12-687(L)
Bienenfeld v. Calderon


                           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.

      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 9th day of September, two thousand thirteen.

PRESENT:
                 REENA RAGGI,
                 GERARD E. LYNCH,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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SAUL BIENENFELD, ESTATE OF BAGAROZZA,
                                 Plaintiff,

PUBLIC ADMINISTRATOR FOR THE COUNTY OF
QUEENS AS ADMINISTRATOR OF THE ESTATE OF
GUIERLLERMO PAGUAY,
                   Third-Party-Plaintiff,

                          v.                                             No. 12-687(Lead)
                                                                         No. 12-831(XAP)
BOSCO, BISIGNANO & MASCOLO,                                              No. 12-885(XAP)
                    Defendant-Appellant-Cross-
                    Appellee,

DOUGHERTY,               RYAN,    GIUFFRA,         ZAMBITO          &
HESSION,
                                 Appellant-Cross-Appellee,
PAUL ESPOSITO, et al.,

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                                 Claimants-Third-Party-
                                 Defendants-Appellees-Cross-
                                 Appellants,

KELLY GARIGLIANO, et al.,
                    Defendants-Appellees,

PHILIP GARIGLIANO, et al.,
                      Claimants-Third-Party-
                      Defendants-Appellees,

RICHARD GODOSKY, Attorney, et al.,
                   Defendants,

THE M/V ANDREW BARBERI, ITS ENGINES AND
BOILERS IN REM, et al.,
                        Third-Party-Defendants,

THERESA KLINGELE,
                                 Claimants,

CARLOS M. CALDERON, RICHARD S. WEISMAN,
                  Respondents,

TORGAN & COOPER, P.C.,
                                 Interested Party.
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APPEARING FOR APPELLANTS:                        JAMES E. RYAN (Anthony P. Gentile,
                                                 Godosky & Gentile, P.C., New York, New York,
                                                 on the brief), Dougherty, Ryan, Giuffra, Zambito
                                                 & Hession, New York, New York, for
                                                 Appellants-Cross-Appellees Bosco, Bisignano &
                                                 Mascolo and Dougherty, Ryan, Giuffra, Zambito
                                                 & Hession.

APPEARING FOR APPELLEES:                         NORMAN A. OLCH, ESQ., New York, New
                                                 York, for Claimants-Third-Party-Defendants-
                                                 Appellees-Cross-Appellants Paul Esposito, et al.
                                                 CARLOS M. CALDERON, Weisman &
                                                 Calderon LLP, Mount Vernon, New York, for

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                                          Respondents Carlos M. Calderon and Richard S.
                                          Weisman and Claimants-Third-Party-
                                          Defendants-Appellees Philip Garigliano, et al.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Edward R. Korman, Judge; Viktor V. Pohorelsky, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order entered on January 19, 2012, is AFFIRMED.

       These cross-appeals arise from the district court’s order granting an award of

attorney’s fees to appellants Bosco, Bisignano & Mascolo and Dougherty, Ryan, Giuffra,

Zambito & Hession (“Designated Counsel”) for the common benefit work that they

performed in this mass tort litigation arising out of the October 2003 Staten Island Ferry

crash. We review the fee award for abuse of discretion, which we will not identify absent

“a mistake of law or a clearly erroneous factual finding.” Goldberger v. Integrated Res.,

Inc., 209 F.3d 43, 47–48 (2d Cir. 2000).1 We assume the parties’ familiarity with the facts

and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm the challenged fee awards in all respects.

1.     Procedural Arguments

       At the outset, we reject Cross-Appellants’ argument that Designated Counsel

1
  Designated Counsel’s argument that we should review certain aspects of the fee
determination de novo lacks merit. The district court was not offsetting the awards based
on a choice of “a given methodology in structuring an award,” such as whether to apply the
lodestar method or a percentage of fund formula, In re Thirteen Appeals Arising Out of San
Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 304 (1st Cir. 1995), nor was it
interpreting a fee-shifting statute, see Preservation Coal. of Erie Cnty. v. Fed. Transit
Admin., 356 F.3d 444, 450 (2d Cir. 2004).

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waived attorney’s fees for the duration of the litigation. Insofar as Cross-Appellants argue

that the joint management orders submitted to the district court made no mention of

attorney’s fees, that purported omission is insufficient to demonstrate waiver, which

constitutes “the voluntary and intentional relinquishment of a known right” and “which is

not created by negligence, oversight, or silence.” Amerex Grp., Inc. v. Lexington Ins.

Co., 678 F.3d 193, 201 (2d Cir. 2012) (internal quotation marks omitted). Moreover,

Cross-Appellants identify no error—let alone clear error—in the magistrate judge’s

finding, following an evidentiary hearing, that Designated Counsel did not agree to forgo

attorney’s fees for the common benefit work.

       Further, even if we were to assume, as the magistrate judge did, that Designated

Counsel’s fee motion was untimely under Fed. R. Civ. P. 54(d)(2), we identify no abuse of

discretion in the finding that the delay was attributable to excusable neglect. See Tancredi

v. Metro. Life Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004) (reciting excusable neglect

standard); Fed. R. Civ. P. 6(b)(1)(B). Insofar as Cross-Appellants complain that the

district court erred in failing to consider the prejudice they suffered, that contention is

belied by the record and without merit, as Cross-Appellants had notice as early as 2004 that

Designated Counsel sought attorney’s fees for common benefit work.

       The same conclusion obtains with respect to Cross-Appellants’ judicial estoppel

argument. Cross-Appellants cannot show that Designated Counsel earlier took a position

on fees clearly inconsistent to their present position. Much less can they show that the

district court somehow adopted Designated Counsel’s earlier fees position, when no such

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position was submitted to the court. See DeRosa v. Nat’l Envelope Corp., 595 F.3d 99,

103 (2d Cir. 2010) (requiring party urging judicial estoppel to show, inter alia, that

opposing “party’s later position is clearly inconsistent with its earlier position” and

“party’s former position has been adopted in some way by the court in the earlier

proceeding” (internal quotation marks omitted)).

2.     Merits

       Although both Designated Counsel and Cross-Appellants argue that the district

court erred in adopting the magistrate judge’s fee calculation, after an independent review

of the record and relevant case law, we conclude that the district court acted well within its

considerable discretion in allocating attorney’s fees in this case. See Goldberger v.

Integrated Res., Inc., 209 F.3d at 47 (“[A]buse of discretion—already one of the most

deferential standards of review—takes on special significance when reviewing fee

decisions.” (internal quotation marks omitted)). The court’s decisions to (1) use the

lodestar method to determine fees, (2) use a 1.25 multiplier for the fee award, and (3)

increase the award by 10% to account for fee counsel all fall “within the range of

permissible decisions,” Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 417 (2d Cir.

2012) (internal quotation marks omitted), as do its determinations of who should contribute

to the fee fund.      Thus, “giv[ing] substantial deference to [the district court’s]

determinations, [and] in light of [its] superior understanding of the litigation,” we see no

reason to disturb the district court’s fee determination. Fox v. Vice, 131 S. Ct. 2205, 2216

(2011) (internal quotation marks omitted).

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      We have considered the parties’ remaining arguments and conclude that they are

without merit. We therefore AFFIRM the district court’s fee award in all respects.

                                  FOR THE COURT:
                                  CATHERINE O=HAGAN WOLFE, Clerk of Court




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