15-471 Berkshire Bank v. Tedeschi



## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A 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 14 th day of April, two thousand sixteen.

PRESENT: ROSEMARY S. POOLER, BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, Circuit Judges.

_____________________________________ Berkshire Bank, Plaintiff-Appellee ,

v. 15-471

Nancy K. Tedeschi, Defendant-Appellant .

_____________________________________ FOR PLAINTIFF -APPELLEE: David Valicenti, Cohen Kinne Valicenti & Cook LLP, Pittsfield, MA

FOR DEFENDANT -APPELLANT: Nancy K. Tedeschi, pro se, Daytona Beach, FL.2 Appeal from an order of the United States Dist rict Court for the Northern District of New York (Kahn, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED

. Appellant Nancy Tedeschi, proceeding pro se, a ppeals the district c ourt’s order awarding Berkshire Bank attorney’s fees and costs. Berk shire Bank sued Tedeschi, alleging that she had breached three promissory notes. In 2013, after the parties filed cross-motions for summary judgment, the district court granted Berkshir e Bank summary judgment on two of its claims, dismissed its remaining claim for breach of contract, and ruled that it was entitled to attorney’s fees and costs pursuant to the parties’ contracts. Two years later, the court awarded Berkshire Bank attorney’s fees and costs in th e amount of approximately $40,000. On appeal, the parties’ briefs address both the 2013 order deciding the summar y judgment motions and the 2015 fee award. We assume the parties’ familiarity with the underlyi ng facts, the procedural history of the case, and the issues on appeal. The timely filing of a notice of appeal in a civil case, pursuan t to Rule 4 of the Federal Rules of Appellate Procedure, is a jurisdictional requirement. Bowles v. Russell , 551 U.S. 205, 214 (2007). Thus, although neither party has challe nged our jurisdiction ove r the 2013 order, “we are obligated to consider the issue sua sponte .” Bolmer v. Oliveira , 594 F.3d 134, 140 (2d Cir. 2010). The Supreme Court has held that “a decision on th e merits is a ‘final decision’ for purposes of [28 U.S.C.] § 1291 whethe r or not there remains for adjudica tion a request for attorney’s fees

attributable to the case.” Budinich v. Becton Dickinson & Co ., 486 U.S. 196, 202-03 (1988); see3 also Farkas v. Rumore , 101 F.3d 20, 22 (2d Cir. 1996) (explaining that “where an order disposes of a party’s substantive claims, but doe s not dispose of claims relating to attorney’s fees, the time for appeal of the substantive claims starts to run from the date of the first order”). This rule applies regardless of whether “the claim for attorney’s fees is based on a statute, a contract, or both.” Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’ l Union of Operating En gineers & Participating Employers , 134 S. Ct. 773, 777 (2014). Here, the 2013 order resolved the merits of Berkshire Bank’s claims against Tedeschi, leaving unresolved only the contr actual claim for attorney’s fees. Thus, the 2013 order was final and appealable. Id. Tedeschi did file, through counsel, a ti mely notice of appeal from the 2013 order, but that appeal was dismissed due to her default. Because the 2015 notice of appeal was not timely filed from the 2013 order, we lack jurisd iction to consider the di strict court’s ruling on summary judgment. See Fed. R. App. P. 4(a)(1); Bowles , 551 U.S. at 214; see also Fed R. App. 4(a)(7)(ii) (stating that when a separate document is required to accompany a final judgment or order, but no such separate document is filed, th e order is considered to be “entered for purposes of . . . Rule 4(a)” 150 days from when the order (rather than the absent document) is filed on the docket).

We review a district cour t’s award of attorney’s f ees for abuse of discretion. Cabala v. Crowley , 736 F.3d 226, 229 (2d Cir. 2013). A district court abuses its discretion if “it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the record.” LeBlanc-Sternberg v. Fletcher , 143 F.3d 748, 757 (2d Cir. 1998). Te deschi’s sole challenge to the fee award on appeal is that it is excessive because Berkshire Bank could have sought relief in a less expensive state court proceeding. She conte nds that, under New York Civil Practice Law and4 Rules § 3213, Berkshire Bank could have filed a motion for summary judgment in lieu of a complaint, and avoided the expens e of the federal litigation. However, Tedeschi does not address on appeal th e district court’s conclusion that, even if Berkshire Bank had sought to proceed under § 3 213, the matter would have been converted to a complaint because discovery and extrinsic eviden ce were necessary to resolve her affirmative

defenses. See, e.g. , Marine Repair Services, Inc. v. Harbour Container Repair Co ., 462 N.Y.S.2d 1016 (2d Dep’t 1983) (affirming deni al of § 3213 motion due to de fendant’s affirmative defense and directing that plaintiff could renew summary judgment motion after discovery). The district court did not abuse its discretion by determini ng that the federal complaint was a reasonable litigation strategy. See Ortiz v. Regan , 980 F.2d 138, 141 (2d Cir. 1992) (“A district court is in the best position to determine the amount of work th at was necessary to ach ieve the results in a particular case and, therefore, is entitle d to ample discretion in its decision.”). We have considered all of Tedeschi’s argum ents and find them to be without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk