Cole-Hoover v. Reddy , 689 F. App'x 60 ( 2017 )

15-1986-cv(L)
Cole-Hoover v. Reddy et al.
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of April, two thousand seventeen.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 GWENDOLYN COLE-HOOVER, M.D.,
14 Plaintiff–Appellant–
15 Cross-Appellee,
16
17 -v.- 15-1986-cv(L),
18 15-2173-cv(XAP)
19 PRATHIMA REDDY,
20 Appellee–Cross-Appellant,
21
22 ANNA MARIE RICHMOND, BRIAN P. FITGERALD, KRISTA GOTTLIEB,
23 Appellees,
24
25 -v.-
26
1
1 ANGINELL A. ANDREWS, JOHN HOWARD, M.D.,
2 ROBERT P. KIRKPATRICK, ROBERT SPENCE,
3 MARC STERN, M.D., NEW YORK STATE
4 DEPARTMENT OF CORRECTIONAL SERVICES,
5 ALBION CORRECTIONAL FACILITY, SUE
6 WOJCINSKI, SANDRA DURFEE, ANGIE MAUME,
7 DONNA BAKER,
8 Defendants.
9
10 - - - - - - - - - - - - - - - - - - - -X
11
12 FOR PLAINTIFF-APPELLANT:
13 ANTHONY A. BOYADJIS, Morristown,
14 NJ.
15
16 FOR APPELLEE–CROSS-APPELLANT:
17
18 ALAN J. BOZER, Amanda L. Lowe;
19 Phillips Lytle LLP, Buffalo, NY.
20
21 FOR APPELLES:
22 ANNA M RICHMOND, Brian P.
23 Fitgerald, Buffalo, NY.
24
25
26
27 Appeal from the final orders of the United States District
28 Court for the Western District of New York (McCarthy, M.J.).
29
30 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
31 DECREED that the orders of the district court be AFFIRMED.
32
33 Plaintiff-Appellant Dr. Gwendolyn Cole-Hoover appeals from
34 the final orders of the district court (McCarthy, M.J.)
35 substantially granting motions for attorneys’ fees subsequent
36 to entry of judgment. Pursuant to 28 U.S.C. § 636(c)(1), the
37 parties consented to conduct all proceedings before a magistrate
38 judge. We assume the parties’ familiarity with the underlying
39 facts, the procedural history, and the issues presented for
40 review.
41
2
1 Cole-Hoover brought this employment discrimination action
2 in 2002. The litigation has been very contentious and has lasted
3 more than a decade, during which time Cole-Hoover has gone
4 through many lawyers. The lawyer who helped her bring the case
5 withdrew after about three years. He was replaced by Appellees
6 Brian Fitzgerald and Anna Marie Richmond in the fall of 2005,
7 and they moved to withdraw in January 2008. The lawyer who
8 replaced them lasted about four years, almost until the eve of
9 trial, when Cole-Hoover fired him. Cole-Hoover replaced him
10 with Appellee Prathima Reddy, who had only a few weeks to catch
11 up with ten years of litigation to prepare for a potentially
12 lengthy trial, and to attempt to negotiate a settlement.
13 Shortly before jury selection, the case settled for $750,000.
14 A short time later, three more lawyers entered appearances
15 for Cole-Hoover--not in the underlying case, but in fee disputes
16 (she is now represented on appeal by yet another). In a series
17 of well-reasoned opinions, the district court granted (in
18 modified amounts) fee awards to Fitzgerald, Richmond, and Reddy.
19 Cole-Hoover’s appeal challenges the fee awards, as well as (in
20 a two-sentence section of her brief, see Appellant Br. 23–24)
21 the order that she pay her share of mediation fees to Krista
22 Gottlieb.1 Reddy cross-appeals, challenging the district
23 court’s 10% reduction of her request for an award in quantum
24 meruit.
25 “We review a district court’s award of attorneys’ fees for
26 abuse of discretion.” Carco Grp., Inc. v. Maconachy, 718 F.3d
27 72, 79 (2d Cir. 2013) (per curiam). A district court abuses its
28 discretion when it rests its decision on an error of law, or
29 on a clearly erroneous factual finding, or when its decision
30 cannot be located within the range of permissible decisions.
31 Id. “Abuse of discretion--already one of the most deferential
32 standards of review--takes on special significance when [we]
33 review[] fee decisions because the district court, which is
34 intimately familiar with the nuances of the case, is in a far
35 better position to make such decisions than is an appellate
36 court, which must work from a cold record.” McDaniel v. Cty.
37 of Schenectady, 595 F.3d 411, 416 (2d Cir. 2010) (brackets and
38 quotation marks removed).
1
Gottlieb has not filed a brief.
3
1 1. Cole-Hoover does not dispute that Fitzgerald and
2 Richmond are entitled to payment for hours worked, pursuant to
3 a provision in their retainer agreement for payment after
4 justifiable withdrawal; nor does she dispute their hourly rate.
5 Her only challenge is to vagueness, overbilling, and
6 double-billing in the time records. The district court found
7 that her challenge justified a 10% reduction in the fee awards.
8 We find no error in that assessment, which is within the range
9 of permissible decisions.2
10 2. Reddy’s retainer agreement required a nonrefundable
11 retainer, which is impermissible under Rule 1.5(d)(4) of the
12 New York Rules of Professional Conduct. See 22 N.Y.R.C.C. §
13 1200.0. As the district court found, the agreement is
14 unenforceable. Cole-Hoover argues that Reddy should get
15 nothing, relying on a Second Circuit decision from a different
16 context for the principle that “an attorney who engages in
17 misconduct” is not entitled to a fee. Chen v. Chen Qualified
18 Settlement Fund, 552 F.3d 218, 225 (2d Cir. 2009) (quoting
19 Shelton v. Shelton, 542 N.Y.S.2d 719, 720 (2d Dep’t 1989)). The
20 district court recognized that the weight of authority is to
21 the contrary. Although a “nonrefundable retainer agreement
22 [is] unenforceable and may subject an attorney to professional
23 discipline, quantum meruit payment for services actually
24 rendered will still be available and appropriate.” In re
25 Cooperman, 83 N.Y.2d 465, 475 (1994). Accordingly, the district
26 court ruled that Reddy is entitled to recover in quantum meruit
27 for the reasonable value of services provided. As with
28 Fitzgerald and Richmond, the district court found some of Reddy’s
29 time entries excessive or insufficiently documented and applied
30 a 10% reduction to the award. We find no error in that assessment,
31 which is within the range of permissible decisions. We reject
32 both Cole-Hoover’s argument that the district court erred by
33 granting the award and Reddy’s argument that it erred by applying
34 the 10% reduction.
35
2
Cole-Hoover’s suggestion that the district court sua sponte
increased the size of Richmond’s requested award before applying this
reduction is meritless. The alleged “increase” was the correction
of an arithmetical error.
4
1 As to the mediation fees, such payment is required by the
2 district court’s Alternative Dispute Resolution Plan.
3 Accordingly, and finding no merit in appellant’s other
4 arguments, we hereby AFFIRM the orders of the district court.
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
5