Omni Consulting Group, Inc. v. Pilgrim's Pride Corp. , 488 F. App'x 478 ( 2012 )

11-791-cv(L), 11-965
Omni Consulting Grp., Inc. v. Pilgrim’s Pride Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 17th day of July, two thousand twelve.
PRESENT:
RALPH K. WINTER,
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges.
- - - - - - - - - - - - - - - - - - -x
OMNI CONSULTING GROUP, INC.,
Plaintiff-Appellee-
Cross-Appellant,
- v. -
11-791-cv(L),11-965
PILGRIM’S PRIDE CORPORATION,
Defendant-Appellant-
Cross-Appellee,
MARINA CONSULTING, INC.,
Defendant.
- - - - - - - - - - - - - - - - - - -x
FOR DEFENDANT-APPELLANT: TRAVIS WAYNE VANCE (Thomas Edward
Ullrich, on the brief), Wharton
Aldhizer & Weaver, PLC,
Harrisonburg, Virginia; Earl K.
Cantwell, Hurwitz & Fine, P.C.,
Buffalo, New York.
FOR PLAINTIFF-APPELLEE:
ALAN J. BOZER (William Patrick
Keefer, on the brief), Phillips
Lytle LLP, Buffalo, New York.
Cross-appeals from the United States District Court for
the Western District of New York (Arcara, J.). UPON DUE
CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the judgment and order of the district court are AFFIRMED.
Defendant-Appellant-Cross-Appellee Pilgrim's Pride
Corporation ("Pilgrim") appeals from the district court's January
31, 2011, judgment awarding Plaintiff-Appellee-Cross-Appellant
Omni Consulting Group, Inc. ("Omni") damages on Omni's breach of
contract claim. The district court entered judgment pursuant to
its September 12, 2007, order granting Omni's cross-motion for
summary judgment on the issue of Pilgrim's liablity for breach of
contract and the evidence presented at trial with respect to
damages.
Omni cross-appeals from the district court's January
31, 2011, award of damages and its March 2, 2011, award of
attorneys' fees, contending that both awards were too low.
-2-
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
We review a district court's grant of summary judgment
de novo. Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir.
2005). Where a case is tried to the district court without a
jury, we review the district court's findings of fact for clear
error and its conclusions of law de novo. MacWade v. Kelly, 460
F.3d 260, 267 (2d Cir. 2006). We review a district court's award
of attorneys' fees for abuse of discretion. Townsend v. Benjamin
Enters., Inc., 679 F.3d 41, 58 (2d Cir. 2012).
We conclude that the district court did not err in
enforcing Paragraph 7 of the Technical Services Agreement ("TSA")
as it was not a restrictive covenant preventing an employee from
pursuing his livelihood but an anti-raiding provision in a
commercial agreement between two sophisticated parties. See
Spherenomics Global Contact Ctrs. v. vCustomer Corp., 427 F.
Supp. 2d 236, 249-50 (E.D.N.Y. 2006) (upholding provision
prohibiting defendant from independently hiring third party that
plaintiff introduced to defendant for joint venture); Gibbs &
Soell, Inc. v. Armstrong World Indus., Inc., No. 04 Civ. 5103
(HB), 2005 WL 615688, at **4-5 (S.D.N.Y. Mar. 17, 2005)
-3-
(upholding one-year anti-raiding provision after finding it was
not a restrictive covenant and reasoning that court should not
interfere with agreement between two sophisticated businesses
absent persuasive justification). Likewise, in the circumstances
of this case, where the master agreement contained a one-year
restriction, the district court reasonably limited the
restriction in paragraph 7 of the TSA to one year as well.
We have reviewed the district court's calculation of
damages and interest and find no error in its application of the
law or its findings of fact. See Conway v. Icahn & Co., 16 F.3d
504, 512 (2d Cir. 1994) (holding CPLR § 5001 grants court wide
discretion in determining date from which to award pre-judgment
interest when damages accrued at various times); Adams v. Linblad
Travel, Inc., 730 F.2d 89, 92-93 (2d Cir. 1984) (holding measure
of damages is profit plaintiff would have made but for breach);
Kookmin Bank v. B.G. Fashion, Inc., No. 99 Civ 8622 (RLE), 2000
WL 1880315, at *4 (S.D.N.Y. Dec. 28, 2000) (holding midway date
between first and last dates of maturity of fifty-four unpaid
bills of exchange was reasonable intermediate date under section
5001).
Finally, we conclude the district court did not abuse
its discretion in awarding attorneys' fees. The district court
-4-
considered the evidence submitted by the parties, applied the
appropriate legal principles, and made certain findings and
adjustments. See Farbotko v. Clinton Cnty., 433 F.3d 204, 208-11
(2d Cir. 2005); see also N.Y. Life Ins. Co. v. Hassan, No. 09-CV-
1075A, 2010 WL 3070091, at **2-3 (W.D.N.Y. Aug. 4, 2010);
Disabled Patriots of Am., Inc. v. Niagara Grp. Hotels, LLC, 688
F. Supp. 2d 216, 222-26 (W.D.N.Y. 2010). Its award of fees and
costs was not unreasonable.
We have considered the parties' remaining arguments and
conclude that they are without merit. Accordingly, the judgment
and order of the district court are hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
-5-