     06-4719-cv
     O&G Indus., Inc. v. Nat’l R.R. Passenger Corp.

 1                                   UNITED STATES COURT OF APPEALS
 2
 3                                         FOR THE SECOND CIRCUIT
 4
 5                                              August Term, 2007
 6
 7   (Argued: October 23, 2007                                      Decided: August 8, 2008)
 8
 9                                          Docket No. 06-4719-cv
10
11   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
12   O&G INDUSTRIES, INC.,
13
14                    Third-Party-Defendant Appellant,
15
16   HARTFORD FIRE INSURANCE CO. AND DAVID E. ROBERTS, ADMINISTRATOR FOR
17   THE ESTATE OF GREGORY J. ROBERTS,
18
19                    Plaintiffs,
20
21   PETER QUINTILIANI AND LAUREL QUINTILIANI,
22
23                    Consolidated Plaintiffs,
24
25                            v.
26
27   NATIONAL RAILROAD PASSENGER CORPORATION,
28
29                    Defendant-Third-Party-Plaintiff Appellee,
30
31   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
32   B e f o r e: FEINBERG, WINTER, and STRAUB, Circuit Judges.

33        Appeal from a judgment of the United States District Court for
34   the District of Connecticut (Dorsey, J.) entered in a third-party
35   action for indemnity, following an accident in which a train owned
36   and operated by defendant-third-party-plaintiff appellee Amtrak
37   caused the death of one employee of third-party-defendant appellant
38   O&G Industries, Inc. and injured another. In the first instance, the
39   district court (1) granted summary judgment to Amtrak on the ground
40   that the indemnity agreement between Amtrak and O&G was not invalid
41   under Connecticut General Statute § 52-572k(a), because the latter
42   is preempted by 49 U.S.C. § 28103(b), which allows rail passenger
43   carriers to enter into indemnification agreements concerning claims
44   brought against them; and (2) held that O&G was required, as a
45   matter of law, to indemnify Amtrak for the liabilities and costs
                                                        1
46   Amtrak incurred in the tort actions arising out of the accident,
47   despite a jury verdict that O&G was relieved of this obligation
48   because Amtrak’s failure to adequately protect O&G workers amounted
49   to a material breach of the contract between them. We now affirm the
50   rulings of the district court. We also find that any error the
51   district    court   committed   by    precluding    appellant   from
52   cross-examining an employee of the appellee in the first phase of
53   the trial (concerning the tort actions against Amtrak) and
54   subsequently restricting appellant’s direct examination of the same
55   employee in the second phase of the trial (concerning the indemnity
56   claim against O&G) was harmless. Finally, we dismiss for want of
57   appellate jurisdiction O&G’s challenges to the award of attorneys’
58   fees and costs. Dismissal does not affect our jurisdiction to review
59   the merits of the other issues on appeal. Affirmed in part and
60   dismissed in part.
61
62        KIMBERLY A. KNOX (Michael S. Taylor and Brendon P. Levesque, on
63        the brief), Horton Shields & Knox, P.C., Hartford, Connecticut,
64        and Jeffrey A. Blueweiss (on the brief), Bai, Pollock,
65        Blueweiss & Mulcahey, Shelton, Connecticut, for Third-Party-
66        Defendant Appellant.
67
68
69        WILLIAM G. BALLAINE (Dawn Pinkston, of counsel, on the brief),
70        Landman Corsi Ballaine & Ford, P.C., New York, New York, for
71        Defendant-Third-Party-Plaintiff Appellee.
72
73
74   FEINBERG, Circuit Judge:
75
76        This     case    is   procedurally       complicated.   The   present    appeal

77   arises out of a third-party complaint brought by National Railroad

78   Passenger Corporation (hereafter “Amtrak” or “appellee”) against O&G

79   Industries,    Inc.    (hereafter   “O&G”      or   “appellant”)   in   the   United

80   States District Court for the District of Connecticut (Dorsey, J.).

81   In its complaint, Amtrak sought indemnification from O&G for any

82   liabilities and costs, including attorneys’ fees, that Amtrak would




                                               2
 83   incur in two consolidated tort actions against it for wrongful death

 84   and personal injury damages resulting from a train accident. 1

 85        The proceedings in the district court included two rulings that

 86   O&G now appeals to this Court. First, before trial of the third-

 87   party indemnity action began, the district judge granted partial

 88   summary judgment to Amtrak on the basis of an explicit indemnity

 89   provision in a right-of-access contract between Amtrak and O&G. The

 90   court upheld the validity of the indemnity provision, ruling that 49

 91   U.S.C. § 28103(b) (hereafter “§ 28103(b)”) -- which allows rail

 92   passenger carriers to enter into liability-shifting agreements --

 93   preempted   Connecticut   General    Statute   §   52-572k(a)    (frequently

 94   referred to hereafter as the “Connecticut statute”). That statute

 95   prohibits, on public policy grounds, indemnity agreements entered

 96   into in connection with construction contracts, if they purport to

 97   shield the indemnitee from liability for its own negligence. O&G

 98   invoked the Connecticut statute to defeat Amtrak’s indemnity claim.

 99   See Roberts v. Nat’l R.R. Passenger Corp. v. O&G Indus., Nos. 3:04-

100   cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 648212 (D. Conn. Mar.

101   9, 2006).




           1
                 The two actions were Roberts v. Nat'l R.R. Passenger Corp., No.
           3:04-cv-1318 (D. Conn. filed Aug. 9, 2004), and Quintiliani v. Nat'l R.R.
           Passenger Corp., No. 3:04-cv-2195 (D. Conn. filed Dec. 29, 2004). A third
           action was brought against Amtrak by the Hartford Fire Insurance Company,
           as subrogee of O&G, for damage to O&G property caused by the train
           accident. See Hartford Fire Ins. Co. v. Nat’l R.R. Passenger Corp., No.
           3:04-cv-1622 (D. Conn. filed Sept. 28, 2004). This action was settled and
           is not part of the present appeal.
                                            3
102          Second,    the    judge    granted        Amtrak's      post-trial     motion     for

103   judgment as a matter of law, setting aside a jury verdict that O&G

104   was    relieved    of   its   obligation         to    indemnify     Amtrak    because    of

105   Amtrak’s material breach of the contract with O&G. Judge Dorsey held

106   that Amtrak’s contractual default did not affect the validity of the

107   indemnity agreement, which explicitly covered accidents attributable

108   to Amtrak’s negligence. See Roberts v. Nat’l R.R. Passenger Corp. v.

109   O&G Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL

110   2621733 (D. Conn. Sept. 12, 2006).

111          O&G argues on appeal that the district court erred in (1)

112   granting partial summary judgment to Amtrak; (2) entering judgment

113   for Amtrak as a matter of law; (3) curtailing O&G’s cross- and

114   direct examination of an Amtrak employee during the trial; and (4)

115   awarding     Amtrak     attorneys’    fees       and       defense   costs    without    any

116   evidence as to their amount and reasonableness.

117          On the first and second of these issues, we affirm the district

118   court.     On     the    third,      we   find         the     limitations      of     O&G’s

119   cross-examination rights by the district court, even if erroneous,

120   were   not   substantially        prejudicial         to    appellant.   On    the   fourth

121   issue, we conclude that we lack appellate jurisdiction over the

122   district court’s non-final award of attorneys’ fees and costs.

123

124     I.     BACKGROUND




                                                   4
125           The accident that led to this litigation occurred in June 2004,

126   while Gregory Roberts and Peter Quintiliani, carpenters employed by

127   O&G,    were       installing      wood   planks    on     the   underside    of   a    highway

128   bridge suspended over Amtrak's tracks in East Haven, Connecticut. An

129   Amtrak diesel locomotive entered their worksite without warning and

130   collided with the man-lift in which they were stationed. Amtrak’s

131   on-site       safety    personnel         were    unable    to    prevent    the   accident,

132   because they were unaware of the train’s scheduled passage through

133   O&G’s       work    area,    due    to    poor    coordination      with     the   office    of

134   Amtrak’s       chief        dispatcher       in     Boston.       Furthermore,         Amtrak’s

135   employees, having already de-energized the tracks at the East Haven

136   worksite so that no electric-powered train could pass, erroneously

137   believed that the tracks had been placed out of service. Thus, they

138   had not made a specific request to “foul” the tracks, i.e., render

139   them completely inoperable until O&G’s crew had completed its work.

140   At the time of the accident, therefore, none of O&G’s or Amtrak’s

141   employees on duty at the site expected any train movement through

142   the work zone. 2 The collision killed Roberts instantly; Quintiliani

143   was injured while jumping out of the lift.




              2
                    A more detailed description of the train accident can be found in
              the district court’s March 2006 ruling on the parties’ motions for
              summary judgment. See Roberts v. Nat’l R.R. Passenger Corp. v. O&G
              Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 648212
              (D. Conn. Mar. 9, 2006), 2006 WL 648212, at *1-3. We think it unnecessary
              to recount here all the factual circumstances surrounding the accident,
              because the crux of the dispute before us is Amtrak’s indemnity claim
              against O&G -- not responsibility for the accident, which Amtrak admitted
              at trial.
                                               5
144         David     Roberts      (hereafter        “Roberts”),         the      brother       of    the

145   deceased O&G employee and administrator of his estate, filed in

146   August   2004      a     wrongful      death       action    against        Amtrak,       seeking

147   compensatory       and      punitive     damages.       The    suit        by    Roberts        was

148   consolidated       with     Quintiliani’s          personal        injury       action.        After

149   answering the two actions, Amtrak filed its third-party complaint

150   against O&G.

151         The indemnity claim was based on a clause in the “Temporary

152   Permit   to   Enter      Upon   Property”      (hereafter          “Permit”),        a   contract

153   concluded between O&G and Amtrak in October 2003. Under the Permit,

154   Amtrak allowed O&G access to Amtrak’s property in East Haven, in

155   order to perform construction work in relation to O&G’s contract

156   with the Connecticut State Department of Transportation regarding

157   the re-building of a stretch of Interstate 95 between New Haven and

158   Branford,     Connecticut;         consideration       was    $1.     O&G,      on   its       part,

159   undertook     to   “use      all    necessary       care     and    precaution           to    avoid

160   accidents, delay or interference with [Amtrak's] trains or property”

161   and abide by Amtrak's safety regulations. Pursuant to the Permit,

162   Amtrak would provide, at its discretion and at O&G’s expense, “flag

163   service and/or other protection” necessary to maintain the “safety

164   and   continuity       of   railroad    traffic,”       over       which    Amtrak       retained

165   exclusive control. However, the provision of “protective services”

166   would “not relieve [O&G] from [its] complete responsibility for the




                                                     6
167   adequacy    and     safety    of   [its]     operations.”      A    key   feature   of   the

168   Permit is the following provision:

169          The Permittee [O&G] shall defend, indemnify and hold harmless
170          Railroad [Amtrak], its officers, directors, employees, agents,
171          servants, successors, assigns and subsidiaries, irrespective of
172          their negligence or fault, from and against any and all losses
173          and liabilities, . . . claims, causes of action, suits, costs
174          and expenses incidental thereto (including cost of defense and
175          attorney's fees), which any or all of them may hereafter incur,
176          be responsible for, or pay as a result of injury, [or] death, .
177          . . to any person . . . arising out of or . . . resulting from
178          activities of or work performed by [O&G], its officers,
179          employees, agents, servants, contractors, subcontractors, or
180          any other person acting for or by permission of [O&G]. The
181          foregoing obligation shall not extend to situations where the
182          negligence or fault of Amtrak, its officers, directors, [or]
183          employees . . . is the sole causal negligence or fault, except
184          that it shall so extend to injury [or] death . . . to employees
185          of [O&G], its agents, servants, contractors, subcontractors, or
186          any other person acting for or by permission of [O&G]. The
187          foregoing obligation shall not be limited by the existence of
188          any insurance policy or by any limitation on the amount or type
189          of damages, compensation, or benefits payable by or for [O&G]
190          or any contractor or subcontractor, and shall survive the
191          termination of this permit for any reason.
192
193   (Emphasis added.) In the district court, O&G argued that the above

194   provision     was    invalid       under    Connecticut       General     Statute   §    52-

195   572k(a), which declares void as against public policy agreements to

196   indemnify a party against its own negligence, if such agreements

197   were   made    “in    connection       with       or   collateral     to”    construction

198   contracts.

199          Before trial began on Amtrak’s indemnity claim, Amtrak sought

200   summary judgment and orders directing O&G to defend Amtrak in the

201   two tort actions and reimburse Amtrak’s reasonable attorneys' fees

202   in   defending      against    those       claims.     In   March   2006,   Judge   Dorsey


                                                    7
203   granted Amtrak partial summary judgment, concluding that § 28103(b),

204   which allows Amtrak to enter into indemnification agreements as to

205   claims against it, preempted the Connecticut statute and allowed

206   Amtrak to pursue its indemnity claim at trial.

207        The     jury      trial    of    the    consolidated      actions     by   plaintiffs

208   Roberts and Quintiliani against Amtrak began in March 2006. The

209   first phase (“Phase I”) was limited to the issue of damages to be

210   awarded    to     plaintiffs.          Amtrak    conceded       negligence        (but    not

211   recklessness). In April 2006, the jury awarded plaintiffs $1.425

212   million    each     in   compensatory        damages,    but    rejected    the    punitive

213   damages claims, finding that Amtrak's conduct was not willful or

214   reckless. 3 At the end of the second phase of the trial (“Phase II”)

215   concerning      Amtrak’s       third-party      complaint      against   O&G,     the    jury

216   found that O&G was excused from its obligation to indemnify Amtrak,

217   because    Amtrak's      failure      to    provide   O&G’s     crew   adequate     on-site

218   protection amounted to a material breach of the Permit, rendering it

219   void in its entirety.

220        After      this     second      verdict,   Amtrak    moved    for   judgment        as   a

221   matter of law, under Federal Rule of Civil Procedure 50(b), arguing

222   that there were no triable issues of fact as to the applicability of

223   the indemnity clause in the Permit and, hence, O&G was required to


           3
                 The Roberts estate appealed from the judgment of the district court
           entered against Amtrak after the verdict. That appeal was heard by this
           panel the same day as the appeal now before us. In November 2007, we
           summarily affirmed the judgment of the district court. See Roberts v.
           Nat’l R.R. Passenger Corp., No. 06-3036-cv, 2007 WL 3230736 (2d Cir. Nov.
           1, 2007) (summary order).
                                            8
224   indemnify Amtrak for litigation costs and damages awarded in the

225   underlying actions by Quintiliani and Roberts. In the alternative,

226   Amtrak sought a new trial, under Rule 59(a), on whether a material

227   contractual default nullified the entire Permit.

228          In    September         2006,   the   judge    granted     Amtrak's    Rule     50(b)

229   motion,      concluding        that    Amtrak’s     right   to    indemnity       explicitly

230   accrues, under the Permit, where Amtrak is found liable for injury

231   to    or    death   of    an    O&G    employee    solely   caused    by     Amtrak’s     own

232   negligence or fault. See Roberts, 2006 WL 2621733, at *5-6. Allowing

233   O&G    to     evade      its     indemnity       obligations     because     of     Amtrak’s

234   negligence, the court reasoned, would “render the indemnification

235   provision meaningless.” Id. at *6.

236          In December 2006, the court entered judgment in favor of Amtrak

237   in    its   indemnity     action       against    O&G.   This    timely    appeal    by   O&G

238   followed.

239

240        II.    DISCUSSION

241          The parties to this appeal raise several issues. First, we must

242   decide whether the Connecticut statute, which nullifies indemnity

243   agreements insulating a contracting party from its own negligence, 4

             4
                    Connecticut General Statute § 52-572k states:

                                  (a)   Any   covenant,   promise,  agreement   or
                            understanding entered into in connection with or
                            collateral to a contract or agreement relative to the
                            construction, alteration, repair or maintenance of any
                            building, structure or appurtenances thereto including
                            moving, demolition and excavating connected therewith,
                            that purports to indemnify or hold harmless the
                                                 9
244   applies, on its face, to the Permit; if it does, we must next

245   examine   whether   §   28103(b),     which   permits    Amtrak   to    enter   into

246   indemnification     agreements, 5     preempts    the    Connecticut      statute.

247   Second, in considering the district court's grant of Amtrak's motion

248   for judgment as a matter of law, we must assess whether Amtrak’s

249   conceded failure to effectively protect O&G’s crew constituted a

250   material breach of the Permit, discharging O&G from its indemnity

251   obligation.   Third,    we   review    the    district    court's      decision   to

252   preclude O&G from cross-examining an Amtrak employee during Phase I

253   of the trial, and the judge’s subsequent decision to restrict O&G's

254   direct examination of the same employee during Phase II. Finally, we

255   consider whether we have jurisdiction over the district court's non-

256   quantified award to Amtrak of reasonable costs and attorneys' fees

257   incurred in the defense of the Roberts and Quintiliani actions.

258

259   A.   Preemption

260        Our review of a grant of summary judgment under Rule 56 is

261   plenary. “[S]ummary judgment is appropriate where there exists no

                        promisee against liability for damage arising out of
                        bodily injury to persons or damage to property caused
                        by or resulting from the negligence of such promisee,
                        such promisee's agents or employees, is against public
                        policy and void, provided this section shall not affect
                        the validity of any insurance contract, workers'
                        compensation agreement or other agreement issued by a
                        licensed insurer.
           5
                 49 U.S.C. § 28103(b) provides:

                              A provider of rail passenger transportation may
                        enter   into   contracts   that  allocate   financial
                        responsibility for claims.
                                             10
262   genuine issue of material fact and, based on the undisputed facts,

263   the   moving    party      is   entitled        to   judgment    as       a    matter    of   law.”

264   D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). We

265   view the facts in the light most favorable to the nonmoving party

266   and resolve all factual ambiguities in its favor. Cioffi v. Averill

267   Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.

268   2006).

269

270         1)     Applicability of the Connecticut Statute

271         In its appeal, O&G relies heavily on the Connecticut statute.

272   In response, Amtrak claims for the first time that the Connecticut

273   statute    does     not    apply    to    the    Permit     because       it    allegedly       bars

274   indemnity    agreements         only     if   inserted      in   construction           contracts.

275   Amtrak     argues    that    the    Permit      was   not    such     a       contract.    In   the

276   district court, however, Amtrak did not contest the applicability of

277   the Connecticut statute, although it had ample opportunity to do so.

278   Under the circumstances, Amtrak has waived that argument and cannot

279   raise it on appeal. See Greene v. United States, 13 F.3d 577, 586

280   (2d   Cir.     1994)      (citing      Singleton      v.    Wulff,    428       U.S.     106,    120

281   (1976)). 6 Therefore, we proceed with the preemption question on the




            6
                  Our   refusal to   consider  Amtrak’s  waived  argument   on  the
            applicability of the Connecticut statute is of little importance to the
            final disposition of the case. As set forth below, we agree with the
            district court’s finding that the Connecticut statute is preempted by
            federal law and thus does not invalidate the indemnity clause in the
            Permit.
                                            11
282   assumption       that    the      Connecticut         statute     applies,      unless     it   is

283   preempted.

284

285         2)     Preemption by § 28103(b)

286         Section 28103 of Title 49 of the United States Code was enacted

287   as   part   of    the        Amtrak   Reform       and    Accountability          Act    of   1997

288   (hereafter the “Reform Act”). Subsection (b) of § 28103 provides

289   that “[a] provider of rail passenger transportation may enter into

290   contracts that allocate financial responsibility for claims.” Amtrak

291   argues that this subsection was intended to allow it to enter into

292   enforceable indemnity agreements not voidable under state law. In

293   Amtrak’s     view,      §     28103(b)      is     at    odds     with    and     preempts      the

294   Connecticut statute.

295         O&G    counters         that    §     28103(b)       applies       only     to    indemnity

296   agreements       (1)    regarding         claims      brought     by     passengers     and     (2)

297   concluded between passenger rail carriers like Amtrak and freight

298   railroads. Because Gregory Roberts and Quintiliani were not Amtrak

299   passengers, and the indemnity agreement was between Amtrak and O&G,

300   a construction company rather than a freight railroad company, O&G

301   maintains that § 28103(b) is not applicable and does not supersede

302   the Connecticut statute. In support of its arguments, O&G points to

303   subsection    (a)       of    §   28103,    which       governs    the    issue    of   punitive

304   damages to be awarded in relation to passenger claims for personal




                                                       12
305   injury, wrongful death or property damage, 7 and to the legislative

306   history of § 28103(b).

307        Federal preemption of state law is a doctrine grounded in the

308   Supremacy Clause of the Constitution. See U.S. Const. Art. VI, cl. 2

309   ("[T]he Laws of the United States . . . made in Pursuance [of the

310   Constitution] shall be the supreme Law of the Land . . . any Thing

311   in   the   Constitution        or   Laws    of      any     State     to    the    Contrary

312   notwithstanding.").      The    doctrine         requires    us     first   to    ascertain

313   congressional intent, which is “‘the ultimate touchstone’ of pre-

314   emption analysis.” See Cipollone v. Liggett Group, Inc., 505 U.S.

315   504, 516 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497,

316   504 (1978)). Intent to preempt state law may be found “(1) where

317   Congress     expressly    states      its        intent     to    preempt;       (2)   where

318   Congress's      scheme     of       federal        regulation         is     sufficiently
           7
                   That subsection provides:

                         (a) Limitations.
                         --(1) Notwithstanding any other statutory or common law
                   or public policy, or the nature of the conduct giving rise to
                   damages or liability, in a claim for personal injury to a
                   passenger, death of a passenger, or damage to property of a
                   passenger arising from or in connection with the provision of
                   rail passenger transportation, . . . punitive damages, to the
                   extent permitted by applicable State law, may be awarded in
                   connection with any such claim only if the plaintiff
                   establishes by clear and convincing evidence that the harm
                   that is the subject of the action was the result of conduct
                   carried out by the defendant with a conscious, flagrant
                   indifference to the rights or safety of others. If, in any
                   case wherein death was caused, the law of the place where the
                   act or omission complained of occurred provides, or has been
                   construed to provide, for damages only punitive in nature,
                   this paragraph shall not apply.
                         (2) The aggregate allowable awards to all rail
                   passengers, against all defendants, for all claims, including
                   claims for punitive damages, arising from a single accident
                   or incident, shall not exceed $200,000,000.

                                                  13
319   comprehensive to give rise to a reasonable inference that it leaves

320   no room for the state to act; and (3) where state law actually

321   conflicts with federal law.” Marsh v. Rosenbloom, 499 F.3d 165, 177

322   (2d Cir. 2007) (citing Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479

323   U.S. 272, 280 (1987)).

324        As the district court correctly concluded, § 28103(b) does not

325   expressly preempt state law, nor is it “so pervasive as to make

326   reasonable the inference that Congress left no room for the states

327   to supplement it.” Roberts, 2006 WL 648212, at *10. Preemption can

328   thus be found here only if the Connecticut statute conflicts with §

329   28103(b), i.e., if compliance with both statutes is impossible, or

330   if   the   Connecticut   statute     “‘stands   as   an     obstacle    to   the

331   accomplishment and execution of the full purposes and objective of

332   Congress.’” United States v. Locke, 529 U.S. 89, 109 (2000) (quoting

333   California v. ARC Am. Corp., 490 U.S. 93, 100-101 (1989)).

334        O&G   first   contends   that   no    irreconcilable    conflict    exists

335   between the federal and the Connecticut statutes, because Congress

336   intended § 28103(b) to apply only to passenger claims. The argument

337   is unavailing. The subsection contains no such limitation on its

338   face and indeed makes plain that Amtrak may enter into contracts

339   allocating financial responsibility (i.e., indemnity agreements) for

340   any claims brought against it.

341        Furthermore, if Congress intended § 28103(b) to apply only to

342   passenger claims, it would have included such qualifying language in


                                            14
343   the definition of the term “claims.” Congress did not do so. The

344   definition in subsection (e) of § 28103 is sufficiently broad to

345   encompass any claims asserted against Amtrak -- not only those by

346   passengers. 8 Subsection (e) defines the persons or entities against

347   whom   a     claim   may    be    pursued,     but      does   not   limit    the   class   of

348   claimants. Because the language is unambiguous on this point, we

349   cannot “supply that which is omitted by the legislature.” Spielman

350   v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F.3d 116, 127

351   (2d Cir. 2003).

352          The    title    of    §     28103     –-     “Limitations      on     rail   passenger

353   transportation liability” –- is of little aid to O&G’s proposition

354   that the statute covers only passenger claims. “[A] title . . .

355   cannot limit the plain meaning of unambiguous text.” Collazos v.

356   United     States,     368       F.3d   190,      196    (2d   Cir.    2004)(omission       in

357   original) (internal quotation marks omitted).

358          We conclude that § 28103(b), read in the context of the whole

359   section, see Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,

360   529    U.S.     120,       133     (2000),        authorizes     Amtrak’s       entry    into

361   indemnification agreements for any claim filed against it, including

             8
                    49 U.S.C. § 28103(e) states:

                          Definition.-- For purposes of this section --
                          (1) the term "claim" means a claim made--
                          (A) against Amtrak, any high-speed railroad authority
                    or operator, any commuter authority or operator, any rail
                    carrier, or any State; or
                          (B) against an officer, employee, affiliate engaged in
                    railroad operations, or agent, of Amtrak, any high-speed
                    railroad authority or operator, any commuter authority or
                    operator, any rail carrier, or any State.

                                                     15
362   tort claims by contractor employees. This permissive mandate can

363   hardly     be    reconciled     with     the        prohibition         of    the   Connecticut

364   statute.

365        O&G also argues that the scope of § 28103(b) only extends to

366   indemnity        agreements     between     Amtrak          and       the    freight     railroad

367   companies that own most of the rail lines on which Amtrak operates

368   and are reluctant to shoulder liabilities stemming from the use of

369   their tracks by passenger trains. This claim is equally unpersuasive

370   because of the unambiguous text of § 28103(b) for the reasons set

371   forth above, and we rest our conclusion that § 28103(b) preempts the

372   Connecticut statute on that ground.

373        Nonetheless,          O&G’s   argument          that    congressional          intent,    as

374   evidenced       by   the   legislative      history         of    §   28103(b),     counsels    a

375   different result is meritless. Because Amtrak is a passenger rail

376   provider        mostly     operating   on      track        systems         owned   by   freight

377   railroads, the protection afforded by § 28103(b) will most likely

378   apply to indemnity agreements with freight railroads. As a result,

379   many of the congressional sponsors of the Reform Act frequently

380   referred in their discussions to the liability allocation agreements

381   between Amtrak and host freight railroads. That said, we find no

382   evidence of congressional intent that § 28103(b) apply only in that

383   particular set of circumstances. Rather, the goal of the Reform Act

384   was to shield all of Amtrak's indemnity arrangements from legal

385   attacks on their validity. See Symposium: The State of the Law in


                                                     16
386   the Railroad Indus., 26 Transp. L.J. 319, 336-37 (1999) (“Congress .

387   . . encouraged all providers of rail passenger transportation to

388   enter    into    contracts        that   allocate         financial       responsibility     for

389   claims. Resolving an issue that had plagued freight railroads that

390   host Amtrak trains, Congress also affirmed the enforceability of

391   contracts that include indemnification obligations.”).

392           The    legislative        history       of    §    28103(b)        is     illuminating.

393   Congressional        debates      reveal      legislative      concern          about   Amtrak’s

394   financial      problems     and    intention         to   support    Amtrak’s      contractual

395   arrangements designed to reduce its liability exposure. The Reform

396   Act was meant, among other things, to ensure the enforceability of

397   indemnity      agreements      Amtrak        concludes     with     any    other    party.   The

398   Senate Committee Report is categorical in that regard:

399           [T]his bill clarifies that indemnification agreements
400           related to the provision of rail passenger service entered
401           into by Amtrak and other parties would be enforceable. The
402           Committee has been requested by Amtrak to include this
403           provision in order to aid Amtrak in achieving operating
404           self-sufficiency. . . . As long as there is the
405           possibility that state laws governing indemnification
406           contracts may make these contracts unenforceable, Amtrak
407           and a freight railroad may find themselves litigating with
408           each   other.  Amtrak   believes   that   such   litigation
409           inevitably would not only adversely impact business
410           relationships   between  Amtrak   and   the  host   freight
411           railroads, but it would also lead to significantly higher
412           outlays in settlements and judgments to plaintiffs.
413
414   S.   Rep.      No.   105-85,       at    5     (1997)      (emphasis       added).      Congress

415   unmistakably intended “[t]he language in section 28103(b) . . . to

416   confirm       that   such    contractual         agreements         [i.e.       indemnification



                                                      17
417   agreements] are consistent with Federal law and public policy.” 143

418   Cong. Rec. S11937-03 (statement of Sen. Lott). O&G’s interpretation

419   of the statute’s legislative history would be inconsistent with the

420   stated objective of § 28103(b) to solidify the enforceability of

421   Amtrak’s liability-shifting arrangements.

422          When the Reform Act was passed, Amtrak was in the middle of “a

423   financial     crisis,   with      growing    and       substantial       debt      obligations

424   severely     limiting       its   ability        to     cover    operating         costs   and

425   jeopardizing      its       long-term       viability.”              Amtrak     Reform     and

426   Accountability Act of 1997, §2(2), Pub. L. No. 105-134, December 2,

427   1997, 111 Stat. 2570, at *2571; see also 143 Cong. Rec. S11929-03

428   (statement of Sen. McCain) (“Amtrak is on the verge of bankruptcy.

429   Fundamental reforms are needed immediately if there is to be any

430   possibility of addressing Amtrak's financial crisis and turning it

431   into   a     viable   operation.”).         The       Reform    Act      clearly      reflects

432   Congress’s distress over Amtrak’s financial burdens: in 49 U.S.C. §

433   28103(a), Congress limited the award of punitive damages, in actions

434   “arising from . . . the provision of rail passenger transportation,”

435   to   cases    where   the    defendant      was       proven    to    have    “a   conscious,

436   flagrant indifference to the rights or safety of others.” 49 U.S.C.

437   § 28103(a)(1). In a similar vein, Congress placed a $200 million cap

438   on Amtrak’s aggregate liability from any single accident. Id. §

439   28103(a)(2).




                                                  18
440         Against this legislative background, contentions that Congress

441   intended    to    allow      state   law   or    public      policy     to    interfere       with

442   Congress’s attempt to rescue Amtrak are simply not persuasive. We

443   believe    that   we    must    enforce     and       recognize    the       validity    of   the

444   indemnity provision in the Permit. Applying the Connecticut statute

445   would violate the plain language and spirit of § 28103(b), which

446   therefore preempts the Connecticut statute.

447

448   B.    Material Breach of the Permit

449         At the conclusion of Phase II of the trial, the jury found

450   that, under the indemnity provision in the Permit, O&G was required

451   to reimburse Amtrak for costs incurred and damages awarded in the

452   Roberts and Quintiliani actions, but that Amtrak’s material breach

453   of the Permit relieved O&G of all its contractual duties, including

454   the   obligation       to    indemnify     Amtrak.      However,       the    district     judge

455   overturned the jury verdict, ruling that as a matter of law O&G’s

456   contractual obligation to indemnify Amtrak was valid regardless of

457   Amtrak’s negligence. See Roberts, 2006 WL 2621733, at *5-7. O&G now

458   challenges this ruling, arguing that the jury properly found that

459   Amtrak's violation of its duty to protect O&G's workers from passing

460   trains    resulted      in    termination        of    the   entire      Permit    and     O&G’s

461   indemnity    obligation        thereunder.       We    review     de    novo    the     district

462   court's grant of a post-verdict judgment to Amtrak as a matter of

463   law, considering the evidence in the light most favorable to O&G,


                                                      19
464   the nonmoving party. Zellner v. Summerlin, 494 F.3d 344, 371 (2d

465   Cir. 2007).

466        “[A] material breach is a failure to do something that is so

467   fundamental    to      a     contract     that    the   failure       to    perform    that

468   obligation defeats the essential purpose of the contract or makes it

469   impossible for the other party to perform under the contract.” 23

470   Williston on Contracts § 63:3 (4th ed. 2007) (footnotes and internal

471   quotation     marks        omitted).     Under    Connecticut        law,   an     uncured,

472   material failure of performance by one contracting party discharges

473   the other party from any further performance under the contract,

474   which is rendered unenforceable in toto. See Bernstein v. Nemeyer,

475   570 A.2d 164, 168 (Conn. 1990).

476        It is uncontroverted that O&G complied with its obligations

477   under the Permit to perform its work on Amtrak’s property so as to

478   observe     Amtrak's        safety      regulations     and    not     “interfere      with

479   [Amtrak’s]    operations.”         By   contrast,     Amtrak’s    failure     to   provide

480   adequate    protection        to     O&G’s   workers,    O&G     claims,     negated   the

481   Permit’s purpose and amounted to a material breach. The district

482   court rejected this claim because of the unambiguous language of the

483   indemnity agreement, which the court held squarely applicable to the

484   undisputed facts of the case. See Roberts, 2006 WL 2621733, at *6

485   (“The argument lacks merit, however, because the factual situation

486   on which O&G relies for being excused from its obligation is exactly

487   the factual situation which gives rise to that obligation.”).


                                                   20
488           We agree with the district judge’s holding. Not only is the

489   indemnity        clause     not   qualified     by    or     conditioned      on   Amtrak's

490   obligation to operate its trains safely through the worksite, but it

491   explicitly provides Amtrak with a right to indemnity even where “the

492   negligence or fault of Amtrak [or] its . . . employees” is the sole

493   cause       of    “injury,     death,    disease,     or     occupational     disease   to

494   employees of” O&G. 9 O&G cannot circumvent its indemnity obligation by

495   invoking         Amtrak’s     negligence,     which    the    parties      envisaged    and

496   clearly      determined       would    not   exonerate     O&G   from   its    contractual

497   duties. As Judge Dorsey emphasized, if O&G is allowed to evade its

498   obligation        to   hold   Amtrak    harmless,     “Amtrak’s    protection       against

499   ultimate responsibility for any unsafe train operation, as provided

500   in the Permit, would be nullified.” Id. at *6. Since the indemnity

501   provision expressly contemplates the factual situation that arose

502   here (i.e., Amtrak’s negligence was the sole cause of injury and

503   death to O&G’s employees), Amtrak’s failure to safely operate its

504   trains through O&G’s work zone could not have thwarted the Permit’s

505   essential purpose.

506           A reading of the Permit as a whole suggests, in fact, that at

507   the core of the agreement was the parties’ preoccupation with the

508   “safety and continuity of railroad traffic,” rather than the safety

509   of O&G’s personnel. The emphatic references to O&G’s undertaking to

510   take all measures necessary to avoid undue interference with train

              9
                    The indemnity provision is quoted in full in section I of the
              opinion, see supra at p.__. Its applicability in this case has not been
              called into question by the parties.
                                               21
511   operations and its “complete responsibility for the adequacy and

512   safety of” its activities suggest that the Permit was drafted with a

513   principal       focus   on   Amtrak’s   interests.   Even    Amtrak’s     promise     to

514   furnish protection was aimed at ensuring the safety and continuity

515   of railroad traffic and would come into play only if, in the opinion

516   of   Amtrak’s      officers,     “conditions    warrant”     it,    and    under     the

517   condition that O&G would bear all the costs. It is a fair inference

518   that the essential purpose of the Permit was not to guarantee the

519   safety of O&G’s employees, but rather to authorize O&G’s temporary

520   access    to    Amtrak’s     property   while   reassuring       Amtrak   that      O&G’s

521   presence on its property would neither disrupt train operations nor

522   damage Amtrak’s trains and facilities. Amtrak’s negligent failure to

523   provide adequate protection to O&G’s workers did not vitiate this

524   purpose.

525           O&G does not claim that every negligent act by Amtrak would

526   constitute a material breach of the Permit. According to O&G, there

527   could      be     situations      involving     negligent        acts     by     Amtrak

528   representatives         that,   nevertheless,    would      be     covered     by    the

529   indemnity provision without necessarily amounting to a breach of a

530   fundamental contractual term. For example, O&G claims, “an Amtrak

531   employee could accidentally strike someone with a tool or a piece of

532   equipment, or could dig a hole into which an individual might fall.”

533   See Br. of Appellant at 36.




                                                22
534           The breadth of the indemnity provision refutes the distinction

535   O&G seeks to introduce. The provision does carve out of its reach

536   some situations where Amtrak’s negligence is the sole cause of the

537   indemnifiable        loss,      but     O&G’s        obligation        to   indemnify        Amtrak

538   explicitly     extends       to     instances        of    “injury,      death,      disease,     or

539   occupational disease to employees of [O&G]” exclusively caused by

540   Amtrak's    negligence         or    fault.     If    Amtrak’s         obligation     to   protect

541   O&G’s employees were a centerpiece of the Permit, and default of

542   this    obligation      were        intended    to     invalidate        the     Permit    in    its

543   entirety, the parties could have made this clear by, for example,

544   including a termination clause in the Permit. Absent any stipulation

545   or indication to that effect, we cannot “unmake” the bargain the

546   parties struck, “whether provident or improvident.” Tallmadge Bros.,

547   Inc. v. Iroquois Gas Transmission Sys., L.P., 746 A.2d 1277, 1292

548   (Conn. 2000) (internal quotation marks omitted). “Where the language

549   of the contract is clear and unambiguous, the contract is to be

550   given effect according to its terms.” Pesino v. Atl. Bank of New

551   York,    709   A.2d     540,      545   (Conn.       1998)      (internal       quotation    marks

552   omitted).      Under    the       circumstances           of    this    case,    a   finding     of

553   material breach of the Permit would be incompatible with its plain

554   language.

555           “Simply stated, . . . the evidence [here] is such that, without

556   . . . considering the weight of the evidence, there can be but one

557   conclusion      as     to    the     verdict     that          reasonable      men   could      have


                                                      23
558   reached.”       Simblest    v.   Maynard,     427     F.2d   1,   4    (2d   Cir.    1970).

559   Accordingly, we affirm the district court's grant of judgment to

560   Amtrak as a matter of law and hold that, regardless of Amtrak’s

561   negligence in causing the accident, O&G bears the valid obligation

562   to    indemnify    Amtrak    for      the   damages    awarded    to    Quintiliani     and

563   Roberts.

564

565   C.     Cross-Examination of Amtrak's Employee by O&G

566          The district court permitted O&G to participate in Phase I of

567   the    trial,     in   which     plaintiffs       Roberts     and      Quintiliani     sued

568   defendant Amtrak. The judge’s rationale was that evidence presented

569   in relation to plaintiffs’ claims against Amtrak might well bear on

570   Amtrak’s indemnity claim against O&G. Nevertheless, the judge did

571   not    permit    O&G's     counsel     to   cross-examine     Amtrak's       New    England

572   Division    Superintendent         Fred     Fournier.    O&G’s      stated   reason    for

573   cross-examining Fournier was to elicit testimony tending to prove

574   that O&G was not at fault for the accident, which was entirely

575   attributable to Amtrak's reckless conduct. O&G argues that a showing

576   of Amtrak’s recklessness would enable O&G to avoid its indemnity

577   obligations on public policy grounds. Judge Dorsey’s reasoning for

578   denying    O&G’s    request      to   cross-examine      Fournier      was   that    issues

579   pertaining to O&G's role in the accident would be addressed in Phase

580   II. O&G was told that it would have ample opportunity to present its

581   recklessness defense at that time. However, when O&G attempted to


                                                   24
582   question Fournier in Phase II of the trial about whether Amtrak

583   followed proper internal procedures to avert safety risks to O&G’s

584   on-site employees, the court sustained Amtrak’s objection to this

585   line   of    questioning.      The     judge   noted   that    the    jury   had   already

586   resolved the issue of Amtrak’s fault in Phase I of the trial.

587          O&G   now    claims     that    by   precluding   its       cross-examination     of

588   Fournier in Phase I and limiting its questioning of the same witness

589   in Phase II of the trial, the district judge prevented O&G from

590   fully litigating the question of Amtrak's recklessness -- on which

591   one of O&G’s defense was premised -- and thus deprived it of its

592   cross-examination rights. The error, according to O&G, warrants a

593   new trial.

594          As a preliminary matter, we reject Amtrak's contention that

595   this   claim       has   not    been    preserved      for    appellate      review.     O&G

596   repeatedly objected to the court's limitations on its examination of

597   Fournier,     articulating       the    concern     that,     if    the   jury   found    no

598   recklessness by Amtrak in Phase I, that issue would be barred from

599   jury consideration in Phase II.

600          We turn to the merits of O&G’s claim. “Whether an evidentiary

601   error implicates a substantial right depends on ‘the likelihood that

602   the error affected the outcome of the case.’” See Tesser v. Bd. of

603   Educ., 370 F.3d 314, 319 (2d Cir. 2004) (per curiam) (quoting Malek

604   v. Fed. Ins. Co., 994 F.2d 49, 55 (2d Cir. 1993)); see also Fed. R.

605   Civ. P. 61 (“Unless justice requires otherwise, no error . . . by


                                                     25
606   the court . . . is ground for granting a new trial, . . . or

607   otherwise disturbing a judgment or order. At every stage of the

608   proceeding, the court must disregard all errors and defects that do

609   not affect any party’s substantial rights.”)

610        We   believe   that   the   court’s     alleged     error    did    not    have     a

611   substantial impact on the outcome of the case. O&G's interests were

612   adequately protected by Roberts and Quintiliani, the plaintiffs in

613   Phase I. These parties were seeking punitive damages from Amtrak and

614   thus had an equal, if not greater, incentive than O&G to show that

615   Amtrak's conduct was reckless. The question of Amtrak’s recklessness

616   was adequately litigated by Roberts and Quintiliani and there is no

617   indication that the jury would have found recklessness, had O&G been

618   allowed   to   cross-examine      Fournier.        The   limitation       of         O&G’s

619   cross-examination    rights,     even   if   erroneous,     did    not    cause        any

620   prejudice to O&G, because “it is [not] likely that in some material

621   respect the factfinder's judgment was swayed by the error.” Tesser,

622   370 F.3d at 319 (internal quotation marks omitted). See also United

623   States v. Thomas, 274 F.3d 655, 668 (2d Cir. 2001) (en banc) (“An

624   error affects a defendant's substantial rights if it is prejudicial

625   and it affected the outcome of the district court proceedings”)

626   (internal quotation marks omitted).

627        Furthermore,    even      supposing     the    district      judge        had     not

628   restricted O&G’s examination of Fournier in Phase I, and that O&G

629   had convinced the jury that Amtrak’s conduct was reckless, it is


                                              26
630   doubtful that the outcome of the case would have been more favorable

631   to O&G. The indemnity provision in the Permit unequivocally requires

632   O&G to reimburse Amtrak for all the losses Amtrak may sustain as a

633   result of death or injury to O&G’s employees, even when Amtrak’s own

634   negligence          or   fault     is    the    sole     cause       of     the    incident.         The

635   unmistakable         wording      of    the    clause    would       thus    not       allow   O&G   to

636   nullify its obligation to indemnify Amtrak, even if the jury had

637   entered    a    punitive         damages      award    against       Amtrak       on    recklessness

638   grounds.

639        O&G argues to us that, had it been allowed to fully participate

640   in Phase I of the trial, and had the jury found Amtrak’s conduct

641   reckless, O&G would have been relieved of its duty to hold Amtrak

642   harmless, by raising a public policy defense against enforcement of

643   the indemnity agreement. We disagree. We have already held in this

644   opinion    (see          Part    II.A,     supra)       that    the       Connecticut          statute

645   embodying the public policy of Connecticut against indemnification

646   for liabilities due solely to the negligence of the indemnitee 10 is

647   preempted by § 28103(b). Subsection § 28103(b) also superseded the

648   opinion that would have been most helpful to O&G in its public

649   policy    defense        against       indemnification         for    reckless         conduct.      See

650   Nat’l R.R. Passenger Corp. v. Consol. Rail Corp. (“ConRail”), 698 F.

651   Supp. 951 (D.D.C. 1988) (invalidating an agreement to indemnify for

652   losses caused by the indemnitee’s gross negligence, as contrary to

653   District of Columbia public policy), vacated on other grounds, 892
                     10
                               See supra note 3.
                                                       27
654   F.2d   1066    (D.C.     Cir.    1990).     As    Judge    Dorsey       correctly         noted      in

655   granting summary judgment to Amtrak, it was precisely the doubts

656   cast   by     the    ConRail     decision         over    the     validity      of    indemnity

657   agreements by railroad parties that prompted Congress to enact §

658   28103(b).      See     Roberts,      2006    WL        648212,     at    *11.      The      broad,

659   unqualified     language        in   §   28103(b)        leaves    no    doubt       as    to     the

660   specific      intent     of   Congress      to        sanction    indemnity        arrangements

661   between     Amtrak     “and     other    parties”        with    respect      to     any    claims

662   against Amtrak. See S. Rep. No. 105-85, at 5 (1997). A finding of

663   recklessness in Phase I, therefore, would have resulted in a higher

664   jury verdict against Amtrak in the underlying actions against it in

665   Phase I of the trial. This would most probably have permitted Amtrak

666   to obtain greater recovery from O&G under the Permit; public policy

667   considerations would not have precluded enforcement of the express

668   direction of the indemnity provision.

669          In view of the above, we hold that, assuming arguendo that the

670   district judge erred in preventing O&G from cross-examining Fournier

671   in Phase I and from fully pursuing its recklessness defense in Phase

672   II, the error was not prejudicial to O&G in the context of the trial

673   as a whole and does not justify a new trial.

674
675   D.     Attorneys' Fees

676          In     granting    Amtrak's       Rule     50(b)     motion      for   judgment          as   a

677   matter of law, the district judge held that, under the indemnity



                                                       28
678   agreement, Amtrak was entitled to reimbursement of its attorneys’

679   fees, as well as the costs it incurred in Phase I of the trial, in

680   defense   of    the    actions     brought       by   Roberts        and    Quintiliani.    The

681   judge,    however,     did   not    set    the     amount       of   attorneys’      fees   and

682   litigation costs for which O&G was required to indemnify Amtrak. O&G

683   now argues that the district court abused its discretion in awarding

684   attorneys’ fees and costs where there was no evidence as to the

685   amount or reasonableness of these expenses. Amtrak responds that the

686   amount of fees due would be ascertained by the district judge only

687   after liability for such fees was determined.

688          Pursuant to 28 U.S.C. § 1291, we review only final decisions of

689   the district court that “leave[] nothing for the court to do but

690   execute the judgment.” Catlin v. United States, 324 U.S. 229, 233

691   (1945). A non-quantified award of attorneys’ fees and costs is not

692   appealable until the amount of the fees has been set by the district

693   court. “We have held that where attorneys’ fees are a contractually

694   stipulated element of damages, a judgment is not final until the

695   fees   have    been    determined.”       F.H.     Krear    &    Co.       v.   Nineteen   Named

696   Trustees, 776 F.2d 1563, 1564 (2d Cir. 1985) (per curiam); see also

697   Honeywell Int'l, Inc. v. Purolator Prods. Co., 468 F.3d 162, 164 (2d

698   Cir. 2006). This circuit, moreover, has “rejected the doctrine of

699   pendent appellate jurisdiction as a basis to review an undetermined

700   award of attorneys’ fees, even when the question of liability for

701   the    fees   had     been   consolidated         with   other       decisions      that    were


                                                   29
702   final.” Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 87 (2d Cir.

703   1998)        (citing   Cooper    v.    Salomon    Bros.,   1   F.3d   82,   85    (2d   Cir.

704   1993)). We therefore dismiss for lack of appellate jurisdiction the

705   portion of O&G’s appeal challenging the district court’s grant of

706   attorneys’ fees and costs incurred in Phase I of the trial.

707           This     defect   does    not     impair   the     finality   of    the   district

708   court’s ruling on Amtrak’s motion for judgment as a matter of law,

709   nor does it divest us of jurisdiction to review the merits of the

710   other issues on appeal. In reaching this conclusion, we apply the

711   “bright-line rule” enunciated by the Supreme Court in Budinich v.

712   Becton Dickinson & Co., 486 U.S. 196 (1988), “that a decision on the

713   merits is a ‘final decision’ for purposes of [28 U.S.C.] § 1291

714   whether        or   not   there       remains    for   adjudication    a    request     for

715   attorney's fees.” Id. at 202-03. 11

716

717     III. CONCLUSION


              11
                    Some of our pre-Budinich precedent might be read to support the
              proposition that the non-finality of an award of attorneys’ fees sought
              as an element of contractual damages renders non-appealable the entire
              judgment in which such award is incorporated. See, e.g., Union Tank Car
              Co. v. Isbrandtsen, 416 F.2d 96 (2d Cir. 1969) (per curiam). However, we
              heed the Supreme Court’s admonition in Budinich that “no interest
              pertinent to § 1291 is served by according different treatment to
              attorney's fees deemed part of the merits recovery,” and abide by the now
              “uniform rule that an unresolved issue of attorney’s fees . . . does not
              prevent judgment on the merits from being final.” Budinich, 486 U.S. at
              202. Application of this sensible rule also promotes the interests of
              judicial economy, especially in this case where resolution of the
              “question remaining to be decided . . . will not alter . . . or revise”
              the court’s final rulings on the merits of the other issues on appeal.
              Id. at 199. Treating the district court’s grant of Amtrak’s Rule 50(b)
              motion as non-final and remanding the entire case to the district court
              would only cause further delays in the disposition of this long-pending
              case.
                                               30
718        We have considered all of appellant O&G’s arguments and find

719   them to be without merit. For the reasons discussed above, we affirm

720   the district court on all issues except for the ruling on attorneys'

721   fees, over which we lack appellate jurisdiction. AFFIRMED IN PART

722   AND DISMISSED IN PART.




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