     15-1986-cv(L)
     Cole-Hoover v. Reddy et al.

                         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 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   28th day of April, two thousand seventeen.
 5
 6   PRESENT: JOHN M. WALKER, JR.,
 7            DENNIS JACOBS,
 8            BARRINGTON D. PARKER,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12
13   GWENDOLYN COLE-HOOVER, M.D.,
14            Plaintiff–Appellant–
15            Cross-Appellee,
16
17                -v.-                                           15-1986-cv(L),
18                                                               15-2173-cv(XAP)
19   PRATHIMA REDDY,
20            Appellee–Cross-Appellant,
21
22   ANNA MARIE RICHMOND, BRIAN P. FITGERALD, KRISTA GOTTLIEB,
23            Appellees,
24
25                -v.-
26



                                                1
 1   ANGINELL A. ANDREWS, JOHN HOWARD, M.D.,
 2   ROBERT P. KIRKPATRICK, ROBERT SPENCE,
 3   MARC STERN, M.D., NEW YORK STATE
 4   DEPARTMENT OF CORRECTIONAL SERVICES,
 5   ALBION CORRECTIONAL FACILITY, SUE
 6   WOJCINSKI, SANDRA DURFEE, ANGIE MAUME,
 7   DONNA BAKER,
 8             Defendants.
 9
10   - - - - - - - - - - - - - - - - - - - -X
11
12   FOR PLAINTIFF-APPELLANT:
13                                ANTHONY A. BOYADJIS, Morristown,
14                                NJ.
15
16   FOR APPELLEE–CROSS-APPELLANT:
17
18                                ALAN J. BOZER, Amanda L. Lowe;
19                                Phillips Lytle LLP, Buffalo, NY.
20
21   FOR APPELLES:
22                                ANNA M RICHMOND, Brian P.
23                                Fitgerald, Buffalo, NY.
24
25
26
27        Appeal from the final orders of the United States District
28   Court for the Western District of New York (McCarthy, M.J.).
29
30        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
31   DECREED that the orders of the district court be AFFIRMED.
32
33        Plaintiff-Appellant Dr. Gwendolyn Cole-Hoover appeals from
34   the final orders of the district court (McCarthy, M.J.)
35   substantially granting motions for attorneys’ fees subsequent
36   to entry of judgment. Pursuant to 28 U.S.C. § 636(c)(1), the
37   parties consented to conduct all proceedings before a magistrate
38   judge. We assume the parties’ familiarity with the underlying
39   facts, the procedural history, and the issues presented for
40   review.
41


                                     2
 1        Cole-Hoover brought this employment discrimination action
 2   in 2002. The litigation has been very contentious and has lasted
 3   more than a decade, during which time Cole-Hoover has gone
 4   through many lawyers. The lawyer who helped her bring the case
 5   withdrew after about three years. He was replaced by Appellees
 6   Brian Fitzgerald and Anna Marie Richmond in the fall of 2005,
 7   and they moved to withdraw in January 2008. The lawyer who
 8   replaced them lasted about four years, almost until the eve of
 9   trial, when Cole-Hoover fired him. Cole-Hoover replaced him
10   with Appellee Prathima Reddy, who had only a few weeks to catch
11   up with ten years of litigation to prepare for a potentially
12   lengthy trial, and to attempt to negotiate a settlement.
13   Shortly before jury selection, the case settled for $750,000.

14        A short time later, three more lawyers entered appearances
15   for Cole-Hoover--not in the underlying case, but in fee disputes
16   (she is now represented on appeal by yet another). In a series
17   of well-reasoned opinions, the district court granted (in
18   modified amounts) fee awards to Fitzgerald, Richmond, and Reddy.
19   Cole-Hoover’s appeal challenges the fee awards, as well as (in
20   a two-sentence section of her brief, see Appellant Br. 23–24)
21   the order that she pay her share of mediation fees to Krista
22   Gottlieb.1 Reddy cross-appeals, challenging the district
23   court’s 10% reduction of her request for an award in quantum
24   meruit.

25         “We review a district court’s award of attorneys’ fees for
26   abuse of discretion.” Carco Grp., Inc. v. Maconachy, 718 F.3d
27   72, 79 (2d Cir. 2013) (per curiam). A district court abuses its
28   discretion when it rests its decision on an error of law, or
29   on a clearly erroneous factual finding, or when its decision
30   cannot be located within the range of permissible decisions.
31   Id. “Abuse of discretion--already one of the most deferential
32   standards of review--takes on special significance when [we]
33   review[] fee decisions because the district court, which is
34   intimately familiar with the nuances of the case, is in a far
35   better position to make such decisions than is an appellate
36   court, which must work from a cold record.” McDaniel v. Cty.
37   of Schenectady, 595 F.3d 411, 416 (2d Cir. 2010) (brackets and
38   quotation marks removed).

     1
         Gottlieb has not filed a brief.

                                       3
 1        1. Cole-Hoover does not dispute that Fitzgerald and
 2   Richmond are entitled to payment for hours worked, pursuant to
 3   a provision in their retainer agreement for payment after
 4   justifiable withdrawal; nor does she dispute their hourly rate.
 5   Her only challenge is to vagueness, overbilling, and
 6   double-billing in the time records. The district court found
 7   that her challenge justified a 10% reduction in the fee awards.
 8   We find no error in that assessment, which is within the range
 9   of permissible decisions.2

10        2. Reddy’s retainer agreement required a nonrefundable
11   retainer, which is impermissible under Rule 1.5(d)(4) of the
12   New York Rules of Professional Conduct. See 22 N.Y.R.C.C. §
13   1200.0. As the district court found, the agreement is
14   unenforceable. Cole-Hoover argues that Reddy should get
15   nothing, relying on a Second Circuit decision from a different
16   context for the principle that “an attorney who engages in
17   misconduct” is not entitled to a fee. Chen v. Chen Qualified
18   Settlement Fund, 552 F.3d 218, 225 (2d Cir. 2009) (quoting
19   Shelton v. Shelton, 542 N.Y.S.2d 719, 720 (2d Dep’t 1989)). The
20   district court recognized that the weight of authority is to
21   the contrary. Although a “nonrefundable retainer agreement
22   [is] unenforceable and may subject an attorney to professional
23   discipline, quantum meruit payment for services actually
24   rendered will still be available and appropriate.” In re
25   Cooperman, 83 N.Y.2d 465, 475 (1994). Accordingly, the district
26   court ruled that Reddy is entitled to recover in quantum meruit
27   for the reasonable value of services provided. As with
28   Fitzgerald and Richmond, the district court found some of Reddy’s
29   time entries excessive or insufficiently documented and applied
30   a 10% reduction to the award. We find no error in that assessment,
31   which is within the range of permissible decisions. We reject
32   both Cole-Hoover’s argument that the district court erred by
33   granting the award and Reddy’s argument that it erred by applying
34   the 10% reduction.

35


     2
       Cole-Hoover’s suggestion that the district court sua sponte
     increased the size of Richmond’s requested award before applying this
     reduction is meritless. The alleged “increase” was the correction
     of an arithmetical error.

                                      4
1        As to the mediation fees, such payment is required by the
2   district court’s Alternative Dispute Resolution Plan.

3        Accordingly, and finding no merit in appellant’s other
4   arguments, we hereby AFFIRM the orders of the district court.

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




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