Craig Chestnut v. City of Lowell

Torruella, Judge, filed concur- Circuit as to view claims, we take no but supplemental ring opinion. exercise should the court Came- claims. See those over jurisdiction and Judge, dissented Lipez, Circuit Cohill, 484 U.S. Univ. gie-Mellon Cyr, Senior Circuit in which opinion filed L.Ed.2d 720 joined. Judge, jur- pendent exercise (emphasizing discre- court’s is at isdiction Corp., 57 Mortg. v. Doral

tion); Rodriguez (similar). 1168, 1176 part, paH, reversed

Affirmed proceedings consis- further for

remanded parties shall opinion. All

tent with costs. own

bear their Plaintiff, Appellee, CHESTNUT,

Craig Defendant, LOWELL, OF

CITY

Appellant. 00-1840, 00-1996.

Nos. Appeals,

United States Court

First Circuit. 20, 2002.

Sept. Solicitor, with Sweeney, City E.

Thomas O’Connor, Assistant P. Christine whom appellant. Solicitor, brief for Elaine Whit- Sharp with whom S. Daniel Sharp Sharp and Sharp, Whitfield field brief M. Randy Hitchcock appellee. BOUDIN, (1)

Before Judge, Chief Ciavola used against excessive force SELYA, him; (2) TORRUELLA and Circuit Coyle, after having taken Chest- CYR, Judges, Senior Judge, Circuit nut into police custody, failed to protect LYNCH, him; HOWARD, LIPEZ and and Circuit improperly hired Judges. Ciavola, and retained who had an extensive criminal record (including convictions for

PER CURIAM. assault battery) was, and and at the time hire, subject of an active arrest EN BANC OPINION warrant for failure to appear court for Defendant violating (“City”), probation. Lowell his claiming immunity to punitive damages un- As the close, trial drew to a the district Concerts, der Newport Inc., v. Fact court held a conference with the attorneys 247, 2748, U.S. 69 L.Ed.2d May on 2000 to discuss jury instruc- (1981), appeals from a judgment of tions form, and the verdict which included punitive damages in a suit filed question on punitive damages. The (2000). U.S.C. A divided panel of court raised with counsel the appropriate- this court 29, 2002, affirmed on March ness of a punitive damages award under agreeing with the district court that section 1983. attorney Chestnut’s replied City’s objection had been waived. We va- that such an award appropriate, and cated the panel opinion pending rehearing City’s counsel did not respond to the banc, en now and reverse. The facts taken judge’s inquiry or take issue with opposing light hospitable most to the verdict response. counsel’s course, In due winner, Nat’l Ass’n Soc. Workers v. trial judge instructed jury, without ob- Hanvood, Cir.1995), jection, that it could award punitive dam- are as follows. ages against defendant, each including the City, as to the section claim. 7, 1997,

On February Craig Chestnut and his went Lowell, wife a bar in May On the jury returned a verdict City police Massachusetts. officers Steven for on both Chestnut the negligence and Coyle Stephen and Ciavola were pres- also section 1983 against counts Ciavola and ent when Chestnut became embroiled in a City. jury did Coyle find liable fracas. Coyle arrested and handcuffed count; on either it awarded Chestnut Chestnut bar, and him removed $750,000 $500,000 in damages: in whereupon Ciavola struck Chestnut in the damages against $40,000 the City, face, him knocked ground and Ciavola, $210,000 and kicked him the face. As a result of in compensatory damages against both of conduct, Ciavola’s violent Chestnut re- these jointly defendants and severally. quired fourteen stitches around right his The district court entered judgment, again eye, which is permanently damaged. This objection without injury impairs Chestnut’s long-range depth Finally awakening to its oversight of perception precludes and him from earning City May filed a living operator, crane as he did or, trial, a motion for a new in the alterna- previously. tive, $500,000 strike dam-

Chestnut filed suit under 42 ages. U.S.C. At a hearing motion July § 1983 together supplemental court, ruling from the law negligence claims bench, the City, City’s denied the motion. Although Coyle Ciavola, alleging inter alia that recognizing of punitive dam- quirements: error, plainness, prejudice, ages against municipality was indeed something light City Newport, error in the dis akin to it. City's

trict court found that the failure to interpose timely objection under Fed. The district court itself acknowl immunity. R.Civ.P. 51 waived its These edged error, plainness amply its is appeals followed.1 contrary Supreme demonstrated precedent point (namely, City relying upon "waiver," Court the district assuredly City Newport) court did not mean that the that has been on the books for twenty years. Prejudice knowingly relinquished over in the sense affecting City punitive damages; the final outcome is also obvi jury there is no evidence whatsoever that the ous: had the been instructed as to the City's immunity, certainly City's Newport. there almost counsel knew of $500,000judgment against judge clearly meant, would not be a Olano, today, although conceivably the term used in United States v. it might 725, 733, have somewhat increased the com 113 S.Ct. pensatory damages. (1993), L.Ed.2d 508 had "for- objection through ignorance appears feited" its This also to be the rare civil neglect. Although judges, many most case where the re- decisions, quirement Importantly, continue to use is met. the error situations, the term "waiver" to cover both plaintiff was caused as well as the important counsel, quite the distinction is in this case and defendant. Plaintiff's erro- we will follow Olano `s convention in this neously, represented to the district court instance. charge conference that permissible against object, a mu- Failures to unless a true waiver nicipality. negli- This does not excuse the involved, always subject are almost gence City's of the counsel but it does review for error. This is so even in responsibility mean that for the mistake is the case of instructions where Rule shared--a somewhat unusual circum- language suggests 51's current otherwise.2 stance. However, cases, even in criminal the re quirements plain error, Further, punitive damages, set out in Ola- even without itself, 732-36, plaintiff no 507 U.S. at is still entitled to full actual extremely demanding; damages, and in which in this case are substan- circuit, panel this it is rare indeed for a to tial. Nor need such be reduced by attorneys' Still, fees because under section find error in a civil case. separately case at first blush meets the Olano re 1983 such fees are awarded. 42 (2002); Cityoriginallyappealed 152 L.Ed.2d820 see also 1. The fromthe denial May 5, 2000, Wright Miller, of its 25 motion. On June 9A Charles A. & Arthur R. Procedure, 2558, FederalPractice& at 462 filedan additionalmotionfor a new trial ground (2d ed.1995). currently on the of inconsistentverdicts. That & n. 11 That rule is denied, being clear, motion was and the renewed its amendedto makethis reservation appeal. Advisory notice of motion is no The denial of the June 5 see Committeeon the Federal Rules longer appeal, at issue in this Procedure, Report of Civil of the CivilRules appeals and we consolidated these two Advisory (March 14, 2001, Committee62-68 August24, 2000. 31, 2001),bringing revisedJul. Rule 51 in line practice with the normal in the case of other by judicial 2. This is so construction in this errors, e.g., 103(d). Fed.R.Evid. Rennie, circuit. Davisv. (1st Cir.2001), denied, -, cert. - U.S. (2000). U.S.C. Punitive not find that the defendant forfeited her are, sense, in this a windfall—and one that immunity by procedural default, her but here would come at the expense of inno- rather denied relief on the lack of evi- cent taxpayers City, of the very ones dence. Id. at 17. We treated a late-filed for whose benefit City Newport adopted interposition of qualified the rule giving municipalities such an im- same fashion in Kendrick, Lewis munity. 458 U.S. at 101 S.Ct. 2748. Cir.1991). See also id. The main hitch with the plain error doc- at (Breyer, C.J., concurring).3 trine is that Newport described the protection against punitive damages as course, Of even if the doctrine of “immunity,” rather than aas “rule” forbid- plain error were not strictly applicable, it ding punitive damages. Accordingly, anas settled this circuit that “an appellate asserted, need not be one could discretion, court has case, an exceptional argue that the instruction was not “error” issues,” virgin is, reach to relieve a all, at let alone “plain state, error.” A party prior of a forfeiture. United States all, after can sovereign waive immunity. Guardia, v. La (1st 902 F.2d Certainly if counsel for had stood Cir.1990). Recently we perti described up said that City preferred to face Harwood, nent factors in 69 F.3d at 627- punitive damages, it hardly complain could 29 (relieving forfeiture of legislative immu if the judge took at its word. nity); most of those factors are present Still, this is surely a matter of form over and, here although this unlike Har- substance. For all practical purposes, the wood, does not involve a constitutional is error, district com! made an and the dis- sue, neither did Harwood disregard gov trict court itself acknowledged as much. erning and plainly applicable Supreme If the judge district had discovered New- Court precedent. See also United States port on own night her before in- Krynicki, (1st 291-92 Cir. structions, it is hardly likely that she 1982). The asserts we should would have punitive authorized damages. simply award, strike the And although a might sometimes holding the actual damages award intact. choose to waive sovereign immunity for Probably, jury’s actual damages award policy reasons, hoping to win on the mer- by uninfluenced its, large punitives; one hardly can imagine competent given but lawyer City bears much of choosing to protection waive against punitive blame for damages. uncertainty, we think on remand it should be plaintiffs option This realistic view is not prece without to have a new trial on actual Huard, dent. In O’Connor v. (but damages against the City not Cir.1997), denied, cert. Ciavola) trial in plaintiffs which attor (1998), 139 L.Ed.2d 636 —a neys’ will fees be borne the City. reviewed See 42 plain for error the defendant’s defense of U.S.C. qualified § 1988. The immunity, district court raised for set shall the first after entry time a time judgment. within which plaintiff may make In applying error analysis, we did such an election.

3. approach The that we have 1999) followed (examining Cir. a late-filed qualified immunity cases seems to accord qualified immunity defense on the merits un- See, with the approach in our sister circuits. standard). der the Oakland, e.g., Kelly City immune rule, municipalities general itas awards insofar judgment judgments when City is vacated from damages against 1983”). Although this dis- further for sued remanded matter is

and the it is may inconsequential, appear tinction inconsistent proceedings circum- light of the costs significant its own rather will bear Each side opinion. Supreme If the case. of this stances on this appeal. had held ordered. It is so municipality unavailable were suit, plaintiff would then (Concurring). Judge Torruella, Circuit he to sue complaint frivolous filing a destination same Though I arrive Fed.R.Civ.P. damages. such an alternative majority, choose 11(b)(2) in a the claims (requiring which, my route there —a get route by exist- “warranted complaint be party’s troubling view, conceptually less is both law”). However, Court’s ing existing prece- supported and better “immune” municipalities are holding that dent. § 1983 has damages under I do majority opinion, Contrary to Immunity, implications. different slightly can be resolved this case think that absolute, is an affir- qualified whether Taken doctrine. error on the relying forfeited, if not that can be defense mative of the prongs the first two together, manner, timely or waived. in a asserted appellant require error standard Parish Coun- Tangipahoa Cozzo v. See law error of an that obvious demonstrate Gov’t, 279 F.3d cil—President 732-36, Olano, at 507 U.S. occurred. Cir.2002) (5th immu- that (ruling absolute majority, parties, 1770. The 113 S.Ct. for- that is an affirmative defense nity is court are view and the district v. pleaded); if not Guzman—Rivera feited that such conclusion foregone it is a (1st Rivera-Cruz, Cir. F.3d be- Their steadfast here. error occurred 1996) (“Since affirma- immunity must be dis- assumption rests on lief failure to do follows that tively pleaded, it instruction, made which trict court’s defense.”); of the work as waiver so can damages available (2d Krzeminski, O’Neill directly City, contradicted Cir.1988) in- municipality’s (holding that a Ac- Newport. holding Court’s defendant with agreement demnification essen- them, Newport cording to immu- municipal its a waiver of constituted proposition for the tially stands Milwaukee, defense); Bell v. nity are unavailable Cir.1984) 1205, 1271-72 § 1983. municipality under statute indemnification (holding however, belief, Notwithstanding their municipal defense waived that punitive held Newport never City of Thus, judgments). to indemnified respect § action in a damages are unavailable a limitation unavailability implies whereas Su- municipality. against a in the immunity, altogether, is municipality “a ruled that preme Court sense, can be defense that is a doctrinal from immune or waived. forfeited Newport, 1983.” Saldaña-Sánchez, fact, we allowed added); accord (emphasis a mu discovery against to seek plaintiff 256 a Lopez-Gerena, Saldana-Sanchez had city claim that the on the (characterizing nicipality 1, 11 un immunity defense municipal its “as a waived holding that Newport as City of §der 1983. 256 F.3d at 11-12. Our hold than Rather delving into an abyss of ing explicit rested on the assumption that implausibility, hold firm to the view that municipal immunity set forth in City the district court did not commit plain an affirmative is defense can instructions because the be waived. See at 12 (noting id. that City assert, failed to likely and thus for- precedent supports the view waiver of feited, its affirmative defense of municipal the municipal immunity defense possi from punitive damages. ble). Moreover, questioned The majority contends that “this [argu- city had forfeited its municipal immu is surely ment] matter form over nity by failing to assert it at or substance.” The majority before trial. elaborates on See id. Saldaña-Sánchez point by offering thus permeable hypothetical: demonstrates how if munici pal immunity night before the jury damages under instructions were be, given 1983 can both in terms of the district court judge forfeiture had discover- and waiver. ed the City Newport opinion, “it is hardly likely that judge] [the would have In the instant pled never authorized damages.” I respect- an affirmative defense of immunity in its fully disagree and offer a derivation of the answer and did not raise this defense at majority’s hypothetical to my demonstrate summary judgment or trial. City’s point: if night before the jury failure to instruc- do so can reasonably be viewed tions given, district See, a forfeiture of that court judge defense. e.g., Guzmán-Rivera, obtained complete description F.3d at 667 (holding the government is, that failure of a the law-—that official to discovered the timely assert an municipal affirmative “immunity” defense of to punitive damages qualified immunity 1983 at set forth in City trial Newport and learned would forfeit the defense for trial pur about opinion Saldañar-Sánchez, our in poses). I therefore cannot conclude that which explicitly discusses how the City of the district court committed error in Newport immunity can defense be waived charging the or forfeited —I am convinced that were available the City. To hold judge have would instructed the otherwise would require adopt me to two punitive damages available, were since the seemingly implausible (1) propositions: to assert failed its immunity defense the Supreme Court’s holding in at any stage of litigation. perfectly was clear that no Notwithstanding my unwillingness to punitive damages are ever available under error, find I believe that there is an 1983; (2) Saldaña-Sánchez, alternative, and principled, more ground supports which the proposition that munic for striking damages award ipal immunity forfeited, can be was so Ordinarily, party a obviously who incorrect aas matter of law fails to raise a claim the district or a in court should not have relied it. district prohibited See court is generally from unveiling v. United States Tur- man, 122 it in F.3d 1171 the court of appeals. See United (“If Slade, States v. judge would have to be 30 Cir. 1992). clairvoyant to detect the error ... “This rule is embedded in deeply is not plain and defendant our ob must jurisprudence, we have invoked it ject as a condition having for it a considered with near-religious Harwood, fervor.” on appeal.”). (internal omitted). 69 F.3d at 627 citations $500,000 dam- excep- immune of an speaks rule

However, every issue, legal purely In ex- award is a ages different. is no tion, one and this cf. Hanvood, (discussing a prevent F.3d at 627 and to circumstances ceptional “purely re- may legislative this Court justice, issue of miscarriage of necessary timely nature”), failure and the record from his party legal lieve See, e.g., no further. developed defense. affirmative it can be assert an to resolve Francisco, F.3d Guardia, at 1013 Hosp. San Correa La (1st Cir.1995); La generally see (“[Whether] can be point resolved (holding that Guardia, F.2d at ... existing [is] record on the certitude discretion, in an has court appellate “an to enter- inclines a court that often factor issues”). virgin to reach exceptional first time pivotal argument tain Second, issue is the omitted appeal.”). Harwood, merits of we reached is, City is if the highly persuasive though even immunity defense legislative —that municipal to raise allowed raise the issue failed to the defendants undoubtedly prove victo- defense, it would We F.3d at 627-29. court. 69 district given the untimely rious on issue to reach appropriate found it (1) Newport. holding City the omitted because: Court’s immunity issue (2) nature; legal purely issue was Third, not suffer would Chestnut of constitu- raised an issue proffer belated prejudice special or inequity procedural (3) argu- the omitted magnitude; tional Plaintiff address issue.4 we to (4) there persuasive; highly ment was his brief issue in the omitted addressed special prejudice inequity no argument. claims at his oral and set forth to be the defense allowing plaintiffs Wulff, 428 U.S. Singleton Cf. (5) the appeal; first time on raised for (dis (1976) 49 L.Ed.2d inadvertent; and entirely omission seemed determining wheth importance, cussing a matter of implicated issue the omitted issue, ensuring reach omitted er to id.; also see concern. See public great opportu party “ha[s] opposing (allowing 689 F.2d at Krynicki, legal arguments nity present to whatever appeal on virgin issue raise a party to appeals). court of to the may he have” (2) (1) purely legal; the issue was because weighs Thus, absence of unfairness the highly persua- was argument the omitted omitted issue. addressing the of favor (3) likely to sive; the omitted issue its Fourth, City’s failure to raise the cases; the and other again arise entirely immunity defense seems municipal would result the issue to address failure had the omission Although inadvertent. justice). of miscarriage a the prolonging effect of regrettable are these factors I believe Because any advan- trial, tactical produce it did not in this adequately represented more than to the tage defendant. City’s failure case, I excuse would Fifth, importantly, most perhaps be- immunity defense municipal raise its City’s municipal the failure address be First, City should whether low. Hm~wood, (stating 69 F.3d at stripped of his issue. be Though plaintiff 4. would any “special suffer plaintiffs would not City is allowed if the addressing the omit- inequity” prejudice or municipal defense its assert issue, reaching the despite fact that type contem- ted appeal, prejudice is not injunction that appeal meant issue we examine plated by this factor. would court in the lower plaintiffs obtained proce- plaintiff suffer would vacated). omitted address the if dural unfairness Hence, $500,000 jury in a mis- awarded in puni- would result immunity defense damages against justice. “[P]unitive carriage likely ... municipality a imposed on that, No one disputes a an increase in taxes or accompanied Newport, could have avoided such for the citizens public services reduction But easy award. avoidance does Newport, 453 the bill.” footing justify relieving of the conse- It 2748. is convolut- at S.Ct. U.S. quences of mistake. its Whether we treat the burdens of impose ed and unfair to City’s oversight as a failure to raise tax- damages award on the same the affirmative defense of and citizens for whose benefit payers object immunity, failure to to a being chastised. See id. wrongdoer was instruction under Rule we must affirm in- taxpayers for the Punishing blameless jury’s verdict unless we conclude that City’s attorney simply eptitude of the allowing punitive damages award to considering that the tax- unjust, especially “miscarriage stand would constitute position are in no to deter similar payers justice.” today, Until we have reserved in the future. negligence “extraordinary” label cases. Teamsters, Local v. Superline No. 59 converge all of these factors Because Co., (1st Cir.1992). Transp. favor, City’s City’s I would excuse the Indeed, it appears that we have never defense be- failure to assert before found to address the merits of proceed low and involving civil faulty case instructions. City Newport, In the Su- the defense. Rennie, See Davis v. that mu- preme unequivocally held Cir.2001). The circumstances of this dam- are immune from nicipalities no reason to from that give depart case us ages in 1983 actions. U.S. Therefore, I practice. respectfully settled can advance no 2748. Chestnut dissent. any, I cannot conceive of argument, and basis, I proposition. attack this On this I. City’s pre- find that would majority concurring opinions damages award in this cludes the support cite several factors to their conclu- damages. and I would strike those allowing sion in the outcome of the therefore concur award to stand would result a miscar- majority opinion. view, fac- riage justice. my those in individually tors —either combina- CYR, LIPEZ, Judge, Circuit with whom miscarriage a of tion—fall far short of joins, dissenting. Judge, Senior Circuit justice. impulse grant I can understand Taxpayers A. Innocent plain Together, relief to the here. concurring majority and counsel for the Both the and the

tiffs counsel pu- opinions emphasize affirming well-established that recognize failed to unjust damages award would be be- principle governmental that local entities nitive punish taxpayers. under cause it would innocent punitive damages are immune from 267, 101 City Newport, v. Fact 453 U.S. at U.S.C. 1983. of Concerts, Inc., 247, 101 2748. Those references to innocent S.Ct. S.Ct. (1981). 2748, multiple meanings. very taxpayers 69 L.Ed.2d 616 A able seem to have are innocent in the sense judge taxpayers trial also missed the mistake. The review. subject error other case conduct engage they did so established to There are few tenets well are intended damages Instead, proposition jurisprudence as taxpay- American deter. punish of its by mistakes from that a client is bound to be deterred need do not ers—-who See, Dept. Irwin v. e.g., the mis- pay for chosen counsel. future misconduct—must The tax- Affairs, actors. Veterans U.S. governmental deeds of (explaining in the sense L.Ed.2d 435 innocent are payers also liti litigation representative mistake in system “our make that in they did not bound party in the ... each is deemed gation resulted made Instead, mistake was Hoult v. lawyer-agent”); of his award. acts (“We (1st Hoult, counsel. City’s by the the acts and held that repeatedly have argument innocence Both versions customarily visit of counsel are omissions version, focus- The first prove too much. (internal in a case.” the client civil upon ed deterrence, simply on the absence ing omitted)). re Plain error marks quotation invoked policy a reason a restatement exception general to that view offers for the rule Obviously, extraordinary rule for cases. immune from are municipalities particularly error standard —and policy If that rea- § 1983. damages under not be that relief will requirement justice miscarriage of into a translates son “miscarriage jus a absent available are every case where simply because satisfied tice”—cannot be municipality, a against wrongly awarded (or ulti those who complaining party multi- of a pretense no should there costs) by its will be harmed mately bear its Certainly, cases. analysis such factor hold otherwise mistake. attorney’s distin- To does not innocence this version of justice miscarriage of deprive another. would such case guish one in the any meaning, except requirement of level, the inno- basic more an even On caused where the error was very rare case the victim always be will taxpayer cent party itself. by the large in a at trial results when some mu- (or tax- to innocent larger) the harm simply, Put entity. governmental or other harm nicipality is no different payers here recog- prepared are Thus—unless occur whenever will to our exception local-government nize a munici- erroneously awarded default —the procedural governing rules government or when pality taxpayers will bear innocent fact that mere costly blunder. While makes counsel suffice City’s error cannot the brunt of the unfortunate, not constitute harm does such here.5 miscarriage to establish that necessi- circumstance[ ]” “peculiar a clear “prevent tates order relief ar- of the innocence version The second Sylves- justice.” Nimrod defect from a similar gument suffers Cir.1966). ter, case from distinguish this failing to- $100,000 statutory damages cap in view, courts in that federal 5. Consistent with $157,000 public ver to until after refused allow suit have discrimination other contexts d rendered, de- belatedly right to raise affirmative that entities to was forfeite dict notwithstanding impact States, damages, defense); fense to Ingraham v. United See, Bentley e.g., taxpayers. Cir.1987) on innocent (5th (barring govern Comm'rs., County County Bd. Cleveland cap raising statutory belatedly ment (concluding damages). malpractice medical having affirmative county, failed to raise B. Windfall to Chestnut C. Responsibility Shared for the Er- ror majority The opinion states that The majority emphasizes that Chest- justified

court is in affording relief because nut’s counsel played a role in causing the damages award was a “wind- error —a circumstance that it describes as Chestnut, fall” for meaning, gather, “somewhat unusual.” I see nothing unusu- those damages unnecessary were to com- al in such shared responsibility. In the pensate him fully. That assertion process of assisting the judge with jury grounded in speculation. We cannot know instructions, parties routinely submit how would have treated the com- them proposed instructions. Not uncom- pensatory damages question had it had monly, one party fails to see an error in been aware that damages were the other party’s proposed instructions un- unavailable. til after an unfavorable verdict. The ob- clear, thing One is very however. This jection raised, is then subject to plain er- runaway was not a jury. To contrary, ror In circumstance, review. both presented Chestnut detailed evidence of parties share responsibility for the error. pay differential between his income as However, until today, that fact has not operator crane mechanic, and as a crane entered the miscarriage analysis. including expert testimony from an econo- fairly reason is In simple. any case who placed mist past his eco- future involving plain review, error the appellant $880,000. nomic damages at That expert will argue that the court below made an prepared report into admitted error so plain that was or obvious that it regarding evidence present value calcula- should be corrected notwithstanding the tions of Chestnut’s economic damages un- litigants’ to point Therefore, failure it out. der various assumptions. as a matter of simple logic, it cannot possi- bly enough that opposing counsel failed

Thus, considered in combination with to call the court’s attention to a clear legal compensatory award, pu- error or even said affirmatively that there nitive well within range was no error.6 That will be true in any of the compensable injury Chestnut sought case that it past makes prong the first to establish at Only by trial. ignoring test; error something more is reality can suggested, it be as the majority needed order establish miscarriage does, the compensatory damages justice. Chestnut probably was “uninflu- enced large punitives.” In being addition to inconsistent with availability absent the damages, standard, well-established jury may well have awarded Chestnut majority’s reasoning is also unfair. substantially more in compensatory dam- our adversary system, counsel for ages. We should be most reluctant to had obligation to understand the law grant relief on the basis of an alleged effectively advocate for its client. It windfall when we are unable to determine equate seems odd Chestnut’s mistake whether —and to what extent —it actually with negligence To do so occurred. unjustly penalizes failing Chestnut for 6. There suggestion is no in the record court. knowing If there was such a misrepre- sentation, knowingly Chestnut's counsel misrepresented entirely this would be an different availability punitive damages of to the case. from prevent to courts immunity is City, adver- of the his interests

protect that are constitu- precincts into intruding litigation. sary branch.” legislative to the tionally reserved Precedent D. Thus, emphasized we n. 6. 69 F.3d at 628 immu- legislative of omitted issue grant of justify to attempt In a final great public of matters nity “implicates Nat'l Ass’n here, majority cites relief moment, policies as basic upon and touches Harwood, Workers Social of for the federalism, comity, respect and as Cir.1995). here, There, gave we institutions.” of democratic independence governmen of a benefit appellants necessary, we ex- was Id. at 628. Relief failure notwithstanding their immunity tal intrusion of plained, prevent to that is trial. But defense at raise that to opera- internal into “the judicial branch appellants ends. parallel where at 629. Id. legislature.” of a state tions and the legislators, were state Harwood tardily invoked they affirmative . concerns separation-of-powers No such kind immunity. That legislative state was faced we are here. implicated are notably different immunity is of harm of “individualized only the sort damages at issue immunity to the failure season- whenever that occurs here. alters the a claim or defense ably to raise at 628 n. 5. That is a case.” Id. outcome of immu-

First, legislative recognizing relief under the to warrant enough doctrine, in constitutional nity grounded is Id. “miscarriage justice” standard. that “[w]hen we noted Harwood legisla- initially recognized Justices II. federal component as a tive sum, majority’s invocation of In law, Speech to the they turned common Const, on innocent emphasis I., § art. cl. Harwood —like [U.S. Debate Clause “windfall,” so-called taxpayers, of the Chestnut’s the contours guidance anent for 1] the er- Hanvood, responsibility shared at 629. The and his doctrine.” this case as qualify to ror —is insufficient “an issue raised fact that the defense miscar- as a extraordinary, or its result among the was magnitude” constitutional itself, That, enough justice. riage in decid- into consideration we took factors But there is more. here. relief foreclose legislative’ ing to consider strongly factors counsel other Several defense, notwithstanding procedural relief in this case. contrast, granting at 627. Id. default. immunity to Newport municipal First, proce- emphasis it bears defense, common law purely is a particularly misstep by the dural consider- history policy and grounded out The rules set egregious. City Newport, ations. immunity from governing Newport, (“In sum, we find 261, 101 S.Ct. 2748 trap for the hardly damages, do not history policy considerations contrary, had— unwary. To municipality support exposing in- opportunities ignored repeated — of its actions for the bad-faith made his immunity. Chestnut voke that officials.”). explicit to seek intention in two subse- and then complaint in his Second, in Harwood explained City nev- complaints. The amended quent defendants to relieve our decision an- in its affirmative defense pled er was “fortified default procedural their swer purpose primary that a recognition our

and did not raise its defense to punitive conceivable opportunity to oppose pu- the damages at the pretrial conference. nitive damages claim and jury the related instruction.

During charge the conference conducted prior closing to arguments, Second, “[i]t counts heavily against find- court asked specifically counsel ing plain error that the party the other punitive damages were against available side would be unfairly prejudiced.” Id. City. the Yet again City faded to assert Were we simply to vacate the punitive Danco, its immunity defense. award, Inc. v. damages it is likely that Chestnut Cf. Stores, Inc., (1st Wal-Mart 178 F.3d prejudiced. would be above, As explained Cir.1999) (deeming it “plain material to the availability punitive damages may inquiry error” legal “specifi issue was well have affected the compensatory dam- court). cally discussed” before trial Fol ages award made the jury. Conse- lowing conference, the charge the court quently, had damages not been an recessed for a lunch break prior to enter option, jury might very well have de- taining closing arguments, thereby provid upon termined larger compensatory ing counsel with another opportunity damages to award. the proposed jury

review and con charge In order to forfend against prejudice duct any legal suggested research thereby. problem, the majority refuses strike the During closing argument, Chestnut award, opting instead for urged to award a new trial on the issue of damages should object. did not Chestnut pursue choose to that option. Then, the district court furnished counsel Although its approach surely just, more form, verdict which explicitly pro- it is not without its own difficulties. The for punitive vided damages against the City sought alternative relief from the trial City. Still the City objected (i) neither to the court: either verdict form nor asserted its stricken, award be leaving place only against any award of damages, (ii) compensatory damages, or a new though even the proposed charge included appeal, however, trial. On has explicit instruction authorizing abandoned request for alternative re- to consider a punitive damages lief, opting instead for its all-or-nothing the City. Finally, although jury strategy by requesting that we strike the deliberations did not commence until the punitive damages award on the ground day, next which assured that had availability of such damages af- yet more time to examine proposed fected presentation neither the of Chest- charge and verdict form and undertake nut’s case nor amount of compensatory legal whatever might research required, awarded the jury. object nevertheless failed to Although we frequently permit appellees proposed punitive-damages instruction. preserve trial their court judgments by “miscarriage

A justice” claim merits affirming apparent basis little credence on appeal where the desired record (thereby furthering the interests relief was so obviously and readily see, avail- finality), e.g., McGurn v. Bell Micro able view, trial court. In my Inc., (1st products, Cir. “miscarriage justice” 2002), entails a measure consistently have appellants held of fundamental unfairness. There is no the arguments raised and the relief here, however, such unfairness given see, sought, e.g., In re Jury Grand Pro counsel for every accorded ceedings, n. 1

30 argument abandoned III. to consider

(declining hand, Here, on the other appeal). on This is an awkward to be sure. verdict undoes majority, sponte, sua punitive damages issue should Moreover, in new trial. so by ordering a jury, presented have been reaches out to relieve doing, again it once against City punitive damages award City of its fundamental mistake —its plainly contrary ques- to law. Yet the appellate of an ineffective strate- selection presented tion with which we are is nei- according sought by relief not gy by — ther whether the award amounts to appeal. at the outset of this City error, nor whether the interests of the Instead, City adversely affected. Finally, precedents, our established issue is whether there was a circuits, plainly prescribe and other own justice punitive damages of such that the immu municipalities may forfeit their award must be set aside. For the reasons damages claims nity defense to above, stated I conclude that no such mis- litigation § due to their con 1988 no carriage of occurred. As see instance, in v. duct. For Sáldaña-Sánchez City to relieve the of the conse- reason 1, 256 F.3d 11-12 Cir. Lopez-Gerena, conduct, quences litigation of its 2001), recognized that the defendants’ award should stand. Newport may have right to raise procedural grounds. been barred on Simi 181, Stephens, in Black v. 662 F.2d

larly, (3rd Cir.1981), n. 1 the Third Circuit § punitive damages award

affirmed Allentown, having after America, UNITED STATES of city declined to allow the assert Appellee, failure to do Newport defense due to its also Barnett so in the district court. See v. Atlanta, Housing Auth. 707 F.2d ADAMS, Defendant, Robert J. (11th 1571, (declining to 1579-81 Appellant. object of failure to to the appellant relieve No. 02-1007. punitive damages submission of jury, affirming punitive issue to the Appeals, United States Housing Atlanta award First Circuit. “procedural Authority on account 1, Aug. Heard 2002. default”), grounds, overruled on other 20, Sept. Decided 2002. Pate, 1550, McKinney v. 1558-59 (11th Cir.1994).7 I can discern no sound following a different

reason for course

the instant case. 431, (8th 1986) (en banc), Butler, Butler, 802 F.2d 296 Cir.

7. But see Williams (8th 1984) (affirming nom., Cir. district court grounds vacated on other sub decision to set aside Williams, 485 U.S. Little Rock v. object despite failure to (1988), 99 L.Ed.2d 264 on remand trial), reh'g, instruction Butler, 863 F.2d 1398 Cir. Williams v. (8th Cir.1985) (en banc), vacated on 1988) (en banc), denied, cert. Little nom., City grounds other sub Little Rock v. Williams, 492 U.S. 109 S.Ct. Rock v. Williams, (1989). 106 L.Ed.2d 565 (1986), remand, L.Ed.2d 909 Williams v.

Case Details

Case Name: Craig Chestnut v. City of Lowell

Court Name: Court of Appeals for the First Circuit

Date Published: Sep 20, 2002

Citation: 305 F.3d 18

Docket Number: 00-1840, 00-1996

Court Abbreviation: 1st Cir.