Tru-Art Sign Co., Inc. v. Local 137 Sheet Metal Workers Int'l Ass'n, No. 15-3415 (2d Cir. 2017)
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Tru-Art appealed the district court's order denying its motion for interest and costs. After a jury trial, the district court entered judgment for Tru-Art. On appeal, this court affirmed the finding of liability, vacated the damages award, and remanded for a new trial on damages or, in the alternative, for the district court to offer Tru-Art a remittitur. Tru-Art chose a remittitur and then filed a motion for costs as well as prejudgment and postjudgment interest. The court affirmed the district court's denial of interests and costs, finding that Tru-Art's motion for prejudgment interest was untimely under Federal Rule of Civil Procedure 59(e) and that Tru‐Art waived its claim for costs pursuant to Local Civil Rule 54.1 of the Eastern District of New York. The court vacated the district court's order to the extent it denied postjudgment interest pursuant to 28 U.S.C. 1961, remanding for the district court to calculate and award such interest.
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15 3415 cv Tru Art Sign Co., Inc. v. Local 137 Sheet Metal Workers Int’l Ass’n 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ________ AUGUST TERM, 2016 ARGUED: SEPTEMBER 27, 2016 DECIDED: MARCH 29, 2017 No. 15 3415 cv TRU ART SIGN CO., INC., Plaintiff Appellant, v. LOCAL 137 SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Defendant Appellee. ________ Appeal from the United States District Court for the Eastern District of New York. No. 11 Civ. 1709 – Leonard D. Wexler, Judge. ________ Before: WALKER and CABRANES, Circuit Judges, and BERMAN, District Judge.* ________ Judge Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation. * 2 No. 15 3415 cv 1 Plaintiff appellant Tru Art Sign Co., Inc. (“Tru Art”) appeals 2 from an order of the United States District Court for the Eastern 3 District of New York (Leonard D. Wexler, J.) denying its motion for 4 interest and costs. Following a jury trial, the district court entered 5 judgment in favor of Tru Art. On appeal, we affirmed the finding of 6 liability, vacated the damages award, and remanded for a new trial 7 on damages or, in the alternative, for the district court to offer Tru 8 Art a remittitur. Tru Art elected a remittitur and thereafter filed a 9 motion for costs as well as prejudgment and postjudgment interest, 10 which the district court denied. Tru Art now appeals this decision. 11 Because we find Tru Art’s motion for prejudgment interest was 12 untimely under Federal Rule of Civil Procedure 59(e) and that Tru 13 Art waived its claim for costs pursuant to Local Civil Rule 54.1 of the 14 Eastern District of New York, we AFFIRM the district court’s denial 15 of such interest and costs. We VACATE the district court’s order to 16 the extent it denied postjudgment interest and REMAND for the 17 district court to calculate and award such interest. 18 19 ________ 3 1 2 3 4 5 6 7 8 No. 15 3415 cv JOSEPH M. LABUDA (Netanel Newberger, on the brief), Milman Labuda Law Group PLLC, Lake Success, NY, for Plaintiff Appellant. NATHANIEL K. CHARNY, Charny & Associates, Rhinebeck, NY, for Defendant Appellee. ________ JOHN M. WALKER, JR., Circuit Judge: 9 Plaintiff appellant Tru Art Sign Co., Inc. (“Tru Art”) appeals 10 from an order of the United States District Court for the Eastern 11 District of New York (Leonard D. Wexler, J.) denying its motion for 12 interest and costs. Following a jury trial, the district court entered 13 judgment in favor of Tru Art. On appeal, we affirmed the finding of 14 liability, vacated the damages award, and remanded for a new trial 15 on damages or, in the alternative, for the district court to offer Tru 16 Art a remittitur. Tru Art elected a remittitur and thereafter filed a 17 motion for costs as well as prejudgment and postjudgment interest, 18 which the district court denied. Tru Art now appeals this decision. 19 Because we find Tru Art’s motion for prejudgment interest was 20 untimely under Federal Rule of Civil Procedure 59(e) and that Tru 21 Art waived its claim for costs pursuant to Local Civil Rule 54.1 of the 22 Eastern District of New York, we AFFIRM the district court’s denial 4 No. 15 3415 cv 1 of such interest and costs. We VACATE the district court’s order to 2 the extent it denied postjudgment interest and REMAND for the 3 district court to calculate and award such interest. 4 BACKGROUND 5 Tru Art prevailed at a jury trial on its claims against 6 defendant appellee Local 137 Sheet Metal Workers International 7 Association (“Local 137”) for violations of § 8(b)(4) of the National 8 Labor Relations Act and the jury awarded Tru Art $650,000 in 9 damages. On August 27, 2013, the district court entered judgment in 10 favor of Tru Art with “no costs or fees awarded to either party.” 11 Tru Art did not request interest or costs and it did not move to alter 12 or amend the judgment under Federal Rule of Civil Procedure 59(e). 13 Local 137 thereafter appealed, arguing that it was entitled to 14 judgment as a matter of law on certain claims, that the jury 15 instructions were flawed, and that the district court should have 16 ordered a new trial on damages due to an excessive damages award. 17 We affirmed the district court’s judgment as to liability, but vacated 18 the damages on the basis that the award was “clearly excessive” 5 No. 15 3415 cv 1 because the evidence at trial only supported damages amounting to 2 $440,000. Tru Art Sign Co. v. Local 137 Sheet Metal Workers Int l Ass n, 3 573 F. App’x 66, 69 (2d Cir. 2014) (summary order). We remanded 4 for a new trial on damages and noted that, in the alternative, the 5 district court could offer Tru Art the option of accepting a remittitur 6 as to the damages found to be excessive. Id. 7 On October 8, 2014, Tru Art accepted a remittitur and, for the 8 first time in the proceedings, requested and received permission to 9 file a motion for costs and prejudgment interest. On October 29, 10 2014, the district court entered a second judgment against Local 137 11 for $440,000—the amount that we had identified on appeal as 12 appropriate. On the same day, Tru Art filed its motion for costs, 13 prejudgment interest, and postjudgment interest. Local 137 opposed 14 Tru Art’s requests for prejudgment interest and costs. 15 On September 29, 2015, the district court denied Tru Art’s 16 requests for prejudgment interest and costs. The district court found 17 that an award of prejudgment interest was not appropriate, 18 reasoning that there were no special circumstances warranting 6 No. 15 3415 cv 1 additional compensation and that such an award likely would 2 overcompensate Tru Art. The district court also noted that Tru Art 3 requested prejudgment interest for the first time at a conference 4 following our remand and the issuance of our mandate. Finally, the 5 district court found that Tru Art’s enumerated costs were excessive 6 and noted that Tru Art never sought to amend or challenge the first 7 judgment in this case, which did not award costs. The district court 8 did not address Tru Art’s request for postjudgment interest. Tru 9 Art timely appealed. 10 DISCUSSION 11 We review a district court’s decision to deny prejudgment 12 interest and costs for abuse of discretion. Dattner v. Conagra Foods, 13 Inc., 458 F.3d 98, 100 (2d Cir. 2006) (per curiam); Merck Eprova AG v. 14 Gnosis S.p.A., 760 F.3d 247, 263 64 (2d Cir. 2014). Determinations of 15 timeliness are generally matters of statutory interpretation, which 16 we review de novo. Boykin v. KeyCorp, 521 F.3d 202, 207 (2d Cir. 17 2008). We may affirm on any basis supported by the record. Coulter 18 v. Morgan Stanley & Co., 753 F.3d 361, 366 (2d Cir. 2014) (per curiam). 7 No. 15 3415 cv 1 I. Prejudgment Interest 2 A plaintiff’s “postjudgment motion for discretionary 3 prejudgment interest constitutes a motion to alter or amend the 4 judgment under [Federal Rule of Civil Procedure] 59(e).” Osterneck 5 v. Ernst & Whinney, 489 U.S. 169, 175 (1989). A motion pursuant to 6 Rule 59(e) “must be filed no later than 28 days after the entry of the 7 judgment,” Fed. R. Civ. P. 59(e), and a court may not grant an 8 extension to file such a motion, Fed. R. Civ. P. 6(b)(2). 9 At issue in this case is whether the initial judgment—entered 10 on August 27, 2013—or the second judgment—entered on October 11 29, 2014 after Tru Art accepted the remittitur—determines when the 12 28 day period began to run for Tru Art’s Rule 59(e) motion for 13 prejudgment interest. We find that, in the instant case, the 14 timeliness of Tru Art’s motion is based on the first judgment entered 15 on August 27, 2013. 8 No. 15 3415 cv We have held that, in certain circumstances, a plaintiff may 1 2 timely move for prejudgment interest for the first time on remand.1 3 See, e.g., Adams v. Lindblad Travel Inc., 730 F.2d 89, 93 94 (2d Cir. 4 1984); see also Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d 5 Cir. 1994); In re Frigitemp Corp., 781 F.2d 324, 328 (2d Cir. 1986). Tru 6 Art argues that such holdings are analogous to the instant case. We 7 disagree. In Adams v. Lindblad Travel Inc., for example, the plaintiff 8 requested prejudgment interest on appeal, was entitled to recover 9 prejudgment interest as a matter of right under the applicable 10 statutes, and the district court was instructed to engage in a 11 recalculation or reconsideration of damages on remand. 730 F.2d at 12 93 94. As a result, we noted that the parties did not have any 13 “legitimate expectation that the issues relating to the ultimate award 14 [were] finally decided” and that the district court would have 15 “ample opportunity” on remand to make any findings necessary to We also have held that a district court may award prejudgment interest sua sponte if the initial judgment is vacated on appeal and the case is remanded for a recalculation of damages, and that we may award such interest sua sponte if the question of damages is open on appeal and an award is “mandated by the interests of justice.” See Newburger, Loeb & Co. v. Gross, 611 F.2d 423, 433–34 (2d Cir. 1979). Our holding in the instant case does not implicate these determinations. 1 9 No. 15 3415 cv 1 calculate prejudgment interest, such as the accrual date of the cause 2 of action. Id. 3 Here, prejudgment interest was not mandatory pursuant to 4 the applicable statute—Section 303(b) of the Labor Management 5 Relations Act, 29 U.S.C. § 187(b). See Wickham Contracting Co. v. Local 6 Union No. 3, Int’l Bhd. of Elec. Workers, 955 F.2d 831, 836 (2d Cir. 7 1992). Tru Art also did not file its motion for prejudgment interest 8 until after it had accepted the remittitur.2 At the time of Tru Art’s 9 motion, therefore, the damages award had been finally decided. 10 McNabola v. Chicago Transit Authority, 10 F.3d 501, 521 (7th Cir. 11 1993) is instructive. There, the Seventh Circuit held that, when both 12 an initial judgment and a judgment that is entered after a remittitur 13 exist, the timeliness of a motion for prejudgment interest should be 14 determined based on the second judgment only if the Rule 59(e) 15 motion “bear[s] some relationship” to the basis for altering the 16 original judgment—e.g., the determination that damages were Tru Art did state that it was entitled to prejudgment interest in a letter to the court, dated September 4, 2013, in which it opposed the amount of a supersedeas bond that Local 137 had proposed. Tru Art, however, did not formally move to alter or amend the judgment. 2 10 No. 15 3415 cv 1 excessive. Id. The Seventh Circuit concluded that the plaintiff—who 2 moved for prejudgment interest for the first time approximately four 3 months after the initial judgment had been entered and only after 4 the defendant had moved for a new trial on the ground that the jury 5 had awarded excessive damages—had not timely filed a motion for 6 such interest. Id. at 520 21. The court noted that, “[a]lthough 7 [plaintiff] could have filed a Rule 59(e) motion challenging the 8 remittitur after entry of a ‘second final judgment’, he could not for 9 the first time file a motion for prejudgment interest because such a 10 motion was addressed to the initial and not the [second] judgment.” 11 Id. at 521 (citation omitted). 12 Several district courts in this circuit have adopted this rule in 13 similar contexts. See Kazazian v. Bartlett & Bartlett LLP, No. 03 Civ. 14 7699 (LAP), 2007 WL 4563909, at *3 (S.D.N.Y. Dec. 19, 2007) 15 (“Plaintiff’s new Rule 59(e) motion to amend the Amended 16 (Corrected) Judgment will only be considered timely . . . to the 17 extent it seeks to amend something altered by the previous 18 amendment.”); see also Padilla v. Maersk Line, Ltd., No. 07 Civ. 3638 11 No. 15 3415 cv 1 (RMB/THK), 2012 WL 4009555, at *1 (S.D.N.Y. Sept. 12, 2012) 2 (“Where both an original and an amended judgment exist, a party 3 may not [base] its own untimely request for alteration of the 4 [original] judgment on a wholly independent ground from the one 5 that gave rise to the amended judgment.” (citation omitted)). 6 We now adopt the timeliness rule stated by the Seventh 7 Circuit in McNabola as the law of our circuit. When both an initial 8 judgment and an amended judgment exist, the timeliness of a Rule 9 59(e) motion is determined from the date of the amended judgment 10 only if the motion bears some relationship to the district court’s 11 alteration of the first judgment. McNabola, 10 F.3d at 521. Phrased 12 differently, when a district court alters its judgment, a party 13 aggrieved by the alteration must ask for correction of that alteration to 14 have the timeliness of their correction determined from the date of 15 the altered judgment. Id. If the Rule 59(e) motion bears no 16 relationship to the district court’s alteration of the initial judgment, 17 the motion’s timeliness is determined from the date of the earlier 18 judgment. 12 No. 15 3415 cv 1 As noted by the Seventh Circuit in McNabola, the time limit 2 stated in Rule 59(e) would be ineffective if parties could continually 3 file motions unrelated to the basis for the new judgment, thereby 4 preventing the judgment from becoming final. See id. Here, 5 although the district court entered a second judgment after we 6 vacated the damages award—and did not merely amend its own 7 judgment—the same logic applies because the district court offered 8 a remittitur of the damages awarded in the first judgment, which 9 Tru Art accepted. Tru Art, therefore, in effect seeks to amend the 10 first judgment, which did not include discretionary prejudgment 11 interest. Tru Art’s motion, which was filed more than a year after 12 the first judgment was entered, was untimely in relation to that 13 judgment and does not “bear some relationship” to Local 137’s 14 appeal, which gave rise to the second judgment. See id. 15 Further, even assuming arguendo that Tru Art’s motion for 16 prejudgment interest had been timely filed, we find the district court 17 appropriately considered the relevant factors stated in Wickham 18 Contracting Co. v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 955 13 No. 15 3415 cv 1 F.2d at 834, and did not abuse its discretion in determining that 2 based on these factors prejudgment interest would overcompensate 3 Tru Art. Accordingly, we affirm the district court’s denial of Tru Art’s 4 5 motion for prejudgment interest.3 6 II. Costs 7 Pursuant to Federal Rule of Civil Procedure 54(d)(1), costs 8 ordinarily “should be allowed to the prevailing party.” A motion 9 for costs, unlike one for prejudgment interest, is not a motion to alter 10 or amend a judgment under Rule 59(e) and is not subject to the same 11 timeliness standard. See Osterneck, 489 U.S. at 174 75; Buchanan v. 12 Stanships, Inc., 485 U.S. 265, 268 (1988) (finding a motion for costs is 13 not brought pursuant to Rule 59(e) because it “does not involve 14 reconsideration of any aspect of the decision on the merits”). Tru Art argues in the alternative—for the first time in its reply brief— that its motion for prejudgment interest was timely filed pursuant to Federal Rule of Civil Procedure 60(b). We ordinarily do not consider issues raised for the first time in a reply brief. McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). In any event, the argument does not merit our attention because Tru Art does not state the basis for which it should be granted relief under Rule 60(b). 3 14 No. 15 3415 cv 1 A party seeking to recover costs in the United States District 2 Court for the Eastern District of New York, however, must file with 3 the Clerk of Court a notice of taxation of costs “[w]ithin thirty (30) 4 days after the entry of final judgment, or, in the case of an appeal by 5 any party, within thirty (30) days after the final disposition of the 6 appeal, unless this period is extended by the Court for good cause 7 shown.” E.D.N.Y. Local Civ. R. 54.1(a). “Any party failing to file a 8 notice of taxation of costs within the applicable thirty (30) day 9 period will be deemed to have waived costs.” Id. 10 Tru Art first requested to file a motion for costs on October 8, 11 2014—forty nine days after we had issued our mandate. Although 12 the district court allowed Tru Art to file its motion, it did not extend 13 the deadline for Tru Art to file a notice of costs with the Clerk. 14 Absent such an extension and because Tru Art has not provided any 15 reason for its failure to file this notice, much less shown good cause, 16 Tru Art has waived its claim for costs.4 Tru Art’s argument that its motion for costs is timely pursuant to Rule 60(b) fails for the same reasons stated above with respect to Tru Art’s motion for prejudgment interest. 4 15 No. 15 3415 cv 1 III. Postjudgment Interest 2 The district court did not address Tru Art’s claim for 3 postjudgment interest, stating only that “Plaintiff’s motion for 4 prejudgment interest and costs is denied.” J.A. 163. On appeal, Tru 5 Art argues that the district court abused its discretion in failing to 6 state any reason why it denied postjudgment interest. Local 137 did 7 not object to Tru Art’s request for postjudgment interest before the 8 district court and does not now dispute Tru Art’s entitlement to 9 postjudgment interest on appeal. 10 Pursuant to 28 U.S.C. § 1961, “[t]he award of post judgment 11 interest is mandatory on awards in civil cases as of the date 12 judgment is entered.” Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 13 1996). “[Section 1961 s] terms do not permit of the exercise of 14 judicial discretion in its application.” Carte Blanche (Singapore) Pte., 15 Ltd. v. Carte Blanche Int l, Ltd., 888 F.2d 260, 269 (2d Cir. 1989) 16 (citation omitted). Accordingly, we remand this case to the district 17 court to calculate and award postjudgment interest. 16 1 No. 15 3415 cv CONCLUSION 2 For the reasons stated above, we AFFIRM the district court’s 3 denial of Tru Art’s motion for prejudgment interest and costs. We 4 VACATE the district court’s order to the extent that it denied 5 postjudgment interest and REMAND the action for the district court 6 to calculate and award such interest.
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