Of the District of New Hampshire, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 09-2688

MYRELLA S. FIORENTINO,

Plaintiff, Appellee,

v.

RIO MAR ASSOCIATES LP, SE, ET AL. 

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin and Howard, Circuit Judges,

and Barbadoro, District Judge. *

Jennifer Suzanne Carroll for appellants.

Eric A. Tulla with whom José Bagué and Rivera, Tulla & Ferrer

were on brief for appellee.

December 2, 2010
Mr. Fiorentino died of unrelated causes prior to trial and 1

Mrs. Fiorentino moved forward with the suit as both his personal

representative and on her own behalf. Thus, we refer to Mrs.

Fiorentino when we use the term “plaintiff.”

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BARBADORO, District Judge. This case requires us to

determine which of several judgments entered by the district court

triggers the commencement of interest under the federal

postjudgment interest statute, 28 U.S.C. § 1961.

I.

In December of 2000, while vacationing at the Westin Rio

Mar Beach Hotel in Puerto Rico, Edward Fiorentino fractured his

cervical spine in a swimming accident, rendering him a

quadriplegic. A year later, on December 5, 2001, Mr. Fiorentino

and his wife Myrella filed suit in the District of Puerto Rico

alleging negligence on the part of the hotel and affiliated

entities (collectively “Rio Mar”) and medical malpractice on the

part of the hospital that treated Mr. Fiorentino (“Hospital”). Rio

Mar and the Hospital subsequently filed cross-claims against each

other.

In June of 2005, the plaintiff settled with the 1

Hospital. Under the settlement agreement, which was not initially

disclosed to Rio Mar, the plaintiff received $1.4 million in

exchange for releasing the Hospital from further liability. The

settlement agreement also provided that 

“[i]n the event that the herein appearing

settling defendants have or could have any
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responsibility in this case for the incidents

described in the complaint, plaintiffs [sic]

assume such responsibility and waive their

rights to claim and/or recover from any other

defendants or third party, that portion of

responsibility attributable to the settling

defendants.” 

See also Rio Mar Assocs., LP, SE v. UHS of P.R., Inc., 522 F.3d

159, 162, 166 (1st Cir. 2008)(describing the settlement agreement

as akin to a “Pierringer release” or “proportionate share”

agreement in which each defendant is responsible for its share of

the damages). 

The district court turned its attention to what remained

of the case shortly after the plaintiff settled her claims against

the Hospital. It began by bifurcating the plaintiff’s claims

against Rio Mar from Rio Mar’s cross-claim against the Hospital.

As the district court later explained, “[W]hat I've done in this

case is . . . bifurcation. I have tried plaintiffs’ [sic] causes

of action against [Rio Mar] first. Once that is over, if there is

any reason to go forward with [Rio Mar’s] cross-claim against the

hospital, then we'll have another jury trial . . . .”

At trial, the court instructed the jury that “[i]f you

find that [Rio Mar]. . . [is] responsible for Mr. Fiorentino’s

accident on December 7, 2000, you must also determine that [it is]

liable for all damages sustained by him as a consequence of the

medical services provided to him to treat the physical injuries
Rio Mar filed a motion to compel disclosure of the settlement 2

agreement prior to the trial but the district court did not rule on

the motion until after the jury verdict. 

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[he] suffered . . . .” On August 19, 2005, the jury returned a

verdict of $1.844 million against Rio Mar. 

A week later, on August 26, the district court granted

the plaintiff’s motion for judgment against Rio Mar pursuant to

Federal Rule of Civil Procedure 54(b), leaving Rio Mar’s crossclaim against the Hospital as the only unresolved claim. Although

Rio Mar challenged the underlying verdict, it did not object to the

Rule 54(b) certification.

Rio Mar obtained a copy of the plaintiff’s settlement

agreement with the Hospital after the verdict was returned and 2

promptly filed a motion to amend the judgment to reduce the $1.844

million judgment by the $1.4 million the plaintiff had already

recovered from the Hospital. While that motion was pending, the

Hospital filed a motion to dismiss Rio Mar’s cross-claim. On April

3, 2007, the court denied Rio Mar’s motion to amend the judgment,

granted the Hospital’s motion to dismiss Rio Mar’s cross-claim, and

cleared the way for an appeal by entering a final judgment on all

issues.

This court affirmed the jury’s verdict on both liability

and damages, but concluded that the district court had erred in

denying Rio Mar “some process by which it could test how the

plaintiff’s total damages -- $1,844,000 -- should be allocated as
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between it and the Hospital.” Rio Mar, 522 F.3d at 164, 168. The

decision went on to explain that, although a dollar-for-dollar

credit for the $1.4 million settlement was not warranted, Rio Mar

was entitled to a setoff for the proportionate share of the

plaintiff’s damages that were caused by the Hospital’s negligence.

See id. at 166-67. Consequently, the court vacated the denial of

Rio Mar's motion to amend the original judgment, reversed the

dismissal of Rio Mar’s cross-claim against the Hospital, and

remanded the case for a second trial on Rio Mar’s cross-claim. Id.

at 167-68.

On remand, the jury in the second trial found that Rio

Mar was 30 percent at fault and the Hospital was 70 percent at

fault. Accordingly, on October 30, 2009, the district court

granted Rio Mar’s motion to alter the original $1.844 million

judgment and reduced the amount Rio Mar owed to $553,200 (30

percent of $1.844 million). At the same time, the district court

granted the plaintiff’s request for postjudgment interest from the

date of the original judgment, and issued an amended judgment

ordering relief consistent with its decisions. 

II.

Rio Mar challenges the district court’s determination

that postjudgment interest began to accrue on August 26, 2005, when

the court first entered judgment. Rio Mar’s primary argument is

that the original judgment should not have started the interest
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clock because the extent of its liability was not determined until

the Hospital’s proportionate share of the liability was ascertained

and deducted from the original verdict. Alternatively, Rio Mar

argues that postjudgment interest should not have run from the date

of the original judgment because the judgment did not comply with

Rule 54(b). We address each argument in turn under the de novo

standard of review. Radford Trust v. First Unum Life Ins. Co. of

Am., 491 F.3d 21, 24 (1st Cir. 2007) (explaining that the

determination as to when postjudgment interest begins to run

presents a legal issue that is reviewed de novo).

A.

The postjudgment interest statute applies to “any money

judgment in a civil case recovered in a district court.” 28 U.S.C.

§ 1961(a). Interest begins to run “from the date of the entry of

the judgment.” Id. The statute does not explain what should

happen when the original judgment is altered, but both Supreme

Court and First Circuit precedents provide guidance.

In Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827

(1990), the Supreme Court considered whether postjudgment interest

should run from a judgment that was later vacated. In that case,

after a jury verdict and judgment in the plaintiff’s favor, the

district court ordered a new trial on damages only because the

evidence did not support the jury’s damages award. Id. at 830.

The retrial resulted in a new damages determination that was upheld
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on appeal. Id. Noting that “[t]he purpose of postjudgment

interest is to compensate the successful plaintiff for being

deprived of compensation for the loss from the time between the

ascertainment of the damages and the payment by the defendant,”

id. at 828, the Supreme Court held that postjudgment interest did

not begin to run with the entry of the initial judgment because

“damages have not been ‘ascertained’ in any meaningful way” by a

verdict that is not supported by sufficient evidence, id. at 836

(internal quotations omitted). 

In Cordero v. De Jesus-Mendez, 922 F.2d 11 (1st Cir.

1990), we were faced with a case in which a new trial was required

on damages because the court’s instructions to the jury may have

led it to award duplicative damages. Id. at 15-16. In holding

that postjudgment interest should run from the date of the original

judgment, we distinguished Kaiser because sufficient evidence had

been introduced during the first trial in Cordero to support the

original damages award. Id. at 18.

More recently, in Radford Trust, 491 F.3d at 24, the

district court awarded partial summary judgment to the plaintiff on

liability in an ERISA case and determined that the plaintiff was

entitled to collect twenty-four months of benefits. Id. at 23.

Judgment was entered on the partial summary judgment order, but the

amount that was due to the plaintiff could not be determined until

later in the case after the benefits due had been calculated and a
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substantial legal issue concerning the applicability of a claimed

offset for Social Security benefits had been resolved. Id. We

held that the original judgment was not a “money judgment” and

therefore did not start the postjudgment interest clock because the

judgment “left open the possibility that the parties would dispute

the amount of damages.” Id. at 24. 

The parties draw different conclusions from these

precedents. The plaintiff argues that this case is controlled by

Cordero because the jury’s verdict on liability was not disturbed,

judgment was entered for a sum certain, and sufficient evidence was

produced during the first trial to support the damages that were

ultimately awarded. Rio Mar argues that Radford Trust is

determinative because, as in that case, the original judgment did

not finally establish the specific amount that the defendant owed

to the plaintiff. 

We conclude that the plaintiff has the better argument.

The original judgment in the present case followed a trial in which

Rio Mar was found liable and the plaintiff’s total recoverable

damages were assessed. The jury’s liability determination was

upheld on appeal and no credible argument was advanced that the

damages determination was insupportable. Although the original

judgment was later modified, all of the damages that were

ultimately awarded were embodied in the original judgment. See

Tinsley v. Sea-Land Corp., 979 F.2d 1382, 1383 (9th Cir. 1992)
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(finding that first judgment meaningfully ascertained damages where

finding of ship’s unseaworthiness and total damages figure were

affirmed despite remand to determine plaintiff’s comparative

negligence and to reduce the award accordingly). The case is thus

indistinguishable from Cordero and quite different from Radford

Trust, where we held that the original judgment did not qualify as

a “money judgment” under the statute.

The result we reach is also consistent with the purpose

that underlies the postjudgment interest statute. Rio Mar has

retained the use of the money that was ultimately awarded to the

plaintiff by the 2009 judgment, even though both Rio Mar’s

liability to the plaintiff and the total amount of plaintiff’s

damages were determined as of the date of the original judgment in

August 2005. Where, as in this case, the damages that are

ultimately awarded are embodied in an original money judgment that

is later reduced but that is otherwise unassailable, there is no

good reason why the defendant should not be required to compensate

plaintiff for her loss of the use of the money embodied in the

original judgment from the time that the original judgment issued.

B.

Rio Mar also argues that postjudgment interest should not

accrue from the original Rule 54(b) judgment even if the judgment

meaningfully ascertained the plaintiff’s damages because the

judgment did not include the express findings required by Rule
Although Rio Mar contends otherwise, its argument, at most, 3

would prevent interest from starting to run until April 3, 2007,

when the court entered a final judgment disposing of both the

cross-claim and the motion to amend the original judgment. At that

point, a final judgment had been entered with respect to all claims

and any deficiency in the Rule 54(b) judgment would not prevent

postjudgment interest from beginning to accrue from that date. 

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54(b) and, in any event, it should not have been issued while Rio

Mar’s cross-claim remained pending. We hold that Rio Mar has 3

forfeited its right to raise these arguments by failing to present

a timely challenge to the Rule 54(b) judgment in the district

court.

Rule 54(b) permits “the court [to] direct entry of a

final judgment as to one or more, but fewer than all, claims or

parties only if the court expressly determines that there is no

just reason for delay.” Fed. R. Civ. P. 54(b). A Rule 54(b)

judgment can have both jurisdictional and non-jurisdictional

consequences. Compare Kersey v. Dennison Mfg. Co., 3 F.3d 482,

485-86 (1st Cir. 1983) (holding that circuit court lacks appellate

jurisdiction when district court abuses its discretion in issuing

Rule 54(b) certification), with Fratus v. Republic W. Ins. Co., 147

F.3d 25, 29-30 (1st Cir. 1998) (recognizing that entitlement to

postjudgment interest may be triggered by a proper Rule 54(b)

certification). When a proper Rule 54(b) judgment is a

prerequisite to appellate jurisdiction, the court must undertake

its own inquiry on the subject and the right to raise the issue on

appeal cannot be lost through inattention. See Spiegel v. Trs. of
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Tufts Coll., 843 F.2d 38, 43 (1st Cir. 1988) (noting that appellate

court has duty to assess the sufficiency of a Rule 54(b) judgment

sua sponte when it is the basis for a claim of appellate

jurisdiction). In contrast, when a Rule 54(b) judgment has been

relied on only for the non-jurisdictional purpose of determining

when postjudgment interest should begin to run, a challenge to the

judgment is subject to the general rule that appellate arguments

may be lost by failing to present them in the district court. See

Dávila v. Corporación de P.R. Para La Difusión Pública, 498 F.3d 9,

14-15 (1st Cir. 2007) (describing forfeiture rule).

In the present case, the district court’s Rule 54(b)

judgment had no effect on this court’s appellate jurisdiction. The

first appeal was not taken until after the district court had

dismissed the cross-claim, denied the motion to amend the judgment,

and entered a final judgment with respect to all claims in 2007.

The current appeal was taken from the final judgment entered in

2009 following the trial on Rio Mar’s cross-claim. Thus, Rio Mar’s

challenge to the Rule 54(b) judgment is non-jurisdictional and,

therefore, subject to forfeiture if it was not properly preserved

for appeal.

Forfeited claims are subject to review only for plain

error. Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 40 (1st Cir.

2010). Accordingly, such claims cannot succeed unless “the

appellant demonstrates that (1) an error occurred (2) which was
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clear or obvious and which not only (3) affected the [appellant’s]

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of the judicial proceedings.”

Dávila, 498 F.3d at 14-15 (internal citations and quotation marks

omitted).

Regardless of whether the district court erred in issuing

the Rule 54(b) judgment, any such error was not so grave as to

seriously threaten the fairness, integrity, or reputation of the

proceedings. The only effect of the allegedly deficient judgment

was to trigger the accrual of postjudgment interest on August 26,

2005. Far from causing unfairness or undermining the integrity of

this litigation, the resulting interest award merely requires Rio

Mar to pay a reasonable interest rate for the time that it

controlled the funds at issue. We need go no further. Because

even an erroneous Rule 54(b) judgment would not undermine the

fairness, integrity, or reputation of these proceedings, Rio Mar’s

challenge to the judgment cannot prevail under plain error review.

III.

For the foregoing reasons, we affirm the district

court's award of postjudgment interest running from the original

judgment on August 26, 2005.