Wojtkowski v. Cade, 83-1612
| Decision Date | 01 February 1984 |
| Docket Number | No. 83-1612,83-1612 |
| Citation | 725 F.2d 127 |
| Parties | Dana M. WOJTKOWSKI, Plaintiff, Appellant, v. Richard K. CADE, et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Louis Kerlinsky, with whom Louis Kerlinsky, P.C., Springfield, Mass., was on brief, for plaintiff, appellant.
Kevin B. Coyle, East Longmeadow, Mass., for defendants, appellees.
Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.
In this appeal, Wojtkowski takes exception to the amount of the attorney's fee which the district court awarded to him after his successful prosecution of a civil rights action. 42 U.S.C. Sec. 1988. Besides contending that the fee is inadequate, he also asserts that the district court improperly denied prejudgment interest both on the damages and on the fee. We affirm.
Wojtkowski sued the town of Montague, Massachusetts, its police chief and three police officers for $200,000 compensatory damages based on an incident involving his arrest and detention. The district court directed verdicts on the claims against the town and the police chief, but sent to the jury the claims that the three police officers had violated plaintiff's right to due process and had committed state law torts including assault, battery, malicious prosecution and false imprisonment. The jury found for Wojtkowski in the total amount of $6,000. Of this, $5,000 was charged to one defendant, $500 each to the other two.
After entry of judgment, Wojtkowski sought prejudgment interest on the damages pursuant to Mass.Gen.Laws ch. 231 Sec. 6B. The district court rejected this request, relying on the federal rule that assessment of prejudgment interest is a matter for the jury. Furtado v. Bishop, 604 F.2d 80, 98 (1st Cir.1979) (Furtado I ), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980) (section 1983 case); Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1053 (1st Cir.1973). As plaintiff had not raised the issue prior to submission of the case to the jury, the court ruled that the claim was now foreclosed.
Wojtkowski also sought costs, an attorney's fee, and prejudgment interest on the fee, in the total sum of $19,259.10. The court allowed costs of $135 and a fee of $3,870 but denied prejudgment interest with respect to the fee.
Appellant argues that in denying prejudgment interest on damages the district court incorrectly relied upon Furtado I, 604 F.2d at 98, and Robinson, 477 F.2d at 1053, since those cases involved purely federal claims. As his case puts forward both federal and pendent state claims, he asserts that the matter of prejudgment interest is governed by a Massachusetts statute, Mass.Gen.Law ch. 231, Sec. 6B, which requires the clerk to add prejudgment interest to the amount of damages awarded in personal injury cases. Plaintiff finds support for this position in Moore-McCormack Lines v. Amirault, 202 F.2d 893, 895-96 (1st Cir.1953), in which this court suggested that in a "typical diversity case" a district court, applying Massachusetts substantive law, would be required to add prejudgment interest to a damages award, as such interest "may be regarded as part of the substance of the claim sued upon."
However, plaintiff has not sued here in diversity, nor could he. Federal jurisdiction is based on his assertion of a federal civil rights claim. 28 U.S.C. Secs. 1331, 1343. To be sure, plaintiff asserted pendent state claims, and perhaps, although we do not decide the point, he would have been entitled to collect prejudgment interest on these under the Massachusetts statute had the jury returned separate verdicts. But here all claims, both federal and state, were sent to the jury together, resulting in a general verdict. We cannot tell to what extent, if any, the jury's awards of damages against the three officers were based on the state law claims. In such circumstances, the district court was right to follow the federal rule concerning prejudgment interest, and the court properly construed that rule as requiring the denial of interest here where the matter had not been presented to the jury.
Wojtkowski's claim that he was entitled to prejudgment interest on the amount allowed by the court as an attorney's fee under section 1988 has even less force. Section 1988 does not refer to interest, nor has our attention been drawn to any federal statute that calls for prejudgment interest in this particular context. The cases Wojtkowski cites are inapposite. Harkless v. Sweeny Independent School District, 466 F.Supp. 457, 465, 472 (S.D.Tex.1978), relates only to interest on prejudgment expenses. Gates v. Collier, 616 F.2d 1268 (5th Cir.1980), indicates merely that the district court may assess postjudgment interest on a fee award where there has been an unwarranted delay in payment. See also Gabriele v. Southworth, 712 F.2d 1505, 1508 n. 1 (1st Cir.1983), aff'g Brule v. Southworth, 552 F.Supp. 1157, 1168 (D.R.I.1982) (Pettine, J.); Spain v. Mountanos, 690 F.2d 742, 747-48 (9th Cir.1982); cf. Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980) (Furtado II ) (). One case, not cited by plaintiff, which deals with prejudgment interest on attorneys' fees holds that "[g]enerally, no prejudgment interest should be paid ...." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983).
We are also unpersuaded by appellant's invocation of Mass.Gen.Laws ch. 231, Sec. 6B. That statute authorizes a court to assess interest on the amount of damages; it says nothing about attorneys' fees. The district court did not err in denying appellant's request for prejudgment interest on his attorney's fee award.
We have reviewed appellant's challenge to the district court's determination of the attorney's fee and find no "error of law or abuse of discretion." Furtado II, 635 F.2d at 920.
The court was not obligated, as appellant asserts, to adopt the rate and hours claimed by his attorney, merely because the defendants failed to oppose his fee request or challenge his attorney's affidavit. We read 42 U.S.C. Sec. 1988 () to confer both responsibility and authority upon the court to control the reasonableness of the fee. A party's failure to oppose a fee does not divest the court of power to determine what is a reasonable fee and to allow only that amount. The court, moreover, may bring to bear its knowledge and experience concerning both the cost of attorneys in its market area and the time demands of the particular case. If the time and fee claimed by the prevailing party are out of line, the court may "shave" either or both. Miles v. Sampson, 675 F.2d 5, 9 (1st Cir.1982).
Here the district court determined that 60 hours were "reasonably expended on the lawsuit," not the 112.5 hours demanded. Although this is a substantial decrease in hours, we cannot say that it is wrong. The district court "has intimate knowledge of the services rendered" and the actual demands of the case as tried. McManama v. Lukhard, 616 F.2d 727, 729 (4th Cir.1980). The reductions here were designed to delete charges for work performed on unsuccessful claims against the town and police chief as well as "duplicative" effort, a term we have previously interpreted as "implying ... little value." Miles v. Sampson, 675 F.2d at 8.
The claims against the town of Montague and its police chief rested on legal theories distinct from those upon which appellant prevailed. The town and chief were said to be liable not because they were in any sense directly involved in the conduct giving rise to the damages award, but because they allegedly provided inadequate training and slack supervision. These claims involved novel and difficult legal issues not present in the claims against the officers. The Supreme Court has recently upheld the rule of this Circuit that "[w]here plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claims should be excluded in considering the amount of a reasonable fee." Hensley v. Eckerhart, --- U.S. ----, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983); see...
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...recovery may sometimes be taken into account in determining the remuneration to be awarded for legal services, Wojtkowski v. Cade, 725 F.2d 127, 131 (1st Cir.1984); Furtado II, 635 F.2d at 920; but cf. Blum, 104 S.Ct. 1548-49, it may not stand naked and unadorned as the be-all and the end-a......
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