14-2820-cv(L)
Soley v. Wasserman

                           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 TO 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
27th day of January, two thousand sixteen.

Present:

            CHESTER J. STRAUB,
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges.
_____________________________________

JUDY W. SOLEY,

                      Plaintiff-Appellant-Cross-Appellee,

               v.                                                  14-2820-cv(L),
                                                                   14-2952-cv(XAP)

PETER J. WASSERMAN,

                  Defendant-Appellee-Cross-Appellant.
_____________________________________

For Plaintiff-Appellant:                  LOUIS FOX BURKE (Leslie S. Wybiral, Alexander D.
                                          Tripp, on the brief), Louis F. Burke, P.C., New York,
                                          N.Y.


                                                1
For Defendant-Appellee:                   LAWRENCE E. TOFEL (Mark A. Lopeman, of counsel,
                                          on the brief), Lawrence E. Tofel, P.C., Brooklyn, N.Y.

       UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED,

AND DECREED that the judgments and orders of the District Court are AFFIRMED.

       Plaintiff-Appellant-Cross-Appellee Judy Soley (“Soley”) brought claims in the United
                                                                                        1
States District Court for the Southern District of New York (Wood, J.)                      against

Defendant-Appellee-Cross-Appellant Peter Wasserman (“Wasserman”) for breaches of fiduciary

duty and equitable accountings in regards to two of the parties’ financial collaborations:2 Patriot

Partners, L.P. (“Patriot Partners”), a limited partnership for which Wasserman served as general

partner until the partnership dissolved in 2006, and the “Joint Stocks,” a set of four initially

private placement equities in which Soley, Wasserman, and a mutual friend, Arthur Stern

(“Stern”), jointly invested beginning in 1997. Soley received a jury trial on her claim for

breach of fiduciary duty relating to Patriot Partners, at which the jury determined that

Wasserman had breached his fiduciary duties and awarded damages.             She then sought an

equitable accounting from the bench, which the District Court denied on the ground that the jury

verdict and damages award constituted an adequate legal remedy, rendering the accounting

unavailable under New York law.        Soley then tried both her breach of fiduciary duty and

equitable accounting claims regarding the Joint Stocks to the bench, after which the District

Court determined that she had not succeeded on her claim for breach of fiduciary duty but that

she was entitled to an equitable accounting.



1
  The case was reassigned from District Judge Paul A. Crotty to Judge Kimba M. Wood on
September 30, 2010. Judge Wood presided over the jury trial and issued the relevant orders and
judgments on appeal.
2
  Soley also brought additional claims that were dismissed prior to the relevant judgments and
orders on appeal.
                                                2
       Subsequent to both trials, the District Court denied Soley’s request for attorney’s fees,

granted her prejudgment interest on her Joint Stocks accounting restitution award, and, ruling on

Wasserman’s objection to the clerk of court’s bill of costs, affirmed the award of costs to Soley.

Soley now appeals from those judgments and orders of the District Court denying her claim for

an equitable accounting in regards to Patriot Partners, denying her request to order Wasserman to

submit a second accounting of the Joint Stocks (after Soley objected to the sufficiency of the

first), and denying her request for attorney’s fees.   Wasserman, in turn, cross-appeals from the

District Court’s grant of prejudgment interest to Soley on her Joint Stocks restitution award and

the District Court’s affirmance of the bill of costs. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

    1. The District Court’s denial of Soley’s request for an equitable accounting of her
       interest in Patriot Partners3

       In an April 17, 2013 order, the District Court determined that Soley’s claim that

Wasserman, as general partner of Patriot Partners, breached his fiduciary duty and owed her

compensatory damages, would be tried to a jury.          Soley v. Wasserman, No. 08 CIV. 9262



3
  We note, as an initial matter, that New York law applies to Soley’s claims regarding Patriot
Partners. The District Court determined that, though Patriot Partners is a Delaware limited
partnership, judicial estoppel required that New York law apply to the parties’ disputes. Soley
v. Wasserman, No. 08 CIV. 9262 (KMW) (FM), 2013 WL 3185555, at *10-11 (S.D.N.Y. June 21,
2013). In his opening brief on appeal, Wasserman noted that he “was not aggrieved by the
application of New York law and thus raised no issue on this appeal” regarding it. Def. Br. at
34 n.20. Wasserman nevertheless inexplicably asserts, in his reply brief, that “Soley’s [brief] is
based entirely on principles and statutes under New York law which, as Wasserman observed to
this Court . . . never applied to a Delaware Limited Partnership which expressly was governed by
Delaware Law.” Def. Reply Br. at 12 (emphasis added). This subsequent statement is wholly
inadequate to raise, on appeal, an argument that Wasserman clearly waived in his opening brief.
Accordingly, we do not consider the argument. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d
Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will
not be addressed on appeal.”).


                                                 3
(KMW) (FM), 2013 WL 1655989, at *1 (S.D.N.Y. Apr. 17, 2013). In contrast, the District

Court determined that Soley’s claim for an equitable accounting – predicated on the same

breaches of fiduciary duty, but seeking an accounting of Soley’s interest in Patriot Partners and,

should the accounting warrant, disgorgement of unjust profits and restitution – would be

addressed subsequently.      Id. at *3. After the jury found the existence of several breaches of

fiduciary duty and awarded Soley damages on some of those claims, Soley sought an equitable

accounting, arguing to the court that, under New York law, “[i]f there is a fiduciary relationship

between the parties . . . then the existence of a legal remedy is not relevant” to a principal’s right

to an accounting.   A 416.    The District Court disagreed, denying Soley’s claim for an equitable

accounting on the ground that the jury verdict and damages award – pursuant to which Soley

received “the benefit of full document discovery and numerous depositions” on her claim for

breach of fiduciary duty – constituted an adequate remedy at law. Soley v. Wasserman, No. 08

CIV. 9262 (KMW) (FM), 2013 WL 5780814, at *2 (S.D.N.Y. Oct. 24, 2013).

       Soley’s primary contention on appeal – and her sole contention to the District Court when

she initially sought her equitable accounting – is that, under New York law, a principal in a

fiduciary relationship is entitled to an equitable accounting regardless whether she has an adequate

remedy at law.4 We disagree. New York law clearly requires that a principal demonstrate the

unavailability of an “adequate remedy at law” in order to prevail on a claim for an equitable



4
   At oral argument, counsel for the Plaintiff also suggested that Soley objected to the District
Court’s determination to conduct the jury trial prior to assessing the merits of the accounting
claim. This argument is made only in passing in Soley’s brief, see Pl. Br. at 31-32, and thus is
waived. See Norton, 145 F.3d at 117. In any case, Soley did not object to the District Court’s
April 17, 2013 bifurcation order until July 16, 2013, thirteen days before the jury trial was set to
commence, and that objection came in a letter ostensibly seeking reconsideration of the court’s
completely unrelated decision to try all claims regarding the Joint Stocks to the bench. See SA 1.
It was not unreasonable for the District Court, at that point, to consider the objection unavailing.

                                                  4
accounting, in addition to establishing the existence of a fiduciary relationship. See United

Telecard Distrib. Corp. v. Nunez, 90 A.D.3d 568, 569 (N.Y. App. Div. 1st Dep’t 2011) (noting,

first, that the existence of a “fiduciary relationship supports defendant’s claim for an

accounting,” and, second, that “[t]o be entitled to an equitable accounting, a claimant must

demonstrate that he or she has no adequate remedy at law”); accord Kastle v. Steibel, 120 A.D.2d

868, 869-70 (N.Y. App. Div. 3d Dep’t 1986); Hermes v. Compton, 260 A.D. 507, 507 (N.Y. App.

Div. 2d Dep’t 1940).5

       Soley next argues, apparently in the alternative, that she did not receive an adequate

remedy at law for three reasons. First, she contends that she did not receive adequate discovery in

her jury trial. Assuming, arguendo, that the adequacy of discovery is material to whether a legal

claim constitutes an adequate remedy under New York law, the argument nevertheless fails. As

an initial matter, the District Court observed in ruling on Soley’s motion for reconsideration that

Soley had not made any argument as to the adequacy of discovery in her post-trial application


5
  Soley cites to admittedly contradictory language in Koppel v. Wien, Lane & Malkin, 125 A.D.2d
230, 234 (N.Y. App. Div. 1st Dep’t 1986), which states that “it is clear that whenever there is a
fiduciary relationship between the parties, . . . there is an absolute right to an accounting
notwithstanding the existence of an adequate remedy at law.” Subsequent cases have interpreted
Koppel as standing either for the proposition that the voluntary transfer of financial documents or
willingness to provide for an inspection or audit are no substitute for a judicially supervised
accounting, see Scholastic v. Harris, 259 F.3d 73, 90 (2d Cir. 2001) (“Even if Scholastic already
possesses detailed financial information regarding the joint venture, there is nevertheless still ‘an
absolute right to an accounting.’” (quoting Koppel, 125 A.D. at 234)); Sriraman v. Patel, 761 F.
Supp. 2d 7, 22-23 (E.D.N.Y.), amended by 761 F. Supp. 2d 23 (E.D.N.Y. 2011) (“[T]he cause of
action for an accounting is not to be confused with a partner’s right of access to the partnership’s
books and records.”), or that a principal is not precluded from seeking an equitable accounting
merely because she “could bring [but has not brought] an action at law,” Sriraman, 761 F. Supp.
2d at 23 (citing Koppel, 125 A.D.2d at 234 and DiTerlizzi v. DiTerlizzi, 92 A.D.2d 604, 606 (N.Y.
App. Div. 2d Dep’t 1983)). We need not address the precise contours of Koppel; it suffices to
note that cases subsequent to Koppel make clear that New York law requires even a principal in a
fiduciary relationship to demonstrate that she has no adequate remedy at law before a court may
award an equitable accounting.


                                                 5
seeking an equitable accounting. Soley v. Wasserman, No. 08 CIV. 9262 (KMW) (FM), 2013

WL 6244428, at *1 (S.D.N.Y. Dec. 3, 2013). The issue is thus waived. See Official Comm. of

Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir.

2003) (“Generally, we will not consider an argument on appeal that was raised for the first time

below in a motion for reconsideration.”). The argument is also without merit. The district court

is afforded wide discretion in evaluating the sufficiency of discovery. See Cabellero v. City of

New York, 48 A.D.3d 727, 728 (N.Y. App. Div. 2d Dep’t 2008) (“The supervision of discovery,

and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of

the [trial court].”); Wills v. Amerada Hess Corp., 379 F.3d 32, 51 (2d Cir. 2004) (“It is axiomatic

that the trial court enjoys wide discretion in its handling of pre-trial discovery.”). Accordingly, it

was within the District Court’s discretion to conclude that unproduced documents may no longer

have existed, to limit the scope of discovery, and to determine that, notwithstanding the fact that

not every conceivable document was produced, Soley received “the benefit of full document

discovery and numerous depositions.”      Soley, 2013 WL 5780814, at *2.

       Soley also argues that, in finding that the jury verdict and award of damages constituted an

adequate remedy at law, the District Court in effect shifted the burden to Soley to prove that

Wasserman retained funds that should be disgorged – whereas the burden would have been on

Wasserman in the context of an equitable accounting. See Wilde v. Wilde, 576 F. Supp. 2d 595,

608 (S.D.N.Y. 2008) (“Wilde 1”) (“[Defendant] bears the burden of proof and is presumed to have

been unjustly enriched by all transfers and withdrawals unless he can show otherwise.”). Insofar

as this is true, New York courts clearly do not consider this argument sufficient to render a legal

claim inadequate, as it would effectively render all legal claims inadequate and thus constructively

undermine the basic tenet expressed in United Telecard. 90 A.D. 3d at 569.


                                                  6
        Soley argues, finally, that she sought merely compensatory damages in her jury trial,

whereas she sought restitution and disgorgement in her accounting, so that her legal remedy was

inadequate.    We need not address this claim, however, as Soley neither clearly made this

argument to the District Court when seeking her equitable remedy subsequent to the verdict nor in

her motion seeking reconsideration. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d

Cir. 2006) (“It is a well-established general rule that an appellate court will not consider an issue

raised for the first time on appeal.” (quoting Greene v. United States, 13 F.3d 577, 586 (2d Cir.

1994)) (alteration omitted)); Official Comm. of Unsecured Creditors of Color Tile, Inc., 322 F.3d

at 159. In short, on the basis of the arguments Soley actually presented to the District Court, and

in light of New York law, the District Court did not err in denying Soley’s claim for an equitable

accounting.6

    2. The District Court’s denial of Soley’s request to order Wasserman to submit a
       second accounting

        On December 6, 2013, the District Court ordered Wasserman to account for Soley’s

interests in the Joint Stocks, four initially private placements in which Soley, Wasserman, and

Stern jointly invested beginning in 1997.      Soley v. Wasserman, No. 08 CIV. 9262 (KMW) (FM),

2013 WL 6388401, at *5 (S.D.N.Y. Dec. 6, 2013). Wasserman submitted an accounting on

January 17, 2014, including a description of where and how any proceeds from the sale of the



6
  Soley also argues to this Court regarding the accounting for Patriot Partners that, though raised
for the first time after the jury trial, the District Court erred in refusing to consider her claims for a
statutory accounting and then declining to allow her to amend her complaint to add such claims.
We need not reach this question (and, in particular, the question whether the unavailability of an
adequate remedy at law is a requirement for a claim for a statutory accounting under New York
law) as Soley has repeatedly represented to this Court, as explanation for why her failure to raise
the claims prior to this point did not prejudice Wasserman, that “[t]he claim for a statutory
accounting is purely a change in the label – not the substance – of the [equitable accounting]
claim.” Pl. Reply Br. at 23. Relying on this admission, we find the statutory accounting
claims properly dismissed for the same reason as the equitable accounting claim.
                                                       7
stocks had been deposited since that sale, a description of any warrants exercised for any of the

stocks, and documentation including, inter alia, “near complete bank records for the entire

12-year period (from 2002 to the present)” which Wasserman claimed “confirm[ed] that the net

funds [comprising proceeds from the only stock sold for value, in late 2001, minus any

cognizable offsets] remained on deposit in [his wife’s] accounts at all times and were not ‘used’

[for the sake of unjustly enriching Wasserman] by him or his business ventures.” A 627.

Wasserman further submitted a statement swearing to the accuracy of his accounting.          After

receiving this accounting, Soley vigorously objected that the accounting was insufficient

because, inter alia, it provided her only redacted copies of Wasserman’s accounts (copies that

blacked out detailed financial data but listed the overall value of the accounts in a given month),

and that Wasserman had submitted insufficient documentation to prove every claim made in his

narrative.

       On March 13, 2014, after receiving numerous letters from both parties regarding the

sufficiency of the submitted accounting, the District Court both awarded Soley restitution, A

752, and denied her request to order Wasserman to submit another, more complete accounting.

See A 749 (“Defendant submitted an accounting . . . in accordance with the Court’s order.”

(emphasis added)); A 752 n.2 (“The Court denies Plaintiff’s request that the Court order

Defendant to complete another accounting.”). Soley argues, on appeal, that the Court erred in

two ways: procedurally, by “fail[ing] to rule on the inadequacy of the accounting,” Pl. Br. at 42,

and “fail[ing] to hold a hearing to make a final determination of the accounting,” id. at 46, and

substantively, by concluding that Wasserman had met “his initial burden of providing a facially

sufficient accounting,” id. at 43.




                                                8
       We review deferentially a trial court’s decisions regarding the sufficiency of an

accounting. See Seretis v. Fashion Vault Corp., 110 A.D.3d 547, 548-49 (N.Y. App. Div. 1st

Dep’t 2013) (affirming a district court’s rejection of the “[p]laintiff’s objections to the adequacy of

the information provided [during an equitable accounting]” and noting that “‘the decision of the

fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s

conclusions could not be reached under any fair interpretation of the evidence, especially when the

findings of fact rest in large measure on considerations relating to the credibility of witnesses’”

(quoting Thoreson v. Penthouse Int’l, 80 N.Y.2d 490, 495 (1992)) (alteration omitted)); see also In

re Estate of Capaldo, 263 A.D.2d 910, 912 (N.Y. App. Div. 3d Dep’t 1999); Perry v. Blum, 629

F.3d 1, 14 (1st Cir. 2010) (“The calculation of an equitable accounting is, within broad limits,

committed to the district court’s discretion.”). The “failure to conduct a hearing” is reviewed for

abuse of discretion. 1420 Concourse Corp. v. Cruz, 175 A.D.2d 747, 749 (N.Y. App. Div. 1st

Dep’t 1991).

       Here, and contrary to Soley’s claim on appeal, the District Court clearly did rule on her

objections, and it was not unreasonable for the court to decline to order a hearing: Soley sent

extensive letters to the District Court explaining her objections, and we discern no basis to

conclude that a hearing would have been necessary for the court to fully evaluate her claims. As

to the substance of the District Court’s determination, the Plaintiff has not demonstrated any error

regarding the District Court’s determination that the accounting was sufficient. First, sworn

testimony submitted in support of an accounting does constitute relevant evidence that the district

court may consider when evaluating an accounting, even when it is not, in every case, supported

by documentation. See Wilde v. Wilde, No. 07 CIV. 0677 (WHP), 2008 WL 5411915, at *1-2

(S.D.N.Y. Dec. 30, 2008) (“Wilde 2”) (“Without any means to determine that the rental value of


                                                  9
the Florida Condominium was $1,600 per month or even $1,000 per month, the Court will accept

[d]efendant’s sworn statement that it was $800 per month.”); Seretis, 110 A.D.3d at 548 (“At trial

[defendant] produced the financial records of [the relevant entity] and testified under oath

regarding the disposition of the corporate assets, which fulfills defendants’ obligation to

account.”). Wasserman swore to the accuracy of his accounting, including the disposition of the

Plaintiff’s proceeds from the sale of the relevant stock – facts of which Wasserman had personal

knowledge and to which he could attest. Contrast In re Kaszirer v. Kaszirer, 298 A.D.2d 109,

110 (N.Y. App. Div. 1st Dep’t 2002) (finding that, because accountant’s analysis and affidavit

failed to specify documentation underlying his opinion, and were generally hearsay, “burden

never shifted to petitioners to submit evidence in opposition”). Second, Wasserman produced

extensive records, including Bank of America records, documenting that he retained funds equal to

or greater than the relevant proceeds in his accounts, which he did not withdraw. Even if there

were gaps in Wasserman’s documentation, we cannot say that this accounting was so deficient that

it was error to approve it.

    3. The District Court’s denial of Soley’s request for attorney’s fees

        Soley next argues that the District Court committed error in declining to award her

attorney’s fees, a matter we review for abuse of discretion. McDaniel v. County of Schenectady,

595 F.3d 411, 416 (2d Cir. 2010). Soley contends that the District Court misunderstood the

holdings of Miltland Raleigh-Durham v. Myers, 807 F. Supp. 1025, 1062 (S.D.N.Y. 1992), and

Birnbaum v. Birnbaum, 157 A.D.2d 177, 191 (N.Y. App. Div. 4th Dep’t 1990), which, she

claims, together stand for the general proposition that under New York law “the American Rule

does not apply where a fiduciary has been found liable for misconduct.” Pl. Br. at 51 (internal

citations omitted).    The District Court instead understood these cases as standing for the


                                               10
narrower proposition “that a fiduciary is liable for attorney’s fees and other expenses incurred by

an estate in exposing a trustee’s misconduct.” SPA 12 (quoting Miltland, 807 F. Supp. at

1062).    The District Court was, in fact, correct.    See Schneidman v. Tollman, 261 A.D.2d 289,

290 (N.Y. App. Div. 1st Dep’t 1999) (“The motion court’s expansion of Matter of Birnbaum v.

Birnbaum . . . , which permitted the award of attorneys’ fees for a testamentary trustee’s breach

of fiduciary duty to cases, involving a breach of fiduciary duty in a non-testamentary context, is

unsupported by the law [and] unwarranted . . . .”).        Soley’s claim to the contrary is wholly

without merit.

   4. The District Court’s award of prejudgment interest to Soley

         We next turn to Wasserman’s claim, in his cross appeal, that the District Court erred in

awarding prejudgment interest to Soley.      In its decision awarding Soley an accounting on the

Joint Stocks, the District Court found, as fact, that “Plaintiff . . . understood that once the shares

of a stock purchased as a private placement were made publicly tradable, they would be sold and

Defendant would pay Plaintiff her proportionate share of the proceeds.”            Soley, 2013 WL

6388401, at *1.    In so finding, the District Court cited to an affirmation as to this understanding

in Soley’s sworn trial affidavit.   See A 202 ¶ 3. In his trial affidavit, Wasserman affirmed,

instead, that the parties had no expectation that he would provide Soley proceeds from any sale

until “the last of the investments were liquidated.” AA 105 ¶ 3. Relying on his understanding

of the agreement, Wasserman argued to the District Court (in the District Court’s words) that

“because the last of the joint stock has not been sold, Plaintiff [would] receive the . . . sale

proceeds earlier than the parties had agreed, and has therefore not suffered any loss for which she

needs prejudgment interest to compensate.”            A 781.   In awarding prejudgment interest to

Soley, the District Court relied on its contrary finding of fact in its earlier decision finding the


                                                 11
agreement to be as Soley understood it, and thus held that “[b]ecause Defendant has had the use

of Plaintiff’s share of the proceeds for nearly thirteen years, not awarding interest would result in

a windfall to Defendant.”    A 781.

       “The award of interest is generally within the discretion of the district court and will not be

overturned on appeal absent an abuse of that discretion.” New England Ins. Co. v. Healthcare

Underwriters Mut. Ins. Co., 352 F.3d 599, 602-03 (2d Cir. 2003). On appeal, Wasserman

contends only that the District Court erred in finding that the agreement was as Soley characterized

it on the ground that reliance on the Soley affidavit for this factual proposition violated the law of

the case. Wasserman points this Court to the District Court’s June 21, 2013 motion in limine

precluding Soley “from adducing evidence intended to establish” an untimely breach of contract

claim arising out of a theory that Wasserman was obligated to sell the stocks when they became

publicly tradable in 2001. Soley, 2013 WL 3185555, at *8. Wasserman contends that Soley’s

July 19, 2013 statement, in her bench trial affidavit, that she “understood that once the shares of a

stock purchased as a private placement were publicly tradable, the shares would be sold and

Wasserman would pay me my proportionate share of the proceeds,” A 202 ¶3, was thus excluded

by the June 21, 2013 motion in limine, and reliance upon that statement was legal error.

       Wasserman’s argument is without merit. The District Court explicitly held in its motion

in limine that “[t]his limitation . . . ‘does not preclude Soley from asserting a claim that

Wasserman violated his fiduciary duty “by refusing to account” for the Joint Stock Investments

when Soley requested an accounting.’”         Soley, 2013 WL 3185555, at *8 (quoting Soley v.

Wasserman, No. 08 CIV. 9262 (KMW) (FM), 2013 WL 526732, at *7 (S.D.N.Y. Feb. 13, 2013)).

In awarding prejudgment interest to Soley from December 2001, the District Court clearly found

that the question whether the parties had agreed that Wasserman would return the stock when it


                                                 12
was sold in 2001 was material to this aspect of the accounting claim.         As such, even if the

District Court’s prior order rendered the affidavit inadmissible for the purpose of proving an

untimely contract claim, that order did not affect the affidavit’s admissibility for the purpose for

which the District Court used it: calculating interest on an admissible claim. See AA 151-54 (in

which the District Court responded to a slightly different iteration of this law of the case

argument proffered by Wasserman by noting that “[t]he Court ordered interest on Plaintiff’s

accounting claim, not on her dismissed breach of contract claim,” AA 154).      Further, even if the

District Court’s prior order rendered Soley’s statement in her affidavit initially inadmissible,

Wasserman, by testifying to the nature of the Agreement in his affidavit, offering testimony from

Stern on this same question, and relying on this cumulative testimony to construct a contract

defense theory in the prejudgment interest phase of the proceedings, clearly opened the door

such that the District Court could properly rely on Soley’s affidavit for purposes of finding this

fact.

    5. The District Court’s affirmance of the bill of costs

        Finally, Wasserman argues that the District Court erred in finding that Soley was the

“prevailing party” under Federal Rule of Civil Procedure 54(d)(1), which states as follows:

“Unless a federal statute, these rules, or a court order provides otherwise, costs . . . should be

allowed to the prevailing party.” The decision to award costs pursuant to Rule 54(d)(1) “rests

within the sound discretion of the district court.” Dattner v. Conagra Foods, Inc., 458 F.3d 98,

100 (2d Cir. 2006) (quoting LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995)).

“Nevertheless, we review questions of law, including . . . . [w]hether a litigant is a ‘prevailing

party’ within the meaning of Rule 54(d)” de novo. Id.




                                                13
        Soley cites to Dattner as providing the controlling legal standard for determining which

party is the “prevailing party” under Rule 54(d). In Dattner, our circuit determined that cases

interpreting the meaning of “prevailing party” for purposes of fee-shifting statutes are directly

applicable for interpreting the same terminology in Rule 54(d)(1). Id. at 101-02. In the context

of such fee-shifting statutes, the Supreme Court has stated both that “a . . . plaintiff is a prevailing

party . . . . [i]f the plaintiff has succeeded on ‘any significant issue in litigation which achieved

some of the benefit the parties sought in bringing suit,’” Texas State Teachers Ass’n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275,

278-79 (1st Cir. 1978)), and that “the degree of the plaintiff’s success in relation to the other goals

of the lawsuit is a factor critical to the determination of the size of a reasonable fee, not to

eligibility for a fee award at all,” id. at 790. See also LeBlanc-Sternberg v. Fletcher, 143 F.3d

748, 757 (2d Cir. 1998) (“The question of whether a plaintiff is a ‘prevailing party’ within the

meaning of the fee-shifting statutes is a threshold question that is separate from the question of the

degree to which the plaintiff prevailed.”).

        In the face of this precedent, Wasserman relies on TIG Insurance Co. v. Newmont Mining

Corp., 413 F. Supp. 2d 273, 286-87 (S.D.N.Y. 2005), aff'd, 226 F. App’x 49 (2d Cir. 2007)

(summary order), to argue that the prevailing party determination is based on a “totality of the

circumstances” test. Def. Br. at 57. TIG was a case which (1) interpreted a contract, not Rule

54(d); (2) interpreted that contract on the basis of New York cost rules, not the Federal Rules of

Civil Procedure; and (3) in any case, did not determine which party prevailed, but merely held that

neither party would be awarded costs regardless of who had prevailed, see TIG Ins. Co., 226 F.

App’x at 51-52 (“In so stating, the district court held, in substance, that whether or not either party

had prevailed as a legal matter, neither merited an award of any amount of fees and costs. Having


                                                  14
examined the record in this case, we do not believe the district court abused its discretion in

rendering such an award of fees.”). In response to Soley’s invocation of Dattner and its progeny,

Wasserman’s only answer is that “Soley improperly rel[ies] on inapposite decisions.” Def. Reply

Br. at 9. The inapposite decision is not Dattner but TIG; under the proper standard, Soley’s

victories on her claims were sufficient to make her the prevailing party in this litigation.

       Accordingly, and finding no merit in either parties’ remaining arguments, we AFFIRM

the judgments and orders of the District Court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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