     10-0737-cv; 10-0793-cv
     Job Opportunities for Women, Inc. v. Carolina Cas. Ins. Co.


                          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 .


 1            At a stated term of the United               States Court of Appeals
 2       for the Second Circuit, held at the               Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl               Street, in the City of
 4       New York, on the 1 st day of October,              two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                WILFRED FEINBERG,
 9                JOSÉ A. CABRANES,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Job Opportunities for Women, Inc.,
14                Appellee/Cross-Appellant,
15                                                                       10-0737-cv
16                    -v.-                                               10-0793-cv
17
18       Carolina Cas. Ins. Co.,
19                Appellant/Cross-Appellee.
20
21       - - - - - - - - - - - - - - - - - - - -X
22
23       APPEARING FOR APPELLANT:               Emanuel R. Gold, Law Offices of
24                                              Emanuel R. Gold, Forest Hills,
25                                              New York.




                                                  1
1    APPEARING FOR APPELLEE:    Thomas D. Czik, Law Offices of
2                               Thomas D. Czik, Roslyn, New
3                               York.

4         Appeal from a judgment of the United States District
5    Court for the Eastern District of New York (Levy, M.J.).

6         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
7    AND DECREED that the judgment of the district court be
8    AFFIRMED.

 9        Appellant/Cross-Appellee Carolina Casualty Insurance
10   Company (“Carolina”) and Appellee/Cross-Appellant Job
11   Opportunities for Women, Inc. (“JOW”) challenge the January
12   29, 2010 judgment of the United States District Court for
13   the Eastern District of New York (Levy, M.J.), which awarded
14   JOW $86,234.62 in damages plus $25,643.58 in interest on its
15   breach of contract claim. We assume the parties’
16   familiarity with the facts, procedural history, and issues
17   on appeal, and summarize them only briefly in this order.

18        Carolina issued a construction bond for a project on
19   which JOW was a subcontractor. In the wake of the failure
20   of the general contractor to pay JOW, Carolina paid on its
21   bond. In this diversity action, JOW and Carolina contest
22   unfair charges. The parties consented to a trial before
23   Magistrate Judge Levy who presided over a bench trial on
24   July 20, 2009. By Memorandum and Order dated January 29,
25   2010, Judge Levy found in favor of JOW in the total amount
26   of $111,878.20 (damages of $86,234.62 plus prejudgment
27   interest of $25,643.58). The district court declined to
28   award attorneys’ fees to either party. Both parties timely
29   appealed.

30        We review a district court’s findings of fact for clear
31   error. See Olin Corp. v. Ins. Co. of N. Am., 221 F.3d 307,
32   320 (2d Cir. 2000). The question of “the amount of
33   recoverable damages is a question of fact,” that we review
34   for clear error. Lucente v. Int’l Bus. Mach. Corp., 310
35   F.3d 243, 261 (2d Cir. 2002) (quotation marks omitted). “A
36   finding is ‘clearly erroneous’ when although there is
37   evidence to support it, the reviewing court on the entire
38   evidence is left with the definite and firm conviction that
39   a mistake has been committed.” United States v. United
40   States Gypsum Co., 333 U.S. 364, 395 (1948); accord Anderson
41   v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (“If
42   the district court’s account of the evidence is plausible in

                                  2
1    light of the record viewed in its entirety, the court of
2    appeals may not reverse it even though convinced that had it
3    been sitting as the trier of fact, it would have weighed the
4    evidence differently. Where there are two permissible views
5    of the evidence, the factfinder’s choice between them cannot
6    be clearly erroneous.”). We review a district court’s
7    decision to deny attorneys’ fees for abuse of discretion.
8    Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 225
9    (2d Cir. 2009).

10        Each party invites this Court to review the district
11   court’s factual determinations de novo. Citing relatively
12   few cases and relying on selected portions of the trial
13   testimony, the parties have engaged in nothing more than
14   reargument and have failed to demonstrate that any of the
15   district court’s factual findings were clearly erroneous.
16   The evidence identified by Carolina and JOW does not leave
17   us with the “definite and firm conviction that a mistake has
18   been committed.” United States Gypsum Co., 333 U.S. at 395.
19   In addition, we find that the district court did not abuse
20   its discretion in denying the award of attorneys’ fees since
21   neither JOW’s claims nor Carolina’s affirmative defenses
22   were frivolous. See Panetta v. Crowley, 460 F.3d 388, 399
23   (2d Cir. 2006). Accordingly, we affirm the district court’s
24   judgment.

25        Finding no merit in JOW’s or Carolina’s remaining
26   arguments, we hereby AFFIRM the district court’s judgment.

27
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31




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