     13-497-cv
     Perez v. AC Roosevelt Food Corp.
 1
 2                 UNITED STATES COURT OF APPEALS
 3                      FOR THE SECOND CIRCUIT
 4                         _______________

 5                            August Term, 2013

 6             (Submitted: Oct. 17, 2013; Decided: Nov. 6, 2013;
 7                     Amended: December 10, 2013)
 8
 9                             Docket No. 13-497

10                             _______________

11      MIGUEL G. PEREZ, individually and on behalf of other persons
12   similarly situated who were employed by AC Roosevelt Food Corp.,
13    d/b/a/ Champion Food Supermarket or any other entities affiliated
14       with or controlled by AC Roosevelt Food Corp. and Antonio
15                                Collado,
16
17                                                                      Plaintiff-Appellee,
18                                      – v. –
19
20    AC ROOSEVELT FOOD CORPORATION, or any other entities affiliated
21    with or controlled by AC Roosevelt Food Corp. doing business as
22         Champion Food Supermarket, and ANTONIO COLLADO,
23
24                                                                 Defendants-Appellants.
25                                      _______________

26              Before: WINTER, JACOBS, STRAUB, Circuit Judges.
27                                   _____________
 1          Appeal from an order of the United States District Court for the Eastern
 2   District of New York (John Gleeson, Judge), granting a motion for attorneys’ fees.
 3   We hold that the appeal is not timely.
 4          Accordingly, the appeal is DISMISSED.
 5
 6         Judge JACOBS dissents in a separate opinion.
 7                                  _______________

 8                   ANDREW SQUIRE, Brooklyn, NY, for Appellants.
 9
10                   LADONNA M. LUSHER, Virginia & Ambinder, LLP, New York,
11                     NY, for Appellee.
12
13                                    _______________
14

15   STRAUB, Circuit Judge:

16         AC Roosevelt Food Corporation and Antonio Collado appeal from an

17   August 13, 2012 order of the United States District Court for the Eastern District

18   of New York (John Gleeson, Judge), as memorialized in a January 7, 2013

19   judgment, granting Miguel Perez’s motion for attorneys’ fees. We hold that (1) a

20   final order solely on the issue of attorneys’ fees is appealable without entry of a

21   separate document; and (2) a subsequent, identical judgment does not re-start the

22   time to appeal. Because the entry of judgment did not restart the time to appeal,

23   we DISMISS the appeal as untimely.




                                               2
 1         The facts of this case as relevant to this appeal are as follows. Perez

 2   commenced this action for overtime wages on October 20, 2010. Defendants

 3   initially failed to appear and default was entered on January 18, 2011. Perez

 4   sought certification as a class on February 22, 2011, which was granted on May 3,

 5   2011, and notice published. Defendants appeared on October 31, 2011, and

 6   default was vacated. The class was voluntarily de-certified on February 9, 2012,

 7   and a settlement reached by June 1, 2012. On August 13, 2012, the District Court

 8   approved the settlement and resolved the only outstanding issue by granting

 9   Perez’s motion for attorneys’ fees in an order that stated, “[t]he Clerk of the

10   Court is respectfully directed to close the case.” The August 13 order, therefore,

11   was the final order of the District Court, resolving all pending issues and ending

12   the case. Defendants, however, failed to pay, and on November 8, 2012, Perez

13   filed to reopen the case and have judgment entered. This motion was granted on

14   November 19, 2012, and judgment entered on January 7, 2013. Defendants’

15   notice of appeal was filed on February 6, 2013. In their appeal, Defendants

16   challenge only the District Court’s decision on Perez’s motion for attorneys’ fees.

17         Perez argues that Defendants’ appeal is untimely under Federal Rule of

18   Appellate Procedure 4. The time limit provided for by Rule 4 is “jurisdictional in


                                               3
 1   civil cases.” M.E.S., Inc. v. Snell, 712 F.3d 666, 668 (2d Cir. 2013); see Napoli v.

 2   Town of New Windsor, 600 F.3d 168, 170 (2d Cir. 2010) (“The timely filing of a

 3   notice of appeal in a civil case is a jurisdictional requirement.” (internal quotation

 4   marks and brackets omitted)). “It is common ground that jurisdiction is a

 5   threshold matter that must exist before a court may decide the merits of an

 6   appeal.” Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 146 (2d Cir. 2013).

 7         “[W]e have consistently held that an order awarding attorneys’ fees and

 8   costs is not an appealable final order until the amount of fees and costs has been

 9   set by the district court.” Honeywell Int’l, Inc. v. Purolator Prods. Co., 468 F.3d 162,

10   164 (2d Cir. 2006); see O & G Indus., Inc. v. Nat’l R.R. Passenger Corp., 537 F.3d 153,

11   167 (2d Cir. 2008) (applying the same rule). In this case, the amount of fees and

12   costs was set by the District Court’s order of August 13, 2012.

13         Rule 4(a)(1)(A) provides that a notice of appeal “must be filed . . . within 30

14   days after entry of the judgment or order appealed from.” Entry of a judgment

15   or order, “for purposes of this Rule 4(a),” depends upon whether Federal Rule of

16   Civil Procedure 58(a) requires “a separate document.” Fed. R. App. P. 4(a)(7).

17   Where a separate document is required, entry occurs “when the judgment or

18   order is entered in the civil docket” and either 150 days have passed or “the


                                                 4
 1   judgment or order is set forth on a separate document.” Fed R. App. P.

 2   4(a)(7)(ii). Where a separate document is not required, the judgment or order is

 3   considered to have been entered “when the judgment or order is entered in the

 4   civil docket.” Fed. R. App. P. 4(a)(7)(i).

 5          A “separate document” is not required “for an order disposing of a motion

 6   . . . for attorney’s fees under Rule 54.” Fed. R. Civ. P. 58(a)(3); see Feldman v. Olin

 7   Corp., 673 F.3d 515, 516-17 (7th Cir. 2012) (“Rule 58(a)(3) has provided that no

 8   separate document is required for an order disposing of a motion for attorney’s

 9   fees under Rule 54,” and “[a]ll that the reference” to Rule 54 “can sensibly be

10   understood to mean is that Rule 54, the rule on judgments, makes awards of

11   attorneys’ fees one type of judgment and Rule 58 designates it as a type of

12   judgment for which a separate judgment document is not required.” (internal

13   quotation marks omitted)).1 It follows that the order setting the amount of

14   attorneys’ fees was entered for the purposes of Rule 4 when it was “entered in

15   the civil docket,” i.e., on August 13, 2012. The thirty days provided for by Rule


     1
      This rule serves to distinguish Bogaerts v. Shapiro (In re Litas International, Inc.), 316 F.3d
     113 (2d Cir. 2003), which, as the dissent concedes, concerned satisfaction of Rule 58
     under circumstances that did not implicate an exception to that rule. Nor do we believe
     that this is a case in which confusion was likely, as the District Court’s August 13 order
     closed the case.

                                                    5
 1   4(a)(1)(A), therefore, had long since run when Defendants filed their notice of

 2   appeal on February 6, 2013.

 3         Defendants argue that the thirty-day period should be measured from the

 4   January 7, 2013 judgment rather than the August 13, 2012 order. However, a

 5   new or amended judgment may only renew the thirty-day limit if the later

 6   judgment “changes matters of substance, or resolves a genuine ambiguity, in a

 7   judgment previously rendered.” Priestley v. Headminder, Inc., 647 F.3d 497, 502

 8   (2d Cir. 2011) (per curiam) (internal quotation marks omitted); see FTC v.

 9   Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12 (1952) (“Only when the

10   lower court changes matters of substance, or resolves a genuine ambiguity, in a

11   judgment previously rendered should the period within which an appeal must

12   be taken or a petition for certiorari filed begin to run anew.” (internal footnotes

13   omitted)).2

14         Indeed, even where a judgment has been vacated and a second entered, it

15   is the substance of the new judgment rather than the procedure that is

     2
      The fact that the August 13 order was an “order” and not a “judgment” does not alter
     the application of this rule because a judgment is defined as “any order from which
     an appeal lies.” Fed. R. Civ. P. 54(a). Put simply, the August 13 order was the
     final judgment of the District Court and the time to appeal from a final judgment
     does not restart because a defendant refuses to pay the judgment and forces the
     plaintiff to seek additional judicial intervention.

                                               6
 1   determinative of whether the appeal clock begins anew. See Cody, Inc. v. Town of

 2   Woodbury, 179 F.3d 52, 54-55 (2d Cir. 1999) (per curiam) (holding that where “the

 3   two judgments are identical with respect to all questions of substantive rights”

 4   appeal could not lie from the second judgment even where the district court

 5   “vacated its original judgment”).

 6         There can be no argument in this case that the January 7, 2013 judgment

 7   and the August 13, 2012 order are not identical in every way. No issue of

 8   substance—indeed, no issue of triviality—differs between the two orders. It

 9   follows that the entry of judgment did not reset Defendants’ time to appeal, that

10   the appeal was untimely, and that we lack jurisdiction. The appeal, therefore, is

11   DISMISSED.




                                             7
1    JACOBS, Circuit Judge, dissenting:

2        This appeal challenges the reasonableness of an

3    attorney’s fee award, and presents an issue as to

4    timeliness: the appeal is timely if calculated from the

5    entry of final judgment but untimely if calculated from the

6    earlier order to pay the fees.    Because I believe AC

7    Roosevelt had until 30 days after entry of final judgment to

8    file notice of appeal, I respectfully dissent from the

9    majority’s dismissal and would affirm the district court’s

10   judgment on the merits.

11

12                                 I

13       The August 13, 2012 order, which approved the

14   settlement agreement, granted Perez’s motion for attorney’s

15   fees, and directed the clerk to close the case, did not meet

16   the “separate document” requirement of Federal Rule of Civil

17   Procedure 58 and was not labeled a “judgment.”    See Fed. R.

18   Civ. P. 58(a).   The question is whether a “‘self-executing’

19   order can, without the subsequent entry of a Rule 58 final

20   judgment, and by the passage of time alone, deprive a would-

21   be appellant of its opportunity to seek review.   As the

22   Supreme Court made clear, . . . it cannot.”   In re Litas


                                   1
1    Int’l, Inc., 316 F.3d 113, 118 (2d Cir. 2003).   The Rule 58

2    requirement has not been waived.    See Cooper v. Town of East

3    Hampton, 83 F.3d 31, 33-34 (2d Cir. 1996).

4        The separate-document formality sought to relieve the

5    kind of uncertainty (raised in this case) “where the opinion

6    or memorandum has not contained all the elements of a

7    judgment, or where the judge has later signed a formal

8    judgment,” and “it has become a matter of doubt whether the

9    purported entry of a judgment was effective, starting the

10   time running for post-verdict motions and for the purpose of

11   appeal.”   Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85

12   (1978) (citation omitted).   “The reason for adhering to the

13   formalism of the separate document requirement is to avoid

14   confusion as to when the clock starts for the purpose of an

15   appeal.”   Cooper, 83 F.3d at 33.

16       As the majority explains, a grant of attorney’s fees is

17   an exception to the separate-document requirement.   See Fed.

18   R. Civ. P. 58(a)(3).   But the availability of appeal from a

19   collateral order does not render an appeal untimely if

20   appeal awaits entry of final judgment.   “[S]everal courts of

21   appeals,” including this one, “have held explicitly . . .

22   that failure to take an available collateral order appeal



                                   2
1    does not forfeit the right to review the order on appeal

2    from a [procedurally proper] final judgment” on the merits.

3    15A Wright & Miller, Fed. Prac. & Proc. Juris. § 3911 (2d

4    ed.) (citing In re “Agent Orange” Prod. Liab. Litig. MDL No.

5    381, 818 F.2d 179, 181 (2d Cir. 1987) (“Even if the

6    [collateral] order was appealable under Cohen, there is

7    still no reason to bar an appeal from the [later] order,

8    which was clearly intended by the district court to be

9    final.”)).

10       My view is confirmed by the grouping of the orders

11   specified in Rule 58(a).   An award of attorney’s fees is

12   often made after entry of judgment on the merits, and in

13   that respect is like other exceptions to the separate-

14   document rule, which are invariably made afterward.    In a

15   case such as this, in which the attorney’s fee award

16   precedes entry of the final judgment, an immediate appeal of

17   the attorney’s fee would raise an issue as to prematurity:

18   how can the fee award be reviewed before the outcome on the

19   merits has been ascertained?

20       Accordingly, AC Roosevelt had until 30 days after the

21   January 7, 2013 entry of final judgment to file notice of

22   appeal.   AC Roosevelt filed timely notice on February 6,

23   2013.

                                    3
1                                   II

2        Because I consider AC Roosevelt’s appeal timely, I

3    would reach the merits and affirm the district court’s award

4    of attorney’s fees.

5        The Fair Labor Standards Act (“FLSA”) “directs courts

6    to award prevailing plaintiffs reasonable attorney’s fees

7    and costs.”    Barfield v. N.Y. City Health & Hosps. Corp.,

8    537 F.3d 132, 151 (2d Cir. 2008); see 29 U.S.C. § 216(b)

9    (“The court in such action shall, in addition to any

10   judgment awarded to . . . plaintiffs, allow a reasonable

11   attorney’s fee to be paid by the defendant, and costs of the

12   action.”).    New York Labor Law is the same.   N.Y. Labor Law

13   § 663(4) (McKinney 2011) (“In any civil action by an

14   employee . . ., the employee . . . shall have the right to

15   collect attorneys’ fees and costs incurred in enforcing any

16   court judgment.”).

17       A party prevails in a FLSA suit “if [it] succeed[s] on

18   any significant issue in litigation which achieves some of

19   the benefit . . . sought in bringing suit.”     Hensley v.

20   Eckerhart, 461 U.S. 424, 433 (1983) (citation omitted).      “A

21   plaintiff involved in litigation ultimately resolved by

22   settlement may still be entitled to an award of attorneys’


                                    4
1    fees” as a prevailing party.   Lyte v. Sara Lee Corp., 950

2    F.2d 101, 103-04 (2d Cir. 1991).

3        The settlement agreement required payments totaling

4    $8,000 to Perez and another former employee, and explicitly

5    contemplated the pending motion for attorney’s fees and

6    costs.   Perez was therefore a prevailing party under the

7    statutory framework.   See Lyte, 950 F.2d at 104.

8        “We review attorneys’ fee awards for abuse of

9    discretion.   A district court abuses its discretion if it

10   (1) bases its decision on an error of law or uses the wrong

11   legal standard; (2) bases its decision on a clearly

12   erroneous factual finding; or (3) reaches a conclusion that,

13   though not necessarily the product of a legal error or a

14   clearly erroneous factual finding, cannot be located within

15   the range of permissible decisions.”   Millea v. Metro-N.

16   R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (internal

17   quotation marks and citations omitted).   “Abuse of

18   discretion--already one of the most deferential standards of

19   review--takes on special significance when reviewing fee

20   decisions because the district court, which is intimately

21   familiar with the nuances of the case, is in a far better

22   position to make such decisions than is an appellate court,



                                    5
1    which must work from a cold record.”      McDaniel v. Cnty. of

2    Schenectady, 595 F.3d 411, 416 (2d Cir. 2010) (internal

3    quotation marks, alterations, and citation omitted).

4        “Both this Court and the Supreme Court have held that

5    the lodestar--the product of a reasonable hourly rate and

6    the reasonable number of hours required by the case--creates

7    a presumptively reasonable fee.”      Millea, 658 F.3d at 166-67

8    (internal quotation marks omitted).      AC Roosevelt argues

9    that the “percentage of the fund” method is more

10   appropriate; but here there is no common fund because the

11   class was decertified prior to settlement negotiations.

12       The district court reviewed the parties’ submissions

13   and contemporaneous lawyer time records; acknowledged the

14   work involved in litigating what was originally a class

15   action, notifying class members, and engaging with a

16   defendant who did not appear in the case for almost a year;

17   and concluded that the request for attorney’s fees was

18   “reasonable in all respects.”       This was no abuse of

19   discretion.

20       Accordingly, I would affirm.




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