15-1986
Cole-Hoover v. Dept. of Corrections
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
Submitted: August 25, 2015 Decided: October 14, 2015
Amended: October 15, 2015
Docket No. 15-1986
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GWENDOLYN COLE-HOOVER, M.D.,
Plaintiff-Appellant,
v.
ANNA MARIE RICHMOND, BRIAN P. FITZGERALD,
Non-Party Appellees,1
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Before: NEWMAN, WALKER, and JACOBS, Circuit Judges.
Motion to dismiss as untimely an appeal from an order
of the United States District Court for the Western District
of New York (Jeremiah J. McCarthy, Magistrate Judge),
awarding liens for attorney’s fees. Court of Appeals rules
that notice of appeal is timely from subsequent order
directing payment of attorney’s fees.
Motion to dismiss and motion for sanctions DENIED.
1
The caption reflects only the parties to the pending
motion.
1
Brian P. Fitzgerald, Brian P.
Fitzgerald, P.C., Buffalo, NY,
for Non-Party Appellees Anna
Marie Richmond and Brian P.
Fitzgerald.
Anthony A. Boyadjis, Morristown,
N.J. for Appellant Gwendolyn
Cole-Hoover.
JON O. NEWMAN, Circuit Judge.
The issue on this motion to dismiss as untimely an
appeal of an order concerning attorney’s fees is when the
time for filing a notice of appeal begins to run. The issue
arises out of an employment discrimination suit filed by
Plaintiff-Appellant Dr. Gwendolyn Cole-Hoover against the
New York Department of Correctional Services and others.
Between 2005 and 2008, while the litigation was pending,
Cole-Hoover was represented by Non-Party Appellees Brian
Fitzgerald and Anna Marie Richmond, whose motion is before
us. They withdrew their representation and were replaced by
Prathima Reddy.
The case was ultimately settled. Before the parties
announced their intention to settle, the Appellees sought an
order directing Cole-Hoover to pay their unpaid attorney’s
2
fees out of the proceeds of the settlement. The parties
stipulated that $360,915.05 of the settlement proceeds would
be held in escrow by Reddy pending resolution of attorney’s
fees disputes. The District Court (Jeremiah J. McCarthy,
Magistrate Judge) later ordered the court clerk to hold the
escrowed funds. In November 2013, after litigation
concerning the terms of the settlement, the District Court
entered a final judgment in favor of the Plaintiff in the
amount of $750,000, which this Court affirmed. See Cole-
Hoover v. N. Y. State Dep’t of Corrections and Community
Supervision, 594 F. App’x 23 (2d Cir. 2015).
On February 12, 2014, the District Court issued a
“Decision and Order on Motions for Attorneys’ Fees” that the
Appellees now contend started the clock for filing a notice
of appeal.2 The Court stated that Fitzgerald’s fee request
“will be reduced by 10% to $46,350, plus disbursements of
$245.30, for a total of $46,595.30.” After making a similar
reduction in Richmond’s request, the Court stated that “the
figure to which Ms. Richmond is entitled: $54,940.25. The
2
The District Court’s jurisdiction to enter the fee
order while the appeal from the underlying litigation was
pending is not questioned. See Chesley v. Union Carbide
Corp., 927 F.2d 60, 65 (2d Cir. 1991) (ancillary
jurisdiction to resolve fee disputes).
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Court concluded its ruling by stating that the motion by
Fitzgerald and Richmond
“is granted to the extent of awarding Mr.
Fitzgerald a lien in the amount of $46,595.30, and
Ms. Richmond a lien in the amount of $54,940.25,
upon any sums payable to plaintiff in this action,
but is otherwise denied . . . .”
Cole-Hoover v. N. Y. Dep’t of Correctional Services, No. 02-
CV-00826 M, 2014 WL 576176, at *7 (W.D.N.Y. Feb. 12, 2014)
(emphases added).
In March 2015 Reddy renewed a motion for her attorney’s
fees, which she had filed in May 2014. On May 21, 2015, the
District Court filed a “Decision and Order” determining that
Reddy was entitled to $155,790 and ordering payment to her
of that sum. The conclusion of that Order included the
following:
“[T]he judgment entered in favor of plaintiff
on November 13, 2013 s h a l l b e p a i d ( e i t h e r
directly or from escrow) as follows:
- in accordance with my February 12, 2014
Decision and Order, the sum of $46,595.30 shall be
paid to attorney Brian Fitzgerald and the sum of
$54,940.25 shall be paid to attorney Anna Marie
Richmond . . . .”
Cole-Hoover v. N. Y. DOCCS, No. 02-CV-00826-JJM, 2015 WL
2451738, at *4 (May 21, 2015) (emphases added) (docket
numbers deleted). The Order also directed payment of
Reddy’s fee.
4
On June 22, 2015, Cole-Hoover filed a notice of appeal
from the orders entered on February 12, 2014, and May 21,
2015. On July 14, 2015, Fitzgerald and Richmond filed the
pending motion, requesting dismissal of Cole-Hoover’s appeal
from the February 12, 2014, order.3 Their motion also seeks
sanctions for filing that appeal.
The Appellees contend that Cole-Hoover was required to
file her notice of appeal within 30 days after the District
Court’s February 14, 2014, order. They rely on Perez v. AC
Roosevelt Food Corp., 744 F.3d 39 (2d Cir. 2013). Perez
held that, in the circumstances of that case, a notice of
appeal was untimely because it had been entered more than 30
days after the District Court had granted a motion for
attorney’s fees and directed the clerk to close the case.
See id. at 41-42. We explained that the 30 days for a
notice of appeal in a civil case runs from the “entry” of
the order appealed from, see Fed. R. App. P. 4(a)(1)(A);
that “entry” “depends upon whether Federal Rule of Civil
Procedure 58(a) requires ‘a separate document,’” Perez, 744
F.3d at 41 (quoting Fed. R. App. P. 4(a)(7)); that “[a]
3
Although the motion does not explicitly seek dismissal
of the appeal from the May 21, 2015 order, we will interpret
the motion as seeking dismissal of both appeals.
5
‘separate document’ is not required ‘for an order disposing
of a motion . . . for attorney’s fees under Rule 54 [of the
Federal Rules of Civil Procedure],” id. (quoting Fed. R.
Civ. P. 58(a)(3)) (emphasis added); and that, because a
separate document is not required, the fee order “is
considered to have been entered ‘when the . . . order is
entered in the civil docket,’” id. (quoting Fed. R. App. P.
4(a)(7)(i)). Perez cited Feldman v. Olin Corp., 673 F.3d
515 (7th Cir. 2012), which further explained that Rule 54
“makes awards of attorneys’ fees one type of judgment and
Rule 58 designates it as a type of judgment for which a
separate document is not required.” Id. at 517 (emphasis
added).
The Appellees make a substantial argument that the
District Court’s February 12, 2014, order started the time
for Cole-Hoover’s appeal. That order determined the amount
of fees to which each attorney was entitled and granted them
a lien on the settlement proceeds. It is at least arguable
that it is an order “disposing” of a motion for attorney’s
fees within the meaning of Rule 58(a)(3). Had the escrow
agent declined to disburse the fees, the lien could have
been enforced without a further ruling from the District
Court as to the amount of fees due. Indeed, it was only the
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happenstance of Reddy’s renewed motion for a fee that
occasioned the Court’s order of May 21, 2015, ordering that
the fees “shall be paid” to Fitzgerald and Richmond.
On the other hand, an order creating a lien is not a
typical order awarding attorney’s fees, and the May 21,
2015, order was the District Court’s only order explicitly
directing that the fees specified in the February 12, 2014,
order “shall be paid.”
We have found no previous decision presenting similar
facts, but two decisions are somewhat analogous. In Kline
v. Dep’t of Health & Human Services, 927 F.2d 522 (10th Cir.
1991), a defendant sought dismissal of an appeal from a
judgment dismissing an action, contending that an appeal
should have been taken from an earlier order granting a
motion to dismiss. The Tenth Circuit ruled that the earlier
order met the requirements of Rule 58 and “would have been
sufficient to provide jurisdiction had an appeal been
taken.” Id. at 524. Nevertheless, the Court accepted
jurisdiction over an appeal from the later order “which
clearly meets the requirements of Rule 58.” Id. The Fifth
Circuit, in a non-precedential opinion, has also accepted
jurisdiction of an appeal from a judgment granting summary
judgment, despite an earlier ruling on a motion for summary
7
judgment, which the Court said “appears to satisfy Rule 58's
separate document requirements.” Creaghe v. Albemarle Corp.,
98 F. App’x 972, 973 (5th Cir. 2004) (per curiam). The
Court stated, “We interpret Rule 58's requirements to
prevent the loss of an appeal whenever reasonable,” id. at
974, a sentiment we share.
In the pending case, even if the February 12, 2014,
order was appealable, we will not fault the Appellant for
timely appealing the May 21, 2015, order.
The motion to dismiss is denied. The Appellees’ motion
for sanctions, sought only because of a claim that the
Appellant’s appeal was untimely and for that reason
frivolous, is also denied.
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