Pimentel v. Jacobsen Fishing Co.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1384

CARL P. PIMENTEL,

Plaintiff, Appellee,

v.

JACOBSEN FISHING COMPANY, INC., IN PERSONAM,

AND THE F/V VALKYRIE, IN REM,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* Senior U.S. District Judge]

Before

Selya, Cyr and Lynch,

Circuit Judges.

Robert E. Collins, with whom Thomas E. Clinton and Clinton &

Muzyka, P.C. were on brief for appellants.

Lawrence J. Mullen, with whom Timothy R. McHugh and Hoch & McHugh

were on brief for appellee.

December 23, 1996

*Of the Southern District of New York, sitting by designation.

CYR, Circuit Judge. Appellants Jacobsen Fishing Co.,
CYR, Circuit Judge.

Inc. and the Fishing Vessel Valkyrie (collectively: "Jacobsen")

appeal from a district court judgment holding them liable in

damages for severing a submerged cable carrying electrical power

to a small island owned by plaintiff-appellee Carl Pimentel. As

all claims raised on appeal were either unpreserved or patently

meritless, we affirm the district court judgment and impose

monetary sanctions against Jacobsen and its counsel as requested

by appellee.

I
I

DISCUSSION
DISCUSSION

First, Jacobsen has not approached the required demon-

stration of clear error in its frontal attack on the findings of

fact made by the trial judge. See Johnson v. Watts Regulator

Co., 63 F.3d 1129, 1138 (1st Cir. 1995) ("[W]hen there are two

permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous."). In particular,

Pimentel presented testimony by the Captain of the Valkyrie that

the helmsman knew the location of the submerged cables. As a

general rule, credibility determinations are rather well insulat-

ed from appellate challenge. See Gamma Audio & Video, Inc. v.

Ean-Chea, 11 F.3d 1106, 1115 (1st Cir. 1993) (noting that "the

trial judge is in the best position to assess the credibility of

witnesses"). So it is here.1

1Similarly, Jacobsen's assault on the trial judge's refusal
to draw an adverse inference from an inadvertent destruction of
evidence suggests neither clear error nor an abuse of discretion.

2

Second, having presented no evidence on compensatory

damages, Jacobsen's contention that the award made by the trial

judge was excessive utterly fails to establish error, let alone

clear error. See Reilly v. United States, 863 F.2d 149, 166 (1st

Cir. 1988) (noting that trial judge's factual findings, including

its "determination of damages," are reviewed "only for clear

error"). Furthermore, Jacobsen's remaining claims including

its contention that the district court improperly reimbursed

Pimentel for costs incurred for the services of an expert witness

were not preserved below. See Poliquin v. Garden Way, Inc.,

989 F.2d 527, 531 (1st Cir. 1993).

Accordingly, we limit further discussion to the vari-

able interest rate calculation employed by the district court in

awarding prejudgment interest. The district court awarded

prejudgment interest at a variable rate, utilizing the average

price of 52-week Treasury Bills for each year within the relevant

prejudgment period. Recourse to a variable interest rate is

neither unprecedented, see George's Radio & Television Co., Inc.

v. Insurance Co. of N. Am., 536 F.Supp. 681, 685 (D.Md.), judg-

ment amended, 549 F.Supp. 1014 (D.Md. 1982), nor unreasonable per

se, especially since the result normally will approximate an

acceptable average for the prejudgment period, see Cement Div.,

Nat'l Gypsum Co. v. City of Milwaukee, 31 F.3d 581, 587 (7th Cir.

1994), aff'd, 115 S. Ct. 2091 (1995); Ingersoll Milling Mach. Co.

See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1158 (1st

Cir. 1996).

3

v. M/V/ Bodena, 829 F.2d 293, 311 (2d Cir. 1987), cert. denied,

484 U.S. 1042 (1988); Bonsor S.A. DE C.V. v. Tug L.A. Barrios,

796 F.2d 776, 786-87 (5th Cir. 1986). Indeed, we have suggested

that utilization of a prime rate average would be reasonable.

See City of Boston v. S.S. Texaco Texas, 773 F.2d 1396, 1401 (1st

Cir. 1985) (dicta). Moreover, Jacobsen managed no demonstration

that the variable-rate prejudgment interest award in the instant

case constituted an abuse of discretion. See Independent Bulk

Transp., Inc. v. The Vessel "Moriana Abaco", 676 F.2d 23, 25 (2d

Cir. 1982).

Lastly, we consider Pimentel's motion for sanctions.

Federal Rule of Appellate Procedure 38 states: "If a court of

appeals determines that an appeal is frivolous, it may . . .

award just damages and single or double costs to the appellee."

An appeal is frivolous "if the result is obvious or the arguments

are 'wholly without merit.'" Cronin v. Town of Amesbury, 81 F.3d

257, 261 (1st Cir. 1996) (emphasis added) (quoting Wescott

Constr. Corp. v. Fireman's Fund of N.J., 996 F.2d 14, 17 (1st

Cir. 1993)). This, unquestionably, is such a case.

The claim that Jacobsen is not liable in damages

directly challenged the trial judge's factual findings, thereby

engaging one of the more formidable standards of review known to

federal appellate practice. See Johnson, 63 F.3d at 1138. Then,

relying on even shakier ground, Jacobsen mounted an appellate

challenge to the size of the award without having presented any

evidence on damages. Finally, the arguments Jacobsen raised for

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the first time on appeal did not begin to suggest "plain error,"

see United States v. Olano, 507 U.S. 725, 734 (1993), as no

"miscarriage of justice" obtained. See Poliquin 989 F.2d at 531.

Thus, it was clear from the outset that Jacobsen's prospects of

success on appeal were all but nonexistent, and that no "respon-

sible litigant or lawyer should have gone forward with an appeal

in these straitened circumstances." La Amiga del Pueblo, Inc. v.

Robles, 937 F.2d 689, 692 (1st Cir. 1991) (appellate attack on

jury verdict held frivolous given conflicting evidence and

failure to preserve claims).

Although at first blush Jacobsen's brief suggests an

appeal with some substance, the illusion dissolves upon cursory

investigation. Its many citations to authorities supposedly on

point frequently turn out to be readily distinguishable. Unfa-

vorable First Circuit authority frequently is bypassed for

somewhat less unfavorable authorities from other jurisdictions.

The unhelpfulness of these litigation tactics exposed both

Jacobsen and its counsel to sanctions.2 Commonwealth Elec. Co.

v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 754 F.2d

2Counsel continued to press these tactics in opposition to
the motion for sanctions, notwithstanding a prior warning from
Pimentel's counsel that a motion for sanctions would be forthcom-
ing in the event of a frivolous appeal. Jacobsen's opposition to
the motion for sanctions nonetheless indicated that though bad
faith is not an essential element of frivolousness, it may be a
necessary predicate for sanctions under Fed. R. App. P. 38,
citing as authority a single case from another circuit. In so
doing, counsel conveniently ignored longstanding First Circuit
caselaw which holds, unequivocally, that Rule 38 sanctions may be
imposed without a finding of bad faith. E.g., Applewood Land-

scape & Nursery Co. v. Hollingsworth, 884 F.2d 1502, 1508 (1st

Cir. 1989).

5

46, 49 (1st Cir. 1985) (imposing sanctions on counsel for submit-

ting brief which "added a significant burden on appellee's

counsel and the court"); see also Fed. R. App. P. 38; 28 U.S.C.

1927 ("Any attorney . . . who so multiplies the proceedings in

any case unreasonably and vexatiously may be required by the

court to satisfy personally the excess costs, expenses, and

attorneys' fees reasonably incurred because of such conduct.");

Cronin, 81 F.3d at 261-62 (imposing sanctions under Fed. R. App.

P. 38 and 28 U.S.C. 1927 for frivolous appeal).

II
II

CONCLUSION
CONCLUSION

The district court judgment is affirmed. Double costs

are assessed exclusively against Jacobsen; $8,406.00 in attorney

fees to appellee's counsel are assessed directly and exclusively

against appellant's counsel, the firm of Clinton & Muzyka, P.C.,

and Messrs. Clinton and Collins, jointly and severally.

So ordered.

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