Mr. Schwartz's contempt, and that these costs include costs on appeal. See id. at 3-4.
Plaintiff's argument is meritless because this Court's decision to deny plaintiff costs on appeal was based solely on this Court's interpretation of relevant case-law, and it was not influenced by this Court's view of Mr. Venezia's conduct. In fact, this Court took great pains to ensure that Mr. Venezia's conduct--which this Court continues believe was inappropriate--did not influence this Court's judgment or prejudice plaintiff.
As previously noted, this Court's June 29, 1995, Opinion and Order recognizes that there is a split in the circuits on the issue of whether a party prosecuting a contempt is entitled to recover costs incurred on appeal. Weitzman, 891 F. Supp. at 934-95. This Court reasoned that even if this Court were to follow the Third Circuit rule, which permits a party to recover costs on appeal at the discretion of the district court, an award of costs on appeal was not warranted in the instant case. Id. at 935. This Court cited a Second Circuit case that states that a civil-contempt fine is analogous "to a tort judgment for damages caused by wrongful conduct." Vuitton, 592 F.2d at 13. Applying the analogous tort-law theory, this Court reasoned that plaintiff was only entitled to recover the costs that were caused by Schwartz's wrongful conduct, and that plaintiff's costs on appeal were not caused by Schwartz's wrongful conduct. Weitzman, 891 F. Supp. at 935. As previously stated, this Court found that plaintiff needed to appeal this Court's August 10, 1995, Memorandum and Order because that Memorandum and Order misapplied the law of this circuit.
In arguing that plaintiff is entitled to recover her costs on appeal, plaintiff's counsel, once again, ignores the wording of this Court's June 29, 1995, Opinion and Order. The brief that plaintiff's counsel submitted in support of the instant motion entirely fails to discuss the fact that the circuits have split on the issue of whether a party is entitled to recover costs on appeal. Moreover, plaintiff's counsel fails to address this Court's reasoning that plaintiff is not entitled to recover costs on appeal because plaintiff's appeal of this Court's August 10, 1994, Opinion and Order cannot be attributed to Schwartz's wrongful conduct. In fact, although plaintiff's counsel cites Vuitton, and argues that this case requires this Court to compensate plaintiff for her costs on appeal, (Plaintiff's Memo at 3-4), he fails to explain how his interpretation of Vuitton can be reconciled with the case's statement that a civil-contempt fine is analogous "to a tort judgment for damages caused by wrongful conduct." Id. at 130.
Furthermore, plaintiff's counsel has misread and misinterpreted the portions of this Court's June 29, 1995, Opinion and Order that criticize him. Plaintiff's counsel incorrectly asserts that this Court stated "that [Mr. Venezia's] representations '[treaded] upon the line that separates overzealous advocacy from affirmative misrepresentation.'" (Plaintiff's Memo at 3 (quoting Weitzman, 891 F. Supp. at 934.) (emphasis added).) In fact, this Court stated that Mr. Venezia's "suggestion" that a transcript that he submitted expressed approval for an hourly rate of $ 225 was inaccurate because "this Court does not believe that [the transcript] can fairly be interpreted as expressing any approval of the rate of $ 225 per hour." Weitzman, 891 F. Supp. at 934. Thus, Mr. Venezia incorrectly claims that June 29, 1995, Opinion and Order spoke of multiple "representations," when, in fact, it spoke of single "suggestion."
Moreover, this Court chose the wording of the June 29, 1995, Opinion carefully and specifically avoided using the word "representation." This Court selected the word "suggestion" because Mr. Venezia never explicitly stated that this Court had approved the hourly rate of $ 225. Rather, Mr. Venezia argued that this Court should approve his claimed hourly rate of $ 275 because at an earlier stage of this case "this Honorable Court did not find our . . . hourly rate (at that time the rate was $ 225) to be unreasonable." (Affidavit of Louis Venezia, June 5, 1995, at 5.) Thus, although Mr. Venezia did not represent that this Court had approved the rate of $ 225 per hour, he certainly suggested that this Court had approved that rate. As this Court's June 29, 1995, Opinion and Order states, however, this suggestion was inappropriate: "while plaintiff's counsel is correct in arguing that this Court did not find that the claimed rate was unreasonable, this Court also did not find that the rate was reasonable. This Court simply made no finding regarding whether plaintiff's proposed rate of $ 225 was reasonable." Weitzman, 891 F. Supp. at 934. Hence, the June 29, 1995, Opinion and Order warned Mr. Venezia that it was inappropriate for him to have suggested that this Court had approved a $ 225 hourly rate. It is ironic that based on a misreading and misinterpretation of the June 29, 1995, Opinion and Order, Mr. Venezia now asserts that this warning was unfair.
Under Rule 60(b)(1) plaintiff would qualify for relief if this Court's failure to award costs on appeal were the result of "mistake, inadvertence, surprise, or excusable neglect." This Court holds that this Court's decision to deny plaintiff costs on appeal was entirely appropriate, and accordingly, plaintiff's Rule 60(b)(1) motion should be denied.
Under Rule 60(b)(6), plaintiff would qualify for relief if the equities in the instant case justified granting plaintiff costs on appeal. This Court finds that the equities in the instant case are not on plaintiffs side, and accordingly, plaintiff's Rule 60(b)(6) motion should be denied.
Plaintiff's Rule 60(b) motion is DENIED WITH PREJUDICE.
Dated: New York, New York
December 19, 1995
David N. Edelstein