15-1986
Cole-Hoover v. Dept. of Corrections

                             UNITED STATES COURT OF APPEALS

                                      FOR THE SECOND CIRCUIT

                                          August Term 2015

   Submitted: August 25, 2015                                   Decided: October 14, 2015
                                                                Amended: October 15, 2015

                                           Docket No. 15-1986

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   GWENDOLYN COLE-HOOVER, M.D.,
        Plaintiff-Appellant,

                             v.

   ANNA MARIE RICHMOND, BRIAN P. FITZGERALD,
        Non-Party Appellees,1

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   Before: NEWMAN, WALKER, and JACOBS, Circuit Judges.

            Motion to dismiss as untimely an appeal from an order

   of the United States District Court for the Western District

   of     New      York       (Jeremiah       J.   McCarthy,       Magistrate      Judge),

   awarding liens for attorney’s fees.                          Court of Appeals rules

   that notice of appeal is timely from subsequent order

   directing payment of attorney’s fees.

            Motion to dismiss and motion for sanctions DENIED.



            1
         The caption reflects only the parties to the pending
   motion.

                                                   1
                          Brian P. Fitzgerald, Brian P.
                            Fitzgerald, P.C., Buffalo, NY,
                            for Non-Party Appellees Anna
                            Marie Richmond and Brian P.
                            Fitzgerald.

                          Anthony A. Boyadjis, Morristown,
                          N.J. for     Appellant Gwendolyn
                          Cole-Hoover.



JON O. NEWMAN, Circuit Judge.

    The issue on this motion to dismiss as untimely an

appeal of an order concerning attorney’s fees is when the

time for filing a notice of appeal begins to run.   The issue

arises out of an employment discrimination suit filed by

Plaintiff-Appellant Dr. Gwendolyn Cole-Hoover against the

New York Department of Correctional Services and others.

Between 2005 and 2008, while the litigation was pending,

Cole-Hoover was represented by Non-Party Appellees Brian

Fitzgerald and Anna Marie Richmond, whose motion is before

us. They withdrew their representation and were replaced by

Prathima Reddy.

    The case was ultimately settled.     Before the parties

announced their intention to settle, the Appellees sought an

order directing Cole-Hoover to pay their unpaid attorney’s



                             2
fees out of the proceeds of the settlement.            The parties

stipulated that $360,915.05 of the settlement proceeds would

be held in escrow by Reddy pending resolution of attorney’s

fees disputes.      The District Court (Jeremiah J. McCarthy,

Magistrate Judge) later ordered the court clerk to hold the

escrowed   funds.      In   November   2013,   after    litigation

concerning the terms of the settlement, the District Court

entered a final judgment in favor of the Plaintiff in the

amount of $750,000, which this Court affirmed. See Cole-

Hoover v. N. Y. State Dep’t of Corrections and Community

Supervision, 594 F. App’x 23 (2d Cir. 2015).

    On February 12, 2014, the District Court issued a

“Decision and Order on Motions for Attorneys’ Fees” that the

Appellees now contend started the clock for filing a notice

of appeal.2   The Court stated that Fitzgerald’s fee request

“will be reduced by 10% to $46,350, plus disbursements of

$245.30, for a total of $46,595.30.” After making a similar

reduction in Richmond’s request, the Court stated that “the

figure to which Ms. Richmond is entitled: $54,940.25.          The



    2
      The District Court’s jurisdiction to enter the fee
order while the appeal from the underlying litigation was
pending is not questioned. See Chesley v. Union Carbide
Corp., 927 F.2d 60, 65 (2d Cir. 1991) (ancillary
jurisdiction to resolve fee disputes).

                                3
Court concluded its ruling by stating that the motion by

Fitzgerald and Richmond

    “is granted to the extent of awarding Mr.
    Fitzgerald a lien in the amount of $46,595.30, and
    Ms. Richmond a lien in the amount of $54,940.25,
    upon any sums payable to plaintiff in this action,
    but is otherwise denied . . . .”

Cole-Hoover v. N. Y. Dep’t of Correctional Services, No. 02-

CV-00826 M, 2014 WL 576176, at *7 (W.D.N.Y. Feb. 12, 2014)

(emphases added).

    In March 2015 Reddy renewed a motion for her attorney’s

fees, which she had filed in May 2014.     On May 21, 2015, the

District Court filed a “Decision and Order” determining that

Reddy was entitled to $155,790 and ordering payment to her

of that sum.    The conclusion of that Order included the

following:

         “[T]he judgment entered in favor of plaintiff
    on November 13, 2013 s h a l l b e p a i d ( e i t h e r
    directly or from escrow) as follows:
         - in accordance with my February 12, 2014
    Decision and Order, the sum of $46,595.30 shall be
    paid to attorney Brian Fitzgerald and the sum of
    $54,940.25 shall be paid to attorney Anna Marie
    Richmond . . . .”

Cole-Hoover v. N. Y. DOCCS, No. 02-CV-00826-JJM, 2015 WL

2451738, at *4 (May 21, 2015) (emphases added) (docket

numbers deleted).     The Order also directed payment of

Reddy’s fee.


                               4
    On June 22, 2015, Cole-Hoover filed a notice of appeal

from the orders entered on February 12, 2014, and May 21,

2015.   On July 14, 2015, Fitzgerald and Richmond filed the

pending motion, requesting dismissal of Cole-Hoover’s appeal

from the February 12, 2014, order.3    Their motion also seeks

sanctions for filing that appeal.

    The Appellees contend that Cole-Hoover was required to

file her notice of appeal within 30 days after the District

Court’s February 14, 2014, order.     They rely on Perez v. AC

Roosevelt Food Corp., 744 F.3d 39 (2d Cir. 2013).       Perez

held that, in the circumstances of that case, a notice of

appeal was untimely because it had been entered more than 30

days after the District Court had granted a motion for

attorney’s fees and directed the clerk to close the case.

See id. at 41-42.    We explained that the 30 days for a

notice of appeal in a civil case runs from the “entry” of

the order appealed from, see Fed. R. App. P. 4(a)(1)(A);

that “entry” “depends upon whether Federal Rule of Civil

Procedure 58(a) requires ‘a separate document,’” Perez, 744

F.3d at 41 (quoting Fed. R. App. P. 4(a)(7)); that “[a]



    3
      Although the motion does not explicitly seek dismissal
of the appeal from the May 21, 2015 order, we will interpret
the motion as seeking dismissal of both appeals.

                             5
‘separate document’ is not required ‘for an order disposing

of a motion . . . for attorney’s fees under Rule 54 [of the

Federal Rules of Civil Procedure],” id. (quoting Fed. R.

Civ. P. 58(a)(3)) (emphasis added); and that, because a

separate   document   is   not    required,   the   fee   order   “is

considered to have been entered ‘when the . . . order is

entered in the civil docket,’” id. (quoting Fed. R. App. P.

4(a)(7)(i)).   Perez cited Feldman v. Olin Corp., 673 F.3d

515 (7th Cir. 2012), which further explained that Rule 54

“makes awards of attorneys’ fees one type of judgment and

Rule 58 designates it as a type of judgment for which a

separate document is not required.” Id. at 517 (emphasis

added).

    The Appellees make a substantial argument that the

District Court’s February 12, 2014, order started the time

for Cole-Hoover’s appeal.        That order determined the amount

of fees to which each attorney was entitled and granted them

a lien on the settlement proceeds.        It is at least arguable

that it is an order “disposing” of a motion for attorney’s

fees within the meaning of Rule 58(a)(3).           Had the escrow

agent declined to disburse the fees, the lien could have

been enforced without a further ruling from the District

Court as to the amount of fees due.       Indeed, it was only the

                                   6
happenstance of Reddy’s renewed motion for a fee that

occasioned the Court’s order of May 21, 2015, ordering that

the fees “shall be paid” to Fitzgerald and Richmond.

    On the other hand, an order creating a lien is not a

typical order awarding attorney’s fees, and the May 21,

2015, order was the District Court’s only order explicitly

directing that the fees specified in the February 12, 2014,

order “shall be paid.”

    We have found no previous decision presenting similar

facts, but two decisions are somewhat analogous.         In Kline

v. Dep’t of Health & Human Services, 927 F.2d 522 (10th Cir.

1991), a defendant sought dismissal of an appeal from a

judgment dismissing an action, contending that an appeal

should have been taken from an earlier order granting a

motion to dismiss. The Tenth Circuit ruled that the earlier

order met the requirements of Rule 58 and “would have been

sufficient   to   provide   jurisdiction   had   an   appeal   been

taken.” Id. at 524.         Nevertheless, the Court accepted

jurisdiction over an appeal from the later order “which

clearly meets the requirements of Rule 58.” Id.         The Fifth

Circuit, in a non-precedential opinion, has also accepted

jurisdiction of an appeal from a judgment granting summary

judgment, despite an earlier ruling on a motion for summary

                                7
judgment, which the Court said “appears to satisfy Rule 58's

separate document requirements.” Creaghe v. Albemarle Corp.,

98 F. App’x 972, 973 (5th Cir. 2004) (per curiam).                The

Court   stated,   “We   interpret   Rule   58's    requirements    to

prevent the loss of an appeal whenever reasonable,” id. at

974, a sentiment we share.

    In the pending case, even if the February 12, 2014,

order was appealable, we will not fault the Appellant for

timely appealing the May 21, 2015, order.

    The motion to dismiss is denied.        The Appellees’ motion

for sanctions, sought only because of a claim that the

Appellant’s   appeal    was   untimely     and    for   that   reason

frivolous, is also denied.




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