Acme American Refrigeration, Inc. v. Katzenberg

15-3419 (L)
Acme Am. Refrigeration, Inc. v. Katzenberg

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 ASUMMARY 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 26th day of September, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 ACME AMERICAN REFRIGERATION, INC.,
13 ACME AMERICAN REPAIRS, INC., ACME
14 AMERICAN ENVIRONMENTAL CO., INC.,
15 Plaintiffs-Appellants-
16 Cross-Appellees,
17
18 ACME COMMERCIAL KITCHEN DESIGN, INC.,
19 ACME PACIFIC REPAIRS, INC., BANA PARTS,
20 INC., BANA PARTS COMMERCIAL KITCHEN,
21 INC.,
22 Plaintiffs-Appellees,
23
24 -v.- 15-3419 (L), 16-741(XAP)
25
26 PEARL KATZENBERG f/k/a PEARL FEUER,
27 HARVEY KATZENBERG,

1
1 Defendants-Counter-Claimants,
2
3 LAW OFFICE OF VINCENT D. MCNAMARA,
4 Appellee-Cross-Appellant.
5
6 - - - - - - - - - - - - - - - - - - - -X
7
8 FOR APPELLANTS-CROSS-APPELLEES: MIKHAIL RATNER, Law Office of
9 Mikhail Ratner, New York, NY.
10
11 FOR APPELLEE-CROSS-APPELLANT: HELEN M. BENZIE, Law Office of
12 Vincent D. McNamara, East
13 Norwich, NY.
14
15 Appeal from a judgment of the United States District Court
16 for the Eastern District of New York (Mauskopf, J.).
17
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
19 DECREED that the judgment of the district court be AFFIRMED.
20
21 Acme American Refrigeration, Inc., Acme American Repairs,
22 Inc., and Acme American Environmental Co., Inc. (“Acme”) appeal
23 from the judgment of the United States District Court for the
24 Eastern District of New York (Mauskopf, J.) awarding attorney’s
25 fees to the Law Office of Vincent D. McNamara (“Law Office”).
26 Law Office cross-appeals on the ground that the award did not
27 include prejudgment interest. We assume the parties’
28 familiarity with the underlying facts, the procedural history,
29 and the issues presented for review.

30 In a nutshell, Law Office represented Acme and its
31 principals on retainer in a series of related legal disputes
32 from 2006 to 2014, in multiple states and courts. All the
33 proceedings concerned alleged egregious misconduct by Acme’s
34 former president, Harvey Katzenberg, and his wife, Pearl, in
35 their dealings with Acme and Acme’s principals. Acme‘s present
36 lawsuit alleges that the Katzenbergs defrauded Acme and
37 non-party insurance carriers.

38 When the attorney-client relationship began to break down
39 in or around 2010, Acme allegedly stopped making timely, full
40 retainer payments. Eventually, beginning in 2013, Law Office

2
1 moved to withdraw as Acme’s counsel and to set its fees for work
2 performed in the present lawsuit and the related legal disputes.
3 The magistrate judge granted the motion to withdraw and
4 recommended that Law Office’s fees be set at $277,674.09, based
5 on the magistrate judge’s review of billing records and a
6 determination as to how much of the billed work for related
7 disputes was properly awarded in the present lawsuit. The
8 magistrate judge also assessed the quality of Law Office’s
9 representation and considered the reasonableness of Law
10 Office’s billing rates. The district judge rejected Acme’s
11 numerous objections and adopted the magistrate judge’s report
12 and recommendation in full. Acme appeals from the fee award;
13 Law Office appeals from the lack of prejudgment interest.

14 We review an award of attorney’s fees for abuse of
15 discretion. In re Bank of Am. Corp. Sec., Deriv., & ERISA
16 Litig., 772 F.3d 125, 134 (2d Cir. 2014); see also Alderman v.
17 Pan Am World Airways, 169 F.3d 99, 102 (2d Cir. 1999). “Indeed
18 ‘abuse of discretion’ – already one of the most deferential
19 standards of review – takes on special significance when
20 reviewing fee decisions.” Goldberger v. Integrated Res.,
21 Inc., 209 F.3d 43, 47 (2d Cir. 2000). We also review the
22 decision whether to award prejudgment interest for abuse of
23 discretion. Wickham Contracting Co. v. Local Union No. 3,
24 Int’l Bhd. of Elec. Workers, AFL-CIO, 955 F.2d 831, 833-34 (2d
25 Cir. 1992). A district court abuses discretion if its decision
26 rests on an error of law or a clearly erroneous factual finding,
27 or “cannot be located within the range of permissible
28 decisions.” McDaniel v. Cty. of Schenectady, 595 F.3d 411, 416
29 (2d Cir. 2010) (citation and internal quotation marks omitted).

30 There was no abuse of discretion in awarding Law Office
31 $277,674.09 in fees or in declining to grant prejudgment
32 interest on that award. The magistrate judge’s report and
33 recommendation carefully examined Law Office’s billing records
34 and rates for their adequacy, reasonableness, and relevance to
35 the present lawsuit. The district judge considered Acme’s
36 objections and adopted the report and recommendation in its
37 entirety under both clear error and de novo review. We cannot
38 say that the district judge abused her discretion in rejecting
39 Law Office’s bid for prejudgment interest, raised for the first
40 time long after the attorney’s fees were awarded.

3
1 Accordingly, and finding no merit in Acme’s or Law Office’s
2 other arguments, we hereby AFFIRM the judgment of the district
3 court.

4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, CLERK