Lionel Aubin v. Stanley Fudala, 782 F.2d 287, 1st Cir. (1986)

782 F.
2d 287
Lionel AUBIN, et al., Plaintiffs, Appellants,

v.
Stanley FUDALA, et al., Defendants, Appellees.
No. 85-1400.
United States Court of Appeals,

First Circuit.
Argued Oct. 10, 1985.
Decided Jan. 28, 1986.
Joseph F. McDowell, III with whom Elizabeth Cazden was on brief, for
plaintiffs, appellants.
William P. Tocchi with whom Michael B. O'Shaughnessy was on brief,
for defendants, appellees Town of Bedford, et al.
Theodore Wadleigh with whom Robert A. Casassa and Wadleigh, Starr,
Peters, Dunn & Chiesa were on brief for defendants, appellees Fudala,
Morency, Biron and Audette.
Before BREYER and TORRUELLA, Circuit Judges, and HILL,* Senior
District Judge.
BREYER, Circuit Judge.
Lionel Aubin won a $300,000 negligence verdict against the town of Bedford,
New Hampshire, two of its policemen, and its chief of police. He and his
parents obtained nominal damage awards on accompanying civil rights claims.
Subsequently, Lionel asked the district court for about $80,000 in prejudgment
interest. The plaintiffs also sought compensation "for all of their attorneys' fees
involved in this matter," under 42 U.S.C. Sec. 1988. The district court denied
the request for prejudgment interest. It awarded $146.34 in attorneys' fees. The
Aubins appeal these decisions. In our view, Lionel Aubin is entitled to
prejudgment interest on his state law negligence claim. The district court
should reconsider the request for fees.
* The suit underlying this appeal is a combined 'federal civil rights/state

common law' action that Maurice and Normande Aubin and their sons Lionel
and Norman brought against the town of Bedford, its police chief, four police
officers, and a state trooper. The claims arose out of a burglary investigation on
New Year's Eve, 1979. In the course of the investigation, one of the defendants,
Officer Fudala, mistook Lionel Aubin for a suspect and shot him in the right
shoulder. Defendant Trooper Meaney, mistaking Lionel's brother Norman for
an accomplice, arrested and handcuffed him. Defendant Officers Biron and
Morency then went to the door of the Aubin residence and prevailed upon a
third Aubin son, Ronald, to let them search the house. The Aubin parents,
Maurice and Normande, returned home later that night to learn that one of their
sons was in the hospital and another at the police station.
The Aubins later filed this suit, which, after a jury trial, yielded the following
results:
1. The jury awarded Lionel Aubin $300,000 on his state law negligence claim
against Officers Fudala and Biron, the chief of police, and the town. It also
awarded him $500 on his parallel federal civil rights claim against Fudala for
'unreasonable force.'
2. The jury found in favor of Lionel's parents, Maurice and Normande Aubin,
on their federal civil rights claim complaining that their house had been
unlawfully searched, but awarded only nominal damages of $1.
3. The jury found against Norman Aubin on his tort and civil rights claims
stemming from his alleged false arrest and wrongful imprisonment.
4. The court directed a verdict against all plaintiffs on a civil rights claim
alleging that the defendants had conspired to cover up their mistake in shooting
Lionel.
On December 8, 1982, the court entered judgments embodying these results.

Both sides appealed. We affirmed the judgments in all respects, in an opinion to
which the reader may refer for a fuller account of the facts. Aubin v. Fudala,
782 F.2d 280 (1st Cir.1983).
Subsequently, when Lionel Aubin sought to collect his judgment, the

defendants (or, rather, one of their insurance companies) refused to pay
prejudgment interest on the $300,000 awarded Lionel under New Hampshire
law. The plaintiffs then asked the district court to "add ... to the negligence
verdict" an amount reflecting about $80,000 in prejudgment interest. They also
asked the court to "issue an execution in favor of the plaintiffs" in that amount.
10
In addition, the plaintiffs sought attorneys' fees, see 42 U.S.C. Sec. 1988, on the
ground that they had prevailed on two of their civil rights claims and that their
remaining claims--in particular, Lionel's negligence claim--were, as a practical
matter, inseparably bound up with the civil rights claims on which they
prevailed.
11
The district court treated the request for prejudgment interest as "a motion to
alter or amend judgment" under Fed.R.Civ.P. 59(e). It denied the request
because it had not been made "10 days after the entry of the judgment."
Fed.R.Civ.P. 59(e). And, as noted earlier, the court awarded the plaintiffs only
$146.34 in attorneys' fees.
II
12
We conclude that Lionel Aubin is entitled to prejudgment interest--despite the

judgment's failure to mention it--for the following reasons. First, when a
plaintiff secures a jury verdict based on state law, the law of that state governs
the award of prejudgment interest. See Hobart v. O'Brien, 243 F.2d 735, 745
(1st Cir.) (diversity case), cert. denied, 355 U.S. 830, 78 S.Ct. 42, 2 L.Ed.2d 42
(1957); Mallis v. Bankers Trust Co., 717 F.2d 683, 692 n. 13 (2d Cir.1983)
(state law governs award of prejudgment interest on pendent state law claims
even if federal claims provide basis for jurisdiction); compare Furtado v.
Bishop, 604 F.2d 80, 97 (1st Cir.1979) (federal rule governs award of
prejudgment interest on federal claims in Sec. 1983 suit), cert. denied, 444 U.S.
1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980). Second, the law of New
Hampshire automatically entitles a successful tort plaintiff to prejudgment
interest from the date suit is filed. The relevant statute says:
13 ... civil proceedings ... in which a verdict is rendered ... for pecuniary damages ...,
In
there shall be added forthwith by the clerk of the court to the amount of damages
interest thereon from the date of the writ or the filing of the petition to the date of
such verdict....
14
N.H.Rev.Stat.Ann. Sec. 524:1-b. Third, the amount of the state law negligence
award was set forth separately in the judgment, making the computation of the
appropriate interest a simple, mechanical, nondiscretionary task for the clerk to
perform. Finally, Lionel's delay in asking for the award is understandable in
light of the standard practice in New Hampshire federal district court, see infra,
and the delay does not appear to have prejudiced the defendants.
15
The award of prejudgment interest here at issue is thus quite different from an
award of prejudgment interest under federal law, which is generally not
automatic but is rather a matter for jury determination. See, e.g., Segal v.
Gilbert Color Systems, Inc., 746 F.2d 78, 81-84 (1st Cir.1984). It also differs
from the state law prejudgment interest at issue in appellees' strongest
authority, Wojtkowski v. Cade, 725 F.2d 127 (1st Cir.1984). In Wojtkowski the
jury issued a general verdict providing for damages on both federal and pendent
state claims. Since the general verdict in Wojtkowski did not segregate the
damages into state and federal components, the clerk could not automatically
calculate the interest due on the state portion. See id. at 129. The appellees here
point to language in Wojtkowski that, in their view, leaves 'open' the
entitlement question before us; the pertinent passage says that "perhaps,
although we do not decide the point," state law interest on the state law claim
would have been available had the jury rendered a special verdict. Id. (emphasis
added). On the facts of this case, however, the issue is 'open and shut,' for
neither the parties nor the members of this panel have been able to think of any
serious legal or factual reason why Lionel Aubin would not have been entitled
to prejudgment interest as of the time judgment was entered. That is to say, the
entitlement was automatic, and the computation left for the clerk was simple,
clear, and mechanical.
16
Our only uncertainty concerns the precise procedural device appropriate to

secure Lionel the award. Ordinarily, we would instruct the court below to grant
his motion to amend the judgment under Fed.R.Civ.P. 60(a), which allows the
district court, "at any time," to correct "clerical mistakes ... arising from
oversight or omission." The scope of the rule is limited, see Elias v. Ford Motor
Co., 734 F.2d 463, 465-67 (1st Cir.1984); Scola v. Boat Frances, R., Inc., 618
F.2d 147, 152-54 (1st Cir.1980); Morgan Guaranty Trust Co. v. Third National
Bank, 545 F.2d 758, 759-60 (1st Cir.1976), but this case falls within that
limited scope. See Scola, 618 F.2d at 153 (cases hold that "where the prevailing
party has an unconditional statutory right to pre-judgment interest on the award,
the failure to include the interest in the judgment is 'clerical mistake' that can be
corrected under Rule 60(a)"); see also Hayden v. Scott Aviation, Inc., 684 F.2d
270, 271-72 (3d Cir.1982) (citing Glick v. White Motor Co., 458 F.2d 1287,
1293-94 (3d Cir.1972)); Lee v. Joseph E. Seagram & Sons, Inc., 592 F.2d 39,
41-42 (2d Cir.1979) (applying Rule 60(a) to the portion of prejudgment interest
that "was to be computed ... and added to the judgment automatically by the
court clerk"); Flowers Transportation, Inc. v. M/V Peanut Hollinger, 94 F.R.D.
99, 101 (E.D.La.1982); In re Merry Queen Transfer Corp., 266 F.Supp. 605,
607 (E.D.N.Y.1967).
17
18
The parties have informed us, however, that the New Hampshire federal district
court's standard practice in preparing the form of judgment is to mention only
the amount of the damage award, and not to mention anything about costs or
interest, even when there is no question about a party's entitlement to the latter
items. The court clerk explicitly adds those items to the amount of damages
only if execution should prove necessary, and in that event, the items are
mentioned only in the writ of execution, not in the original form of judgment.
Whether the District of New Hampshire wishes to continue this practice seems
to be a matter for it to decide. We note that the model form of judgment
accompanying the Federal Rules of Civil Procedure does make reference to
interest and costs, see Form 31, Appendix of Forms, Fed.R.Civ.P., but these
forms are suggestive, not mandatory, see Introductory Statement, Appendix of
Forms, Fed.R.Civ.P. (forms "intended for illustration only"). Depending upon
whether the district court prefers to modify or to retain its present practice, it
should either (1) correct the judgment under Rule 60(a), or (2) leave the
judgment unaltered and simply issue a writ of execution reflecting the amount
of interest due. In either case, the court should award Lionel Aubin the
prejudgment interest he seeks.
III
19
The appellants challenge the court's award of $146.34 in attorneys' fees as too
low. The court apparently treated the appellants as "prevailing parties" on two
of their federal civil rights claims, and agreed they were entitled to "a
reasonable attorney's fee." 42 U.S.C. Sec. 1988. But, after calculating the
presumptively reasonable 'lodestar' amount--the hours the attorneys devoted to
the litigation multiplied by their reasonable hourly rates--the court sharply
reduced the lodestar to account for the limited "extent of [the plaintiffs']
success on [their] civil rights claims." In an attempt to quantify the "extent of
success," the court discounted the lodestar by the ratio of the damages awarded
on the civil rights claims to the total damages awarded. Since the jury awarded
$501 damages on the civil rights claims and $300,000 on the negligence claim,
the district court discounted the lodestar by more than 99 percent. We agree
with the appellants that this method of calculation was improper.
20
First, the extent of a plaintiff's success in a civil rights suit is a practical

question, involving a qualitative, as well as a quantitative, judgment. See, e.g.,
Segal v. Gilbert Color Systems, Inc., 746 F.2d 78, 86 (1st Cir.1984) (rejecting
percentage-of-recovery formula); Furtado v. Bishop, 635 F.2d 915, 917-20 (1st
Cir.1980) (same). Where the plaintiff obtains a determination that the
defendants violated the civil rights laws, the fact that the accompanying
damage award is small or nominal does not automatically warrant a comparably

meager fee. See Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st
Cir.1979). There may have been value in the simple declaration of violations of
federal law. The district court did not explicitly decide whether there was. And,
we will not treat the matter as implicitly decided. The court's award appears to
flow from the mechanical use of a novel, quantitative discounting rule. Such
rules have typically met with judicial disapproval. See, e.g., Hensley v.
Eckerhart, 461 U.S. 424, 435 n. 11, 103 S.Ct. 1933, 1940 n. 11, 76 L.Ed.2d 40
(1983). And, we believe the use of this rule particularly inappropriate for it
would have anomalously meant a larger fee award had the plaintiff's victory on
the negligence claim been smaller.
21
Second, the district court's approach is inconsistent with Hensley v. Eckerhart,

supra. The Supreme Court there held that when a civil rights suit consists of
multiple claims, and when the plaintiff prevails on some of them but not on
others, the plaintiff is entitled to fees for hours worked not only on the
successful civil rights claims, but also on other claims involving a "common
core of facts" or "related legal theories." Id. at 435, 103 S.Ct. at 1940.
Analogously, it seems to us, plaintiff should receive significant fees when he
has won a partial victory on a civil rights claim while receiving substantially
the relief he there sought, though the jury awards it on a factually or legally
related pendent state claim.
22
For one thing, precedent so holds. The Second Circuit has stated that a
"reasonable fee" should not be denied simply because "the jury awarded
substantial damages only on the pendent state law ... claim and not on the
constitutional violation." Milwe v. Cavuoto, 653 F.2d 80, 84 (2d Cir.1981); see
also Williams v. Thomas, 692 F.2d 1032, 1036-39 (5th Cir.1982) (error to
award only $2500 fee where jury found liability and no damages on federal
claim and liability and $500 damages on pendent state claim), cert. denied, 462
U.S. 1133, 103 S.Ct. 3115, 77 L.Ed.2d 1369 (1983). We have held the same--at
least implicitly--in Cipriano v. Rhode Island, 738 F.2d 535 (1st Cir.1984)
(upholding fee award where amended verdict found liability but no damages on
civil rights claim while finding liability and substantial damages on related
pendent claim).
23
For another thing, this precedent makes sense in light of the fact that 'victory' in
a civil rights suit is typically a practical, rather than a strictly legal matter. See,
e.g., Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978) ("[W]hen a
plaintiff's lawsuit acts as a 'catalyst' in prompting defendants to take action to
meet plaintiff's claims, attorney's fees are justified despite the lack of judicial
involvement in the result."). Courts consequently have awarded fees "for the
successful prosecution of pendent state law claims when the federal claims,
though presenting substantial federal issues, never were reached by the district
court." 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure:
Civil Sec. 2675, at 306 (2d ed. 1983) (citing cases); see also Lund v. Affleck,
587 F.2d 75, 77 (1st Cir.1978). If the Aubins, in fact, received the basic relief
they sought (but on the state claim) and if, in fact, the state and federal claims
are factually and legally interconnected, then their right to attorneys' fees is at
least as strong as in these other cases. The jury findings of liability on two of
their federal claims should work in their favor. Cf. Russo v. New York, 672
F.2d 1014, 1022 n. 5 (2d Cir.1982), modified on other grounds, 721 F.2d 410
(2d Cir.1983).
24
Of course, we write on the assumption that the appropriate interconnection

exists; we also have assumed the likelihood that nonsubstantive reasons (such
as the existence of a 'deep pocket' defendant or other reasons peripheral to the
merits of the federal claim) account for the disparity between the damage
awards on the parallel federal and state claims arising from Lionel's shooting.
We know enough of the case from its prior appeal for such arguments to sound
plausible. We believe, however, that the district court, more familiar with the
details of the case than are we, should decide initially whether, or the extent to
which, these assumptions are correct. While the court cannot fathom the mind
of the jury, it can determine 'interrelationships,' the extent to which the
plaintiffs got basically what they wanted, and whether there was a substantial
chance Lionel would have obtained (roughly) that same relief on his federal
claim in the absence of the state claim. That is to say, in determining whether a
'discount' from the lodestar is appropriate, the district court should as an initial
matter apply the principles set forth in Hensley and here to the facts of this
case.
25
Finally, the appellees urge us to limit the fee award in light of the asserted
failure of the appellants' attorneys to submit adequate time records to the
district court. While we have insisted that such records be precise, see
Wojtkowski v. Cade, 725 F.2d at 130; Miles v. Sampson, 675 F.2d 5, 8 (1st
Cir.1982), we note that in this case the appellants did ask the district court for
the opportunity to submit more detailed records in the event the court decided
to award fees for work on some claims but not on others. Given this request, we
believe the appellants should have the opportunity on remand either to explain
why the existing records are adequate or to submit more detailed information.
26
The order of the district court is vacated, and this case is remanded for
proceedings consistent with this opinion.
Of the Central District of California, sitting by designation

Lionel Aubin v. Stanley Fudala, 782 F.2d 287, 1st Cir. (1986)

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782 F.

Lionel AUBIN, et al., Plaintiffs, Appellants,

United States Court of Appeals,

* The suit underlying this appeal is a combined 'federal civil rights/state

On December 8, 1982, the court entered judgments embodying these results.

Subsequently, when Lionel Aubin sought to collect his judgment, the

We conclude that Lionel Aubin is entitled to prejudgment interest--despite the

Our only uncertainty concerns the precise procedural device appropriate to

First, the extent of a plaintiff's success in a civil rights suit is a practical

damage award is small or nominal does not automatically warrant a comparably

Second, the district court's approach is inconsistent with Hensley v. Eckerhart,

Of course, we write on the assumption that the appropriate interconnection

Of the Central District of California, sitting by designation

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