12-4895-cv
Cappiello v. ICD Publications, Inc.

                                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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
26th day of November, two thousand thirteen.

Present:
            ROBERT D. SACK,
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges,
____________________________________________________

Robert N. Cappiello,

                          Plaintiff-Appellant,

                 v.                                                            No. 12-4895-cv

ICD Publications, Inc., David Palcek,

                  Defendants-Appellees.
____________________________________________________

FOR APPELLANT:                        Danielé D. De Voe, Weinstein, Kaplan & Cohen, Garden City,
                                      NY.

FOR APPELLEES:                        Edward M. Kay, Christopher T. Scanlon, Don R. Sampen, Clausen
                                      Miller, P.C., New York, NY.

                        Clausen Miller, P.C., Chicago, IL.
____________________________________________________



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       Appeal from orders of the United States District Court for the Eastern District of New

York (Spatt, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the orders of the district court are AFFIRMED.

       Plaintiff-Appellant Robert Cappiello appeals from (1) the district court’s November 2,

2012 order directing him to file a satisfaction of judgment, to pay the fee incurred by a New

York City Marshal in partially enforcing a money judgment in Cappiello’s favor that was

previously entered in this case (the “Marshal’s fee” or “poundage fee”), and discharging the

supersedeas bond company; and (2) the district court’s December 6, 2012 order denying

Cappiello’s motion for reconsideration of the court’s November 2, 2012 order. Cappiello

principally argues that the district court erred in ordering him to pay the Marshal’s fee on the

ground that his attempt to enforce the judgment was invalid. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

       Under Federal Rule of Civil Procedure 69, “[t]he procedure on execution—and in

proceedings supplementary to and in aid of judgment or execution—must accord with the

procedure of the state where the court is located, but a federal statute governs to the extent it

applies.” Fed. R. Civ. P. 69(a)(1). Because there is no federal statute or rule addressing which

party is liable for fees incurred by a marshal in executing a judgment, we apply New York law.

       Under N.Y. C.P.L.R. § 8012(b)(1), a sheriff or marshal who collects money in executing

a judgment is entitled to poundage, which is a fee consisting of a percentage of the sum

collected. The district court’s allocation of poundage is reviewed for abuse of discretion. See

Japan Airlines Co. v. Port Authority of N.Y. & N.J., 178 F.3d 103, 114 (2d Cir. 1999) (citing

Fed. R. Civ. P. 54(d)(1), which establishes the district court’s discretion in awarding costs other



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than attorney’s fees); 28 U.S.C. § 1920(1) (stating that costs of a lawsuit include the fees of a

marshal). We have not articulated a standard of review that applies to a district court’s vacatur

of a property execution, which under New York law is central to determining which party must

pay poundage. It is not necessary to do so here, however, inasmuch as the district court’s vacatur

withstands scrutiny under either deferential or de novo review.

       For substantially the same reasons as those stated in its November 2, 2012 and December

6, 2012 decisions, the district court properly vacated the property execution and ordered

Cappiello to pay the Marshal’s fee under New York law. See Cappiello v. ICD Publications,

Inc., No. 08-cv-2417, 2012 WL 5422230, at *10-13 (E.D.N.Y. Nov. 2. 2012); Cappiello v. ICD

Publications, Inc., No. 08-cv-2417, 2012 WL 6055551, at *6-8 (E.D.N.Y. Dec. 6, 2012). As the

district court recognized, the property execution that Cappiello issued to a New York City

Marshal in June 20121 was defective because it incorrectly calculated post-judgment interest at

the New York state rate of 9% set forth in N.Y. C.P.L.R. § 5004, rather than at the federal rate of

0.25% calculated according to 28 U.S.C. § 1961. See Cappiello v. ICD Publications, Inc., 720

F.3d 109, 115 (2d Cir. 2013) (upholding the district court’s determination in this case that post-

judgment interest is to be calculated at the federal rate). Moreover, even if Cappiello properly

served an “amended levy” reflecting the federal interest rate, as he contends, any June 2012



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  Cappiello’s arguments reference two attempts to enforce the judgment in this case: a property
execution that he issued to the Suffolk County Sheriff’s Office in November 2010, and a
property execution that he issued to a New York City Marshal in June 2012. The record
demonstrates, however, that the poundage fee that the district court ordered Cappiello to pay was
incurred solely as a result of the June 2012 property execution, which a New York City Marshal
partially carried out by levying upon defendant ICD Publications’s bank account. There is no
indication in the record that any assets were restrained or any poundage fee was incurred in
connection with the November 2010 execution attempt, and the district court did not address the
validity of that execution attempt, see Cappiello, 2012 WL 5422230, at *12 (concluding only
that Cappiello’s June 2012 execution attempt was invalid). The November 2010 execution
attempt thus is not relevant to the instant appeal.
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property execution was void ab initio under Rondack Construction Services, Inc. v. Kaatsbaan

Int’l Dance Center, Inc., 54 A.D.3d 924, 864 N.Y.S.2d 128 (2d Dep’t 2008) (citing Tiffany v. St.

John, 65 N.Y. 314, 318 (1875)), aff’d, 13 N.Y.3d 580, 896 N.Y.S.2d 278 (2009), because of ICD

Publications’s March 7, 2012 tender, see E.D.N.Y. Dkt. No. 08-cv-2417, No. 88, at ¶ 7. For

these reasons, the district court did not abuse its discretion in ordering Cappiello to pay

poundage.

       Cappiello also challenges the district court’s order that he issue a full satisfaction of

judgment and that the bond company be discharged, and concedes that the standard of review is

abuse of discretion. Because the district court explicitly permitted Cappiello to retain his right to

appeal its decision regarding post-judgment interest and poundage, Cappiello’s argument is

immaterial. The district court did not abuse its discretion in requiring the satisfaction of

judgment. Cappiello also makes no cognizable argument regarding the discharge of the bond

company beyond its mere mention in one header in his principal brief, and so has waived this

issue. Cf. United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir. 1993) (stating that “an

argument mentioned only in a footnote” in a primary brief is not “adequately raised or preserved

for appellate review”); Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 65-66 (2d Cir.

2007) (finding waiver where plaintiff did not “meaningfully challenge” the district court’s denial

of two motions).

       Additionally, for substantially the same reasons as those stated in its December 6, 2012

decision, the district court did not abuse its discretion in denying Cappiello’s motion for

reconsideration of its November 2, 2012 decision. See Cappiello, 2012 WL 6055551, at *6-8;

see also RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003) (stating that

denial of motion for reconsideration is reviewed for abuse of discretion).



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       We have considered Cappiello’s arguments on appeal and find them to be without merit.

Accordingly, the district court’s November 2, 2012 and December 6, 2012 orders are

AFFIRMED.



                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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