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Keshner v. Nursing Personnel Home Care

United States Court of Appeals, Second Circuit

April 2, 2014

MAURICE KESHNER, Individually, Plaintiff-Appellee,
v.
NURSING PERSONNEL HOME CARE, WALTER GREENFIELD, Defendants-Appellants, UNITED STATES OF AMERICA, Intervenor-Plaintiff-Appellee, IMMEDIATE HOME CARE, INC., ISAAC SCHWARTZ, MARY SMALLS, SMALLS TRAINING & COUNSELING SCHOOL, RENAISSANCE HOME CARE, NACHEM SINGER, ERVIN RUBENSTEIN, Defendants

Submitted November 5, 2013

Motions to dismiss as untimely two appeals of an award of attorney's fees entered by the United States District Court for the Eastern District of New York (Frederic L. Block, District Judge).

In No. 13-1688, motion to dismiss denied as moot and appeal dismissed as moot in view of pending timely appeal from a partial judgment entered on the same attorney's fee award; in No. 14-251, motion to dismiss denied.

Avrom R. Vann, Avrom R. Vann, P.C., New York, NY, for Appellants.

Brian P. McCafferty, Kenney & McCafferty, P.C., Blue Bell, PA (Irwin G. Klein, Hein, Waters & Klein, Garden City, NY), for Appellee Maurice Keshner.

Erin Elizabeth Argo, Assistant U.S. Attorney, Brooklyn, NY, for Appellee United States of America.

Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.

OPINION

Page 160

JON O. NEWMAN, Circuit Judge.

The pending motions to dismiss two appeals from an award of attorney's fees requires us to return to the issue considered last year in Perez v. AC Roosevelt Food Corp., 734 F.3d 175 (2d Cir. 2013), amended, No. 13-497, 744 F.3d 39, 2013 WL 6439381 (2d Cir. Dec. 10, 2013): under what circumstances does the time to appeal such awards run from the date of entry of the award? Maurice Keshner moves to dismiss two appeals of Nursing Personnel Home Care (" Nursing Personnel" ) from an interlocutory order entered November 15, 2010, by the District Court for the Eastern District of New York (Frederic L. Block, District Judge), awarding Keshner attorney's fees. We conclude that the fee award, entered before entry of a final judgment or a partial judgment entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, did not have to be appealed until entry of an appealable judgment, and that the pending collateral order appeal in No. 13-1688, taken in the absence of an appealable judgment, has become moot upon the entry of a Rule 54(b) partial judgment, and that the timely appeal in No. 14-251 from the Rule 54(b) partial judgment is timely. We therefore deny as moot the motion to dismiss the collateral order appeal in No. 13-1688, dismiss that appeal as moot, deny the motion to dismiss the appeal in No. 14-251 from the Rule 54(b) partial judgment and direct briefing of that appeal in the normal course.

Background

The origin of this controversy is a qui tam action brought by Keshner in 2006 on behalf of the United States against various providers of home health-care services and their officers, including Nursing Personnel and its president. That action was brought pursuant to the False Claims Act (" FCA" ), 31 U.S.C. § 3729 et seq . Keshner and the United States settled the claim against Nursing Personnel and its president. The action remains pending against other defendants.

The complicated procedural steps concerning the pending appeal began in May 2010 when Keshner filed a motion for attorney's fees and costs pursuant to 31 U.S.C. § 3730(d)(1). That provision entitles a qui tam plaintiff who obtains a settlement with a defendant in an FCA action to an award of attorney's fees and costs against the defendant. On November 15, 2010, the District Court granted Keshner's ...


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