
Mahoney LLP were on brief, for defendants.

February 1, 2013

*
Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion. The remaining two panelists have
issued the opinion pursuant to 28 U.S.C. § 46(d).
 SELYA, Circuit Judge. These appeals call to mind that

the law normally ministers to the vigilant, not to those who sleep

upon perceptible rights. The tale follows.

These appeals trace their genesis to a suit brought by a

Massachusetts corporation and its principals, citizens of

Massachusetts, against their quondam accountant and his firm.

Their complaint alleged that the defendants negligently advised

them to file amended corporate and personal tax returns that had

the effect of substantially increasing the principals' tax

liability and destabilizing the company. The district court

granted summary judgment in favor of the defendants but rejected

their request for attorneys' fees. Both sides appeal. After

careful consideration of a scumbled record, we leave the parties

where we found them.

I. BACKGROUND

We briefly rehearse the facts in the light most favorable

to the plaintiffs (who opposed summary judgment below). See Rared

Manchester NH, LLC v. Rite Aid of N.H., Inc., 693 F.3d 48, 50 (1st

Cir. 2012).

RTR Technologies, Inc. (RTR or the company) is a

subchapter S corporation, see 26 U.S.C. § 1361, which develops

heating and ice-melting systems for the rail and mass transit

industries. Rosalie Berger is the company's owner and president.

Her husband, Craig, is the company's director of marketing and

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sales. At the times material hereto, Rosalie and Craig Berger

filed joint income tax returns.

RTR commenced operations in 1994 and in that year began

making "loans" to Rosalie Berger. It continued doing so throughout

the 1990s, even as the corporation itself received two loans backed

by the United States Small Business Administration (SBA) totaling

$725,000.

By the end of 2002, RTR's balance sheet reflected more

than $1,000,000 in loans to Rosalie Berger and approximately

$600,000 in overdue debts to its suppliers. That fall, the company

nearly collapsed in the economic downturn that followed the

terrorist attacks of September 11, 2001; a major customer

curtailed a $3,000,000 order and RTR proved unable to pay either

its trade creditors or its taxes on a current basis. In October

2002, the company sought help from the SBA, which extended a direct

disaster loan of $687,500, subject to the condition that RTR not

"make any distribution" or "any advance, directly or indirectly by

way of Loan, gift, bonus or otherwise" to its principals,

employees, or related entities.

The company did not adhere to this condition; yet, when

it was unable to keep its loan payments current, it sought still

more money from the SBA. The SBA denied this request, explaining

that RTR "continued to loan the principals funds" that

"represent[ed] valuable financial resources which could have been

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applied to the recovery effort following the disaster." The SBA

did agree, however, to enter into a forbearance agreement with RTR,

which among other conditions required the company to hire a

turnaround manager.

In September of 2003 (about two months after the

forbearance agreement), RTR retained Carlton Helming, a

Connecticut-based certified public accountant, and his firm,

Helming & Co. (a Connecticut professional services corporation).

Although initially hired as a turnaround specialist, Helming

eventually took over tax preparation for RTR and the Bergers as

well.

Over the next two years, he grew increasingly concerned

about RTR's balance sheet; he repeatedly told both Rosalie Berger

and RTR's general manager that he doubted that the transfers to

Rosalie Berger could be regarded as bona fide loans for tax

purposes. To cure this problem, Helming recommended that RTR and

the Bergers amend their 2002 corporate and personal tax returns to

reclassify the approximately $1,000,000 at issue as income to

Rosalie Berger. Irony is no stranger to the law: part of the

reason why Helming wanted to amend the previous returns rather than

simply change the tax treatment of the transfers going forward was

to make it easier for RTR to bring a malpractice suit against its

previous accountant.

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 Rosalie Berger was dismayed with Helming's advice and

sought "second opinions" from two tax attorneys. One apparently

provided little insight into the matter; the other at least

partially shared Helming's concern. Nevertheless, Rosalie Berger

eventually followed Helming's recommendation; amended 2002

corporate and personal tax returns were filed in December 2005 and

January 2006, respectively.

The Internal Revenue Service (IRS) accepted the amended

returns and issued a deficiency assessment in May 2006. Two months

later, the IRS lodged a tax lien of more than $525,000 against the

Bergers.

Over time, the Bergers paid more than $110,000 in

additional taxes, interest, and/or penalties. The plaintiffs

contend that the amended returns had other adverse consequences as

well. Specifically, they point out that by reclassifying the

transfers to Rosalie Berger as salary payments, the net profit

previously reflected on RTR's books was transmogrified into a net

loss of nearly $1,500,000. They posit that reporting such a loss

prevented RTR from securing bid and performance bonds and, thus,

not only put certain business opportunities beyond its reach but

also destabilized the business financially.

Notwithstanding this loss of equilibrium, the plaintiffs

continued to retain Helming as their accountant; he prepared their

corporate and personal tax returns for 2003, 2004, and 2005. It

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was not until 2008 that the plaintiffs replaced Helming with a new

accountant, Edward Szwyd.

Rosalie Berger avers that she engaged Szwyd in part

because she hoped that he would be able to reverse the amendment of

the 2002 returns and reclassify RTR's transfers to her as loans.

Szwyd agreed to adhere to this game plan and, in October 2008, RTR

and the Bergers filed re-amended 2002 corporate and personal tax

returns. The IRS accepted the re-amended returns and abated the

lien and sundry penalties, although some state tax liability issues

have yet to be resolved.

In October of 2009, the plaintiffs sued the defendants in

a Massachusetts state court. They claimed that Helming's advice to

amend the 2002 tax returns was negligent and that following it

resulted in substantially increased tax liabilities and lost

profits. Their six-count complaint charged malpractice, breach of

contract, breach of the implied covenant of good faith and fair

dealing, breach of fiduciary duty, negligent misrepresentation, and

unfair trade practices. The defendants, citing diversity of

citizenship and the existence of a controversy in the requisite

amount, removed the action to the federal district court. See 28

U.S.C. §§ 1332(a), 1441.

Following pretrial discovery, plethoric briefing, and

oral argument, the district court granted summary judgment in favor

of the defendants. RTR Techs., Inc. v. Helming, 815 F. Supp. 2d

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411, 415 (D. Mass. 2011). The court concluded that the tort and

contract claims were time-barred and that the unfair trade

practices claim was deficient because it did not allege the

requisite level of dishonesty, fraud, or deceit. See id. at 423-

24, 434. The court subsequently denied the defendants' motion for

attorneys' fees. These timely appeals ensued.

II. DISCUSSION

We subdivide our analysis into three segments. We look

to Massachusetts for the governing law. See Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938); Rared Manchester, 693 F.3d at 52.

A. Tort and Contract Claims.

We start with the question of timeliness. In the

circumstances of this case, this question is confined to the

plaintiffs' tort and contract claims (that is, all of the

plaintiffs' claims except their unfair trade practices claim). Our

review of the lower court's ruling is de novo. Houlton Citizens'

Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

Generally speaking, the limitations period in

Massachusetts is three years for tort claims, Mass. Gen. Laws ch.

260, § 2A, and six years for contract claims, id. § 2. But where,

as here, claims sounding variously in tort and contract are

premised on a common factual nucleus, the controlling principle is

that "limitation statutes should apply equally to similar facts

regardless of the form of proceeding." Hendrickson v. Sears, 310

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N.E.2d 131, 132 (Mass. 1974). In harmony with this principle, the

Massachusetts legislature has decreed that the three-year

limitations period shall apply to all "[a]ctions of contract or

tort for malpractice, error or mistake against . . . certified

public accountants." Mass. Gen. Laws ch. 260, § 4. The conclusion

is inescapable, therefore, that a three-year limitations period

applies to the entirety of the tort and contract claims asserted

here.1

The plaintiffs' primary argument is that their suit is

timeous because their causes of action accrued less than three

years before they sued. Typically, a plaintiff's cause of action

accrues when she is injured. See, e.g., Flannery v. Flannery, 705

N.E.2d 1140, 1143 (Mass. 1999) (when contract is breached); Joseph

A. Fortin Constr., Inc. v. Mass. Hous. Fin. Agency, 466 N.E.2d 514,

516 (Mass. 1984) (when tort occurs). Here, however, Helming's

allegedly wrongful conduct occurred some three years and nine

months before the suit was commenced: the amended 2002 corporate

return was filed with the IRS in December 2005 and the amended 2002

personal return was filed with the IRS the next month. The most

serious tax consequences followed hot on the heels of these filings

1
In the district court, the plaintiffs argued that their tort
and contract claims were somehow distinct and, thus, subject to
separate three- and six-year limitations periods. On appeal, they
appear to concede that the three-year limit set forth above governs
both the tort and contract claims. Whether conceded or not, that
is plainly the case.

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and transpired more than three years before the commencement of

suit: the IRS assessed a tax deficiency against the Bergers in May

of 2006 and entered a tax lien on July 16, 2006.

In an effort to subvert the force of this chronology, the

plaintiffs embrace the discovery rule. That rule, in its

Massachusetts iteration, holds that a cause of action accrues, and

the statute of limitations begins to run, when a plaintiff knows or

reasonably should know that she may have been harmed by a

defendant's conduct, even if the harm actually occurred earlier.

See Bowen v. Eli Lilly & Co., 557 N.E.2d 739, 741 (Mass. 1990).

The plaintiffs asseverate that they did not know — nor should they

have known — that they had been harmed by the defendants' actions

until August of 2008, when their new accountant (Szwyd) agreed to

re-amend the 2002 returns and once again classify the transfers to

Rosalie Berger as loans.

This asseveration has a certain appeal, at least in the

abstract. "An accountant, like an attorney or a doctor, is an

expert," whereas a client is not, and generally a client can

neither "be expected to recognize professional negligence if he

sees it" nor "be expected to watch over the professional or to

retain a second professional to do so." Kennedy v. Goffstein, 815

N.E.2d 646, 648 n.9 (Mass. App. Ct. 2004) (quoting Hendrickson, 310

N.E.2d at 135) (internal quotation marks omitted). A plaintiff may

be aware that her tax bill was high, her lawsuit was dismissed, or

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her surgical recovery was painful, but not be "on notice that

someone may have caused her injury." Bowen, 557 N.E.2d at 741.

Absent some warning sign, people ordinarily are not expected to

assume that undesirable outcomes are the result of negligent or

otherwise wrongful acts or omissions attributable to their

accountants, attorneys, or physicians.

But when we move from the abstract to the facts at hand,

we are compelled to reject the plaintiffs' argument. The discovery

rule properly pertains only to those plaintiffs whose injuries are

"inherently unknowable." Patsos v. First Albany Corp., 741 N.E.2d

841, 846 & n.8 (Mass. 2001) (internal quotation marks omitted). A

"plaintiff need not know the extent of the injury or know that the

defendant was negligent for the cause of action to accrue."

Williams v. Ely, 668 N.E.2d 799, 804 (Mass. 1996). She simply must

know that she "sustained appreciable harm as a result of the

[defendant's] conduct." Id. In other words, "the running of the

statute of limitations is delayed while 'the facts,' as

distinguished from the 'legal theory for the cause of action,'

remain 'inherently unknowable' to the injured party." Catrone v.

Thoroughbred Racing Ass'ns of N. Am., Inc., 929 F.2d 881, 885 (1st

Cir. 1991) (quoting Gore v. Daniel O'Connell's Sons, 461 N.E.2d

256, 259 (Mass. App. Ct. 1984)).

In this instance, warning signs abounded. Moreover, the

plaintiffs were aware of all the critical facts by July of 2006.

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Helming had advised them to undertake a course of action that

resulted in the entry of a tax lien of more than half a million

dollars. At that point, both the plaintiffs' harm and the cause of

that harm were pellucid, even if the precise claims that they could

(and ultimately did) pursue against the defendants were not.

To be sure, this would be a different case if the

plaintiffs believed all along that the prodigious lien that had

been entered against them was an unavoidable consequence of

complying with their tax obligations until Szwyd informed them

otherwise. But the plaintiffs harbored no such sanguine belief.

The record makes manifest that Rosalie Berger sought out Szwyd

because she already believed — and had believed virtually from day

one — that Helming's advice was wrong. She explained in her

deposition that she contacted Szwyd because she "didn't agree with

[amending the returns] to begin with." She added that she had

signed the amended returns "under duress and it was very, very

damaging to my company, and I thought to inquire [with] a

professional [to see] if I had the privilege of re-amending."

This was not all. Rosalie Berger said at other points in

her deposition that even before the IRS lodged its lien, she had

concluded that Helming's advice to amend the returns was "poorly

thought out" and "was probably some of the poorest advice I could

have possibly taken." She further vouchsafed that, even though she

was "not a tax professional," she "knew" that amending the returns

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"was not the right approach." These statements leave no doubt but

that the plaintiffs knew, before July of 2006, that re-amendment of

the returns was a dicey proposition. What is more, there is

nothing to suggest that, between July of 2006 and October of 2009,

any new and material information came to their attention.

If more were needed, we note that Rosalie Berger's

disagreement with Helming's advice was so profound that Szwyd was

the third professional from whom she sought another opinion. As

recounted above, she had obtained advice from two other

(independent) tax professionals even before signing the amended

returns.

The knowledge possessed by Rosalie Berger and evidenced

by her statements and actions is more than enough to render the

discovery rule inapposite. The ultimate arbiter of Massachusetts

law, the Supreme Judicial Court (SJC), previously addressed a

strikingly similar situation. It held that a client could not

invoke the discovery rule to toll the statute of limitations on a

negligence claim against his former attorneys beyond the date on

which he had concluded that they "didn't know what they were

doing." Lyons v. Nutt, 763 N.E.2d 1065, 1069 (Mass. 2002)

(internal quotation marks omitted); see Frank Cooke, Inc. v.

Hurwitz, 406 N.E.2d 678, 684 (Mass. App. Ct. 1980) (explaining that

the discovery rule does not apply beyond the time when plaintiff

was informed that "defendant was not competent to render investment

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advice"). In diversity jurisdiction, we are bound to accept state

substantive law as formulated by the state's highest court, see

Rared Manchester, 693 F.3d at 54, and there is no justification for

us to apply the discovery rule more liberally than did the SJC in

Lyons.

The plaintiffs try to attack the district court's

resolution of the timeliness question from a number of angles.

Their attacks generate more heat than light.

To begin, the plaintiffs maintain that summary judgment

was inappropriate because a Massachusetts court has observed that

the accrual date of a malpractice action against a tax preparer is

a question of fact rather than a question of law. See Kennedy, 815

N.E.2d at 650. The cited statement, however, presupposes that the

plaintiff has proffered evidence sufficient to create a genuine

issue of material fact anent the accrual date. See Doe v.

Creighton, 786 N.E.2d 1211, 1214 (Mass. 2003) (holding that, even

though the discovery rule typically raises fact issue, summary

judgment is properly granted where the plaintiff did not

"demonstrate a reasonable expectation of proving that her suit was

timely filed"). Here, the facts show with conspicuous clarity that

the plaintiffs knew of the claimed error, its cause, and the

resulting harm more than three years before they sued.

Next, the plaintiffs contend that the district court

erred in suggesting that their causes of action accrued even before

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the amended returns were filed.2 But the plaintiffs are tilting at

windmills; whatever the merits of the district court's suggestion

— a matter on which we take no view — that suggestion is

superfluous. What counts is the court's conclusion that the

plaintiffs' causes of action accrued no later than July 16, 2006.

Whether or not they may have accrued earlier is of no moment. See

Houlton Citizens', 175 F.3d at 184.

The plaintiffs' final foray is an attempt to spin Rosalie

Berger's consultations with independent experts in their favor. In

the last analysis, this amounts to little more than a

Rumpelstiltskin-like endeavor to turn straw into gold.

Along these lines, the plaintiffs argue that the statute

of limitations is tolled when a plaintiff acts diligently in

retaining an expert to search for an injury and the expert fails to

detect it. This argument misreads our decision in Cambridge

Plating Co. v. Napco, Inc., 991 F.2d 21 (1st Cir. 1993), which

stands for the proposition that the mere hiring of an expert does

not automatically start the limitations clock. See id. at 26-27.

The decision does not stand for the materially different

proposition that an expert's failure to discover an error

automatically tolls the limitations period. The latter proposition

2
On this point, the court adverted to late 2005, when Rosalie
Berger acted on her strong conviction that Helming's advice was
incorrect and solicited the opinions of other tax professionals.
See RTR Techs., 815 F. Supp. 2d at 421.

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is untenable. Cf. United States v. Kubrick, 444 U.S. 111, 124

(1979) (holding, under Federal Tort Claims Act, that if a plaintiff

is incorrectly advised that he does not have a claim, that advice

does not toll the statute of limitations). To be sure, Cambridge

Plating contemplates tolling the limitations period when a

plaintiff acts diligently in hiring a competent expert who

nonetheless fails to discover the problem. See 991 F.2d at 27.

But a sharp distinction exists between that case and this one. The

Cambridge Plating plaintiff knew only that there was a problem

(malfunctioning equipment) but did not know either the cause (a

missing part) or who (if anyone) was at fault. See id. at 23, 29.

Here, however, the plaintiffs were aware of both their putative

injury (the tax liability) and its putative cause (Helming's advice

to amend the returns). Cambridge Plating is, therefore,

inapposite.

To sum up, we endorse the conclusion reached by the

district court in its thoughtful opinion and hold that a three-year

statute of limitations applies to bar the maintenance of the

plaintiffs' tort and contract claims. Given this conclusion, we

need not consider the parties' extensive quarreling about other

issues bearing upon these claims.

B. Unfair Trade Practices Claim.

We turn next to the unfair trade practices claim. The

relevant statute creates a cause of action in favor of those who

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are engaged in "any trade or commerce and who suffer[] any loss of

money or property" due to the "unfair or deceptive act or practice"

of "another person who engages in any trade or commerce." Mass.

Gen. Laws ch. 93A, § 11. Claims of this genre are subject to a

four-year limitations period. See id. ch. 260, § 5A. So the

plaintiffs' unfair trade practices claim is not time-barred.

The district court jettisoned this claim on the ground

that the plaintiffs had failed to show negligence, to say nothing

of the greater degree of wrongfulness the statute requires. See

RTR Techs., 815 F. Supp. 2d at 434; see also Poly v. Moylan, 667

N.E.2d 250, 257 (Mass. 1996) (explaining that chapter 93A demands

a showing of "dishonesty, fraud, deceit or misrepresentation"

(internal quotation marks omitted)).

Here, too, we review the entry of summary judgment.

Accordingly, our review is de novo. Houlton Citizens', 175 F.3d at

184. In that exercise, we are not wedded to the district court's

reasoning but, rather, may affirm on any ground revealed by the

record. Id. We take that approach here; in our judgment, the

chapter 93A claim fails for a reason even more fundamental than

that assigned by the district court.

While "an element of uncertainty is permitted in

calculating damages," Herbert A. Sullivan, Inc. v. Utica Mut. Ins.

Co., 788 N.E.2d 522, 543 (Mass. 2003) (internal quotation marks

omitted), damages nonetheless "must be proved and not left . . . to

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speculation," Snelling & Snelling of Mass., Inc. v. Wall, 189

N.E.2d 231, 232 (Mass. 1963); accord Air Safety, Inc. v. Roman

Catholic Archbishop of Bos., 94 F.3d 1, 4 (1st Cir. 1996). In this

case, the federal tax lien has been abated, the penalties

rescinded, and the status quo ante has been restored.3 Moreover,

the plaintiffs have adduced no evidence showing that the

defendants' advice increased their tax liability above what they

will owe once Szwyd fully accounts for reconverting the transfers

into loans.

Indeed, the plaintiffs have left this question mired in

doubt. At the time of the summary judgment ruling, Szwyd had re-

amended the 2002 returns but had not amended the returns for the

following years. And at oral argument in this court, the

plaintiffs conceded that no other corporate or personal amended

returns exist "for purposes of this record."

No matter how loudly bruited, the plaintiffs' insistence

that Helming created significant tax liability does not suffice to

fill this void. The existence of a tax deficiency, without more,

is not a reliable measure of damages attributable to allegedly

erroneous tax advice. See Miller v. Volk, 825 N.E.2d 579, 582

(Mass. App. Ct. 2005); see also Thomas v. Cleary, 768 P.2d 1090,

3
Although the plaintiffs' Connecticut state tax liability has
yet to be resolved, they offer no suggestion as to why the payments
they have made will not be refunded, and their temporary
uncertainty hardly constitutes injury.

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1091 n.5 (Alaska 1989); Lien v. McGladrey & Pullen, 509 N.W.2d 421,

426 (S.D. 1993); cf. Frank Cooke, 406 N.E.2d at 685-86 (explaining

that even though an accountant may have been negligent in not

reporting the "doubtful collectibility" of a loan, the loan was

worthless at the time and, thus, the accountant was not liable).

Here, the plaintiffs have not shown how their situation, over time,

would have been improved in the absence of the amendment urged by

Helming.

In the district court, the plaintiffs tried to backfill

the record by moving to file a "sur reply" that included proposed

tax returns for the years in question, related affidavits, and a

set of charts. The district court denied this motion as

insufficient and untimely. The plaintiffs have not challenged this

ruling on appeal. Consequently, the proffered exhibits are not

entitled to any weight. See Alt. Sys. Concepts, Inc. v. Synopsys,

Inc., 374 F.3d 23, 31-32 (1st Cir. 2004); EEOC v. Green, 76 F.3d

19, 24 (1st Cir. 1996).

Instead, the plaintiffs suggest in this court that one of

their experts concluded that alternatives to Helming's approach

would have resulted in lower tax liability and that this conclusion

creates a factual issue for trial. This suggestion comprises more

cry than wool. In the absence of tax returns to support the

expert's conclusion — and the record contains none — the district

court did not err in declining to credit the expert's view.

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"[E]xpert testimony may be more inferential than that of fact

witnesses," but "an expert opinion must be more than a conclusory

assertion about ultimate legal issues" in order to thwart a motion

for summary judgment. Hayes v. Douglas Dynamics, Inc., 8 F.3d 88,

92 (1st Cir. 1993). It is possible that Szwyd's approach might

result in a lighter overall tax burden — but in the absence of an

alternative set of tax calculations, factually supported, that

possibility is entirely conjectural. To forestall the entry of

summary judgment, the law requires more than arguments woven from

the gossamer strands of speculation and surmise.

With respect to the other claimed damages (such as lost

profits), the plaintiffs' evidence is patently inadequate. Their

expert report estimating such lost profits hinges entirely on

conclusory statements such as, "[b]ut for the actions of Helming,

RTR would have been able to obtain the required bonding to win

[certain] contracts" and "[b]ut for the actions of Helming, RTR

would have been the Prime Contractor for these contracts." The

district court appropriately refused to credit these bald

assertions. See id.; see also Bowen v. City of Manchester, 966

F.2d 13, 18 n.16 (1st Cir. 1992) ("[S]ummary judgment cannot be

defeated by an expert's conclusory assertion about ultimate legal

issues." (internal quotation marks omitted)).

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 C. The Cross-Appeal.

This brings us to the defendants' cross-appeal, which

challenges the district court's denial of attorneys' fees. The

defendants had invited the district court to award such fees

pursuant to its inherent powers, but the court declined the

invitation. RTR Techs., Inc. v. Helming, No. 09-30189, 2012 WL

601913, at *1-2 (D. Mass. Feb. 22, 2012).

Although under the American Rule "the prevailing litigant

is ordinarily not entitled to collect a reasonable attorneys' fee

from the loser," Alyeska Pipeline Serv. Co. v. Wilderness Soc'y,

421 U.S. 240, 247 (1975), federal courts have the power to award

such fees when a party has "acted in bad faith, vexatiously,

wantonly, or for oppressive reasons," id. at 258-59 (internal

quotation marks omitted). Invoking this standard, the defendants

sought fees for what they termed the plaintiffs' "bad faith

conduct" in pursuit of "a meritless action."

The district court largely agreed with the defendants'

characterization of the plaintiffs' conduct. The court described

the plaintiffs' behavior as "disturbing," their decision to bring

the suit itself as "profoundly ill-advised," and their "temerity"

in doing so as "surprising" given that their claims were "close to

ludicrous." The court concluded, however, that the circumstances

were not sufficiently outrageous to justify a fee award.

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 District courts are well-advised to use their inherent

power cautiously and to grant attorneys' fees sparingly under that

power. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 45-46

(1991); Estate of Hevia v. Figueroa-Marrero, 602 F.3d 34, 46 (1st

Cir. 2010). We think it follows logically that battles over the

appropriateness of denials of attorneys' fees under that power will

customarily be won or lost in the district court. This case

illustrates why.

The defendants admittedly presented a credible argument

for fees. Our review, however, is only for abuse of discretion.

FDIC v. Kooyomjian, 220 F.3d 10, 16 (1st Cir. 2000). The district

court's discretion is broad and, in this instance, the court

adequately explained its determination not to award fees. The

court concluded that affidavits and other materials submitted by

the plaintiffs describing their efforts to investigate their claims

were "sufficient (though barely)" to defeat the fees motion.

The defendants have not persuasively described how this

decision constitutes an abuse of discretion, which occurs when

there is an error of law or "when a material factor deserving

significant weight is ignored, when an improper factor is relied

upon, or when all proper and no improper factors are assessed, but

the court makes a serious mistake in weighing them." United States

v. One Star Class Sloop Sailboat, 546 F.3d 26, 37 (1st Cir. 2008)

(internal quotation marks omitted). In the absence of such a

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showing, the district court's determination stands as "a judgment

call which we decline to second-guess." Haddad Motor Grp., Inc. v.

Karp, Ackerman, Skabowski & Hogan, P.C., 603 F.3d 1, 11 (1st Cir.

2010).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we reject these appeals. All parties shall bear their own costs.

Affirmed. No costs.

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