14-2820-cv(L)
Soley v. Wasserman
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 TO 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
27th day of January, two thousand sixteen.
Present:
CHESTER J. STRAUB,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_____________________________________
JUDY W. SOLEY,
Plaintiff-Appellant-Cross-Appellee,
v. 14-2820-cv(L),
14-2952-cv(XAP)
PETER J. WASSERMAN,
Defendant-Appellee-Cross-Appellant.
_____________________________________
For Plaintiff-Appellant: LOUIS FOX BURKE (Leslie S. Wybiral, Alexander D.
Tripp, on the brief), Louis F. Burke, P.C., New York,
N.Y.
1
For Defendant-Appellee: LAWRENCE E. TOFEL (Mark A. Lopeman, of counsel,
on the brief), Lawrence E. Tofel, P.C., Brooklyn, N.Y.
UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED,
AND DECREED that the judgments and orders of the District Court are AFFIRMED.
Plaintiff-Appellant-Cross-Appellee Judy Soley (“Soley”) brought claims in the United
1
States District Court for the Southern District of New York (Wood, J.) against
Defendant-Appellee-Cross-Appellant Peter Wasserman (“Wasserman”) for breaches of fiduciary
duty and equitable accountings in regards to two of the parties’ financial collaborations:2 Patriot
Partners, L.P. (“Patriot Partners”), a limited partnership for which Wasserman served as general
partner until the partnership dissolved in 2006, and the “Joint Stocks,” a set of four initially
private placement equities in which Soley, Wasserman, and a mutual friend, Arthur Stern
(“Stern”), jointly invested beginning in 1997. Soley received a jury trial on her claim for
breach of fiduciary duty relating to Patriot Partners, at which the jury determined that
Wasserman had breached his fiduciary duties and awarded damages. She then sought an
equitable accounting from the bench, which the District Court denied on the ground that the jury
verdict and damages award constituted an adequate legal remedy, rendering the accounting
unavailable under New York law. Soley then tried both her breach of fiduciary duty and
equitable accounting claims regarding the Joint Stocks to the bench, after which the District
Court determined that she had not succeeded on her claim for breach of fiduciary duty but that
she was entitled to an equitable accounting.
1
The case was reassigned from District Judge Paul A. Crotty to Judge Kimba M. Wood on
September 30, 2010. Judge Wood presided over the jury trial and issued the relevant orders and
judgments on appeal.
2
Soley also brought additional claims that were dismissed prior to the relevant judgments and
orders on appeal.
2
Subsequent to both trials, the District Court denied Soley’s request for attorney’s fees,
granted her prejudgment interest on her Joint Stocks accounting restitution award, and, ruling on
Wasserman’s objection to the clerk of court’s bill of costs, affirmed the award of costs to Soley.
Soley now appeals from those judgments and orders of the District Court denying her claim for
an equitable accounting in regards to Patriot Partners, denying her request to order Wasserman to
submit a second accounting of the Joint Stocks (after Soley objected to the sufficiency of the
first), and denying her request for attorney’s fees. Wasserman, in turn, cross-appeals from the
District Court’s grant of prejudgment interest to Soley on her Joint Stocks restitution award and
the District Court’s affirmance of the bill of costs. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal.
1. The District Court’s denial of Soley’s request for an equitable accounting of her
interest in Patriot Partners3
In an April 17, 2013 order, the District Court determined that Soley’s claim that
Wasserman, as general partner of Patriot Partners, breached his fiduciary duty and owed her
compensatory damages, would be tried to a jury. Soley v. Wasserman, No. 08 CIV. 9262
3
We note, as an initial matter, that New York law applies to Soley’s claims regarding Patriot
Partners. The District Court determined that, though Patriot Partners is a Delaware limited
partnership, judicial estoppel required that New York law apply to the parties’ disputes. Soley
v. Wasserman, No. 08 CIV. 9262 (KMW) (FM), 2013 WL 3185555, at *10-11 (S.D.N.Y. June 21,
2013). In his opening brief on appeal, Wasserman noted that he “was not aggrieved by the
application of New York law and thus raised no issue on this appeal” regarding it. Def. Br. at
34 n.20. Wasserman nevertheless inexplicably asserts, in his reply brief, that “Soley’s [brief] is
based entirely on principles and statutes under New York law which, as Wasserman observed to
this Court . . . never applied to a Delaware Limited Partnership which expressly was governed by
Delaware Law.” Def. Reply Br. at 12 (emphasis added). This subsequent statement is wholly
inadequate to raise, on appeal, an argument that Wasserman clearly waived in his opening brief.
Accordingly, we do not consider the argument. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d
Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will
not be addressed on appeal.”).
3
(KMW) (FM), 2013 WL 1655989, at *1 (S.D.N.Y. Apr. 17, 2013). In contrast, the District
Court determined that Soley’s claim for an equitable accounting – predicated on the same
breaches of fiduciary duty, but seeking an accounting of Soley’s interest in Patriot Partners and,
should the accounting warrant, disgorgement of unjust profits and restitution – would be
addressed subsequently. Id. at *3. After the jury found the existence of several breaches of
fiduciary duty and awarded Soley damages on some of those claims, Soley sought an equitable
accounting, arguing to the court that, under New York law, “[i]f there is a fiduciary relationship
between the parties . . . then the existence of a legal remedy is not relevant” to a principal’s right
to an accounting. A 416. The District Court disagreed, denying Soley’s claim for an equitable
accounting on the ground that the jury verdict and damages award – pursuant to which Soley
received “the benefit of full document discovery and numerous depositions” on her claim for
breach of fiduciary duty – constituted an adequate remedy at law. Soley v. Wasserman, No. 08
CIV. 9262 (KMW) (FM), 2013 WL 5780814, at *2 (S.D.N.Y. Oct. 24, 2013).
Soley’s primary contention on appeal – and her sole contention to the District Court when
she initially sought her equitable accounting – is that, under New York law, a principal in a
fiduciary relationship is entitled to an equitable accounting regardless whether she has an adequate
remedy at law.4 We disagree. New York law clearly requires that a principal demonstrate the
unavailability of an “adequate remedy at law” in order to prevail on a claim for an equitable
4
At oral argument, counsel for the Plaintiff also suggested that Soley objected to the District
Court’s determination to conduct the jury trial prior to assessing the merits of the accounting
claim. This argument is made only in passing in Soley’s brief, see Pl. Br. at 31-32, and thus is
waived. See Norton, 145 F.3d at 117. In any case, Soley did not object to the District Court’s
April 17, 2013 bifurcation order until July 16, 2013, thirteen days before the jury trial was set to
commence, and that objection came in a letter ostensibly seeking reconsideration of the court’s
completely unrelated decision to try all claims regarding the Joint Stocks to the bench. See SA 1.
It was not unreasonable for the District Court, at that point, to consider the objection unavailing.
4
accounting, in addition to establishing the existence of a fiduciary relationship. See United
Telecard Distrib. Corp. v. Nunez, 90 A.D.3d 568, 569 (N.Y. App. Div. 1st Dep’t 2011) (noting,
first, that the existence of a “fiduciary relationship supports defendant’s claim for an
accounting,” and, second, that “[t]o be entitled to an equitable accounting, a claimant must
demonstrate that he or she has no adequate remedy at law”); accord Kastle v. Steibel, 120 A.D.2d
868, 869-70 (N.Y. App. Div. 3d Dep’t 1986); Hermes v. Compton, 260 A.D. 507, 507 (N.Y. App.
Div. 2d Dep’t 1940).5
Soley next argues, apparently in the alternative, that she did not receive an adequate
remedy at law for three reasons. First, she contends that she did not receive adequate discovery in
her jury trial. Assuming, arguendo, that the adequacy of discovery is material to whether a legal
claim constitutes an adequate remedy under New York law, the argument nevertheless fails. As
an initial matter, the District Court observed in ruling on Soley’s motion for reconsideration that
Soley had not made any argument as to the adequacy of discovery in her post-trial application
5
Soley cites to admittedly contradictory language in Koppel v. Wien, Lane & Malkin, 125 A.D.2d
230, 234 (N.Y. App. Div. 1st Dep’t 1986), which states that “it is clear that whenever there is a
fiduciary relationship between the parties, . . . there is an absolute right to an accounting
notwithstanding the existence of an adequate remedy at law.” Subsequent cases have interpreted
Koppel as standing either for the proposition that the voluntary transfer of financial documents or
willingness to provide for an inspection or audit are no substitute for a judicially supervised
accounting, see Scholastic v. Harris, 259 F.3d 73, 90 (2d Cir. 2001) (“Even if Scholastic already
possesses detailed financial information regarding the joint venture, there is nevertheless still ‘an
absolute right to an accounting.’” (quoting Koppel, 125 A.D. at 234)); Sriraman v. Patel, 761 F.
Supp. 2d 7, 22-23 (E.D.N.Y.), amended by 761 F. Supp. 2d 23 (E.D.N.Y. 2011) (“[T]he cause of
action for an accounting is not to be confused with a partner’s right of access to the partnership’s
books and records.”), or that a principal is not precluded from seeking an equitable accounting
merely because she “could bring [but has not brought] an action at law,” Sriraman, 761 F. Supp.
2d at 23 (citing Koppel, 125 A.D.2d at 234 and DiTerlizzi v. DiTerlizzi, 92 A.D.2d 604, 606 (N.Y.
App. Div. 2d Dep’t 1983)). We need not address the precise contours of Koppel; it suffices to
note that cases subsequent to Koppel make clear that New York law requires even a principal in a
fiduciary relationship to demonstrate that she has no adequate remedy at law before a court may
award an equitable accounting.
5
seeking an equitable accounting. Soley v. Wasserman, No. 08 CIV. 9262 (KMW) (FM), 2013
WL 6244428, at *1 (S.D.N.Y. Dec. 3, 2013). The issue is thus waived. See Official Comm. of
Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir.
2003) (“Generally, we will not consider an argument on appeal that was raised for the first time
below in a motion for reconsideration.”). The argument is also without merit. The district court
is afforded wide discretion in evaluating the sufficiency of discovery. See Cabellero v. City of
New York, 48 A.D.3d 727, 728 (N.Y. App. Div. 2d Dep’t 2008) (“The supervision of discovery,
and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of
the [trial court].”); Wills v. Amerada Hess Corp., 379 F.3d 32, 51 (2d Cir. 2004) (“It is axiomatic
that the trial court enjoys wide discretion in its handling of pre-trial discovery.”). Accordingly, it
was within the District Court’s discretion to conclude that unproduced documents may no longer
have existed, to limit the scope of discovery, and to determine that, notwithstanding the fact that
not every conceivable document was produced, Soley received “the benefit of full document
discovery and numerous depositions.” Soley, 2013 WL 5780814, at *2.
Soley also argues that, in finding that the jury verdict and award of damages constituted an
adequate remedy at law, the District Court in effect shifted the burden to Soley to prove that
Wasserman retained funds that should be disgorged – whereas the burden would have been on
Wasserman in the context of an equitable accounting. See Wilde v. Wilde, 576 F. Supp. 2d 595,
608 (S.D.N.Y. 2008) (“Wilde 1”) (“[Defendant] bears the burden of proof and is presumed to have
been unjustly enriched by all transfers and withdrawals unless he can show otherwise.”). Insofar
as this is true, New York courts clearly do not consider this argument sufficient to render a legal
claim inadequate, as it would effectively render all legal claims inadequate and thus constructively
undermine the basic tenet expressed in United Telecard. 90 A.D. 3d at 569.
6
Soley argues, finally, that she sought merely compensatory damages in her jury trial,
whereas she sought restitution and disgorgement in her accounting, so that her legal remedy was
inadequate. We need not address this claim, however, as Soley neither clearly made this
argument to the District Court when seeking her equitable remedy subsequent to the verdict nor in
her motion seeking reconsideration. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d
Cir. 2006) (“It is a well-established general rule that an appellate court will not consider an issue
raised for the first time on appeal.” (quoting Greene v. United States, 13 F.3d 577, 586 (2d Cir.
1994)) (alteration omitted)); Official Comm. of Unsecured Creditors of Color Tile, Inc., 322 F.3d
at 159. In short, on the basis of the arguments Soley actually presented to the District Court, and
in light of New York law, the District Court did not err in denying Soley’s claim for an equitable
accounting.6
2. The District Court’s denial of Soley’s request to order Wasserman to submit a
second accounting
On December 6, 2013, the District Court ordered Wasserman to account for Soley’s
interests in the Joint Stocks, four initially private placements in which Soley, Wasserman, and
Stern jointly invested beginning in 1997. Soley v. Wasserman, No. 08 CIV. 9262 (KMW) (FM),
2013 WL 6388401, at *5 (S.D.N.Y. Dec. 6, 2013). Wasserman submitted an accounting on
January 17, 2014, including a description of where and how any proceeds from the sale of the
6
Soley also argues to this Court regarding the accounting for Patriot Partners that, though raised
for the first time after the jury trial, the District Court erred in refusing to consider her claims for a
statutory accounting and then declining to allow her to amend her complaint to add such claims.
We need not reach this question (and, in particular, the question whether the unavailability of an
adequate remedy at law is a requirement for a claim for a statutory accounting under New York
law) as Soley has repeatedly represented to this Court, as explanation for why her failure to raise
the claims prior to this point did not prejudice Wasserman, that “[t]he claim for a statutory
accounting is purely a change in the label – not the substance – of the [equitable accounting]
claim.” Pl. Reply Br. at 23. Relying on this admission, we find the statutory accounting
claims properly dismissed for the same reason as the equitable accounting claim.
7
stocks had been deposited since that sale, a description of any warrants exercised for any of the
stocks, and documentation including, inter alia, “near complete bank records for the entire
12-year period (from 2002 to the present)” which Wasserman claimed “confirm[ed] that the net
funds [comprising proceeds from the only stock sold for value, in late 2001, minus any
cognizable offsets] remained on deposit in [his wife’s] accounts at all times and were not ‘used’
[for the sake of unjustly enriching Wasserman] by him or his business ventures.” A 627.
Wasserman further submitted a statement swearing to the accuracy of his accounting. After
receiving this accounting, Soley vigorously objected that the accounting was insufficient
because, inter alia, it provided her only redacted copies of Wasserman’s accounts (copies that
blacked out detailed financial data but listed the overall value of the accounts in a given month),
and that Wasserman had submitted insufficient documentation to prove every claim made in his
narrative.
On March 13, 2014, after receiving numerous letters from both parties regarding the
sufficiency of the submitted accounting, the District Court both awarded Soley restitution, A
752, and denied her request to order Wasserman to submit another, more complete accounting.
See A 749 (“Defendant submitted an accounting . . . in accordance with the Court’s order.”
(emphasis added)); A 752 n.2 (“The Court denies Plaintiff’s request that the Court order
Defendant to complete another accounting.”). Soley argues, on appeal, that the Court erred in
two ways: procedurally, by “fail[ing] to rule on the inadequacy of the accounting,” Pl. Br. at 42,
and “fail[ing] to hold a hearing to make a final determination of the accounting,” id. at 46, and
substantively, by concluding that Wasserman had met “his initial burden of providing a facially
sufficient accounting,” id. at 43.
8
We review deferentially a trial court’s decisions regarding the sufficiency of an
accounting. See Seretis v. Fashion Vault Corp., 110 A.D.3d 547, 548-49 (N.Y. App. Div. 1st
Dep’t 2013) (affirming a district court’s rejection of the “[p]laintiff’s objections to the adequacy of
the information provided [during an equitable accounting]” and noting that “‘the decision of the
fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s
conclusions could not be reached under any fair interpretation of the evidence, especially when the
findings of fact rest in large measure on considerations relating to the credibility of witnesses’”
(quoting Thoreson v. Penthouse Int’l, 80 N.Y.2d 490, 495 (1992)) (alteration omitted)); see also In
re Estate of Capaldo, 263 A.D.2d 910, 912 (N.Y. App. Div. 3d Dep’t 1999); Perry v. Blum, 629
F.3d 1, 14 (1st Cir. 2010) (“The calculation of an equitable accounting is, within broad limits,
committed to the district court’s discretion.”). The “failure to conduct a hearing” is reviewed for
abuse of discretion. 1420 Concourse Corp. v. Cruz, 175 A.D.2d 747, 749 (N.Y. App. Div. 1st
Dep’t 1991).
Here, and contrary to Soley’s claim on appeal, the District Court clearly did rule on her
objections, and it was not unreasonable for the court to decline to order a hearing: Soley sent
extensive letters to the District Court explaining her objections, and we discern no basis to
conclude that a hearing would have been necessary for the court to fully evaluate her claims. As
to the substance of the District Court’s determination, the Plaintiff has not demonstrated any error
regarding the District Court’s determination that the accounting was sufficient. First, sworn
testimony submitted in support of an accounting does constitute relevant evidence that the district
court may consider when evaluating an accounting, even when it is not, in every case, supported
by documentation. See Wilde v. Wilde, No. 07 CIV. 0677 (WHP), 2008 WL 5411915, at *1-2
(S.D.N.Y. Dec. 30, 2008) (“Wilde 2”) (“Without any means to determine that the rental value of
9
the Florida Condominium was $1,600 per month or even $1,000 per month, the Court will accept
[d]efendant’s sworn statement that it was $800 per month.”); Seretis, 110 A.D.3d at 548 (“At trial
[defendant] produced the financial records of [the relevant entity] and testified under oath
regarding the disposition of the corporate assets, which fulfills defendants’ obligation to
account.”). Wasserman swore to the accuracy of his accounting, including the disposition of the
Plaintiff’s proceeds from the sale of the relevant stock – facts of which Wasserman had personal
knowledge and to which he could attest. Contrast In re Kaszirer v. Kaszirer, 298 A.D.2d 109,
110 (N.Y. App. Div. 1st Dep’t 2002) (finding that, because accountant’s analysis and affidavit
failed to specify documentation underlying his opinion, and were generally hearsay, “burden
never shifted to petitioners to submit evidence in opposition”). Second, Wasserman produced
extensive records, including Bank of America records, documenting that he retained funds equal to
or greater than the relevant proceeds in his accounts, which he did not withdraw. Even if there
were gaps in Wasserman’s documentation, we cannot say that this accounting was so deficient that
it was error to approve it.
3. The District Court’s denial of Soley’s request for attorney’s fees
Soley next argues that the District Court committed error in declining to award her
attorney’s fees, a matter we review for abuse of discretion. McDaniel v. County of Schenectady,
595 F.3d 411, 416 (2d Cir. 2010). Soley contends that the District Court misunderstood the
holdings of Miltland Raleigh-Durham v. Myers, 807 F. Supp. 1025, 1062 (S.D.N.Y. 1992), and
Birnbaum v. Birnbaum, 157 A.D.2d 177, 191 (N.Y. App. Div. 4th Dep’t 1990), which, she
claims, together stand for the general proposition that under New York law “the American Rule
does not apply where a fiduciary has been found liable for misconduct.” Pl. Br. at 51 (internal
citations omitted). The District Court instead understood these cases as standing for the
10
narrower proposition “that a fiduciary is liable for attorney’s fees and other expenses incurred by
an estate in exposing a trustee’s misconduct.” SPA 12 (quoting Miltland, 807 F. Supp. at
1062). The District Court was, in fact, correct. See Schneidman v. Tollman, 261 A.D.2d 289,
290 (N.Y. App. Div. 1st Dep’t 1999) (“The motion court’s expansion of Matter of Birnbaum v.
Birnbaum . . . , which permitted the award of attorneys’ fees for a testamentary trustee’s breach
of fiduciary duty to cases, involving a breach of fiduciary duty in a non-testamentary context, is
unsupported by the law [and] unwarranted . . . .”). Soley’s claim to the contrary is wholly
without merit.
4. The District Court’s award of prejudgment interest to Soley
We next turn to Wasserman’s claim, in his cross appeal, that the District Court erred in
awarding prejudgment interest to Soley. In its decision awarding Soley an accounting on the
Joint Stocks, the District Court found, as fact, that “Plaintiff . . . understood that once the shares
of a stock purchased as a private placement were made publicly tradable, they would be sold and
Defendant would pay Plaintiff her proportionate share of the proceeds.” Soley, 2013 WL
6388401, at *1. In so finding, the District Court cited to an affirmation as to this understanding
in Soley’s sworn trial affidavit. See A 202 ¶ 3. In his trial affidavit, Wasserman affirmed,
instead, that the parties had no expectation that he would provide Soley proceeds from any sale
until “the last of the investments were liquidated.” AA 105 ¶ 3. Relying on his understanding
of the agreement, Wasserman argued to the District Court (in the District Court’s words) that
“because the last of the joint stock has not been sold, Plaintiff [would] receive the . . . sale
proceeds earlier than the parties had agreed, and has therefore not suffered any loss for which she
needs prejudgment interest to compensate.” A 781. In awarding prejudgment interest to
Soley, the District Court relied on its contrary finding of fact in its earlier decision finding the
11
agreement to be as Soley understood it, and thus held that “[b]ecause Defendant has had the use
of Plaintiff’s share of the proceeds for nearly thirteen years, not awarding interest would result in
a windfall to Defendant.” A 781.
“The award of interest is generally within the discretion of the district court and will not be
overturned on appeal absent an abuse of that discretion.” New England Ins. Co. v. Healthcare
Underwriters Mut. Ins. Co., 352 F.3d 599, 602-03 (2d Cir. 2003). On appeal, Wasserman
contends only that the District Court erred in finding that the agreement was as Soley characterized
it on the ground that reliance on the Soley affidavit for this factual proposition violated the law of
the case. Wasserman points this Court to the District Court’s June 21, 2013 motion in limine
precluding Soley “from adducing evidence intended to establish” an untimely breach of contract
claim arising out of a theory that Wasserman was obligated to sell the stocks when they became
publicly tradable in 2001. Soley, 2013 WL 3185555, at *8. Wasserman contends that Soley’s
July 19, 2013 statement, in her bench trial affidavit, that she “understood that once the shares of a
stock purchased as a private placement were publicly tradable, the shares would be sold and
Wasserman would pay me my proportionate share of the proceeds,” A 202 ¶3, was thus excluded
by the June 21, 2013 motion in limine, and reliance upon that statement was legal error.
Wasserman’s argument is without merit. The District Court explicitly held in its motion
in limine that “[t]his limitation . . . ‘does not preclude Soley from asserting a claim that
Wasserman violated his fiduciary duty “by refusing to account” for the Joint Stock Investments
when Soley requested an accounting.’” Soley, 2013 WL 3185555, at *8 (quoting Soley v.
Wasserman, No. 08 CIV. 9262 (KMW) (FM), 2013 WL 526732, at *7 (S.D.N.Y. Feb. 13, 2013)).
In awarding prejudgment interest to Soley from December 2001, the District Court clearly found
that the question whether the parties had agreed that Wasserman would return the stock when it
12
was sold in 2001 was material to this aspect of the accounting claim. As such, even if the
District Court’s prior order rendered the affidavit inadmissible for the purpose of proving an
untimely contract claim, that order did not affect the affidavit’s admissibility for the purpose for
which the District Court used it: calculating interest on an admissible claim. See AA 151-54 (in
which the District Court responded to a slightly different iteration of this law of the case
argument proffered by Wasserman by noting that “[t]he Court ordered interest on Plaintiff’s
accounting claim, not on her dismissed breach of contract claim,” AA 154). Further, even if the
District Court’s prior order rendered Soley’s statement in her affidavit initially inadmissible,
Wasserman, by testifying to the nature of the Agreement in his affidavit, offering testimony from
Stern on this same question, and relying on this cumulative testimony to construct a contract
defense theory in the prejudgment interest phase of the proceedings, clearly opened the door
such that the District Court could properly rely on Soley’s affidavit for purposes of finding this
fact.
5. The District Court’s affirmance of the bill of costs
Finally, Wasserman argues that the District Court erred in finding that Soley was the
“prevailing party” under Federal Rule of Civil Procedure 54(d)(1), which states as follows:
“Unless a federal statute, these rules, or a court order provides otherwise, costs . . . should be
allowed to the prevailing party.” The decision to award costs pursuant to Rule 54(d)(1) “rests
within the sound discretion of the district court.” Dattner v. Conagra Foods, Inc., 458 F.3d 98,
100 (2d Cir. 2006) (quoting LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995)).
“Nevertheless, we review questions of law, including . . . . [w]hether a litigant is a ‘prevailing
party’ within the meaning of Rule 54(d)” de novo. Id.
13
Soley cites to Dattner as providing the controlling legal standard for determining which
party is the “prevailing party” under Rule 54(d). In Dattner, our circuit determined that cases
interpreting the meaning of “prevailing party” for purposes of fee-shifting statutes are directly
applicable for interpreting the same terminology in Rule 54(d)(1). Id. at 101-02. In the context
of such fee-shifting statutes, the Supreme Court has stated both that “a . . . plaintiff is a prevailing
party . . . . [i]f the plaintiff has succeeded on ‘any significant issue in litigation which achieved
some of the benefit the parties sought in bringing suit,’” Texas State Teachers Ass’n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275,
278-79 (1st Cir. 1978)), and that “the degree of the plaintiff’s success in relation to the other goals
of the lawsuit is a factor critical to the determination of the size of a reasonable fee, not to
eligibility for a fee award at all,” id. at 790. See also LeBlanc-Sternberg v. Fletcher, 143 F.3d
748, 757 (2d Cir. 1998) (“The question of whether a plaintiff is a ‘prevailing party’ within the
meaning of the fee-shifting statutes is a threshold question that is separate from the question of the
degree to which the plaintiff prevailed.”).
In the face of this precedent, Wasserman relies on TIG Insurance Co. v. Newmont Mining
Corp., 413 F. Supp. 2d 273, 286-87 (S.D.N.Y. 2005), aff'd, 226 F. App’x 49 (2d Cir. 2007)
(summary order), to argue that the prevailing party determination is based on a “totality of the
circumstances” test. Def. Br. at 57. TIG was a case which (1) interpreted a contract, not Rule
54(d); (2) interpreted that contract on the basis of New York cost rules, not the Federal Rules of
Civil Procedure; and (3) in any case, did not determine which party prevailed, but merely held that
neither party would be awarded costs regardless of who had prevailed, see TIG Ins. Co., 226 F.
App’x at 51-52 (“In so stating, the district court held, in substance, that whether or not either party
had prevailed as a legal matter, neither merited an award of any amount of fees and costs. Having
14
examined the record in this case, we do not believe the district court abused its discretion in
rendering such an award of fees.”). In response to Soley’s invocation of Dattner and its progeny,
Wasserman’s only answer is that “Soley improperly rel[ies] on inapposite decisions.” Def. Reply
Br. at 9. The inapposite decision is not Dattner but TIG; under the proper standard, Soley’s
victories on her claims were sufficient to make her the prevailing party in this litigation.
Accordingly, and finding no merit in either parties’ remaining arguments, we AFFIRM
the judgments and orders of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
15