# Appendix — Bernback v. Greco > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1628%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2005 - **Citation:** 546 U.S. 935 ## Text la UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 04-2494 MICHAEL L. BERNBACK, PLAINTIFF-APPELLANT, Vv. TIKOMAS GRECO, INDIVIDUALLY AND AS PRESIDENT OF HARVEY’S LAKE AMPHITHEATER, INC., DEFENDANT-APPELLEE. Submitted: March 7, 2005 Opinion Filed: March 30, 2005 Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Civ. No. 98-00230). Honorable A. Richard Caputo, District Judge. Before SCIRICA, Chief Judge, and ROTH and GREENBERG, Circuit Judges. OPINION GREENBERG, Circuit Judge. This matter comes on before this court on an appeal from an order entered April 29, 2004, in accordance with a memorandum opinion of the district court of that day. Inasmuch as we are writing only for the parties who, of course, are familiar with this case, we need not set forth its facts or procedural history. The issue in this case is quite simple and is stated fairly by Michael L. Bernback, the appellant: whether interest on an award of attorneys fees and 2a expenses accrues from the date of the original judgment on a jury verdict entitling a party to attorneys fee and expenses, in this case November 6, 2000, or, as the appellee Thomas Greco argues, from the time when a judgment was entered on the award of attorneys fees and expenses after they were quantified, in this case, July 29, 2002. The district court selected the later date and Bernback has appealed. The district court exercised diversity of citizenship jurisdiction under 28 U.S.C. § 1332 and we exercise jurisdiction under 28 U.S.C. § 1291. We exercise plenary review as the question is purely of law. Tudor Dev. Group, Inc. v. United States Fid. & Guar. Co., 968 F.2d 357, 359 (3d Cir. 1992). We will affirm as our result is controlled by our opinion in Eaves v. County of Cape May, 239 F.3d 527, 542 (3d Cir. 2001). Bernback’s brief, which argues for interest from the earlier date and cites precedent from other courts of appeal in support of this contention, necessarily is of no avail as it is dependent on his assertion that we “wrongly followed the so- called minority view,” appellant’s br. at 17, in reaching our result in Eaves. Of course, we as a panel must reject Bernback’s contention as Eaves binds us. Third Circuit IOP 9.1. The order of April 29, 2004, will be affirmed. 3a IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MICHAEL L. BERNBACK, Plaintiff, VS. : CIVIL ACTION NO. 3:98-CV-0230 THOMAS GRECO, ; Individually and as President : (JUDGE CAPUTO) of Harvey’s Lake Amphitheater, Inc., Defendant. MEMORANDUM This matter presents the interesting question as to whether the prevailing party who has been awarded legal fees is limited to interest on the awarded fees or whether the prevailing party may recover additional attorney fees on the interest accrued and paid on the judgment itself. The issue is presented because in awarding attorney fees in the first instance, I found any fees were capped to the Plaintiff’s agreement with his lawyer. The documents authorizing fees to the Plaintiff spoke of collecting from Defendant the actual fees incurred by the Plaintiff. At the same time, Plaintiff’s fee agreement with his counsel limited his fees to 40%. The relevant provisions are as follows: 2. I (we) agree to pay Angina & Rovner, P.C. any out-of-pocket expenses they incur to secure records, _ expert etc., plus a contingent fee that is totally dependant upon their obtaining monies for me (us) as follows... (c) Settlement or verdict at trial, or arbitration, after trial, arbitration, or 4a appeals or shortly before trial, and after this case has been totally prepared — 40% (d) If no-fault recovery or non- monetary benefit — RCA ($500); NJR ($450); others ($400) per hour but not to exceed 40% of the total recovery of value of benefit. (Power of Attorney and Fee Agreement, Doc. 270, Ex. A at § 2(c)(d)) (emphasis added). By his Motion for Interest, Attorney’s Fees and Expenses (Doc. 302), Plaintiff seeks to recover 40% of the interest which was paid on the judgment. In addition, Plaintiff seeks interest on the attorney’s fees already awarded, and he seeks the interest from the day I determined the fees were due, not from the day they were quantified. The interest on the attorney’s fees already awarded in the amount of $90,000 began to run on July 29, 2002, the day judgment was entered on the amount of fees. This is governed by Eaves v. County of Cape May, 239 F.3d 527 (3d Cir. 2001) where the court held that post judgment interest on an attorney’s fee award runs from the date the award is quantified, viz the date there is a “money judgment” under 28 "U.S.C. § 1961(a). /d. at 527. Therefore, interest on the award of counsel fees and of course the expenses awarded ($162,748.62) begins to run July 29, 2002, the date the judgment for the amount of the fees was entered. The amount of interest owed is therefore $54,935.78. As noted, Plaintiff also seeks additional fees for services rendered in connection with a post trial appeal to the United States Court of Appeals for the Third Circuit, opposing a petition for a writ of certiorari to the United States Supreme Court, and various other matters requiring the performance of legal services. Sa In deciding the entitlement and amount of fees on the Plaintiff's original petition for fees and expenses, I did a lodestar analysis, and determined the amount yielded in the lodestar analysis was limited by the agreement which Plaintiff had with his counsel, since the documents providing for fees and costs to the prevailing party authorized “actual attorney’s fees incurred, court costs, and other litigation related expenses.” (See Memorandum of May 20, 2002 at p. 6.) The fee agreement between the Plaintiff and counsel provided for a contingent fee of 40% in the event of “settlement or verdict at trial... or appeals . . . and after the case had been totally prepared.” (/d. at p. 15.) Now I am confronted with the Plaintiff's claim for additional fees performed for proceedings post judgment, viz appeal to the United States Court of Appeals for the Third Circuit and petitions for writ of certiorari to the United States Supreme Court. This represents a period of November 9, 2002 to the present. Plaintiffs have not yet provided the number of hours of services provided during this period. Plaintiff should submit evidence of those services, and | will undertake to determine the amount of fees to which Plaintiff is entitled. After I do a lodestar analysis respecting the additional legal services, | will determine the amount of fees due taking into account the fee agreement. Therefore, Plaintiff will submit his evidence of fees and expenses for the period since November 20, 2002, together with a brief, within thirty (30) days and the Defendant shall have thirty (30) days to file opposing evidence and a brief. An appropriate order follows. Date : April 24, 2004 A. Richard Caputo United States District Judge Supreme Court, US, FILED No. 05-19 SEP 3 1 25 Su The i Supreme Court of the Anited States --——- MICHAEL L. BERNBACK, Petitioner, Vv. THOMAS GRECO, Individually and as President of Harvey’s Lake Amphitheater, Inc., Respondent. & On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit 2 Vv BRIEF OF RESPONDENT IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI & Vv JOSEPH M. COSGROVE Counsel of Record 1460 Wyoming Avenue Forty Fort, PA 18704 (570) 287-0921 Attorney for Respondent COCKLE LAW BRIEF PRINTING CO (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTION PRESENTED Whether the Court should decline to review an unpub- lished decision of the U.S. Court of Appeals for the Third Circuit affirming the district court’s determination of the date from which interest on a judgment for attorney’s fees accrues under 28 U.S.C. 1961(a), when, unlike cases from other circuits interpreting sec. 1961(a), the district court’s assessment of attorney's fees in this case was based upon private contracts between the parties as well as a compli- cated fee agreement between petitioner and counsel, and was not otherwise specifically provided for by statute or other provision of law. li CORPORATE DISCLOSURE STATEMENT Respondent, Thomas Greco, was the sole shareholder of Harvey's Lake Amphitheater, Inc. Through the Stock Purchase Agreement at issue in this case, petitioner acquired “a 50% interest in Harvey's Lake Amphitheater, subject to certain conditions.” Bernback v. Greco, No. 02- 2742, 69 Fed.Appx. 98, 101 (CA3 July 11, 2003). Respon- dent appears in this matter individually, and as President of Harvey’s Lake Amphitheater, Inc. ill TABLE OF CONTENTS Page QUESTION PRESENT i sccs i cssisciieisdensssevisevssseses i CORPORATE DISCLOSURE STATEMENT ............. il COUNTER-STATEMENT OF THE CASE................. 1 REASONS FOR DENYING THE WRIT.................... 3 A. Since the attorney’s fees awarded in this case were based on the district court’s interpreta- tion of complicated private contracts and not on statutory or other provisions of law (as in the cases cited by petitioner as representing a “recurring circuit conflict”), the factual complexity of this case makes it an inappro- priate vehicle for consideration of the ques- tion presented by petitioner ........................085 RERPNG RIA ISIN IER iota cs socks ba ok ia Seas e aks Geineepnaueeanees 1V TABLE OF AUTHORITIES Page CASES: Associated General Contractors of Ohio, Inc. v. DraGik 256 Fae 482 (CAG 200K) oo: oii ai eaveaneseet 4 BankAtlantic vu. Blythe Eastman Paine Webber, Inc., pe ea” G7 OSS Se oo: | 9 Sane ae ane apni IE eee RP Vern Py ‘ Bernback v. Greco, No. 02-2742, 69 Fed.Appx. 98 (CA3 July 11, 2003), cert. denied, 540 U.S. 1185 SUN ad asa che cs sad can osviasay avd sks oddaia ee Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d Ot aos ccs Sassia ss ss natsapansisieusccseuasendel 4,5 Eaves v. County of Cape May, 239 F.3d 527 (CA3 | 8 8 SEGRE OSES Peso ety peo ean pk ot herent ng ae CN 2,4, 6 Fleming v. County of Kane, 898 F.2d 553 (CA7 C+ | SSRUNG SRUSEASS HS eed See Ai CO RPE EDC EEO SB RIE GREED or? 4 Friend v. Kolodzieczak, 72 F.3d 1386 (CA9 1995), cert: denied. SiG U.S. 1146 (1906) «o.oo ccs aonsccccitecsscnenenes 4 Jenkins v. Missouri, 931 F.2d 1273 (CA8 1991)....0..00000000... 4 Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 MRR geile ok eckcsesonchk exdets ionon dec cdiGuaoseassacaemiphabetnel 3 Aing v. JCS Enterprises, Inc., 325 F.Supp.2d 162 RIN ics coded a dichsas Anica Riaandcccondescaacoberneodadial 5 Mathis v. Spears, 857 F.2d 749 (CAFC 1988).........00.......... 4 MidAmerica Federal Savings & Loan Association v. Shearson/American Express, Inc., 962 F.2d 1470 ON BRE oie ap cdr