                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                 Nos. 17-1467 & 17-1855
                                      ____________

                                  JANICE M. LEAMAN,
                                              Appellant in 17-1855

                                             v.

                                   GREGG B. WOLFE,
                                              Appellant in 17-1467
                                     ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-13-cv-00975)
                      District Judge: Honorable Joy Flowers Conti
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 8, 2017

             Before: SMITH, Chief Judge, HARDIMAN, Circuit Judge, and
                             BRANN, District Judge.*

                           (Opinion Filed: November 17, 2017)
                                     ____________

                                       OPINION**
                                      ____________



       *
         The Honorable Matthew W. Brann, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       This dispute between former business partners Janice Leaman and Gregg Wolfe

comes to us for the second time. After this Court held that Wolfe had breached his 2012

settlement agreement with Leaman, the case was remanded to the United States District

Court for the Eastern District of Pennsylvania to assess damages and attorney’s fees.

Leaman v. Wolfe, 629 F. App’x 280 (3d Cir. 2015). The District Court awarded Leaman

$38,873.32, which included $10,523.97 for prejudgment interest and $28,349.35 for

attorney’s fees.

       Wolfe now appeals the District Court’s judgment, claiming the award is too high,

while Leaman has filed a cross-appeal claiming the award is too low. Because we agree

with the District Court in all respects, we will affirm.

                                              I1

                                              A

       We begin with the District Court’s assessment of prejudgment interest. The

Court’s award of $10,523.97 was based on its conclusion that Leaman was entitled to

enforce an acceleration clause in the settlement agreement after Wolfe defaulted on his

February 2013 payment. Although the Court found Wolfe’s equitable arguments in

support of his late payment “compelling,” it held that the assessment of interest was a




       1
        The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291.

                                              2
matter of legal right, not a matter of discretion. Leaman v. Wolfe, 2017 WL 528280, at *8

(E.D. Pa. Feb. 9, 2017).

       The District Court’s legal analysis was sound. In breach of contract cases arising

under Pennsylvania law, “interest is allowable at the legal rate from the time payment is

withheld after it has become the duty of the debtor to make such payment.” Benefit Tr.

Life Ins. Co. v. Union Nat’l Bank of Pittsburgh, 776 F.2d 1174, 1178 (3d Cir. 1985)

(internal quotation marks and alteration removed in original) (quoting Palmgreen v.

Palmer’s Garage, Inc., 117 A.2d 721, 722 (Pa. 1955)); see also Cresci Constr. Servs.,

Inc. v. Martin, 64 A.3d 254, 259 (Pa. Super. Ct. 2013). Assessment of interest “is a legal

right ‘which arises upon breach or discontinuance of the contract provided the damages

are then ascertainable by computation and even though a bona fide dispute exists as to the

amount of the indebtedness.’” Benefit Tr. Life Ins. Co., 776 F.2d at 1178 (quoting

Palmer’s Garage, 117 A.2d at 722); see also Cresci, 64 A.3d at 259 (“Recovery of

prejudgment interest under this standard is a matter of law.”). Prejudgment interest is not

punitive; it merely compensates the nondefaulting party for the loss of her money. Benefit

Tr. Life Ins. Co., 776 F.2d at 1178 (citing RESTATEMENT (SECOND) OF CONTRACTS § 354

(Am. Law Inst. 1981)).

       As for the amount of interest due, Wolfe claims that he owes only $26.65, which is

the accrued interest for 13 days at 6 percent on the single late payment in question of

$12,500. Leaman counters that, since she exercised her right to accelerate all payments

due after Wolfe defaulted, Wolfe became liable for interest on the entire amount, as

reduced in time by each of Wolfe’s monthly payments. See 41 Pa. Cons. Stat. § 202. The

                                             3
District Court accepted Leaman’s argument in this regard, and we find no error in its

decision. Wolfe’s February 2013 default triggered the acceleration clause, which enabled

Leaman to sue for “the entirety of the then unpaid balance of the Settlement Amount.”

App. 97. Leaman exercised that right, which triggered Wolfe’s duty to pay the full

amount. That duty was not vitiated by Wolfe’s decision to continue making monthly

payments, nor by Leaman’s decision to mitigate her damages by accepting those

payments. See Cresci, 64 A.3d at 259 (noting “interest is recoverable from the time for

performance on the amount due less all deductions to which the party in breach is

entitled” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 354)). Accordingly, the

District Court did not err in awarding Leaman prejudgment interest in the amount of

$10,523.97.2

                                             B

       We next turn to the parties’ challenges to the District Court’s award of attorney’s

fees. Leaman asked the District Court to award her $70,505.92, which she claimed was

the full amount under the lodestar method. Wolfe countered that Leaman was entitled to

just $265.13, which represented the time he believed was necessary to prepare Leaman’s

complaint in confession of judgment. The District Court rejected Wolfe’s argument,


       2
         On appeal, Wolfe repeatedly references a letter in which he expresses his intent
to continue making monthly payments as support for his argument that Leaman waived
her right to accelerated interest. This document was not before the District Court on
summary judgment, nor was it properly presented via a motion for reconsideration.
Instead, it was attached to Wolfe’s opposition to Leaman’s motion for reconsideration,
which only questioned the District Court’s award of attorney’s fees. Accordingly, it is not
subject to review on appeal and, even if it were, it would fall well short of evidencing a
waiver.
                                             4
finding Leaman to be a prevailing party because she persuaded a panel of this Court that

she was entitled to interest and attorney’s fees. Leaman, 2017 WL 528280, at *6. Because

the District Court was plainly correct in this regard, we summarily reject Wolfe’s

argument.

       Although the District Court agreed with Leaman that she was a prevailing party

entitled to attorney’s fees, the Court disagreed that $70,505.92 was the proper amount.

For starters, the Court agreed with Wolfe that Leaman’s first counsel—who happened to

be her husband, William Einhorn—did not justify his claimed rate of $400 per hour.

Instead, the Court found that the appropriate rate for Einhorn was $203.95, which was the

average rate of Leaman’s second law firm (Powell, Trachtman, Logan, Carrle &

Lombardo). When Einhorn’s revised fee amount was added to the reasonable fees of the

Powell firm, the lodestar was $56,698.69. Because both sides achieved some success in

the litigation, however, the District Court reduced the lodestar by 50 percent to

$28,349.35.

       Leaman insists the District Court erred when it reduced the lodestar amount, but

we are unpersuaded. The District Court’s decision in this regard was discretionary. Rode

v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990). We “may not upset a trial court’s

exercise of discretion on the basis of a visceral disagreement with the lower court’s

decision . . . [nor] where the trial court employs correct standards and procedures[] and

makes findings of fact not clearly erroneous.” Washington v. Phila. Cty. Court of

Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (internal quotation marks and citation



                                             5
omitted). Rather, we will defer where the District Court “applied the correct criteria to the

facts of the case.” Id. (internal quotation marks and citation omitted).

       After determining the lodestar, the District Court adjusted it based on its

assessment of the degree to which Leaman succeeded in this litigation. See Hensley v.

Eckerhart, 461 U.S. 424, 436 (1983). Consistent with the Supreme Court’s direction, the

District Court determined whether Leaman’s unsuccessful claims were “unrelated” to the

successful claims and whether she “achieve[d] a level of success that makes the hours

reasonably expended a satisfactory basis for making a fee award.” Id. at 434. Finding the

claims to be inextricably intertwined, the Court considered the significance of the overall

relief Leaman obtained “in relation to the hours reasonably expended on the litigation.”

Id. at 435.

       The Court did not abuse its discretion in performing this task. See Mancini v.

Northampton Cty., 836 F.3d 308, 321 (3d Cir. 2016). In determining the relative success

of the parties, the Court noted that Leaman obtained a finding that Wolfe breached the

contract, successfully defeated his “substantial performance” defense, obtained an order

granting summary judgment against a counterclaim for breach of contract, and was

awarded accelerated interest. For his part, Wolfe successfully reopened the confessed

judgment and extricated himself from the $100,000 liquidated damages provision. The

Court did not factor the $212,500 principal sum into its analysis, since Wolfe’s obligation

to pay this amount “was never in dispute.” Leaman, 2017 WL 528280, at *8. Thus, the

Court viewed the $100,000 liquidated damages provision—on which Wolfe prevailed—

as “the largest sum in dispute,” and it then compared this amount with the $10,523.39

                                              6
Leaman earned in accelerated interest. Id. Based on these factors, as well as the fact that

both parties were responsible for the contentious litigation, the Court reduced the award

by 50 percent.

       Leaman takes issue with the District Court’s analysis, arguing her principal claim

was for breach of contract, which included successful recovery of the $212,500 principal.

Although Leaman’s argument is not without force, the District Court’s contrary decision

was far from an abuse of discretion. Because the Court “applied the correct criteria to the

facts of the case,” we will defer to its decision. Washington, 89 F.3d at 1035; see also

Hensley, 461 U.S. at 437 (noting that “the district court has discretion in determining the

amount of a fee award” because of its “superior understanding of the litigation and the

desirability of avoiding frequent appellate review of what essentially are factual

matters”).

       The same holds true for the District Court’s decision not to consider Leaman’s

three additional months of invoices attached to her motion for reconsideration. Leaman

did make the Court aware of her desire to provide additional timesheets in a footnote in

her summary judgment motion. But in the intervening two months between submission of

the motion and the Court’s decision, Leaman never attempted to supplement the record or

explain why she could not have done so. Accordingly, we agree with the District Court

that these timesheets did not provide a legitimate basis for Leaman’s motion for

reconsideration. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (noting that a

motion for reconsideration under Rule 59 of the Federal Rules of Civil Procedure “must

rely on one of three grounds: (1) an intervening change in controlling law; (2) the

                                             7
availability of new evidence; or (3) the need to correct clear error of law or prevent

manifest injustice” (citation omitted)); see also Bailey v. United Airlines, 279 F.3d 194,

201 (3d Cir. 2002) (“A district court may properly refuse to consider evidence presented

in a motion for reconsideration when the evidence was available prior to summary

judgment.” (citation omitted)).

                                             C

       Finally, we agree with the District Court that Leaman’s claim for consequential

damages is without merit. Leaman’s suggestion that she could not begin working as a

court reporter until this Court determined Wolfe had breached the settlement agreement is

mistaken. The settlement agreement rendered the noncompete provision null and void

once Wolfe defaulted in February 2013. See App. 104 (adopting this interpretation in

Leaman’s notice of default). Accordingly, Leaman did not need a court determination to

begin working.

                                             II

       For the reasons stated, we will affirm the judgment of the District Court in all

respects.




                                             8
