Omni Consulting Grp., Inc. v. Pilgrim?s Pride Corp. ( 2012 )


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  • 11-791-cv(L), 11-965
    Omni Consulting Grp., Inc. v. Pilgrim’s Pride Corp.
    
    
    
                       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 "SUMMARY ORDER"). A PARTY CITING 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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of New
    York, on the 17th day of July, two thousand twelve.
    
    PRESENT:
                 RALPH K. WINTER,
                 CHESTER J. STRAUB,
                 DENNY CHIN,
                           Circuit Judges.
    
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    OMNI CONSULTING GROUP, INC.,
                   Plaintiff-Appellee-
                   Cross-Appellant,
    
                        - v. -
                                                          11-791-cv(L),11-965
    PILGRIM’S PRIDE CORPORATION,
                   Defendant-Appellant-
                   Cross-Appellee,
    
    MARINA CONSULTING, INC.,
                   Defendant.
    
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    FOR DEFENDANT-APPELLANT:      TRAVIS WAYNE VANCE (Thomas Edward
                                  Ullrich, on the brief), Wharton
                                  Aldhizer & Weaver, PLC,
                                  Harrisonburg, Virginia; Earl K.
                                  Cantwell, Hurwitz & Fine, P.C.,
                                  Buffalo, New York.
    FOR PLAINTIFF-APPELLEE:
                                  ALAN J. BOZER (William Patrick
                                  Keefer, on the brief), Phillips
                                  Lytle LLP, Buffalo, New York.
    
               Cross-appeals from the United States District Court for
    
    the Western District of New York (Arcara, J.).   UPON DUE
    
    CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
    
    the judgment and order of the district court are AFFIRMED.
    
               Defendant-Appellant-Cross-Appellee Pilgrim's Pride
    
    Corporation ("Pilgrim") appeals from the district court's January
    
    31, 2011, judgment awarding Plaintiff-Appellee-Cross-Appellant
    
    Omni Consulting Group, Inc. ("Omni") damages on Omni's breach of
    
    contract claim.   The district court entered judgment pursuant to
    
    its September 12, 2007, order granting Omni's cross-motion for
    
    summary judgment on the issue of Pilgrim's liablity for breach of
    
    contract and the evidence presented at trial with respect to
    
    damages.
    
               Omni cross-appeals from the district court's January
    
    31, 2011, award of damages and its March 2, 2011, award of
    
    attorneys' fees, contending that both awards were too low.
    
    
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                We assume the parties' familiarity with the underlying
    
    facts, the procedural history of the case, and the issues on
    
    appeal.
    
                We review a district court's grant of summary judgment
    
    de novo.    Dawson v. Bumble & Bumble, 
    398 F.3d 211
    , 216 (2d Cir.
    
    2005).    Where a case is tried to the district court without a
    
    jury, we review the district court's findings of fact for clear
    
    error and its conclusions of law de novo.    MacWade v. Kelly, 
    460 F.3d 260
    , 267 (2d Cir. 2006).    We review a district court's award
    
    of attorneys' fees for abuse of discretion.    Townsend v. Benjamin
    
    Enters., Inc., 
    679 F.3d 41
    , 58 (2d Cir. 2012).
    
                We conclude that the district court did not err in
    
    enforcing Paragraph 7 of the Technical Services Agreement ("TSA")
    
    as it was not a restrictive covenant preventing an employee from
    
    pursuing his livelihood but an anti-raiding provision in a
    
    commercial agreement between two sophisticated parties.    See
    
    Spherenomics Global Contact Ctrs. v. vCustomer Corp., 427 F.
    
    Supp. 2d 236, 249-50 (E.D.N.Y. 2006) (upholding provision
    
    prohibiting defendant from independently hiring third party that
    
    plaintiff introduced to defendant for joint venture); Gibbs &
    
    Soell, Inc. v. Armstrong World Indus., Inc., No. 04 Civ. 5103
    
    (HB), 
    2005 WL 615688
    , at **4-5 (S.D.N.Y. Mar. 17, 2005)
    
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    (upholding one-year anti-raiding provision after finding it was
    
    not a restrictive covenant and reasoning that court should not
    
    interfere with agreement between two sophisticated businesses
    
    absent persuasive justification).     Likewise, in the circumstances
    
    of this case, where the master agreement contained a one-year
    
    restriction, the district court reasonably limited the
    
    restriction in paragraph 7 of the TSA to one year as well.
    
              We have reviewed the district court's calculation of
    
    damages and interest and find no error in its application of the
    
    law or its findings of fact.   See Conway v. Icahn & Co., 
    16 F.3d 504
    , 512 (2d Cir. 1994) (holding CPLR § 5001 grants court wide
    
    discretion in determining date from which to award pre-judgment
    
    interest when damages accrued at various times); Adams v. Linblad
    
    Travel, Inc., 
    730 F.2d 89
    , 92-93 (2d Cir. 1984) (holding measure
    
    of damages is profit plaintiff would have made but for breach);
    
    Kookmin Bank v. B.G. Fashion, Inc., No. 99 Civ 8622 (RLE), 
    2000 WL 1880315
    , at *4 (S.D.N.Y. Dec. 28, 2000) (holding midway date
    
    between first and last dates of maturity of fifty-four unpaid
    
    bills of exchange was reasonable intermediate date under section
    
    5001).
    
              Finally, we conclude the district court did not abuse
    
    its discretion in awarding attorneys' fees.    The district court
    
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    considered the evidence submitted by the parties, applied the
    
    appropriate legal principles, and made certain findings and
    
    adjustments.   See Farbotko v. Clinton Cnty., 
    433 F.3d 204
    , 208-11
    
    (2d Cir. 2005); see also N.Y. Life Ins. Co. v. Hassan, No. 09-CV-
    
    1075A, 
    2010 WL 3070091
    , at **2-3 (W.D.N.Y. Aug. 4, 2010);
    
    Disabled Patriots of Am., Inc. v. Niagara Grp. Hotels, LLC, 
    688 F. Supp. 2d 216
    , 222-26 (W.D.N.Y. 2010).   Its award of fees and
    
    costs was not unreasonable.
    
              We have considered the parties' remaining arguments and
    
    conclude that they are without merit.   Accordingly, the judgment
    
    and order of the district court are hereby AFFIRMED.
    
                              FOR THE COURT:
                              CATHERINE O'HAGAN WOLFE, CLERK
    
    
    
    
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