     15-3419 (L)
     Acme Am. Refrigeration, Inc. v. Katzenberg

                         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.

 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   26th day of September, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            BARRINGTON D. PARKER,
 8            DEBRA ANN LIVINGSTON,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   ACME AMERICAN REFRIGERATION, INC.,
13   ACME AMERICAN REPAIRS, INC., ACME
14   AMERICAN ENVIRONMENTAL CO., INC.,
15            Plaintiffs-Appellants-
16            Cross-Appellees,
17
18   ACME COMMERCIAL KITCHEN DESIGN, INC.,
19   ACME PACIFIC REPAIRS, INC., BANA PARTS,
20   INC., BANA PARTS COMMERCIAL KITCHEN,
21   INC.,
22             Plaintiffs-Appellees,
23
24                -v.-                                     15-3419 (L), 16-741(XAP)
25
26   PEARL KATZENBERG f/k/a PEARL FEUER,
27   HARVEY KATZENBERG,


                                                1
 1            Defendants-Counter-Claimants,
 2
 3   LAW OFFICE OF VINCENT D. MCNAMARA,
 4            Appellee-Cross-Appellant.
 5
 6   - - - - - - - - - - - - - - - - - - - -X
 7
 8   FOR APPELLANTS-CROSS-APPELLEES: MIKHAIL RATNER, Law Office of
 9                                   Mikhail Ratner, New York, NY.
10
11   FOR APPELLEE-CROSS-APPELLANT:       HELEN M. BENZIE, Law Office of
12                                       Vincent D. McNamara, East
13                                       Norwich, NY.
14
15        Appeal from a judgment of the United States District Court
16   for the Eastern District of New York (Mauskopf, J.).
17
18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
19   DECREED that the judgment of the district court be AFFIRMED.
20
21        Acme American Refrigeration, Inc., Acme American Repairs,
22   Inc., and Acme American Environmental Co., Inc. (“Acme”) appeal
23   from the judgment of the United States District Court for the
24   Eastern District of New York (Mauskopf, J.) awarding attorney’s
25   fees to the Law Office of Vincent D. McNamara (“Law Office”).
26   Law Office cross-appeals on the ground that the award did not
27   include prejudgment interest. We assume the parties’
28   familiarity with the underlying facts, the procedural history,
29   and the issues presented for review.

30        In a nutshell, Law Office represented Acme and its
31   principals on retainer in a series of related legal disputes
32   from 2006 to 2014, in multiple states and courts. All the
33   proceedings concerned alleged egregious misconduct by Acme’s
34   former president, Harvey Katzenberg, and his wife, Pearl, in
35   their dealings with Acme and Acme’s principals. Acme‘s present
36   lawsuit alleges that the Katzenbergs defrauded Acme and
37   non-party insurance carriers.

38        When the attorney-client relationship began to break down
39   in or around 2010, Acme allegedly stopped making timely, full
40   retainer payments. Eventually, beginning in 2013, Law Office

                                     2
 1   moved to withdraw as Acme’s counsel and to set its fees for work
 2   performed in the present lawsuit and the related legal disputes.
 3   The magistrate judge granted the motion to withdraw and
 4   recommended that Law Office’s fees be set at $277,674.09, based
 5   on the magistrate judge’s review of billing records and a
 6   determination as to how much of the billed work for related
 7   disputes was properly awarded in the present lawsuit. The
 8   magistrate judge also assessed the quality of Law Office’s
 9   representation and considered the reasonableness of Law
10   Office’s billing rates. The district judge rejected Acme’s
11   numerous objections and adopted the magistrate judge’s report
12   and recommendation in full. Acme appeals from the fee award;
13   Law Office appeals from the lack of prejudgment interest.

14        We review an award of attorney’s fees for abuse of
15   discretion. In re Bank of Am. Corp. Sec., Deriv., & ERISA
16   Litig., 772 F.3d 125, 134 (2d Cir. 2014); see also Alderman v.
17   Pan Am World Airways, 169 F.3d 99, 102 (2d Cir. 1999). “Indeed
18   ‘abuse of discretion’ – already one of the most deferential
19   standards of review – takes on special significance when
20   reviewing fee decisions.” Goldberger v. Integrated Res.,
21   Inc., 209 F.3d 43, 47 (2d Cir. 2000). We also review the
22   decision whether to award prejudgment interest for abuse of
23   discretion. Wickham Contracting Co. v. Local Union No. 3,
24   Int’l Bhd. of Elec. Workers, AFL-CIO, 955 F.2d 831, 833-34 (2d
25   Cir. 1992). A district court abuses discretion if its decision
26   rests on an error of law or a clearly erroneous factual finding,
27   or “cannot be located within the range of permissible
28   decisions.” McDaniel v. Cty. of Schenectady, 595 F.3d 411, 416
29   (2d Cir. 2010) (citation and internal quotation marks omitted).

30        There was no abuse of discretion in awarding Law Office
31   $277,674.09 in fees or in declining to grant prejudgment
32   interest on that award. The magistrate judge’s report and
33   recommendation carefully examined Law Office’s billing records
34   and rates for their adequacy, reasonableness, and relevance to
35   the present lawsuit. The district judge considered Acme’s
36   objections and adopted the report and recommendation in its
37   entirety under both clear error and de novo review. We cannot
38   say that the district judge abused her discretion in rejecting
39   Law Office’s bid for prejudgment interest, raised for the first
40   time long after the attorney’s fees were awarded.

                                    3
1        Accordingly, and finding no merit in Acme’s or Law Office’s
2   other arguments, we hereby AFFIRM the judgment of the district
3   court.

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




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