USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 96-1852
DAVID S. KREWSON,
Plaintiff - Appellee,
v.
FRANCIS FINN, ET AL.,
Defendants - Appellees,
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JOHN MCDONOUGH,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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John F. Farraher, Jr., with whom David C. Jenkins and Dwyer &
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Jenkins, were on brief for appellant McDonough.
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Robert L. Hernandez for appellee.
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February 28, 1997
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Stahl, Circuit Judge. For the second time,
Stahl, Circuit Judge.
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defendant-appellant John McDonough challenges the district
court's award of attorneys' fees. In Krewson v. City of
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Quincy, 74 F.3d 15 (1st Cir. 1996), McDonough lodged a broad
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ranging attack on the district court's award of fees to
plaintiff-appellee David Krewson, arguing that the
excessiveness of the request made any award unreasonable on
its face and that much of the time for which the district
court awarded fees was attributable to claims on which
Krewson did not succeed. We remanded to the district court
the recalculation of the fee award, having agreed with the
court that an award was justified. McDonough, still unhappy
with the award the district court has made, again appeals.
For the second time he requests us to declare the award
facially unreasonable, or yet again to remand for further
consideration. We decline McDonough's request and affirm the
district court's fee assessment.
This case arose after the police in Quincy,
Massachusetts, arrested David Krewson for the murder of his
friend and short-term roommate. After a brief investigation
the Quincy police questioned, charged and detained Krewson.
After a brief further investigation, the Quincy police
dropped all charges, having identified the person actually
responsible for the crime.
A few days after his release, Krewson returned to
the police station. While at the station he encountered
McDonough, then a Quincy detective who had investigated the
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murder and played a significant role in the decision to
arrest and charge Krewson. McDonough, apparently concerned
that Krewson might take legal action against him, allegedly
threatened to "blow off" Krewson's kneecaps should he file
suit.
Undeterred by McDonough's threat, Krewson filed a
complaint against McDonough, two of his immediate supervisors
and the City of Quincy based on alleged sloppy police work
that led to his arrest and based on the later threat by
McDonough. Krewson claimed violations of his civil rights
under 42 U.S.C. 1983 and Mass. Gen. Laws ch. 12 11I, as
well as negligence under Mass. Gen. Laws ch. 258, false
arrest, false imprisonment, assault and battery and
intentional infliction of emotional distress.
After a four-day trial, the district court directed
verdicts in favor of both supervisors on all counts, in favor
of the city on all but the negligence count, and in favor of
McDonough on all counts except those pertaining to the
kneecap threat. The jury found McDonough liable for
intentional infliction of emotional distress and for
violating the Massachusetts Civil Rights Act, and awarded
Krewson a total of $6,500 in damages.
Krewson filed an application for attorneys' fees
under Mass. Gen. Laws. ch. 12 11I. The district court
awarded a total of $80,649.29 in fees and costs. McDonough
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appealed the fee award, and we remanded for a determination
of whether time spent on unsuccessful claims should be
eliminated from the fee award, and whether the cost of
Krewson's expert, Robert DiGrazia, should be eliminated as
relating solely to the unsuccessful claims. See Krewson, 74
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F.3d at 19-20.
On remand the district court concluded that a fee
award which included time spent on unsuccessful as well as
successful claims was appropriate, and that DiGrazia's expert
fee was a justifiable cost.1 On appeal Krewson attempts to
resurrect his prior argument that the district court should
have awarded no attorneys' fees because the amount sought is
excessive for the result achieved. We rejected that argument
in the first appeal. See Krewson, 74 F.3d at 16. The two
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remaining issues are whether the district court should have
awarded fees for the hours spent on unsuccessful claims and
whether the court should have included DiGrazia's fee as part
of the award. We find neither issue compelling.
We review the district court's fee award for abuse
of discretion. See id. at 17 (quoting Lipsett v. Blanco, 975
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1. In response to McDonough's general arguments regarding
the size of the fee claimed, the district court did subtract
98 hours from Krewson's request to reflect excessive pre-
trial preparation, specifically, time spent on routine
motions, reading and indexing depositions and preparing pre-
trial memoranda. We note that, as adjusted, the district
court awarded Krewson attorneys' fees in the amount of
$53,117 and costs in the amount of $13,262.29.
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F.2d 934, 937 (1st Cir. 1992)). The district court
identified a sufficient link between Krewson's successful and
unsuccessful claims to support a fee award that was not
reduced for time spent on the unsuccessful claims. The court
found that McDonough's threat and conduct toward Krewson
"made no sense at all except in the context of the prior
events and the deficiencies of police procedure which led to
[Krewson's] arrest." The district court concluded that in
order to try his successful claims, Krewson would have had to
try the entire case, including evidence relevant to the
unsuccessful claims. "In reviewing determinations that
claims are or are not interrelated for purposes of an award
of attorneys' fees, we have exhibited great deference to the
trial court's discretion." Lipsett v. Blanco, 975 F.2d 934,
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941 (1st Cir. 1992). The events prior to McDonough's threat,
which formed the basis for the unsuccessful claims, certainly
could be viewed as necessarily linked to the portion of the
trial dealing with the threat. It was within the district
court's discretion to determine that without context
McDonough's threat and conduct made little sense. The
district court's conclusion falls within its broad
discretion.
The district court further concluded that
DiGrazia's testimony "was appropriately part of [Krewson's]
effort to show why Detective McDonough had legitimate fear of
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a civil suit, which he tried to forestall by an inappropriate
threat." At trial, DiGrazia testified that the investigation
of the murder lacked "correct and accepted standard police
practices." In DiGrazia's opinion, the investigation was
geared more toward quickly finding someone guilty than
reaching proper conclusions as to the actual guilty party.
DiGrazia further testified that the Quincy police department
lacked adequate training and management. Finally, he
testified that Detective McDonough lacked adequate training
in the investigation of homicides. If the jury believed
DiGrazia, his testimony would tend to provide a motive for
McDonough's subsequent conduct toward Krewson. On this
record it was well within the district court's discretion to
conclude that DiGrazia's opinions also established the
underlying basis for McDonough's threat, making that threat
more believable.
Our prior decision did not mandate a reduction to
account for Krewson's prosecution of the unsuccessful claims
or DiGrazia's fee. We simply remanded for the district court
to consider those issues. See Krewson, 74 F.3d at 19-20.
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The district court has considered them and we do not find an
abuse of discretion. See id. at 17 (noting that district
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court's fee award is reviewed for abuse of discretion).
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Affirmed.2
Affirmed.
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2. Appellee Krewson requests fees on appeal. Appellee is
directed to submit a properly detailed petition for appellate
fees within 10 days of the issuance of this opinion.
Appellant McDonough shall have 10 days thereafter to raise
objections to the fee petition. We will retain jurisdiction
for purposes of approving any such fee petition.
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