Domegan v. Ponte

Decision Date04 December 1991
Docket NumberNos. 91-1625,91-1753,s. 91-1625
Citation972 F.2d 401
Parties, 24 Fed.R.Serv.3d 112 Dennis J. DOMEGAN, Plaintiff, Appellee, v. Joseph PONTE, et al., Defendants, Appellants (Two Cases). . Heard
CourtU.S. Court of Appeals — First Circuit

Stephen G. Dietrick, Deputy Gen. Counsel, with whom Nancy Ankers White, Sp. Asst. Atty. Gen., Boston, Mass., was on brief for defendants, appellants.

Paul E. Nemser with whom Paula M. Bagger and Goodwin, Procter & Hoar, Boston, Mass., were on brief for plaintiff, appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

After former inmate Dennis J. Domegan won a one dollar damage award in a civil rights action against certain Massachusetts corrections officials, the district court approved an attorney fee award against the defendants in the amount of $41,441.55 under 42 U.S.C. § 1988. The defendant officials challenge the fee award primarily on the ground that Domegan cannot be considered a "prevailing party" in light of the results achieved in litigation. With modifications to the amount of the award, we affirm the district court judgment.


On August 15, 1983, while imprisoned at the Massachusetts Correctional Institution at Walpole ("MCI-Walpole"), Domegan lodged a pro se complaint in the United States District Court for the District of Massachusetts, alleging civil rights violations under the Eighth and Fourteenth Amendments to the United States Constitution. The complaint stemmed from Domegan's disciplinary placement on the "Alternate Feeding Program" ("AFP") at MCI-Walpole in May and again in July of 1983. 1 At that time, each meal served to AFP inmates, including Domegan, consisted entirely of two cheese sandwiches. The solid steel doors of AFP inmate cells remained closed. The inmate was given no hearing prior to the AFP placement. AFP status was reviewed every five days by the prison official who recommended the particular placement. Domegan remained on AFP for seven and one-half days in May 1983, and for five days in July 1983.

During March 1984, the district court appointed Goodwin, Procter & Hoar [hereinafter Procter & Hoar] to represent Domegan. The final amended complaint asserted three causes of action: cruel and unusual punishment (Eighth and Fourteenth Amendments; 42 U.S.C. § 1983; M.G.L. c. 12, §§ 11H, 11I ); 2 violation of due process (Fourteenth Amendment; 42 U.S.C. § 1983; M.G.L. c. 12, §§ 11H, 11I ); and violation of the Massachusetts Civil Rights Act (M.G.L. c. 12, § 11I ). The final amended complaint demanded declaratory and injunctive relief, compensatory damages totaling $50,000, and $35,000 in punitive damages from each of the ten defendants. 3

Domegan was granted summary judgment on the procedural due process claim. The case proceeded to trial on the remaining claims in March 1989. The jury awarded Domegan $1.00 in "compensatory" damages on the due process claim, but returned verdicts for all defendants on the remaining Eighth Amendment claims. Judgment was entered in the amount of $1.00 against Ponte, Leppert, and Gallagher. 4 Domegan requested attorney fees and costs in the amount of $88,655.16, pursuant to 42 U.S.C. § 1988. Although the district court determined that Domegan was a "prevailing party" entitled to recover a reasonable attorney fee, it reduced the amount of the award to $41,441.55 in light of the limited success achieved in litigation. The defendants challenge the fee award on several grounds. 5

A. Appellate Jurisdiction

The district court "Memorandum and Order" awarding attorney fees was entered on May 24, 1991. A defective notice of appeal (No. 91-1625) was filed on June 24, 1991, naming no appellant except Ponte, and then only in the following caption: "Domegan v. Ponte, et al." See Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-15, 318, 108 S.Ct. 2405, 2407-08, 101 L.Ed.2d 285 (1988) (use of "et al." does not satisfy Fed.R.App.P. 3(c) requirement that notice of appeal specify parties appealing); Pontarelli v. Stone, 930 F.2d 104, 108-09 (1st Cir.1991) (same). In response to our order to show cause why the appeal ought not be dismissed except as to Ponte, on July 16 a motion for permission to file an amended notice of appeal was filed by defendants' counsel with the district court. See Fed.R.App.P. 4(a)(5). The district court granted the motion ex parte on the following day. But see id. ("Notice of any such motion which is filed after the expiration of the prescribed time shall be given to the other parties in accordance with local rules."). See also D.Mass.R. 7.1(A)(2), (B), (E). An amended notice of appeal (No. 91-1753), naming all ten appellants, was promptly filed.

Domegan contends that the ex parte district court order, permitting appellants to file a corrected notice of appeal after the expiration of the original appeal period, was ineffective since the fourteen-day notice required by Local Rule 7.1 was not served. See Fed.R.App.P. 4(a)(5); D.Mass.R. 7.1(A)(2), (B), (E); see also, e.g., Hable v. Pairolero, 915 F.2d 394, 395 (8th Cir.1990) (requiring notice of rule 4(a)(5) motion); Truett v. Johns-Manville Sales Corp., 725 F.2d 1301, 1302 (11th Cir.1984) (same). Domegan also challenges the sufficiency of the showing of "good cause" or "excusable neglect" required under Fed.R.App.P. 4(a)(5). See, e.g., Pontarelli, 930 F.2d at 109-112. We need not address Domegan's contentions, however, as the initial notice of appeal was premature.

The district court "Memorandum and Order," entered May 24, did not satisfy the "separate document" rule. See Fed.R.Civ.P. 58 advisory committee note (1963) ("The amended rule ... requir[es] that there be a judgment set out on a separate document--distinct from any opinion or memorandum--which provides the basis for the entry of judgment.") (emphasis added); Fiore v. Washington County Community Mental Health Ctr., 960 F.2d 229, 234-35 (1st Cir.1992) (en banc) (discussing generally the nature of a separate document); Smith v. Massachusetts Dep't of Correction, 936 F.2d 1390, 1393-94 (1st Cir.1991) (memorandum and order does not constitute "separate document"); In re Smith Corset Shops, Inc., 696 F.2d 971, 975 (1st Cir.1982) (same, applying analogous Bankruptcy Rule). As the order appealed from was not a "final judgment," see Fed.R.Civ.P. 54(a), 58, the appeal period never commenced running prior to the filing of the corrected notice of appeal. Fed.R.App.P. 4(a)(1), (7); Smith, 936 F.2d at 1394; Scola v. Boat Frances, R., Inc., 618 F.2d 147, 151 (1st Cir.1980); see also Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-86, 98 S.Ct. 1117, 1120-21, 55 L.Ed.2d 357 (1978) (per curiam) (purpose of "separate document" rule is to promote greater predictability as to when time for appeal begins to run); Fiore, 960 F.2d at 233 (same). 6

Although appellants at all times treated the May 24 "Memorandum and Order" as an appealable order, the "separate document" rule is to be strictly applied as concerns the commencement of the appeal period. See United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973) (per curiam) (applying rule 58 mechanically notwithstanding previous aborted appeal by same appellant within appeal period); Fiore, 960 F.2d at 235 (discussing technicality of rule 58); Gregson & Assocs. Architects v. Government of the V.I., 675 F.2d 589, 592-93 (3d Cir.1982) (Indrelunas applied despite both parties' treatment of memorandum opinion as appealable order); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 688-90 (4th Cir.1978) ("nor are we free to penalize plaintiffs ... by binding them to their erroneous assertion that judgments" had been entered); see also Fiore, 960 F.2d at 237 (emphasizing that the "separate document" requirement "should always be interpreted 'to prevent loss of the right to appeal, not to facilitate loss' ") (quoting Bankers Trust, 435 U.S. at 386, 98 S.Ct. at 1121); Willhauck v. Halpin, 919 F.2d 788, 792 (1st Cir.1990) (same); 9 Moore's Federal Practice p 58.02.1, at 58-20 to 21. Nevertheless, a notice of appeal deemed premature due to noncompliance with the "separate document" rule does not deprive the appellate court of subject matter jurisdiction, Bankers Trust, 435 U.S. at 384, 385, 98 S.Ct. at 1120; see also Smith, 936 F.2d at 1394 (applying Bankers Trust ), and the appeal may proceed in the normal course where the court of appeals determines that the "separate document" requirement was waived by the parties. Bankers Trust, 435 U.S. at 384-86, 98 S.Ct. at 1120-21; Smith, 936 F.2d at 1394.

The district court treated its May 24 "Memorandum and Order" as an appealable order; it was duly docketed; and no party challenged appellate jurisdiction for failure to comply with the "separate document" requirement. See Smith, 936 F.2d at 1394 (finding waiver); see also Bankers Trust, 435 U.S. at 387-88, 98 S.Ct. at 1121 (considering same factors). Compare Fiore, 960 F.2d at 232, 237. All parties to the present appeal consistently treated the May 24 "Memorandum and Order" as a final judgment and there is no suggestion that unfair prejudice would be occasioned any party by our assertion of appellate jurisdiction, without remanding for formal compliance with the "separate document" requirement. See Smith, 936 F.2d at 1394 (assertion of appellate jurisdiction proper, as parties waived "separate document" requirement and would not be prejudiced). Moreover, dismissal of the second notice of appeal in these circumstances, solely to permit compliance with the "separate document" rule, would force "[w]heels [to] spin for no practical purpose." Bankers Trust, 435 U.S. at 385, 98 S.Ct. at 1120; Smith, 936 F.2d at 1394 ("We will not needlessly 'force the parties round and round the mulberry bush'...." (quoting Jusino v. Zayas, 875 F.2d 986, 989-90 (1st Cir.1989)).

B. The Merits
1. "Prevailing Party"

The principal...

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