*1 H pursuant petition court to 28 via U.S.C. This allows the district court 2255. § wishes, hearing, reviewing if it hold a after post-trial procedure the trial record. The protects a defendant because it ensures decision, objective him of an reasoned during made the heat of one trial.
Because, however, defendant wishes to forego procedural the 28 U.S.C. requests ruling route and from us on his performance claim that his counsel’s trial incompetent
was so deprive as to him of right constitutional cause the to a fair trial and be- government has briefed the is- sue, we will now rule on defendant’s claim. complete Based on our and careful re-
view of the giving record and due defer- findings ence to the of the district court on issue, this we find that there is no merit to
defendant’s claim. petition rehearing denied. CORDERO, al.,
William et
Plaintiffs, Appellees, JESUS-MENDEZ, etc., al.,
Juan De et
Defendants, Appellants.
No. 90-1364. Appeals,
United States Court of
First Circuit. Sept.
Heard 1990.
Decided Dec. *2 Smith, P.R., Rey,
Paul B. Hato with Cruz, P.R., Bayamon, Hector Rivera whom Justice, Secretary of Puer- Com. Perez-Diaz, Rico, Jorge A. Sol. Gen. of Rico, Ramirez, Puerto Vanessa Asst. Sol. Saldana, Gen., Rey Manuel Alvarado of P.R., brief, Alvarado, Rey, Hato & were defendants, appellants. P.R., Gonzalez, Aguadilla, Israel Roldan plaintiffs, appellees. SELYA, Judge, Before Circuit Inc., Systems, Color 83-84 COFFIN, Senior Judge, Cir.1984). Circuit BOWNES, Judge. Senior Circuit do not challenge gov Plaintiffs erning They law. seek to avoid it on the
BOWNES, Senior
Judge.
Circuit
*3
ground that
appellate
we have
jurisdic
no
tion
This
because of
appeal
is the second
in
defendants’
this
1983
failure to file a
§
timely appeal.
action
In order
political firing
of
to
this
number
understand
contention, we
of
must track
employees
Municipality Moca,
paper
the
of
of
trail
motions and
prejudgment
orders on
Commonwealth of Puerto Rico. Pur-
inter
est. The first
by plaintiffs
suant to our
motion
pre
decision on the first
judgment
interest
8,
case was remanded
was filed on
for a
trial on
October
new
1986, the
day
after the
Jesus-Mendez,
Cordero v. De
en
was
(1st
tered after the
Cir.1989).
867 F.2d
first trial.
Plaintiffs
second trial
did not
request at any
prior
was held.
time
The issues now
to the
before us in-
submission
of the case
volve the
to the
that
prejudgment
addition of
interest
instructed to
by the
determine whether
jury’s
pre
district court to the
to
verdicts
add
any
to
compensatory damages,
of
interest
of
post-judgment
compen
award
satory
interest,
damages might
it
attorney’s fees
return. On
and interest on
Octo
24, 1986,
ber
the court
attorney’s fees.
ruled on the motion
by stating,
regulated
law,
“interests are
by
by Jgmt.”
not
There
objection
was no
by
I. PREJUDGMENT INTEREST
defendants either to the motion or the
There can be no doubt
that
this
court’s
5,
order. On
November
circuit the decision to award prejudgment moved that the court reconsider its order of
question
interest
ain federal
case lies with October 24.
12,
The court did so on March
province
the sole
and
of
discretion
1987;
granted
it
plaintiffs’ motion
pre
jury. Carey
Lines,
v. Bahama Cruise
864 judgment interest. No rate or amount was
201,
(1st Cir.1988);
208 n. 6
Robinson
specified.
objection
No
was
by
filed
defen
Inc.,
v. Watts
Agency,
Detective
685 F.2d dants. Defendants then appealed from the
729,
(1st Cir.1982),
denied,
741-42
cert.
459 judgments entered after
the first
trial.
U.S.
103 S.Ct.
question
prejudgment
of
interest was
953,
L.Ed.2d
(1983);
use of
filed,
complaint
April
procedural
was
reasons. We
date the
substantive
deposit
point
when the
first
out that
we remanded in
to the date
because
damages,
compensatory-damage
the first
for a new trial on
balance of
by defendants,
any
prejudgment
May
prior order on
interest
award
made
was
pre
wiped
was
out.
It was .the second trial on
with a total
interest,
is correct.
that controlled
issues affect-
damages. Secondly,
ing the amount of
defendants moved under
February
On
there was no determination of
amount
59(e)1
prejudg-
amend the
Fed.R.Civ.P.
until the court or-
ground
that it
ment
order on
February
der of
1990.3 Defendants’
contrary
circuit law. The court
*4
59(e)
objecting
prejudg-
Rule
to the
motion
12, stating:
March
denied the motion on
23,
February
ment interest was filed on
closely
the fact that we
“Be mindful of
ten-day requirement
within
of the rule.
your
followed
own admitted calculations as
denying
The order
the motion was entered
(letter
ruling
'of Jan.
a bases
for our
[sic]
12;
appeal
on March
notice
defendants’
of
2
18, 1990),
#
dkt.
251.”
11,
30-day
April
was filed on
within the
1990,
11,
April
defendants filed a
On
filed,
appeal period.
appeal
timely
The
appeal.
notice of
jurisdiction
we
to hear
have
it.
appel-
contention that we lack
Plaintiffs’
to an
The substantive obstacle
prejudg-
jurisdiction
late
on
issue of
prejudgment
award of
is insur
simple premise.
interest is based on a
ment
not,
Plaintiffs did
in either tri
mountable.
granted plaintiffs’
motion
district court
al,
question
prejudg
that the
request
of
12,
prejudgment
interest on March
jury;
ment interest be submitted to the
nor
objected
1987. Defendants neither
to the
they
jury
did
ask for a
instruction on it.
granting the motion nor
court’s order
98,
Bishop,
F.2d at
is di
Furtado v.
604
appeal.
first
raised it as an issue on the
question
rectly
point:
pre
on
“But the
of
Ergo,
the order stands and defendants’
not submitted to the
interest was
present appeal is
under Fed.R.
time-barred
jury,
plaintiffs
jury
nor did
ask that the
be
4(a)(1)
requires that the no-
App.P.
which
Consequently,
instructed on it.
the award
days
tice of
filed “within 30
after
be
prejudgment interest must
stricken.”
of
entry
order
the date of
or
Plaintiffs,
generous-
Although
explicitly
as an
appealed from.”
most
not
raised
59(e)
issue,
intimated
ly,
willing
plaintiffs
are
to construe the Rule
have
that defen
23, 1990,
February
object
ob- dants’ failure to
to the motions and
brought
motion
jecting
prejudg-
prejudgment
the determination of
orders on
interest and de
18, 1990,
60(b)
January
Rule
But
fense counsel’s letter of
ment interest as a
motion.
one-year
plaintiffs’
agreeing
under the
to the rate
they insist that even
counsel
motion,
bringing
prejudgment
a
interest constituted a waiv
period allowed for
such
jury
filing
expired
requiring
had
it is
er of the rule
to decide
the time for
because
1987,
12,
prejudgment
the date
the order allow- whether
interest should be
March
interest,
over-
ing prejudgment
that controls.
added to its award of
This
59(e)
general
a
becomes
1. Fed.R.Civ.P.
states: “Amotion to alter or
3.“The
rule is that
appealable
shall be served not later
amend
than 10
the court
final and
when
enters
days
entry
judgment.”
matter,
after
resolving
leaving
decision
the contested
nothing
except
judg-
execution of the
to be done
2.
referred to in the order was from
The letter
Lybrand
Livesay,
Coopers
ment.
&
437 U.S.
plaintiffs’
defense counsel to
counsel dated Jan-
2454, 2457,
S.Ct.
98
18,
uary
pertinent part:
in
It stated
States,
229,
(1978);
Catlin v. United
Compensatory damages awarded in the
C.
(1945).”
S.Ct.
The award of
interest must be
United States v. Michael Schiavone &
stricken.
Sons, Inc.,
(1st Cir.1971);
450 F.2d
We are troubled
the conduct of both
Lines,
Moore-McCormack
Inc. v. Ami
regard
busy
counsel
to this matter. A
rault,
(1st Cir.1953).
judge
rely
present
trial
must
on counsel to
*5
parties disagree
on the date from
law,
facts,
as
accurately.
well as the
post-judgment
which
interest should accrue
adversary sys-
That is the essence of our
appellants’ deposits
whether
with the
justice.
judges simply
tem of
Trial
do not
partial payment
district' court in
every
have the time to research the law on
judgment should
prin-
be excluded from the
case, particularly
lengthy,
issue in a
in a
cipal
calculating post-judgment
when
inter-
one,
complex trial such as this
which
est.
presented
plethora
legal questions.
a
pre-
Plaintiffs’ counsel filed a motion for
On October
the district court
that,
judgment
although
explic-
interest
not
judgment
entered a
itly
stating, suggested
so
that this
awas
$616,787 compensatory damages,
includ-
judge’s
matter for the
sole detérmination.
($3000)
ing
pay
per plaintiff
back
and $100
object
Défendants did not
to it. The dis-
punitive damages.
On November
court,
therefore, probably
trict
assumed
$23,783
appellants deposited
with the
right
prejudgment
that it had the
to add
partial
district court
satisfaction of the
damages
to the
awards. Some-
day, Mayor
The next
De Jesus-
line,
along
where
defense counsel
contempt
Mendez was incarcerated for
judge
should have informed the
what the
6, 1987, appellants
court. On November
law in
prejudgment
this circuit was on
in-
$212,803.23
deposited
pro-
with the court to
rights
in a
very
terest
civil
action. At the
Mayor’s
cure the
release.
least, the
matter should have been noted
defense counsel in the course of the first
$236,586.23
point, appellants’
At this
de-
appeal.
plaintiffs’
Nor is
counsel free from posit
Although appellees
sat idle.
had con-
blame. He should have known
what
they urgently
vinced the district court that
prejudgment
prior
law on
interest was
pay, appellees
needed their back
did not
properly
the first trial. He could not
con-
ask
court to-disburse or invest the sum.
press
tinue to
for
money
was neither disbursed nor de-
judge, hoping
from the
that defendants
posited
interest-bearing
in an
account.
asleep
would continue to remain
on the
damages
vacated the
On
we
until,
issue
after the time for
had
$616,787
award of
and remanded the case
expired. Lawyers
only
duty
have a
for a
trial on
new
Cordero De
clients; they
their
are officers of the court.
Jesus-Mendez,
award We did not Rule 37 of the Federal original finding liability. Appellate requires disturb Rules of Procedure that: trial, At the second awarded law, provided by Unless otherwise if a $307,- compensatory award of judgment money in a civil case is 239.31, approximately original half affirmed, whatever interest is allowed upheld previ- award. The district court payable law shall be from the date the punitive damages per ous award of $100 judgment was entered the district plaintiff. Judgment April was entered If court. is modified or re- 14, 1989. versed with a that a direction money be entered in the district May appellants deposited On $70,653.08, court, with the district court the dif- the mandate shall contain instruc- recomputed compensa- ference between the respect tions with to allowance of inter- tory award and the sums on de- est. posit Appellees with the district court. seemingly straightforward These moved for disbursement of the funds on provisions engendered litigation have much 9, 1989; May August and on judgment, over the first or the sec which court ordered that the be dis- ond, begins interest accrual where a first appellees. bursed to appeal. is modified or vacated on February On the district court general, In where a first lacks an punitive damages announced a modified basis, evidentiary legal or $2,800 appellants award of and ordered interest accrues from the date of the sec pay compensatory damages interest on the judgment; original judg ond where the ($307,239.31) accruing April award from basically ment is sound but is modified on *6 complaint the date the in this case remand, post-judgment interest accrues filed, May appel-
was
the date
judgment.
from the date of the first
paid
compensatory
lants
the
of the
balance
damages
Supreme
recently
award.
Court
held that
judgment
legal
where a first
lacked a
basis
ruling
Appellees
This
was incorrect.
are
necessary
and a second trial was
interest;
they
not entitled to
damages, post-
introduction of evidence on
post-judgment
are entitled to
interest ac-
judgment interest should accrue from the
cruing
judgment
the date of final
from
judgment:
date of the second
Furthermore,
payment.
the date of
the
erroneously
district court
failed to exclude
[wjhere
judgment
the
was
deposits
the
made in the district court from
evidence,
supported by
the dam-
post-judgment
the sum on which
interest
ages
any
have not been “ascertained” in
should accrue.
meaningful way. It would be counterin-
tuitive,
least,
say
to believe that
a. Date
Interest Accrual
Congress
postjudgment
intended
interest
Post-judgment
to be calculated from such a
jury’s
interest on the
Co.,
award should
calculated “from the date
See
v.
865 F.2d
be
FDIC
Rocket Oil
(CA10 1989)
entry
judgment.”
(postjudgment
of the
of the
28 U.S.C.
trial,
jury
compen-
computing compensatory
4. After the first
awarded
this evidence in
satory
punitive damages
damages,
and
to the individual
resulting
duplicative
in
dam-
plaintiffs. The district court then ordered that
ages.
compounded by
... This omission was
positions
be reinstated to their
that,
considering
an instruction ...
in
com-
pay.
with back
We found that the award of
pensatory damages,
jury
not limited
was
pay
back
was erroneous for two reasons:
to those items of
enumerated
One,
should have been instructed that
court but that it should consider "all matters
pay
back
was a factor to be taken into consid-
therefore,
jury,
in evidence." The
could have
determining compensatory
eration in
ages.
dam-
construed this as a command to consider the
Two,
because the
was not instruct-
pay
determining compen-
evidence of back
disregard
ed to
plaintiffs’
the extensive evidence of the
satory
pay
had
salaries and
scales which
Jesus-Mendez,
Cordero v. De
Where an
explained
damages compu-
is
the basis for the
part
evidence,
held for the most
but modified on
taking
tation. Without
additional
remand, post-judgment
judge
award, again
interest should ac
the trial
made a second
$150,000,
crue from the
of the
fully
date
first
for
explained
more
the
it,
phrased
As the Tenth Circuit has
one
basis of the award.
third
On the
“
should examine
‘the extent to which the
judg-
we ordered interest to accrue
the
”
case was reversed’
in order to decide ment from the date of the district court’s
judgment,
from which
the first or the sec
In
first award.
United States v. Michael
ond, post-judgment
Sons, Inc.,
interest should accrue! Schiavone &
the
Hegler,
money
Northern Natural Gas Co. v.
818 district court erred in computing the
(10th Cir.1987)(quoting
judgment
plaintiff.
Ash
for the
ordered the
We
Oil,
Co.,
Phillips
land
judgment
Inc.
Petroleum
district court to enter
new
336),
dismissed,
607 F.2d at
cert.
the
which
our own cal-
reflected
(1988).
judg-
S.Ct.
L.Ed.2d 937
culation and to
interest on the
allow
Co.,
In Northern Natural Gas
interest ran ment to accrue from the date of the first
judgment
from the date of the first
award
at
The
award.
Id.
876-77.
reduction
the
prevent
because
reversal of the first
the
on remand
“[did]
attaching upon
appellants
interest from
charged
reduced
that
should be
with in-
original
amount
the date of the
judg-
deposits
from
terest on the
because
money
Sons,
placed
was not
“interest-bearing
ment.” Schiavone &
450 F.2d at
an
mechanism for the
plain-
876-77.
benefit of the
tiffs.” Brief of Appellees at 9. We dis-
case,
present
we remanded
In
agree. Responsibility
placing
money
damages
because, among
the first
award
deposited with a court in an interest-bear-
reasons,
other
the district court had incor
ing account rests with the clerk of the
rectly
jury
suspected
instructed the
and we
court. Rule 67 of the Federal Rules of
that the first
duplica-
award was
provides:
Civil Procedure
Kaiser, adequate
tive. Unlike
evidence
party making
deposit
[in court]
award,
supported
jury’s
and unlike
permitting deposit
shall serve the order
Co.,
jury’s
initial
FDIC Rocket Oil
Money
on the clerk
paid
court.
liability
upheld.
determination of
A
depos-
into court under this rule shall be
fair
award could have been made
ited and withdrawn in accordance with
after the first
trial
in the
provisions
of Title U.S.C. §§
present
case had the
been instructed
2042;
seq.\ The
shall be
[et
fund
properly. Calculating interest
from the
deposited in an interest-bearing
ac-
date of the second
penalize
would
count or invested in an interest-bear-
appellees
judge’s
for the trial
error.
ing
approved by
instrument
the court.
guidance
We find some
in Justice White’s
(emphasis added).
Fed.R.Civ.P.
The re-
Kaiser, joined by
dissent in
Justices Bren- quirement
deposit
that an order of
nan,
Blackmun,
Marshall and
sug-
which
served on the court clerk
gests that
broadly:
Kaiser not be read too
simply
is
to assure that the clerk knows
agree
I
majority
post-
also
with the
that
being deposited
what is
and what his
in this case did not
responsibilities
respect
are with
to the
begin
upon entry
to accrue
August
deposit.
point
particularly
is
im-
[This]
22,1979 judgment_
The Court’s hold-
portant since the rule as amended con-
ing
necessarily
limited to the
facts
templates
deposits
placed
will be
majority
this case....
does not
accounts;
interest-bearing
the clerk must
August
state whether
would
know what treatment has been ordered
proper
have been the
commencement
particular deposit.
postjudgment
date for accrual of
Fed.R.Civ.P.
Advisory
Notes of
Com-
Bonjorno successfully appealed
had
the mittee on Rules—1983 Amendment. The
granting
order
a new trial.... Nor does
require
depositor
rule does not
to in-
applicable
rule
Court state
place
struct the clerk
deposit
in an
patterns
various other fact
not before us
interest-bearing account.
commonly
but
encountered
the lower
Appellants
complied with the rule.
*8
courts, e.g., ... where an interest award
They
an
permitting deposit
served
order
of
appeal
is reduced on
and a
new
$23,783 with the district court on Novem
is entered
remand.
on
Perkins v. Stan-
3,
days
ber
1987. Three
later the district
Cal.,
(CA9
dard Oil Co.
The interest interpre governed the Court’s recent lows: (1982ed.) tation of 28 U.S.C. 1961 and its compensatory full dam- Interest on the opinion Corp. in Kaiser Alum. & Chem. v. ($307,239.31)shall ages award accrue from — -, Bonjorno, U.S. S.Ct. 7, 1986, original the date of the October (1990): 3, 1987, judgment, the date of to November Where the on was $23,783. deposit of evidence, supported by $283,456.31($307,239.31-$23,- Interest on have not been ‘ascertained’ in mean- 3, 1987, 783) from November shall accrue counterintuitive, ingful way. It would be depos- the date of the to November least, Congress say to believe that $212,803.23. it of postjudgment interest to cal- intended be balance of Interest on the culated from such a 6, 1987, to from November shall accrue Although I hope at 1576. share the Id. was May the date expansive- that will not read too Kaiser paid in full. (White, J., ly, dissenting), see id. at 1594-95 payment yet has been made satis- 3. No comfortably its ratio decidendi embraces punitive damages award of Court; faction of the obey the case at hand. We must therefore, $2,800; punitive on the and such obedience transforms here into damages award accrue from October postjudgment shall plain duty. The award, original began only date tick on the date the clock payment. the date of second entered. 11(a) I from Part respectfully dissent computed Attorney’s 4. fees shall be de majority’s opinion. may into its The district court factor novo. delay payment. an award increase proceedings for further con-
Remanded herewith.
sistent on party
Each shall bear its own costs appeal. FLEMING, al., Edmund E. et Plaintiffs, Appellees,
SELYA, Judge (concurring in Circuit dissenting part). part and v. join Judge I Bownes’ well-rea- all of CO., & LIND-WALDOCK 11(a). opinion except Part soned Defendant, Appellee, today postjudgment in-
majority rules Breech, Barry Intervenor-Appellant. jury’s terest eventual award dam- on ages from the date of the should accrue FLEMING, al., Edmund E. et trial, the first rath- judgment entered after Plaintiffs, Appellants, the date of the er than from retrial. ante at 11- entered after the See CO., & LIND-WALDOCK slate, clean writing 16. we on a Were Defendant, Appellee. I weigh equities, would like- entitled to 90-1013, But, is too well in- ly agree. the slate Nos. 90-1014. scribed. Appeals, United States Court original where “an
This is not case First Circuit. upheld part for the most judgment [was] Heard Oct. 1990. 13;5 remand,” ante at but modified Dec. Decided rather, this is a case where we vacated original judgment and ordered “a new trial damages.” question
on the Cordero *10 Jesus-Mendez, Cir.
De case, agree majority’s with the selected date. 5. Were that the I would