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 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 ASUMMARY 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 14th 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.
         Appeal from an order of the United States District 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, appeals the district court’s order awarding

Berkshire Bank attorney’s fees and costs. Berkshire 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 Berkshire 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 the amount of approximately $40,000. On appeal, the parties’ briefs

address both the 2013 order deciding the summary judgment motions and the 2015 fee award.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

         The timely filing of a notice of appeal in a civil case, pursuant to Rule 4 of the Federal

Rules of Appellate Procedure, is a jurisdictional requirement. Bowles v. Russell, 

,

214 (2007). Thus, although neither party has challenged our jurisdiction over the 2013 order, “we

are obligated to consider the issue sua sponte.” Bolmer v. Oliveira, 

, 140 (2d Cir.

2010).

         The Supreme Court has held that “a decision on the merits is a ‘final decision’ for purposes

of [28 U.S.C.] § 1291 whether or not there remains for adjudication a request for attorney’s fees

attributable to the case.” Budinich v. Becton Dickinson & Co., 

, 202-03 (1988); see

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also Farkas v. Rumore, 

, 22 (2d Cir. 1996) (explaining that “where an order disposes of

a party’s substantive claims, but does 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 Engineers & Participating

Employers, 

, 777 (2014).

       Here, the 2013 order resolved the merits of Berkshire Bank’s claims against Tedeschi,

leaving unresolved only the contractual claim for attorney’s fees. Thus, the 2013 order was final

and appealable. 

file, through counsel, a timely 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 jurisdiction to consider the district court’s ruling on

summary judgment. See Fed. R. App. P. 4(a)(1); 

; 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, the 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 court’s award of attorney’s fees for abuse of discretion. Cabala v.

Crowley, 

, 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, 

, 757 (2d Cir. 1998). Tedeschi’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 contends that, under New York Civil Practice Law and


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Rules § 3213, Berkshire Bank could have filed a motion for summary judgment in lieu of a

complaint, and avoided the expense of the federal litigation.

        However, Tedeschi does not address on appeal the district court’s conclusion that, even if

Berkshire Bank had sought to proceed under § 3213, the matter would have been converted to a

complaint because discovery and extrinsic evidence were necessary to resolve her affirmative

defenses. See, e.g., Marine Repair Services, Inc. v. Harbour Container Repair Co., 

(2d Dep’t 1983) (affirming denial of § 3213 motion due to defendant’s affirmative defense

and directing that plaintiff could renew summary judgment motion after discovery). The district

court did not abuse its discretion by determining that the federal complaint was a reasonable

litigation strategy. See Ortiz v. Regan, 

, 141 (2d Cir. 1992) (“A district court is in the

best position to determine the amount of work that was necessary to achieve the results in a

particular case and, therefore, is entitled to ample discretion in its decision.”).

        We have considered all of Tedeschi’s arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.

                                                FOR THE COURT:
                                                Catherine O=Hagan Wolfe, Clerk




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