Trustmark v. Gallucci ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1386
TRUSTMARK INSURANCE COMPANY,
Plaintiff, Appellant,
v.
CARMINE J. GALLUCCI, a/k/a Michael Gallucci,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lipez, Circuit Judges.
James A. Currier and Hodosh, Spinella & Angelone on brief
for appellant.
Lauren E. Jones, David L. Krech and Jones Associates on
brief for appellee.
July 14, 2000
Per Curiam. Plaintiff-appellant Trustmark
Insurance Co. appeals from the district court’s denial of
its motion for a writ of execution that included prejudgment
interest pursuant to R.I.Gen.Laws § 9-21-10. Trustmark’s
brief contains only one developed argument: that under the
governing Rhode Island statute, an award of prejudgment
interest is mandatory. As to its failure to raise the issue
in a timely manner following entry of judgment, Trustmark
alludes to two arguments.
Trustmark’s main argument is that the second
judgment entered in this case on February 9, 1998, denying
defendant’s postjudgment motions, rendered its earlier
request for prejudgment interest (in its motion for writ of
execution) timely. The second judgment did not modify the
first judgment in any way, but merely formalized the denial
of defendant’s postjudgment motions. Moreover, the motion
seeking prejudgment interest was filed before entry of the
second judgment. Under these circumstances, the second
judgment had no effect on the timeliness of Trustmark’s
motion. See McNabola v. Chicago Transit Authority, 10 F.3d
501, 521 (7th Cir. 1993).
Trustmark suggests that the court erred in failing
to grant relief pursuant to Rule 60. While Rule 60(a) has
sometimes been used to correct an omission of mandatory
prejudgment interest, those cases are factually
distinguishable from this one. Here, the computation of the
amount of prejudgment interest to which Trustmark would be
entitled under the statute was not “simple, clear and
mechanical.” Compare Aubin v. Fudala, 782 F.2d 287, 289 (1st
Cir. 1986)(applying Rule 60(a) to request for prejudgment
interest pursuant to a New Hampshire statute). Here, the
original judgment made no mention of prejudgment interest.
And the parties disagree about the date that the cause of
action accrued under the statute. Compare Pogor v. Makita
U.S.A., Inc., 135 F.3d 384, 388 (6th Cir. 1998); Kosnoski v.
Howley, 33 F.3d 376, 379 (4th Cir. 1994); McNickle v. Bankers
Life and Cas. Co., 888 F.2d 678, 682 (10th Cir. 1989). The
district court did not abuse its discretion in failing to
grant the requested relief under Rule 60(a). See Paddington
Partners v. Bouchard, 34 F.3d 1132, 1141 (2d Cir. 1994).
Any other possible grounds for appellate relief
have been waived by Trustmark’s failure to include developed
arguments in its brief. See Airport Impact Relief, Inc. v.
Wykle, 192 F.3d 197, 205 (1st Cir. 1999) (“Issues adverted to
in a perfunctory manner, unaccompanied by some effort at
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developed argumentation, are deemed waived for purposes of
appeal”).
The district court’s Order Affirming Magistrate
Judge’s Denial of Motion for Writ of Execution, dated
January 15, 1999, is affirmed. See Loc. R. 27(c).
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