11-791-cv(L), 11-965
Omni Consulting Grp., Inc. v. Pilgrim’s Pride Corp.



                   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.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 17th day of July, two thousand twelve.

PRESENT:
             RALPH K. WINTER,
             CHESTER J. STRAUB,
             DENNY CHIN,
                       Circuit Judges.

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OMNI CONSULTING GROUP, INC.,
               Plaintiff-Appellee-
               Cross-Appellant,

                    - v. -
                                                      11-791-cv(L),11-965
PILGRIM’S PRIDE CORPORATION,
               Defendant-Appellant-
               Cross-Appellee,

MARINA CONSULTING, INC.,
               Defendant.

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FOR DEFENDANT-APPELLANT:      TRAVIS WAYNE VANCE (Thomas Edward
                              Ullrich, on the brief), Wharton
                              Aldhizer & Weaver, PLC,
                              Harrisonburg, Virginia; Earl K.
                              Cantwell, Hurwitz & Fine, P.C.,
                              Buffalo, New York.
FOR PLAINTIFF-APPELLEE:
                              ALAN J. BOZER (William Patrick
                              Keefer, on the brief), Phillips
                              Lytle LLP, Buffalo, New York.

           Cross-appeals from the United States District Court for

the Western District of New York (Arcara, J.).   UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment and order of the district court are AFFIRMED.

           Defendant-Appellant-Cross-Appellee Pilgrim's Pride

Corporation ("Pilgrim") appeals from the district court's January

31, 2011, judgment awarding Plaintiff-Appellee-Cross-Appellant

Omni Consulting Group, Inc. ("Omni") damages on Omni's breach of

contract claim.   The district court entered judgment pursuant to

its September 12, 2007, order granting Omni's cross-motion for

summary judgment on the issue of Pilgrim's liablity for breach of

contract and the evidence presented at trial with respect to

damages.

           Omni cross-appeals from the district court's January

31, 2011, award of damages and its March 2, 2011, award of

attorneys' fees, contending that both awards were too low.


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            We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.

            We review a district court's grant of summary judgment

de novo.    Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir.

2005).    Where a case is tried to the district court without a

jury, we review the district court's findings of fact for clear

error and its conclusions of law de novo.    MacWade v. Kelly, 460

F.3d 260, 267 (2d Cir. 2006).    We review a district court's award

of attorneys' fees for abuse of discretion.    Townsend v. Benjamin

Enters., Inc., 679 F.3d 41, 58 (2d Cir. 2012).

            We conclude that the district court did not err in

enforcing Paragraph 7 of the Technical Services Agreement ("TSA")

as it was not a restrictive covenant preventing an employee from

pursuing his livelihood but an anti-raiding provision in a

commercial agreement between two sophisticated parties.    See

Spherenomics Global Contact Ctrs. v. vCustomer Corp., 427 F.

Supp. 2d 236, 249-50 (E.D.N.Y. 2006) (upholding provision

prohibiting defendant from independently hiring third party that

plaintiff introduced to defendant for joint venture); Gibbs &

Soell, Inc. v. Armstrong World Indus., Inc., No. 04 Civ. 5103

(HB), 2005 WL 615688, at **4-5 (S.D.N.Y. Mar. 17, 2005)

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(upholding one-year anti-raiding provision after finding it was

not a restrictive covenant and reasoning that court should not

interfere with agreement between two sophisticated businesses

absent persuasive justification).     Likewise, in the circumstances

of this case, where the master agreement contained a one-year

restriction, the district court reasonably limited the

restriction in paragraph 7 of the TSA to one year as well.

          We have reviewed the district court's calculation of

damages and interest and find no error in its application of the

law or its findings of fact.   See Conway v. Icahn & Co., 16 F.3d

504, 512 (2d Cir. 1994) (holding CPLR § 5001 grants court wide

discretion in determining date from which to award pre-judgment

interest when damages accrued at various times); Adams v. Linblad

Travel, Inc., 730 F.2d 89, 92-93 (2d Cir. 1984) (holding measure

of damages is profit plaintiff would have made but for breach);

Kookmin Bank v. B.G. Fashion, Inc., No. 99 Civ 8622 (RLE), 2000

WL 1880315, at *4 (S.D.N.Y. Dec. 28, 2000) (holding midway date

between first and last dates of maturity of fifty-four unpaid

bills of exchange was reasonable intermediate date under section

5001).

          Finally, we conclude the district court did not abuse

its discretion in awarding attorneys' fees.    The district court

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considered the evidence submitted by the parties, applied the

appropriate legal principles, and made certain findings and

adjustments.   See Farbotko v. Clinton Cnty., 433 F.3d 204, 208-11

(2d Cir. 2005); see also N.Y. Life Ins. Co. v. Hassan, No. 09-CV-

1075A, 2010 WL 3070091, at **2-3 (W.D.N.Y. Aug. 4, 2010);

Disabled Patriots of Am., Inc. v. Niagara Grp. Hotels, LLC, 688

F. Supp. 2d 216, 222-26 (W.D.N.Y. 2010).   Its award of fees and

costs was not unreasonable.

          We have considered the parties' remaining arguments and

conclude that they are without merit.   Accordingly, the judgment

and order of the district court are hereby AFFIRMED.

                          FOR THE COURT:
                          CATHERINE O'HAGAN WOLFE, CLERK




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