Bogan v. City of Boston

Decision Date12 June 2007
Docket NumberNo. 06-2028.,06-2028.
Citation489 F.3d 417
PartiesAlbertha BOGAN, individually and as Guardian and next Friend of Tyla Bogan, Eryn Bogan and Chad Bogan, Plaintiffs, Appellants, v. CITY OF BOSTON, Boston Police Department, Boston Fire Department, City of Boston Inspectional Services Department, Mayor Thomas M. Menino, Kevin Joyce, Luis Arjona, James Holmes, and Regina Hanson, Neighborhood Development Corporation of Grove Hall, and Virginia Morrison, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Nancy Sue Keller, with whom Harold Jacobi, III and Jacobi & Associates, were on brief, for appellants.

Thomas R. Donahue, Assistant Corporation Counsel, with whom Elizabeth L. Bostwick, Assistant Corporation Counsel, was on brief, for appellees.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

This is an appeal by prevailing parties in civil rights litigation against the City of Boston, Massachusetts. The appellants have raised several claims of error, the most important of which concerns circumstances under which a rejected offer of judgment, pursuant to Fed.R.Civ.P. 68, will cut off a prevailing party's entitlement to attorney's fees.

Albertha Bogan and her three children1 brought an action against the City, Mayor Thomas Menino, Commissioner of Inspectional Services Kevin Joyce, three Inspectional Services employees,2 the Neighborhood Development Corporation of Grove Hall (NDC), and one of its founding members, Virginia Morrison, claiming violations of 42 U.S.C. § 1983 and various torts under Massachusetts law. The plaintiffs alleged that Inspectional Services employees illegally inspected the Bogans' property in the Dorchester section of Boston, at the behest of Mayor Menino, to force them to sell their property in favor of an economic development project spearheaded by the NDC. The defendants claimed that the inspection was ordered because the property was being operated as an illegal rooming house and was in disrepair.

The inspection took place in March 1999 and resulted in the issuance of fifty building code violation citations and a rooming house violation. As a result of the inspection, the City ordered the Bogans to vacate the property and that it be condemned. A few days after the inspection, the City filed a complaint in the Massachusetts Housing Court to enforce the condemnation order. The Bogans resisted the Housing Court complaint and also litigated the validity of the code violation citations before the Massachusetts Building Code Appeals Board. In June 1999, the Housing Court found that the inspection of the Bogans' home was an illegal regulatory search and vacated virtually all of the code violations.

Almost three years later, on March 22, 2002, the Bogans filed the instant federal action, claiming damages as a result of the defendants' inspection and post-inspection conduct. The complaint stated claims under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments, as well as trespass, conversion of real and personal property, invasion of privacy, harassment, and intentional infliction of emotional distress.

In due course, the City and individual defendants moved for partial summary judgment. The district judge granted summary judgment for the individual defendants on the § 1983 claim because they were sued only in their official capacities and their presence was not necessary since the City was sued directly. The judge also granted summary judgment for the City on the tort claims on the basis of sovereign immunity. The judge did, however, permit most of the tort claims to proceed against Joyce and the other Inspectional Services employees.3 As for the state law claims against Mayor Menino, the judge granted summary judgment on the trespass, conversion, and invasion of privacy claims because the Mayor was not present during the inspection, and on the intentional infliction of emotional distress claim because there was no evidence that the Mayor ordered the inspection to cause the Bogans distress.4

On March 10, 2005, the City made the Bogans an offer of judgment under Fed. R.Civ.P. 68 for $50,000, which they rejected. The district judge then ordered the bifurcation of the remaining claims so that the § 1983 claims against the City and the tort claims against Joyce would be tried first. See Fed.R.Civ.P. 42(b).

In September 2005, the parties agreed to try the case to a jury before a magistrate judge. After an eight-day trial, the jury found in favor of the Bogans on the § 1983 claim against the City, but found in favor of Joyce on the tort claims. The jury awarded the Bogans a total of $30,000 in damages.5 The defendants then moved to dismiss the remaining tort claims on the ground that any damages award at a second trial would be duplicative because the § 1983 award against the City compensated the Bogans for their entire injury. The magistrate judge agreed and dismissed the remaining claims.

Thereafter, the Bogans moved for an award of $113,311.50 in attorney's fees and $13,389.33 in costs under 42 U.S.C. § 1988. The magistrate judge reduced the fee award to $13,264.87 and the cost award to $3,694.84. The judge then entered a final judgment ordering the City to pay the Bogans a total of $46,959.71. The Bogans filed this appeal, raising a series of challenges to rulings made during the pretrial and trial proceedings and to various reductions made in their request for fees and costs.

The Bogans first claim that they were prejudiced by the improper issuance of a protective order preventing them from deposing Mayor Menino. The district judge granted the protective order on the ground that the Bogans had failed to demonstrate that the information they sought from the Mayor was unavailable from other sources. The Bogans contend that they should have been allowed to depose the Mayor because they uncovered evidence that the Mayor directly ordered the inspection of their property. They hypothesize that, if they had been permitted to depose the Mayor, they may have learned that he ordered the search to intimidate them into selling their property to make way for the NDC-sponsored project.

The district court is empowered by Fed.R.Civ.P. 26(c) to grant a protective order from discovery for "good cause shown." Appellate review of such orders is limited. "We will intervene in [discovery] matters only upon a clear showing of manifest injustice, that is, where the lower court's discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 91 (1st Cir.1996).

The need for limited access to high government officials through the discovery process is well established. In United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), the Supreme Court indicated that the practice of calling high ranking government officials as witnesses should be discouraged. Relying on Morgan, other courts have concluded that top executive department officials should not, absent extraordinary circumstances, be called to testify or deposed regarding their reasons for taking official action. Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 586 (D.C.Cir. 1985); see also In re United States (Holder), 197 F.3d 310, 313 (8th Cir.1999); In re FDIC, 58 F.3d 1055, 1060 (5th Cir.1995); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir.1993). This rule is based on the notion that "[h]igh ranking government officials have greater duties and time constraints than other witnesses" and that, without appropriate limitations, such officials will spend an inordinate amount of time tending to pending litigation. Kessler, 985 F.2d at 512.

But this limitation is not absolute. Depositions of high ranking officials may be permitted where the official has first-hand knowledge related to the claim being litigated. See Baine v. Gen. Motors Corp., 141 F.R.D. 332, 335 (M.D.Ala.1991); Church of Scientology of Boston v. IRS, 138 F.R.D. 9, 12 (D.Mass.1990); Cmty. Fed. Sav. & Loan Ass'n v. Fed. Home Loan Bank Bd., 96 F.R.D. 619, 621 (D.D.C.1983). However, even in such cases, discovery is permitted only where it is shown that other persons cannot provide the necessary information. Holder, 197 F.3d at 314.

The parties agree that Mayor Menino is a high ranking government official and therefore is not subject to being deposed absent a demonstrated need. See Marisol v. Giuliani, 1998 WL 132810, at *4 (S.D.N.Y. Mar.23, 1998) (treating a mayor as a high ranking government official for purposes of a motion for a protective order from discovery). The question therefore is whether the Bogans established sufficient need to warrant discovery directly from the Mayor. The Bogans rely on evidence that defendant Hanson, one of the Inspectional Services employees, wrote a note on the day of the inspection to the effect that the Mayor's office had received complaints from neighbors about the Bogans' property and that the Mayor had ordered the inspection as a result. They also rely on the fact that the inspection was ordered on the heels of their disclosing to the NDC that the property was being used as a rooming house. The Bogans assert that these strands of evidence support an inference that the Mayor ordered the inspection on a tip from the NDC because of their shared goal to force the Bogans from the property.

The Bogans' argument founders because they did not pursue other sources to obtain relevant information before turning to the Mayor. Hanson testified that she did not recall why she had written that the Mayor had ordered the inspection, and Joyce testified that he ordered the inspection without a directive from the Mayor. Thus, the identity of the City official who ordered the inspection and the reason for the inspection were disputed issues of fact. The Bogans nevertheless failed to purse discovery from other City employees who could have shed light on...

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