Escolar Documentos
Profissional Documentos
Cultura Documentos
March 1, 1993
No. 92-1478
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
___________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
___________________
Shantee Monga and
_____________
Philip C. Curtis,
________________
appellees.
__________________
__________________
Per Curiam.
___________
The
plaintiffs/appellants,
Dharam
appealing an order
the defendants/appellees
amount of $301,709.56.
count complaint
of the district
attorneys' fees
Mongas are
officer
of that
complex.
1992,
trust
and
and Mr.
and
costs in
the
a multiple
1988, against
the
owner/occupants,
continuance
Mongas, in
pro se.
court awarding
filed by the
and
the
and two
business
individuals manager
that he
the
trial in February
Monga stated
of
an
request for a
was unready
for
trial.
to prosecute.
order of
dismissal, in May
Monga v.
_____
failure
1992).
Thus,
appeal from
1992, for
what is
want of
prosecution.
presently before us
is
subsequent, order
Mongas have
inter alia,
that the
filed an
extensive brief
contending,
is excessive
The
their
own
making,
however.
Although
they
had
the
in
the
-2-
opportunity,
they
failed
the Mongas
to
file
objection
any
making on
have, and
should have,
settled
been made
to the district
and oft-repeated
in this
court.
It
circuit that
is well
"issues not
on appeal."
F.2d
59, 64
Cir. 1991).
(1st
in
the
To the
Chandler, 948
________
point
is Blum
____
court
the
first
v.
failure to
accuracy
and
reasonableness
facts asserted
that
reasonable).
See also
________
Vinson,
______
raise
court,
924 F.2d
the
to
either prior to or
number
of
hours
billed
was
123, 125
any objection
that petition
(7th Cir.
the fee
1991) (by
petition
in the
failing to
district
ruling on that
issue of
fees on appeal).
____________________
1.
The
Mongas' complaint
otherwise unexplicated
reasonable
concerning the
endorsement
district court's
of the
fee petition
Having failed to
Mongas further
elucidation
order,
from
failed
the district
the deficiencies
length.
to ask
of
action,
for reconsideration
court
when
which they
as
it entered
presently argue
and
the
at
obligation
to seek
any relief
Beaulieu v.
________
have been
before seeking it on
case to
United States
_____________
find no
object below.
case
for
gross miscarriage
basis for
Mongas offer
avoid a
the exercise
of justice,
of that
power
here.
The
their failure to
failure
to prosecute,
they
continued settlement
negotiations2
indicated
with the
defendants and
that, contingent
agreement,
they
would
that the
upon execution
withdraw
the
defendants
of a
fee
settlement
petition.
No
characterization of
as
settlement
-4-
does
pending fee
were hoping to
not excuse
their
petition of which
promptly
and
defendants,
sought
including a
in connection
parties.
prior
In the present
opposed
with a
object to
the four
aggressively
to
Throughout
filed
by
for attorneys'
discovery dispute
instance, at the
motions
motion
by
the
fees
between the
of
respond
to
the petition
or
to
hold
the petition
in
present explanation
time.
implies that
they were
misled
nonetheless, there
fee
court's
our
determination
represented reasonable
circumscribed
themselves,
Mongas'
by
have
conduct
defendants' fee
resulting review
that
the
fees and
of
the
district
defendants'
request
costs would
necessarily be
the procedural
posture which
effectuated.
The
of
this
facts concerning
litigation,
petition, are
the Mongas,
outlined
unopposed and, in
in
the
the
any event,
-5-
They moved
an
to another judge,
which
was
denied;
whereupon
they
reconsideration, which was also denied;
moved
for
hasten
to
challenging discovery
add
that we
are
requests by an
-6-
not
suggesting
that
filed only
at the
risk of
penalization.
In these
prosecute their
complaint
the
by the Mongas.
appeal from
the order
effectively forecloses
Their
dismissing their
any present
in any of
failure
argument that
in a conclusion by a district
court,
attorneys'
authority
fees was
propounded
appropriate
by
the
(a district
defendant
upon
court
finding
under
defendants.
v.
EEOC, 434
____
can award
that
the sources
the
See,
e.g.,
___________
U.S. 412,
fees
of
to a
plaintiff's
421-22
prevailing
action
was
the plaintiff
continued to
litigate after
it clearly
became so)3;
(1991)
assessment of
litigant
(the
for
bad-faith
attorney's
conduct,
fees
such
as
2133
to sanction
delaying
or
____________________
3.
Similarly,
where
defendants' affidavit
the Mongas
that
failed
the hourly
hours attested
would
hard
be
discretion
in
pressed to
a
district
uncontested allegations
966
as
the
requested,
court
accuracy
it waives
is not
free to
and
See
___
court's
case).
or abuse
acceptance
of
personal knowledge
of
those
to do
so and
of
the
fees
the district
affidavits and
we
McDonald v. McCarthy,
________
________
disregard uncontested
were
error
reasonableness
its right
charged
this litigation,
plain
court's
as well.
challenge the
contest
rates
spent on
find
to
time expended
on the
on the
While
fee
award
comes
defined[,]"
target's
within
it
the
is not
homework
salvaging
or
the target
realm
of
"the court's
to
take
from the
self-indulgent lassitude."
21
reasonableness, broadly
job
heroic
either to
measures
do the
aimed
at
predictable consequences
of
____________________
4.
district
award
attack
court's failure
has placed
them
to
articulate the
"at a
the reasonableness
of
basis for
considerable disadvantage
the award"
is
to
disingenuous.
the
the
Their transparent
is unconvincing.
the district
request in full as
In
these circumstances, we
of the
See Richmark
___ ________
the district
findings on
to
consider
court
the twelve
when
is not
required to
factors which
calculating a
fee
make
it otherwise
award),
cert.
_____
Mongas
having
failed
to
preserve
for appellate
____________________
725 F.2d 127, 130 (1st Cir. 1984), we upheld the authority of
the district court to trim an inadequately supported fee
request, despite the lack of opposition to the request from
the losing municipal officers.
Compare also Weinberger v.
__________
Great N. Nekoosa Corp., 925 F.2d 518 (1st Cir. 1991), where
______________________
we found the inclusion
of a clear sailing agreement,
ancillary to a class action settlement, required heightened
judicial oversight.
-9-
court
order
of March
13,
1992
Costs
to defendants/appellees.
is, therefore,
We
deny their
affirmed.5
_________
request for
____________________
5. Although the Mongas' notice of appeal purported also to
appeal the May 1, 1991 order directing them to pay the travel
expenses of one of the defendants in connection with the
continuance from the original trial date of April 1, 1991,
that claim is barred from review.
First, the
order complained of
became final and
appealable upon
entry of the district
court judgment
dismissing the case for failure to prosecute. The Mongas let
their appeal from that judgment lapse in this court and we