O&G Indus., Inc. v. Nat'l R.R. Passenger Corp. ( 2008 )


Menu:
  •      06-4719-cv
    O&G Indus., Inc. v. Nat’l R.R. Passenger Corp.
    1                                   UNITED STATES COURT OF APPEALS
    2
    3                                         FOR THE SECOND CIRCUIT
    4
    5                                              August Term, 2007
    6
    7   (Argued: October 23, 2007                                      Decided: August 8, 2008)
    8
    9                                          Docket No. 06-4719-cv
    10
    11   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
    12   O&G INDUSTRIES, INC.,
    13
    14                    Third-Party-Defendant Appellant,
    15
    16   HARTFORD FIRE INSURANCE CO. AND DAVID E. ROBERTS, ADMINISTRATOR FOR
    17   THE ESTATE OF GREGORY J. ROBERTS,
    18
    19                    Plaintiffs,
    20
    21   PETER QUINTILIANI AND LAUREL QUINTILIANI,
    22
    23                    Consolidated Plaintiffs,
    24
    25                            v.
    26
    27   NATIONAL RAILROAD PASSENGER CORPORATION,
    28
    29                    Defendant-Third-Party-Plaintiff Appellee,
    30
    31   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
    32   B e f o r e: FEINBERG, WINTER, and STRAUB, Circuit Judges.
    33        Appeal from a judgment of the United States District Court for
    34   the District of Connecticut (Dorsey, J.) entered in a third-party
    35   action for indemnity, following an accident in which a train owned
    36   and operated by defendant-third-party-plaintiff appellee Amtrak
    37   caused the death of one employee of third-party-defendant appellant
    38   O&G Industries, Inc. and injured another. In the first instance, the
    39   district court (1) granted summary judgment to Amtrak on the ground
    40   that the indemnity agreement between Amtrak and O&G was not invalid
    41   under Connecticut General Statute § 52-572k(a), because the latter
    42   is preempted by 
    49 U.S.C. § 28103
    (b), which allows rail passenger
    43   carriers to enter into indemnification agreements concerning claims
    44   brought against them; and (2) held that O&G was required, as a
    45   matter of law, to indemnify Amtrak for the liabilities and costs
    1
    46   Amtrak incurred in the tort actions arising out of the accident,
    47   despite a jury verdict that O&G was relieved of this obligation
    48   because Amtrak’s failure to adequately protect O&G workers amounted
    49   to a material breach of the contract between them. We now affirm the
    50   rulings of the district court. We also find that any error the
    51   district    court   committed   by    precluding    appellant   from
    52   cross-examining an employee of the appellee in the first phase of
    53   the trial (concerning the tort actions against Amtrak) and
    54   subsequently restricting appellant’s direct examination of the same
    55   employee in the second phase of the trial (concerning the indemnity
    56   claim against O&G) was harmless. Finally, we dismiss for want of
    57   appellate jurisdiction O&G’s challenges to the award of attorneys’
    58   fees and costs. Dismissal does not affect our jurisdiction to review
    59   the merits of the other issues on appeal. Affirmed in part and
    60   dismissed in part.
    61
    62        KIMBERLY A. KNOX (Michael S. Taylor and Brendon P. Levesque, on
    63        the brief), Horton Shields & Knox, P.C., Hartford, Connecticut,
    64        and Jeffrey A. Blueweiss (on the brief), Bai, Pollock,
    65        Blueweiss & Mulcahey, Shelton, Connecticut, for Third-Party-
    66        Defendant Appellant.
    67
    68
    69        WILLIAM G. BALLAINE (Dawn Pinkston, of counsel, on the brief),
    70        Landman Corsi Ballaine & Ford, P.C., New York, New York, for
    71        Defendant-Third-Party-Plaintiff Appellee.
    72
    73
    74   FEINBERG, Circuit Judge:
    75
    76        This     case    is   procedurally       complicated.   The   present    appeal
    77   arises out of a third-party complaint brought by National Railroad
    78   Passenger Corporation (hereafter “Amtrak” or “appellee”) against O&G
    79   Industries,    Inc.    (hereafter   “O&G”      or   “appellant”)   in   the   United
    80   States District Court for the District of Connecticut (Dorsey, J.).
    81   In its complaint, Amtrak sought indemnification from O&G for any
    82   liabilities and costs, including attorneys’ fees, that Amtrak would
    2
    83   incur in two consolidated tort actions against it for wrongful death
    84   and personal injury damages resulting from a train accident. 1
    85        The proceedings in the district court included two rulings that
    86   O&G now appeals to this Court. First, before trial of the third-
    87   party indemnity action began, the district judge granted partial
    88   summary judgment to Amtrak on the basis of an explicit indemnity
    89   provision in a right-of-access contract between Amtrak and O&G. The
    90   court upheld the validity of the indemnity provision, ruling that 49
    
    91 U.S.C. § 28103
    (b) (hereafter “§ 28103(b)”) -- which allows rail
    92   passenger carriers to enter into liability-shifting agreements --
    93   preempted   Connecticut   General    Statute   §   52-572k(a)    (frequently
    94   referred to hereafter as the “Connecticut statute”). That statute
    95   prohibits, on public policy grounds, indemnity agreements entered
    96   into in connection with construction contracts, if they purport to
    97   shield the indemnitee from liability for its own negligence. O&G
    98   invoked the Connecticut statute to defeat Amtrak’s indemnity claim.
    99   See Roberts v. Nat’l R.R. Passenger Corp. v. O&G Indus., Nos. 3:04-
    100   cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 
    2006 WL 648212
     (D. Conn. Mar.
    101   9, 2006).
    1
    The two actions were Roberts v. Nat'l R.R. Passenger Corp., No.
    3:04-cv-1318 (D. Conn. filed Aug. 9, 2004), and Quintiliani v. Nat'l R.R.
    Passenger Corp., No. 3:04-cv-2195 (D. Conn. filed Dec. 29, 2004). A third
    action was brought against Amtrak by the Hartford Fire Insurance Company,
    as subrogee of O&G, for damage to O&G property caused by the train
    accident. See Hartford Fire Ins. Co. v. Nat’l R.R. Passenger Corp., No.
    3:04-cv-1622 (D. Conn. filed Sept. 28, 2004). This action was settled and
    is not part of the present appeal.
    3
    102          Second,    the    judge    granted        Amtrak's      post-trial     motion     for
    103   judgment as a matter of law, setting aside a jury verdict that O&G
    104   was    relieved    of   its   obligation         to    indemnify     Amtrak    because    of
    105   Amtrak’s material breach of the contract with O&G. Judge Dorsey held
    106   that Amtrak’s contractual default did not affect the validity of the
    107   indemnity agreement, which explicitly covered accidents attributable
    108   to Amtrak’s negligence. See Roberts v. Nat’l R.R. Passenger Corp. v.
    109   O&G Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 
    2006 WL 110
       2621733 (D. Conn. Sept. 12, 2006).
    111          O&G argues on appeal that the district court erred in (1)
    112   granting partial summary judgment to Amtrak; (2) entering judgment
    113   for Amtrak as a matter of law; (3) curtailing O&G’s cross- and
    114   direct examination of an Amtrak employee during the trial; and (4)
    115   awarding     Amtrak     attorneys’    fees       and       defense   costs    without    any
    116   evidence as to their amount and reasonableness.
    117          On the first and second of these issues, we affirm the district
    118   court.     On     the    third,      we   find         the     limitations      of     O&G’s
    119   cross-examination rights by the district court, even if erroneous,
    120   were   not   substantially        prejudicial         to    appellant.   On    the   fourth
    121   issue, we conclude that we lack appellate jurisdiction over the
    122   district court’s non-final award of attorneys’ fees and costs.
    123
    124     I.     BACKGROUND
    4
    125           The accident that led to this litigation occurred in June 2004,
    126   while Gregory Roberts and Peter Quintiliani, carpenters employed by
    127   O&G,    were       installing      wood   planks    on     the   underside    of   a    highway
    128   bridge suspended over Amtrak's tracks in East Haven, Connecticut. An
    129   Amtrak diesel locomotive entered their worksite without warning and
    130   collided with the man-lift in which they were stationed. Amtrak’s
    131   on-site       safety    personnel         were    unable    to    prevent    the   accident,
    132   because they were unaware of the train’s scheduled passage through
    133   O&G’s       work    area,    due    to    poor    coordination      with     the   office    of
    134   Amtrak’s       chief        dispatcher       in     Boston.       Furthermore,         Amtrak’s
    135   employees, having already de-energized the tracks at the East Haven
    136   worksite so that no electric-powered train could pass, erroneously
    137   believed that the tracks had been placed out of service. Thus, they
    138   had not made a specific request to “foul” the tracks, i.e., render
    139   them completely inoperable until O&G’s crew had completed its work.
    140   At the time of the accident, therefore, none of O&G’s or Amtrak’s
    141   employees on duty at the site expected any train movement through
    142   the work zone. 2 The collision killed Roberts instantly; Quintiliani
    143   was injured while jumping out of the lift.
    2
    A more detailed description of the train accident can be found in
    the district court’s March 2006 ruling on the parties’ motions for
    summary judgment. See Roberts v. Nat’l R.R. Passenger Corp. v. O&G
    Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 
    2006 WL 648212
    (D. Conn. Mar. 9, 2006), 
    2006 WL 648212
    , at *1-3. We think it unnecessary
    to recount here all the factual circumstances surrounding the accident,
    because the crux of the dispute before us is Amtrak’s indemnity claim
    against O&G -- not responsibility for the accident, which Amtrak admitted
    at trial.
    5
    144         David     Roberts      (hereafter        “Roberts”),         the      brother       of    the
    145   deceased O&G employee and administrator of his estate, filed in
    146   August   2004      a     wrongful      death       action    against        Amtrak,       seeking
    147   compensatory       and      punitive     damages.       The    suit        by    Roberts        was
    148   consolidated       with     Quintiliani’s          personal        injury       action.        After
    149   answering the two actions, Amtrak filed its third-party complaint
    150   against O&G.
    151         The indemnity claim was based on a clause in the “Temporary
    152   Permit   to   Enter      Upon   Property”      (hereafter          “Permit”),        a   contract
    153   concluded between O&G and Amtrak in October 2003. Under the Permit,
    154   Amtrak allowed O&G access to Amtrak’s property in East Haven, in
    155   order to perform construction work in relation to O&G’s contract
    156   with the Connecticut State Department of Transportation regarding
    157   the re-building of a stretch of Interstate 95 between New Haven and
    158   Branford,     Connecticut;         consideration       was    $1.     O&G,      on   its       part,
    159   undertook     to   “use      all    necessary       care     and    precaution           to    avoid
    160   accidents, delay or interference with [Amtrak's] trains or property”
    161   and abide by Amtrak's safety regulations. Pursuant to the Permit,
    162   Amtrak would provide, at its discretion and at O&G’s expense, “flag
    163   service and/or other protection” necessary to maintain the “safety
    164   and   continuity       of   railroad    traffic,”       over       which    Amtrak       retained
    165   exclusive control. However, the provision of “protective services”
    166   would “not relieve [O&G] from [its] complete responsibility for the
    6
    167   adequacy    and     safety    of   [its]     operations.”      A    key   feature   of   the
    168   Permit is the following provision:
    169          The Permittee [O&G] shall defend, indemnify and hold harmless
    170          Railroad [Amtrak], its officers, directors, employees, agents,
    171          servants, successors, assigns and subsidiaries, irrespective of
    172          their negligence or fault, from and against any and all losses
    173          and liabilities, . . . claims, causes of action, suits, costs
    174          and expenses incidental thereto (including cost of defense and
    175          attorney's fees), which any or all of them may hereafter incur,
    176          be responsible for, or pay as a result of injury, [or] death, .
    177          . . to any person . . . arising out of or . . . resulting from
    178          activities of or work performed by [O&G], its officers,
    179          employees, agents, servants, contractors, subcontractors, or
    180          any other person acting for or by permission of [O&G]. The
    181          foregoing obligation shall not extend to situations where the
    182          negligence or fault of Amtrak, its officers, directors, [or]
    183          employees . . . is the sole causal negligence or fault, except
    184          that it shall so extend to injury [or] death . . . to employees
    185          of [O&G], its agents, servants, contractors, subcontractors, or
    186          any other person acting for or by permission of [O&G]. The
    187          foregoing obligation shall not be limited by the existence of
    188          any insurance policy or by any limitation on the amount or type
    189          of damages, compensation, or benefits payable by or for [O&G]
    190          or any contractor or subcontractor, and shall survive the
    191          termination of this permit for any reason.
    192
    193   (Emphasis added.) In the district court, O&G argued that the above
    194   provision     was    invalid       under    Connecticut       General     Statute   §    52-
    195   572k(a), which declares void as against public policy agreements to
    196   indemnify a party against its own negligence, if such agreements
    197   were   made    “in    connection       with       or   collateral     to”    construction
    198   contracts.
    199          Before trial began on Amtrak’s indemnity claim, Amtrak sought
    200   summary judgment and orders directing O&G to defend Amtrak in the
    201   two tort actions and reimburse Amtrak’s reasonable attorneys' fees
    202   in   defending      against    those       claims.     In   March   2006,   Judge   Dorsey
    7
    203   granted Amtrak partial summary judgment, concluding that § 28103(b),
    204   which allows Amtrak to enter into indemnification agreements as to
    205   claims against it, preempted the Connecticut statute and allowed
    206   Amtrak to pursue its indemnity claim at trial.
    207        The     jury      trial    of    the    consolidated      actions     by   plaintiffs
    208   Roberts and Quintiliani against Amtrak began in March 2006. The
    209   first phase (“Phase I”) was limited to the issue of damages to be
    210   awarded    to     plaintiffs.          Amtrak    conceded       negligence        (but    not
    211   recklessness). In April 2006, the jury awarded plaintiffs $1.425
    212   million    each     in   compensatory        damages,    but    rejected    the    punitive
    213   damages claims, finding that Amtrak's conduct was not willful or
    214   reckless. 3 At the end of the second phase of the trial (“Phase II”)
    215   concerning      Amtrak’s       third-party      complaint      against   O&G,     the    jury
    216   found that O&G was excused from its obligation to indemnify Amtrak,
    217   because    Amtrak's      failure      to    provide   O&G’s     crew   adequate     on-site
    218   protection amounted to a material breach of the Permit, rendering it
    219   void in its entirety.
    220        After      this     second      verdict,   Amtrak    moved    for   judgment        as   a
    221   matter of law, under Federal Rule of Civil Procedure 50(b), arguing
    222   that there were no triable issues of fact as to the applicability of
    223   the indemnity clause in the Permit and, hence, O&G was required to
    3
    The Roberts estate appealed from the judgment of the district court
    entered against Amtrak after the verdict. That appeal was heard by this
    panel the same day as the appeal now before us. In November 2007, we
    summarily affirmed the judgment of the district court. See Roberts v.
    Nat’l R.R. Passenger Corp., No. 06-3036-cv, 
    2007 WL 3230736
     (2d Cir. Nov.
    1, 2007) (summary order).
    8
    224   indemnify Amtrak for litigation costs and damages awarded in the
    225   underlying actions by Quintiliani and Roberts. In the alternative,
    226   Amtrak sought a new trial, under Rule 59(a), on whether a material
    227   contractual default nullified the entire Permit.
    228          In    September         2006,   the   judge    granted     Amtrak's    Rule     50(b)
    229   motion,      concluding        that    Amtrak’s     right   to    indemnity       explicitly
    230   accrues, under the Permit, where Amtrak is found liable for injury
    231   to    or    death   of    an    O&G    employee    solely   caused    by     Amtrak’s     own
    232   negligence or fault. See Roberts, 
    2006 WL 2621733
    , at *5-6. Allowing
    233   O&G    to     evade      its     indemnity       obligations     because     of     Amtrak’s
    234   negligence, the court reasoned, would “render the indemnification
    235   provision meaningless.” 
    Id. at *6
    .
    236          In December 2006, the court entered judgment in favor of Amtrak
    237   in    its   indemnity     action       against    O&G.   This    timely    appeal    by   O&G
    238   followed.
    239
    240        II.    DISCUSSION
    241          The parties to this appeal raise several issues. First, we must
    242   decide whether the Connecticut statute, which nullifies indemnity
    243   agreements insulating a contracting party from its own negligence, 4
    4
    Connecticut General Statute § 52-572k states:
    (a)   Any   covenant,   promise,  agreement   or
    understanding entered into in connection with or
    collateral to a contract or agreement relative to the
    construction, alteration, repair or maintenance of any
    building, structure or appurtenances thereto including
    moving, demolition and excavating connected therewith,
    that purports to indemnify or hold harmless the
    9
    244   applies, on its face, to the Permit; if it does, we must next
    245   examine   whether   §   28103(b),     which   permits    Amtrak   to    enter   into
    246   indemnification     agreements, 5     preempts    the    Connecticut      statute.
    247   Second, in considering the district court's grant of Amtrak's motion
    248   for judgment as a matter of law, we must assess whether Amtrak’s
    249   conceded failure to effectively protect O&G’s crew constituted a
    250   material breach of the Permit, discharging O&G from its indemnity
    251   obligation.   Third,    we   review    the    district    court's      decision   to
    252   preclude O&G from cross-examining an Amtrak employee during Phase I
    253   of the trial, and the judge’s subsequent decision to restrict O&G's
    254   direct examination of the same employee during Phase II. Finally, we
    255   consider whether we have jurisdiction over the district court's non-
    256   quantified award to Amtrak of reasonable costs and attorneys' fees
    257   incurred in the defense of the Roberts and Quintiliani actions.
    258
    259   A.   Preemption
    260        Our review of a grant of summary judgment under Rule 56 is
    261   plenary. “[S]ummary judgment is appropriate where there exists no
    promisee against liability for damage arising out of
    bodily injury to persons or damage to property caused
    by or resulting from the negligence of such promisee,
    such promisee's agents or employees, is against public
    policy and void, provided this section shall not affect
    the validity of any insurance contract, workers'
    compensation agreement or other agreement issued by a
    licensed insurer.
    5
    
    49 U.S.C. § 28103
    (b) provides:
    A provider of rail passenger transportation may
    enter   into   contracts   that  allocate   financial
    responsibility for claims.
    10
    262   genuine issue of material fact and, based on the undisputed facts,
    263   the   moving    party      is   entitled        to   judgment    as       a    matter    of   law.”
    264   D'Amico v. City of New York, 
    132 F.3d 145
    , 149 (2d Cir. 1998). We
    265   view the facts in the light most favorable to the nonmoving party
    266   and resolve all factual ambiguities in its favor. Cioffi v. Averill
    267   Park Cent. Sch. Dist. Bd. of Educ., 
    444 F.3d 158
    , 162 (2d Cir.
    268   2006).
    269
    270         1)     Applicability of the Connecticut Statute
    271         In its appeal, O&G relies heavily on the Connecticut statute.
    272   In response, Amtrak claims for the first time that the Connecticut
    273   statute    does     not    apply    to    the    Permit     because       it    allegedly       bars
    274   indemnity    agreements         only     if   inserted      in   construction           contracts.
    275   Amtrak     argues    that    the    Permit      was   not    such     a       contract.    In   the
    276   district court, however, Amtrak did not contest the applicability of
    277   the Connecticut statute, although it had ample opportunity to do so.
    278   Under the circumstances, Amtrak has waived that argument and cannot
    279   raise it on appeal. See Greene v. United States, 
    13 F.3d 577
    , 586
    280   (2d   Cir.     1994)      (citing      Singleton      v.    Wulff,    
    428 U.S. 106
    ,    120
    281   (1976)). 6 Therefore, we proceed with the preemption question on the
    6
    Our   refusal to   consider  Amtrak’s  waived  argument   on  the
    applicability of the Connecticut statute is of little importance to the
    final disposition of the case. As set forth below, we agree with the
    district court’s finding that the Connecticut statute is preempted by
    federal law and thus does not invalidate the indemnity clause in the
    Permit.
    11
    282   assumption       that    the      Connecticut         statute     applies,      unless     it   is
    283   preempted.
    284
    285         2)     Preemption by § 28103(b)
    286         Section 28103 of Title 49 of the United States Code was enacted
    287   as   part   of    the        Amtrak   Reform       and    Accountability          Act    of   1997
    288   (hereafter the “Reform Act”). Subsection (b) of § 28103 provides
    289   that “[a] provider of rail passenger transportation may enter into
    290   contracts that allocate financial responsibility for claims.” Amtrak
    291   argues that this subsection was intended to allow it to enter into
    292   enforceable indemnity agreements not voidable under state law. In
    293   Amtrak’s     view,      §     28103(b)      is     at    odds     with    and     preempts      the
    294   Connecticut statute.
    295         O&G    counters         that    §     28103(b)       applies       only     to    indemnity
    296   agreements       (1)    regarding         claims      brought     by     passengers     and     (2)
    297   concluded between passenger rail carriers like Amtrak and freight
    298   railroads. Because Gregory Roberts and Quintiliani were not Amtrak
    299   passengers, and the indemnity agreement was between Amtrak and O&G,
    300   a construction company rather than a freight railroad company, O&G
    301   maintains that § 28103(b) is not applicable and does not supersede
    302   the Connecticut statute. In support of its arguments, O&G points to
    303   subsection    (a)       of    §   28103,    which       governs    the    issue    of   punitive
    304   damages to be awarded in relation to passenger claims for personal
    12
    305   injury, wrongful death or property damage, 7 and to the legislative
    306   history of § 28103(b).
    307        Federal preemption of state law is a doctrine grounded in the
    308   Supremacy Clause of the Constitution. See U.S. Const. Art. VI, cl. 2
    309   ("[T]he Laws of the United States . . . made in Pursuance [of the
    310   Constitution] shall be the supreme Law of the Land . . . any Thing
    311   in   the   Constitution        or   Laws    of      any     State     to    the    Contrary
    312   notwithstanding.").      The    doctrine         requires    us     first   to    ascertain
    313   congressional intent, which is “‘the ultimate touchstone’ of pre-
    314   emption analysis.” See Cipollone v. Liggett Group, Inc., 
    505 U.S. 315
       504, 516 (1992) (quoting Malone v. White Motor Corp., 
    435 U.S. 497
    ,
    316   504 (1978)). Intent to preempt state law may be found “(1) where
    317   Congress     expressly    states      its        intent     to    preempt;       (2)   where
    318   Congress's      scheme     of       federal        regulation         is     sufficiently
    7
    That subsection provides:
    (a) Limitations.
    --(1) Notwithstanding any other statutory or common law
    or public policy, or the nature of the conduct giving rise to
    damages or liability, in a claim for personal injury to a
    passenger, death of a passenger, or damage to property of a
    passenger arising from or in connection with the provision of
    rail passenger transportation, . . . punitive damages, to the
    extent permitted by applicable State law, may be awarded in
    connection with any such claim only if the plaintiff
    establishes by clear and convincing evidence that the harm
    that is the subject of the action was the result of conduct
    carried out by the defendant with a conscious, flagrant
    indifference to the rights or safety of others. If, in any
    case wherein death was caused, the law of the place where the
    act or omission complained of occurred provides, or has been
    construed to provide, for damages only punitive in nature,
    this paragraph shall not apply.
    (2) The aggregate allowable awards to all rail
    passengers, against all defendants, for all claims, including
    claims for punitive damages, arising from a single accident
    or incident, shall not exceed $200,000,000.
    13
    319   comprehensive to give rise to a reasonable inference that it leaves
    320   no room for the state to act; and (3) where state law actually
    321   conflicts with federal law.” Marsh v. Rosenbloom, 
    499 F.3d 165
    , 177
    322   (2d Cir. 2007) (citing Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479
    
    323 U.S. 272
    , 280 (1987)).
    324        As the district court correctly concluded, § 28103(b) does not
    325   expressly preempt state law, nor is it “so pervasive as to make
    326   reasonable the inference that Congress left no room for the states
    327   to supplement it.” Roberts, 
    2006 WL 648212
    , at *10. Preemption can
    328   thus be found here only if the Connecticut statute conflicts with §
    329   28103(b), i.e., if compliance with both statutes is impossible, or
    330   if   the   Connecticut   statute     “‘stands   as   an     obstacle    to   the
    331   accomplishment and execution of the full purposes and objective of
    332   Congress.’” United States v. Locke, 
    529 U.S. 89
    , 109 (2000) (quoting
    333   California v. ARC Am. Corp., 
    490 U.S. 93
    , 100-101 (1989)).
    334        O&G   first   contends   that   no    irreconcilable    conflict    exists
    335   between the federal and the Connecticut statutes, because Congress
    336   intended § 28103(b) to apply only to passenger claims. The argument
    337   is unavailing. The subsection contains no such limitation on its
    338   face and indeed makes plain that Amtrak may enter into contracts
    339   allocating financial responsibility (i.e., indemnity agreements) for
    340   any claims brought against it.
    341        Furthermore, if Congress intended § 28103(b) to apply only to
    342   passenger claims, it would have included such qualifying language in
    14
    343   the definition of the term “claims.” Congress did not do so. The
    344   definition in subsection (e) of § 28103 is sufficiently broad to
    345   encompass any claims asserted against Amtrak -- not only those by
    346   passengers. 8 Subsection (e) defines the persons or entities against
    347   whom   a     claim   may    be    pursued,     but      does   not   limit    the   class   of
    348   claimants. Because the language is unambiguous on this point, we
    349   cannot “supply that which is omitted by the legislature.” Spielman
    350   v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 
    332 F.3d 116
    , 127
    351   (2d Cir. 2003).
    352          The    title    of    §     28103     –-     “Limitations      on     rail   passenger
    353   transportation liability” –- is of little aid to O&G’s proposition
    354   that the statute covers only passenger claims. “[A] title . . .
    355   cannot limit the plain meaning of unambiguous text.” Collazos v.
    356   United     States,     
    368 F.3d 190
    ,      196    (2d   Cir.    2004)(omission       in
    357   original) (internal quotation marks omitted).
    358          We conclude that § 28103(b), read in the context of the whole
    359   section, see Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,
    360   
    529 U.S. 120
    ,       133     (2000),        authorizes     Amtrak’s       entry    into
    361   indemnification agreements for any claim filed against it, including
    8
    
    49 U.S.C. § 28103
    (e) states:
    Definition.-- For purposes of this section --
    (1) the term "claim" means a claim made--
    (A) against Amtrak, any high-speed railroad authority
    or operator, any commuter authority or operator, any rail
    carrier, or any State; or
    (B) against an officer, employee, affiliate engaged in
    railroad operations, or agent, of Amtrak, any high-speed
    railroad authority or operator, any commuter authority or
    operator, any rail carrier, or any State.
    15
    362   tort claims by contractor employees. This permissive mandate can
    363   hardly     be    reconciled     with     the        prohibition         of    the   Connecticut
    364   statute.
    365        O&G also argues that the scope of § 28103(b) only extends to
    366   indemnity        agreements     between     Amtrak          and       the    freight     railroad
    367   companies that own most of the rail lines on which Amtrak operates
    368   and are reluctant to shoulder liabilities stemming from the use of
    369   their tracks by passenger trains. This claim is equally unpersuasive
    370   because of the unambiguous text of § 28103(b) for the reasons set
    371   forth above, and we rest our conclusion that § 28103(b) preempts the
    372   Connecticut statute on that ground.
    373        Nonetheless,          O&G’s   argument          that    congressional          intent,    as
    374   evidenced       by   the   legislative      history         of    §   28103(b),     counsels    a
    375   different result is meritless. Because Amtrak is a passenger rail
    376   provider        mostly     operating   on      track        systems         owned   by   freight
    377   railroads, the protection afforded by § 28103(b) will most likely
    378   apply to indemnity agreements with freight railroads. As a result,
    379   many of the congressional sponsors of the Reform Act frequently
    380   referred in their discussions to the liability allocation agreements
    381   between Amtrak and host freight railroads. That said, we find no
    382   evidence of congressional intent that § 28103(b) apply only in that
    383   particular set of circumstances. Rather, the goal of the Reform Act
    384   was to shield all of Amtrak's indemnity arrangements from legal
    385   attacks on their validity. See Symposium: The State of the Law in
    16
    386   the Railroad Indus., 
    26 Transp. L.J. 319
    , 336-37 (1999) (“Congress .
    387   . . encouraged all providers of rail passenger transportation to
    388   enter    into    contracts        that   allocate         financial       responsibility     for
    389   claims. Resolving an issue that had plagued freight railroads that
    390   host Amtrak trains, Congress also affirmed the enforceability of
    391   contracts that include indemnification obligations.”).
    392           The    legislative        history       of    §    28103(b)        is     illuminating.
    393   Congressional        debates      reveal      legislative      concern          about   Amtrak’s
    394   financial      problems     and    intention         to   support    Amtrak’s      contractual
    395   arrangements designed to reduce its liability exposure. The Reform
    396   Act was meant, among other things, to ensure the enforceability of
    397   indemnity      agreements      Amtrak        concludes     with     any    other    party.   The
    398   Senate Committee Report is categorical in that regard:
    399           [T]his bill clarifies that indemnification agreements
    400           related to the provision of rail passenger service entered
    401           into by Amtrak and other parties would be enforceable. The
    402           Committee has been requested by Amtrak to include this
    403           provision in order to aid Amtrak in achieving operating
    404           self-sufficiency. . . . As long as there is the
    405           possibility that state laws governing indemnification
    406           contracts may make these contracts unenforceable, Amtrak
    407           and a freight railroad may find themselves litigating with
    408           each   other.  Amtrak   believes   that   such   litigation
    409           inevitably would not only adversely impact business
    410           relationships   between  Amtrak   and   the  host   freight
    411           railroads, but it would also lead to significantly higher
    412           outlays in settlements and judgments to plaintiffs.
    413
    414   S.   Rep.      No.   105-85,       at    5     (1997)      (emphasis       added).      Congress
    415   unmistakably intended “[t]he language in section 28103(b) . . . to
    416   confirm       that   such    contractual         agreements         [i.e.       indemnification
    17
    417   agreements] are consistent with Federal law and public policy.” 143
    418   Cong. Rec. S11937-03 (statement of Sen. Lott). O&G’s interpretation
    419   of the statute’s legislative history would be inconsistent with the
    420   stated objective of § 28103(b) to solidify the enforceability of
    421   Amtrak’s liability-shifting arrangements.
    422          When the Reform Act was passed, Amtrak was in the middle of “a
    423   financial     crisis,   with      growing    and       substantial       debt      obligations
    424   severely     limiting       its   ability        to     cover    operating         costs   and
    425   jeopardizing      its       long-term       viability.”              Amtrak     Reform     and
    426   Accountability Act of 1997, §2(2), Pub. L. No. 105-134, December 2,
    427   1997, 
    111 Stat. 2570
    , at *2571; see also 143 Cong. Rec. S11929-03
    428   (statement of Sen. McCain) (“Amtrak is on the verge of bankruptcy.
    429   Fundamental reforms are needed immediately if there is to be any
    430   possibility of addressing Amtrak's financial crisis and turning it
    431   into   a     viable   operation.”).         The       Reform    Act      clearly      reflects
    432   Congress’s distress over Amtrak’s financial burdens: in 
    49 U.S.C. § 433
       28103(a), Congress limited the award of punitive damages, in actions
    434   “arising from . . . the provision of rail passenger transportation,”
    435   to   cases    where   the    defendant      was       proven    to    have    “a   conscious,
    436   flagrant indifference to the rights or safety of others.” 49 U.S.C.
    437   § 28103(a)(1). In a similar vein, Congress placed a $200 million cap
    438   on Amtrak’s aggregate liability from any single accident. Id. §
    439   28103(a)(2).
    18
    440         Against this legislative background, contentions that Congress
    441   intended    to    allow      state   law   or    public      policy     to    interfere       with
    442   Congress’s attempt to rescue Amtrak are simply not persuasive. We
    443   believe    that   we    must    enforce     and       recognize    the       validity    of   the
    444   indemnity provision in the Permit. Applying the Connecticut statute
    445   would violate the plain language and spirit of § 28103(b), which
    446   therefore preempts the Connecticut statute.
    447
    448   B.    Material Breach of the Permit
    449         At the conclusion of Phase II of the trial, the jury found
    450   that, under the indemnity provision in the Permit, O&G was required
    451   to reimburse Amtrak for costs incurred and damages awarded in the
    452   Roberts and Quintiliani actions, but that Amtrak’s material breach
    453   of the Permit relieved O&G of all its contractual duties, including
    454   the   obligation       to    indemnify     Amtrak.      However,       the    district     judge
    455   overturned the jury verdict, ruling that as a matter of law O&G’s
    456   contractual obligation to indemnify Amtrak was valid regardless of
    457   Amtrak’s negligence. See Roberts, 
    2006 WL 2621733
    , at *5-7. O&G now
    458   challenges this ruling, arguing that the jury properly found that
    459   Amtrak's violation of its duty to protect O&G's workers from passing
    460   trains    resulted      in    termination        of    the   entire      Permit    and     O&G’s
    461   indemnity    obligation        thereunder.       We    review     de    novo    the     district
    462   court's grant of a post-verdict judgment to Amtrak as a matter of
    463   law, considering the evidence in the light most favorable to O&G,
    19
    464   the nonmoving party. Zellner v. Summerlin, 
    494 F.3d 344
    , 371 (2d
    465   Cir. 2007).
    466        “[A] material breach is a failure to do something that is so
    467   fundamental    to      a     contract     that    the   failure       to    perform    that
    468   obligation defeats the essential purpose of the contract or makes it
    469   impossible for the other party to perform under the contract.” 23
    470   Williston on Contracts § 63:3 (4th ed. 2007) (footnotes and internal
    471   quotation     marks        omitted).     Under    Connecticut        law,   an     uncured,
    472   material failure of performance by one contracting party discharges
    473   the other party from any further performance under the contract,
    474   which is rendered unenforceable in toto. See Bernstein v. Nemeyer,
    475   
    570 A.2d 164
    , 168 (Conn. 1990).
    476        It is uncontroverted that O&G complied with its obligations
    477   under the Permit to perform its work on Amtrak’s property so as to
    478   observe     Amtrak's        safety      regulations     and    not     “interfere      with
    479   [Amtrak’s]    operations.”         By   contrast,     Amtrak’s    failure     to   provide
    480   adequate    protection        to     O&G’s   workers,    O&G     claims,     negated   the
    481   Permit’s purpose and amounted to a material breach. The district
    482   court rejected this claim because of the unambiguous language of the
    483   indemnity agreement, which the court held squarely applicable to the
    484   undisputed facts of the case. See Roberts, 
    2006 WL 2621733
    , at *6
    485   (“The argument lacks merit, however, because the factual situation
    486   on which O&G relies for being excused from its obligation is exactly
    487   the factual situation which gives rise to that obligation.”).
    20
    488           We agree with the district judge’s holding. Not only is the
    489   indemnity        clause     not   qualified     by    or     conditioned      on   Amtrak's
    490   obligation to operate its trains safely through the worksite, but it
    491   explicitly provides Amtrak with a right to indemnity even where “the
    492   negligence or fault of Amtrak [or] its . . . employees” is the sole
    493   cause       of    “injury,     death,    disease,     or     occupational     disease   to
    494   employees of” O&G. 9 O&G cannot circumvent its indemnity obligation by
    495   invoking         Amtrak’s     negligence,     which    the    parties      envisaged    and
    496   clearly      determined       would    not   exonerate     O&G   from   its    contractual
    497   duties. As Judge Dorsey emphasized, if O&G is allowed to evade its
    498   obligation        to   hold   Amtrak    harmless,     “Amtrak’s    protection       against
    499   ultimate responsibility for any unsafe train operation, as provided
    500   in the Permit, would be nullified.” 
    Id. at *6
    . Since the indemnity
    501   provision expressly contemplates the factual situation that arose
    502   here (i.e., Amtrak’s negligence was the sole cause of injury and
    503   death to O&G’s employees), Amtrak’s failure to safely operate its
    504   trains through O&G’s work zone could not have thwarted the Permit’s
    505   essential purpose.
    506           A reading of the Permit as a whole suggests, in fact, that at
    507   the core of the agreement was the parties’ preoccupation with the
    508   “safety and continuity of railroad traffic,” rather than the safety
    509   of O&G’s personnel. The emphatic references to O&G’s undertaking to
    510   take all measures necessary to avoid undue interference with train
    9
    The indemnity provision is quoted in full in section I of the
    opinion, see supra at p.__. Its applicability in this case has not been
    called into question by the parties.
    21
    511   operations and its “complete responsibility for the adequacy and
    512   safety of” its activities suggest that the Permit was drafted with a
    513   principal       focus   on   Amtrak’s   interests.   Even    Amtrak’s     promise     to
    514   furnish protection was aimed at ensuring the safety and continuity
    515   of railroad traffic and would come into play only if, in the opinion
    516   of   Amtrak’s      officers,     “conditions    warrant”     it,    and    under     the
    517   condition that O&G would bear all the costs. It is a fair inference
    518   that the essential purpose of the Permit was not to guarantee the
    519   safety of O&G’s employees, but rather to authorize O&G’s temporary
    520   access    to    Amtrak’s     property   while   reassuring       Amtrak   that      O&G’s
    521   presence on its property would neither disrupt train operations nor
    522   damage Amtrak’s trains and facilities. Amtrak’s negligent failure to
    523   provide adequate protection to O&G’s workers did not vitiate this
    524   purpose.
    525           O&G does not claim that every negligent act by Amtrak would
    526   constitute a material breach of the Permit. According to O&G, there
    527   could      be     situations      involving     negligent        acts     by     Amtrak
    528   representatives         that,   nevertheless,    would      be     covered     by    the
    529   indemnity provision without necessarily amounting to a breach of a
    530   fundamental contractual term. For example, O&G claims, “an Amtrak
    531   employee could accidentally strike someone with a tool or a piece of
    532   equipment, or could dig a hole into which an individual might fall.”
    533   See Br. of Appellant at 36.
    22
    534           The breadth of the indemnity provision refutes the distinction
    535   O&G seeks to introduce. The provision does carve out of its reach
    536   some situations where Amtrak’s negligence is the sole cause of the
    537   indemnifiable        loss,      but     O&G’s        obligation        to   indemnify        Amtrak
    538   explicitly     extends       to     instances        of    “injury,      death,      disease,     or
    539   occupational disease to employees of [O&G]” exclusively caused by
    540   Amtrak's    negligence         or    fault.     If    Amtrak’s         obligation     to   protect
    541   O&G’s employees were a centerpiece of the Permit, and default of
    542   this    obligation      were        intended    to     invalidate        the     Permit    in    its
    543   entirety, the parties could have made this clear by, for example,
    544   including a termination clause in the Permit. Absent any stipulation
    545   or indication to that effect, we cannot “unmake” the bargain the
    546   parties struck, “whether provident or improvident.” Tallmadge Bros.,
    547   Inc. v. Iroquois Gas Transmission Sys., L.P., 
    746 A.2d 1277
    , 1292
    548   (Conn. 2000) (internal quotation marks omitted). “Where the language
    549   of the contract is clear and unambiguous, the contract is to be
    550   given effect according to its terms.” Pesino v. Atl. Bank of New
    
    551 York, 709
       A.2d     540,      545   (Conn.       1998)      (internal       quotation    marks
    552   omitted).      Under    the       circumstances           of    this    case,    a   finding     of
    553   material breach of the Permit would be incompatible with its plain
    554   language.
    555           “Simply stated, . . . the evidence [here] is such that, without
    556   . . . considering the weight of the evidence, there can be but one
    557   conclusion      as     to    the     verdict     that          reasonable      men   could      have
    23
    558   reached.”       Simblest    v.   Maynard,     
    427 F.2d 1
    ,   4    (2d   Cir.    1970).
    559   Accordingly, we affirm the district court's grant of judgment to
    560   Amtrak as a matter of law and hold that, regardless of Amtrak’s
    561   negligence in causing the accident, O&G bears the valid obligation
    562   to    indemnify    Amtrak    for      the   damages    awarded    to    Quintiliani     and
    563   Roberts.
    564
    565   C.     Cross-Examination of Amtrak's Employee by O&G
    566          The district court permitted O&G to participate in Phase I of
    567   the    trial,     in   which     plaintiffs       Roberts     and      Quintiliani     sued
    568   defendant Amtrak. The judge’s rationale was that evidence presented
    569   in relation to plaintiffs’ claims against Amtrak might well bear on
    570   Amtrak’s indemnity claim against O&G. Nevertheless, the judge did
    571   not    permit    O&G's     counsel     to   cross-examine     Amtrak's       New    England
    572   Division    Superintendent         Fred     Fournier.    O&G’s      stated   reason    for
    573   cross-examining Fournier was to elicit testimony tending to prove
    574   that O&G was not at fault for the accident, which was entirely
    575   attributable to Amtrak's reckless conduct. O&G argues that a showing
    576   of Amtrak’s recklessness would enable O&G to avoid its indemnity
    577   obligations on public policy grounds. Judge Dorsey’s reasoning for
    578   denying    O&G’s    request      to   cross-examine      Fournier      was   that    issues
    579   pertaining to O&G's role in the accident would be addressed in Phase
    580   II. O&G was told that it would have ample opportunity to present its
    581   recklessness defense at that time. However, when O&G attempted to
    24
    582   question Fournier in Phase II of the trial about whether Amtrak
    583   followed proper internal procedures to avert safety risks to O&G’s
    584   on-site employees, the court sustained Amtrak’s objection to this
    585   line   of    questioning.      The     judge   noted   that    the    jury   had   already
    586   resolved the issue of Amtrak’s fault in Phase I of the trial.
    587          O&G   now    claims     that    by   precluding   its       cross-examination     of
    588   Fournier in Phase I and limiting its questioning of the same witness
    589   in Phase II of the trial, the district judge prevented O&G from
    590   fully litigating the question of Amtrak's recklessness -- on which
    591   one of O&G’s defense was premised -- and thus deprived it of its
    592   cross-examination rights. The error, according to O&G, warrants a
    593   new trial.
    594          As a preliminary matter, we reject Amtrak's contention that
    595   this   claim       has   not    been    preserved      for    appellate      review.     O&G
    596   repeatedly objected to the court's limitations on its examination of
    597   Fournier,     articulating       the    concern     that,     if    the   jury   found    no
    598   recklessness by Amtrak in Phase I, that issue would be barred from
    599   jury consideration in Phase II.
    600          We turn to the merits of O&G’s claim. “Whether an evidentiary
    601   error implicates a substantial right depends on ‘the likelihood that
    602   the error affected the outcome of the case.’” See Tesser v. Bd. of
    603   Educ., 
    370 F.3d 314
    , 319 (2d Cir. 2004) (per curiam) (quoting Malek
    604   v. Fed. Ins. Co., 
    994 F.2d 49
    , 55 (2d Cir. 1993)); see also Fed. R.
    605   Civ. P. 61 (“Unless justice requires otherwise, no error . . . by
    25
    606   the court . . . is ground for granting a new trial, . . . or
    607   otherwise disturbing a judgment or order. At every stage of the
    608   proceeding, the court must disregard all errors and defects that do
    609   not affect any party’s substantial rights.”)
    610        We   believe   that   the   court’s     alleged     error    did    not    have     a
    611   substantial impact on the outcome of the case. O&G's interests were
    612   adequately protected by Roberts and Quintiliani, the plaintiffs in
    613   Phase I. These parties were seeking punitive damages from Amtrak and
    614   thus had an equal, if not greater, incentive than O&G to show that
    615   Amtrak's conduct was reckless. The question of Amtrak’s recklessness
    616   was adequately litigated by Roberts and Quintiliani and there is no
    617   indication that the jury would have found recklessness, had O&G been
    618   allowed   to   cross-examine      Fournier.        The   limitation       of         O&G’s
    619   cross-examination    rights,     even   if   erroneous,     did    not    cause        any
    620   prejudice to O&G, because “it is [not] likely that in some material
    621   respect the factfinder's judgment was swayed by the error.” Tesser,
    622   
    370 F.3d at 319
     (internal quotation marks omitted). See also United
    623   States v. Thomas, 
    274 F.3d 655
    , 668 (2d Cir. 2001) (en banc) (“An
    624   error affects a defendant's substantial rights if it is prejudicial
    625   and it affected the outcome of the district court proceedings”)
    626   (internal quotation marks omitted).
    627        Furthermore,    even      supposing     the    district      judge        had     not
    628   restricted O&G’s examination of Fournier in Phase I, and that O&G
    629   had convinced the jury that Amtrak’s conduct was reckless, it is
    26
    630   doubtful that the outcome of the case would have been more favorable
    631   to O&G. The indemnity provision in the Permit unequivocally requires
    632   O&G to reimburse Amtrak for all the losses Amtrak may sustain as a
    633   result of death or injury to O&G’s employees, even when Amtrak’s own
    634   negligence          or   fault     is    the    sole     cause       of     the    incident.         The
    635   unmistakable         wording      of    the    clause    would       thus    not       allow   O&G   to
    636   nullify its obligation to indemnify Amtrak, even if the jury had
    637   entered    a    punitive         damages      award    against       Amtrak       on    recklessness
    638   grounds.
    639        O&G argues to us that, had it been allowed to fully participate
    640   in Phase I of the trial, and had the jury found Amtrak’s conduct
    641   reckless, O&G would have been relieved of its duty to hold Amtrak
    642   harmless, by raising a public policy defense against enforcement of
    643   the indemnity agreement. We disagree. We have already held in this
    644   opinion    (see          Part    II.A,     supra)       that    the       Connecticut          statute
    645   embodying the public policy of Connecticut against indemnification
    646   for liabilities due solely to the negligence of the indemnitee 10 is
    647   preempted by § 28103(b). Subsection § 28103(b) also superseded the
    648   opinion that would have been most helpful to O&G in its public
    649   policy    defense        against       indemnification         for    reckless         conduct.      See
    650   Nat’l R.R. Passenger Corp. v. Consol. Rail Corp. (“ConRail”), 
    698 F. 651
       Supp. 951 (D.D.C. 1988) (invalidating an agreement to indemnify for
    652   losses caused by the indemnitee’s gross negligence, as contrary to
    653   District of Columbia public policy), vacated on other grounds, 892
    10
    See supra note 3.
    27
    
    654 F.2d 1066
        (D.C.     Cir.    1990).     As    Judge    Dorsey       correctly         noted      in
    655   granting summary judgment to Amtrak, it was precisely the doubts
    656   cast   by     the    ConRail     decision         over    the     validity      of    indemnity
    657   agreements by railroad parties that prompted Congress to enact §
    658   28103(b).      See     Roberts,      
    2006 WL 648212
    ,     at    *11.      The      broad,
    659   unqualified     language        in   §   28103(b)        leaves    no    doubt       as    to     the
    660   specific      intent     of   Congress      to        sanction    indemnity        arrangements
    661   between     Amtrak     “and     other    parties”        with    respect      to     any    claims
    662   against Amtrak. See S. Rep. No. 105-85, at 5 (1997). A finding of
    663   recklessness in Phase I, therefore, would have resulted in a higher
    664   jury verdict against Amtrak in the underlying actions against it in
    665   Phase I of the trial. This would most probably have permitted Amtrak
    666   to obtain greater recovery from O&G under the Permit; public policy
    667   considerations would not have precluded enforcement of the express
    668   direction of the indemnity provision.
    669          In view of the above, we hold that, assuming arguendo that the
    670   district judge erred in preventing O&G from cross-examining Fournier
    671   in Phase I and from fully pursuing its recklessness defense in Phase
    672   II, the error was not prejudicial to O&G in the context of the trial
    673   as a whole and does not justify a new trial.
    674
    675   D.     Attorneys' Fees
    676          In     granting    Amtrak's       Rule     50(b)     motion      for   judgment          as   a
    677   matter of law, the district judge held that, under the indemnity
    28
    678   agreement, Amtrak was entitled to reimbursement of its attorneys’
    679   fees, as well as the costs it incurred in Phase I of the trial, in
    680   defense   of    the    actions     brought       by   Roberts        and    Quintiliani.    The
    681   judge,    however,     did   not    set    the     amount       of   attorneys’      fees   and
    682   litigation costs for which O&G was required to indemnify Amtrak. O&G
    683   now argues that the district court abused its discretion in awarding
    684   attorneys’ fees and costs where there was no evidence as to the
    685   amount or reasonableness of these expenses. Amtrak responds that the
    686   amount of fees due would be ascertained by the district judge only
    687   after liability for such fees was determined.
    688          Pursuant to 
    28 U.S.C. § 1291
    , we review only final decisions of
    689   the district court that “leave[] nothing for the court to do but
    690   execute the judgment.” Catlin v. United States, 
    324 U.S. 229
    , 233
    691   (1945). A non-quantified award of attorneys’ fees and costs is not
    692   appealable until the amount of the fees has been set by the district
    693   court. “We have held that where attorneys’ fees are a contractually
    694   stipulated element of damages, a judgment is not final until the
    695   fees   have    been    determined.”       F.H.     Krear    &    Co.       v.   Nineteen   Named
    696   Trustees, 
    776 F.2d 1563
    , 1564 (2d Cir. 1985) (per curiam); see also
    697   Honeywell Int'l, Inc. v. Purolator Prods. Co., 
    468 F.3d 162
    , 164 (2d
    698   Cir. 2006). This circuit, moreover, has “rejected the doctrine of
    699   pendent appellate jurisdiction as a basis to review an undetermined
    700   award of attorneys’ fees, even when the question of liability for
    701   the    fees   had     been   consolidated         with   other       decisions      that    were
    29
    702   final.” Krumme v. WestPoint Stevens Inc., 
    143 F.3d 71
    , 87 (2d Cir.
    703   1998)        (citing   Cooper    v.    Salomon    Bros.,   
    1 F.3d 82
    ,   85    (2d   Cir.
    704   1993)). We therefore dismiss for lack of appellate jurisdiction the
    705   portion of O&G’s appeal challenging the district court’s grant of
    706   attorneys’ fees and costs incurred in Phase I of the trial.
    707           This     defect   does    not     impair   the     finality   of    the   district
    708   court’s ruling on Amtrak’s motion for judgment as a matter of law,
    709   nor does it divest us of jurisdiction to review the merits of the
    710   other issues on appeal. In reaching this conclusion, we apply the
    711   “bright-line rule” enunciated by the Supreme Court in Budinich v.
    712   Becton Dickinson & Co., 
    486 U.S. 196
     (1988), “that a decision on the
    713   merits is a ‘final decision’ for purposes of [28 U.S.C.] § 1291
    714   whether        or   not   there       remains    for   adjudication    a    request     for
    715   attorney's fees.” Id. at 202-03. 11
    716
    717     III. CONCLUSION
    11
    Some of our pre-Budinich precedent might be read to support the
    proposition that the non-finality of an award of attorneys’ fees sought
    as an element of contractual damages renders non-appealable the entire
    judgment in which such award is incorporated. See, e.g., Union Tank Car
    Co. v. Isbrandtsen, 
    416 F.2d 96
     (2d Cir. 1969) (per curiam). However, we
    heed the Supreme Court’s admonition in Budinich that “no interest
    pertinent to § 1291 is served by according different treatment to
    attorney's fees deemed part of the merits recovery,” and abide by the now
    “uniform rule that an unresolved issue of attorney’s fees . . . does not
    prevent judgment on the merits from being final.” Budinich, 
    486 U.S. at 202
    . Application of this sensible rule also promotes the interests of
    judicial economy, especially in this case where resolution of the
    “question remaining to be decided . . . will not alter . . . or revise”
    the court’s final rulings on the merits of the other issues on appeal.
    
    Id. at 199
    . Treating the district court’s grant of Amtrak’s Rule 50(b)
    motion as non-final and remanding the entire case to the district court
    would only cause further delays in the disposition of this long-pending
    case.
    30
    718        We have considered all of appellant O&G’s arguments and find
    719   them to be without merit. For the reasons discussed above, we affirm
    720   the district court on all issues except for the ruling on attorneys'
    721   fees, over which we lack appellate jurisdiction. AFFIRMED IN PART
    722   AND DISMISSED IN PART.
    31
    

Document Info

Docket Number: 06-4719-cv

Filed Date: 8/8/2008

Precedential Status: Precedential

Modified Date: 9/17/2015

Authorities (23)

California v. ARC America Corp. , 109 S. Ct. 1661 ( 1989 )

Singleton v. Wulff , 96 S. Ct. 2868 ( 1976 )

Budinich v. Becton Dickinson & Co. , 108 S. Ct. 1717 ( 1988 )

honeywell-international-inc-v-purolator-products-co-motor-components , 468 F.3d 162 ( 2006 )

fh-krear-co-a-corporation-v-nineteen-named-trustees-as-trustees-of , 776 F.2d 1563 ( 1985 )

Food & Drug Administration v. Brown & Williamson Tobacco ... , 120 S. Ct. 1291 ( 2000 )

United States v. Ramse Thomas , 274 F.3d 655 ( 2001 )

vito-damico-firefighter-v-the-city-of-new-york-joseph-f-bruno-former , 132 F.3d 145 ( 1998 )

Marsh v. Rosenbloom , 499 F.3d 165 ( 2007 )

Union Tank Car Company v. Jakob Isbrandtsen, American ... , 416 F.2d 96 ( 1969 )

stella-collazos-claimant-appellant-contents-of-account-number-68108021 , 368 F.3d 190 ( 2004 )

Catlin v. United States , 65 S. Ct. 631 ( 1945 )

Samuel Simblest v. Joseph Maynard , 427 F.2d 1 ( 1970 )

United States v. Locke , 120 S. Ct. 1135 ( 2000 )

gilda-tesser-v-board-of-education-of-the-city-school-district-of-the-city , 370 F.3d 314 ( 2004 )

louis-j-cioffi-iii-v-averill-park-central-school-district-board-of-ed , 444 F.3d 158 ( 2006 )

Leonard Greene and Joyce Greene v. United States , 13 F.3d 577 ( 1994 )

Malone v. White Motor Corp. , 98 S. Ct. 1185 ( 1978 )

Leon E. Cooper v. Salomon Brothers Inc. , 1 F.3d 82 ( 1993 )

22-employee-benefits-cas-1208-pens-plan-guide-cch-p-23942y-robert-d , 143 F.3d 71 ( 1998 )

View All Authorities »