Davet v. Maccarone

Decision Date08 May 1992
Docket NumberNo. 91-2163,91-2163
Citation973 F.2d 22
PartiesRichard F. DAVET, Plaintiff, Appellant, v. Enrico MACCARONE, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Jeffrey S. Brenner with whom Kevin M. Brill and Corrente, Brill & Kusinitz, Providence, R.I., were on brief, for plaintiff, appellant.

Marc DeSisto with whom Carroll, Kelly & Murphy, Providence, R.I., was on brief, for defendants, appellees Enrico Maccarone, Samuel Schlagheter and Salvatore Decesare.

Gerard McG. DeCelles, Providence, R.I., for defendant, appellee Robert A. DiMeo.

Before BREYER, Chief Judge, CYR, Circuit Judge, and FUSTE, * District Judge.

FUSTE, District Judge.

In March of 1988, plaintiff Richard Davet was arrested in Providence, Rhode Island, by members of the Cranston, Rhode Island, police department. This arrest formed the basis for an action filed by Davet in the United States District Court for the District of Rhode Island, alleging a 42 U.S.C. § 1983 violation against the city of Cranston 1 and members of its police department, and also state-law tort claims for false arrest and malicious prosecution against Robert DiMeo. Davet appeals various district court rulings made at the end of a two-day jury trial. 775 F.Supp. 492. Finding that the trial court committed no reversible error, we affirm.

I. Background

The underlying dispute which resulted in Davet's arrest and the federal court action arose from a business relationship between Ringco Manufacturing Co., Inc. ("Ringco"), an Ohio jewelry manufacturer, and Time Plating, Inc. ("Plating"), a Rhode Island corporation involved in the plating of jewelry. Davet is the president of Ringco, while DiMeo is the president of Plating.

Davet and DiMeo, through their corporations, began a business relationship in September 1987, in which Plating agreed to process jewelry manufactured by Ringco. Ringco would send quantities of jewelry to Plating which, in turn, would treat and then return the plated jewelry to Ringco. Difficulties arose in November 1987, when Ringco received a shipment of goods from Plating. The jewelry was shipped C.O.D. and not as agreed under the terms of the purchase order, which called for payment by Ringco within thirty days of shipment. Davet paid for the goods with a Ringco corporation check in the amount of $610.93. After inspecting the jewelry and finding that they did not conform to the contract, Davet stopped payment on the check. Upon learning of the stop payment order, DiMeo contacted Davet and demanded payment.

Over the next few months, Davet exchanged correspondence with Alan Levine, attorney for both Plating and DiMeo. Levine, on at least two occasions, warned Davet that the stop payment order violated Rhode Island banking laws and that failure to pay the amount owed would result in the filing of criminal charges. Levine also wrote to the Cleveland, Ohio, police department on December 15, 1987, contending that Davet's stop payment order constituted fraud. He sought, unsuccessfully, to enlist their assistance in resolving the matter. The Ohio police department informed Levine that Rhode Island was the proper jurisdiction to prosecute the action. Davet continued to maintain that this was a business dispute and that, under the Ringco-Plating contract, it was within his right to withhold payment for non-conforming goods.

On February 23, 1988, DiMeo filed a complaint with the Cranston, Rhode Island, police department. On February 26, 1988, a notice was sent to Davet by Investigator Enrico Maccarone, explaining that a complaint had been filed by Time Plating and that full restitution of the amount owed should be made by March 4, 1988. The notice further warned that failure to comply would result in the issuing of a warrant for his arrest. On February 29, 1988, Davet responded to Maccarone's letter, once more explaining the circumstances surrounding the stop payment order.

A few weeks later, Davet came to Providence, Rhode Island, to attend a jewelry trade show. During his stay, Davet received a call from Maccarone, again seeking payment in the amount of the check. Davet suggested that Maccarone speak to Davet's counsel in Ohio. According to Davet, the officer agreed to speak to Davet's attorney in Ohio before taking any further action.

The next contact that Davet had with law enforcement officials was on March 14, 1988, when Cranston police officers Cecil Schlageter and Salvatore DeCesare, armed with an arrest warrant, arrived at Davet's hotel room in Providence at 10:00 P.M. to arrest him. He was taken to the Cranston police station where he spent the night. The following morning, he was arraigned and posted bail. Subsequently, the Rhode Island Attorney General's office determined that the case could not be successfully prosecuted, since jurisdiction was found to be in Ohio, not in Rhode Island.

Davet then commenced this federal suit and trial was held before Judge Raymond J. Pettine, Senior U.S. District Judge, on June 12-13, 1991. The trial was bifurcated. After plaintiff concluded the presentation of evidence on the issue of liability, the defendants moved for directed verdicts. The district court judge reserved rulings on defendant's Fed.R.Civ.P. 50 motions until the close of all the evidence. When defendants rested, their motions for a directed verdict on the issue of liability were renewed. Plaintiff also moved for a directed verdict. 2 The court denied defendant's motions and granted plaintiff's motion for directed verdict, finding that the arrest was wrongful and that DiMeo was liable for false arrest as a matter of law. 3 Judge Pettine decided to submit to the jury plaintiff's other claim of liability, whether or not DiMeo was liable to Davet for malicious prosecution. After deliberation, the jury concluded that DiMeo was not liable to Davet for malicious prosecution.

With the verdict at hand, the district judge instructed the jury that the court had previously ruled that the arrest was wrongful as a matter of law and instructed the jury on the issue of damages. The jury was sent out for deliberation to determine the amount of damages suffered by Davet. The court refused to give a punitive damage instruction. After deliberation, the jury decided not to award compensatory or nominal damages.

After trial, the parties filed a series of motions. Plaintiff moved for a new trial or for a judgment notwithstanding the verdict seeking an award of damages. In the alternative, he moved the court to award damages sua sponte. The court denied the motion. Plaintiff also moved for attorney's fees pursuant to 42 U.S.C. § 1988. The district court declined to rule on this motion pending the outcome of the expected appeal. Defendant DiMeo also moved the court for statutory costs in the amount of $352 pursuant to Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920. The district judge referred the matter to a United States Magistrate-Judge who, in his Report and Recommendation, found that DiMeo was a prevailing party and that the language of section 1920 included the cost of purchasing copies of six deposition transcripts. No objection was made to the report pursuant to 28 U.S.C. § 636(b)(1). The district court accepted the magistrate-judge's Report and Recommendation; however, the court stayed the order's execution pending the conclusion of the appeal.

Plaintiff raises the following issues on appeal. First, he challenges the district court's failure to charge the jury with respect to punitive damages. Second, he claims the district court erred in denying his motions for judgment as a matter of law, 4 a new trial or, in the alternative, for a grant of an award of damages sua sponte. Third, Davet argues that the magistrate-judge erred in awarding Rule 54(d) statutory costs since he, and not DiMeo, was the "prevailing party" in this litigation. Finally, he seeks this court's determination that, based on the district court's decision to direct the verdict in his favor on the section 1983 claim, Davet should be declared a prevailing party, entitling him to attorney's fees under 42 U.S.C. § 1988. We will address each of these issues seriatim.

II. Discussion
A. Punitive Damages Instruction

Davet contends that the trial court committed reversible error in failing to give a punitive damages instruction with respect to the section 1983 and false arrest claims. The standard of review is well established. An error in jury instructions will warrant reversal of a judgment only if the error is determined to have been prejudicial, based on a review of the record as a whole. Connors v. McNulty, 697 F.2d 18, 21 (1st Cir.1983). Our focus in examining jury instructions is to determine whether they adequately explained the law or "whether they tended to confuse or mislead the jury on the controlling issues." Brown v. Trustees of Boston University, 891 F.2d 337, 353 (1st Cir.1989) (quoting Service Merchandise Company v. Boyd Corporation, 722 F.2d 945, 950 (1st Cir.1983)), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990); Bordanaro v. McLeod, 871 F.2d 1151, 1164 (1st Cir.), cert. denied sub nom, Everett v. Bordanaro, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989).

After charging the jury as to damages, the district judge detailed the basis for his refusal to give a punitive damages instruction.

Now, let me tell you, I'll put on the record that I did not charge punitive damages because the standard for punitive damages is very strict indeed. Let me just point out to you, I have to find that he was, that Maccarone and Schlageter and DeCesare were motivated by evil motive or intent and let me just take Schlageter and DeCesare.... Where in the world would anyone under any stretch of reason say they were motivated by any evil? These are just two police officers who are given a writ by their superior, go out and serve it. And they did their duty as they were ordered to do it. Albeit they should have known better...

To continue reading

Request your trial
437 cases
  • Forestier-Figueroa v. United States, CIVIL 14-1023 (PG)
    • United States
    • U.S. District Court — District of Puerto Rico
    • March 30, 2015
    ...Failure to comply with this rule precludes further appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988); Borden v. Sec'y of Health & Human Se......
  • United States v. Cordero-Rosario
    • United States
    • U.S. District Court — District of Puerto Rico
    • May 18, 2017
    ...right to review in the district court and those claims not preserved by such objections are precluded upon appeal." Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir. 1992) ; see Henley Drilling Co. v. McGee, 36 F.3d 143, 150–51 (1st Cir. 1994) (holding that objections are required when chall......
  • Contreras v. Somoza
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 23, 2015
    ...rule precludes further appellate review. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992) ; Paterson–Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir.1988) ; Borden v. Sec'y of Health & Huma......
  • Lacedra v. Donald W. Wyatt Detention Facility
    • United States
    • U.S. District Court — District of Rhode Island
    • September 13, 2004
    ...a magistrate judge's report and recommendation results in a waiver of that party's right to review in a district court. Davet v. Maccarone, 973 F.2d 22, 31 (1st Cir.1992) (citations omitted). See also Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980)(concluding that ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT