Tru-Art Sign Co., Inc. v. Local 137 Sheet Metal Workers Int’l Ass’n 1 In the 2

15‐3415‐cv
Tru‐Art Sign Co., Inc. v. Local 137 Sheet Metal Workers Int’l Ass’n
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2016 7
8
A RGUED: SEPTEMBER 27, 2016 9
D ECIDED: MARCH 29, 2017 10
11
No. 15‐3415‐cv 12
13
TRU‐A RT SIGN C O ., INC., 14
Plaintiff‐Appellant, 15
16
v. 17
18
L OCAL 137 S HEET METAL WORKERS INTERNATIONAL A SSOCIATION, 19
Defendant‐Appellee. 20
________ 21
22
Appeal from the United States District Court 23
for the Eastern District of New York. 24
No. 11 Civ. 1709 – Leonard D. Wexler, Judge. 25
________ 26
27
Before: WALKER and C ABRANES , Circuit Judges, and B ERMAN, District 28
Judge.* 29
________ 30
31
* Judge Richard M. Berman, of the United States District Court for the Southern District of
New York, sitting by designation.

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2 No. 15‐3415‐cv
Plaintiff‐appellant Tru‐Art Sign Co., Inc. (“Tru‐Art”) appeals 1
from an order of the United States District Court for the Eastern 2
District of New York (Leonard D. Wexler, J.) denying its motion for 3
interest and costs. Following a jury trial, the district court entered 4
judgment in favor of Tru‐Art. On appeal, we affirmed the finding of 5
liability, vacated the damages award, and remanded for a new trial 6
on damages or, in the alternative, for the district court to offer Tru‐ 7
Art a remittitur. Tru‐Art elected a remittitur and thereafter filed a 8
motion for costs as well as prejudgment and postjudgment interest, 9
which the district court denied. Tru‐Art now appeals this decision. 10
Because we find Tru‐Art’s motion for prejudgment interest was 11
untimely under Federal Rule of Civil Procedure 59(e) and that Tru‐ 12
Art waived its claim for costs pursuant to Local Civil Rule 54.1 of the 13
Eastern District of New York, we AFFIRM the district court’s denial 14
of such interest and costs. We VACATE the district court’s order to 15
the extent it denied postjudgment interest and REMAND for the 16
district court to calculate and award such interest. 17
________ 18
19

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3 No. 15‐3415‐cv
JOSEPH M. L ABUDA (Netanel Newberger, on the 1
brief), Milman Labuda Law Group PLLC, Lake 2
Success, NY, for Plaintiff‐Appellant. 3
NATHANIEL K. C HARNY, Charny & Associates, 4
Rhinebeck, NY, for Defendant‐Appellee. 5
________ 6
7
JOHN M. WALKER , JR ., Circuit Judge: 8
Plaintiff‐appellant Tru‐Art Sign Co., Inc. (“Tru‐Art”) appeals 9
from an order of the United States District Court for the Eastern 10
District of New York (Leonard D. Wexler, J.) denying its motion for 11
interest and costs. Following a jury trial, the district court entered 12
judgment in favor of Tru‐Art. On appeal, we affirmed the finding of 13
liability, vacated the damages award, and remanded for a new trial 14
on damages or, in the alternative, for the district court to offer Tru‐ 15
Art a remittitur. Tru‐Art elected a remittitur and thereafter filed a 16
motion for costs as well as prejudgment and postjudgment interest, 17
which the district court denied. Tru‐Art now appeals this decision. 18
Because we find Tru‐Art’s motion for prejudgment interest was 19
untimely under Federal Rule of Civil Procedure 59(e) and that Tru‐ 20
Art waived its claim for costs pursuant to Local Civil Rule 54.1 of the 21
Eastern District of New York, we AFFIRM the district court’s denial 22

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4 No. 15‐3415‐cv
of such interest and costs. We VACATE the district court’s order to 1
the extent it denied postjudgment interest and REMAND for the 2
district court to calculate and award such interest. 3
BACKGROUND 4
Tru‐Art prevailed at a jury trial on its claims against 5
defendant‐appellee Local 137 Sheet Metal Workers International 6
Association (“Local 137”) for violations of § 8(b)(4) of the National 7
Labor Relations Act and the jury awarded Tru‐Art $650,000 in 8
damages. On August 27, 2013, the district court entered judgment in 9
favor of Tru‐Art with “no costs or fees awarded to either party.” 10
Tru‐Art did not request interest or costs and it did not move to alter 11
or amend the judgment under Federal Rule of Civil Procedure 59(e). 12
Local 137 thereafter appealed, arguing that it was entitled to 13
judgment as a matter of law on certain claims, that the jury 14
instructions were flawed, and that the district court should have 15
ordered a new trial on damages due to an excessive damages award. 16
We affirmed the district court’s judgment as to liability, but vacated 17
the damages on the basis that the award was “clearly excessive” 18

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5 No. 15‐3415‐cv
because the evidence at trial only supported damages amounting to 1
$440,000. Tru‐Art Sign Co. v. Local 137 Sheet Metal Workers Intʹl Assʹn, 2
573 F. App’x 66, 69 (2d Cir. 2014) (summary order). We remanded 3
for a new trial on damages and noted that, in the alternative, the 4
district court could offer Tru‐Art the option of accepting a remittitur 5
as to the damages found to be excessive. Id. 6
On October 8, 2014, Tru‐Art accepted a remittitur and, for the 7
first time in the proceedings, requested and received permission to 8
file a motion for costs and prejudgment interest. On October 29, 9
2014, the district court entered a second judgment against Local 137 10
for $440,000—the amount that we had identified on appeal as 11
appropriate. On the same day, Tru‐Art filed its motion for costs, 12
prejudgment interest, and postjudgment interest. Local 137 opposed 13
Tru‐Art’s requests for prejudgment interest and costs. 14
On September 29, 2015, the district court denied Tru‐Art’s 15
requests for prejudgment interest and costs. The district court found 16
that an award of prejudgment interest was not appropriate, 17
reasoning that there were no special circumstances warranting 18

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6 No. 15‐3415‐cv
additional compensation and that such an award likely would 1
overcompensate Tru‐Art. The district court also noted that Tru‐Art 2
requested prejudgment interest for the first time at a conference 3
following our remand and the issuance of our mandate. Finally, the 4
district court found that Tru‐Art’s enumerated costs were excessive 5
and noted that Tru‐Art never sought to amend or challenge the first 6
judgment in this case, which did not award costs. The district court 7
did not address Tru‐Art’s request for postjudgment interest. Tru‐ 8
Art timely appealed. 9
DISCUSSION 10
We review a district court’s decision to deny prejudgment 11
interest and costs for abuse of discretion. Dattner v. Conagra Foods, 12
Inc., 458 F.3d 98, 100 (2d Cir. 2006) (per curiam); Merck Eprova AG v. 13
Gnosis S.p.A., 760 F.3d 247, 263‐64 (2d Cir. 2014). Determinations of 14
timeliness are generally matters of statutory interpretation, which 15
we review de novo. Boykin v. KeyCorp, 521 F.3d 202, 207 (2d Cir. 16
2008). We may affirm on any basis supported by the record. Coulter 17
v. Morgan Stanley & Co., 753 F.3d 361, 366 (2d Cir. 2014) (per curiam). 18

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7 No. 15‐3415‐cv
I. Prejudgment Interest 1
A plaintiff’s “postjudgment motion for discretionary 2
prejudgment interest constitutes a motion to alter or amend the 3
judgment under [Federal Rule of Civil Procedure] 59(e).” Osterneck 4
v. Ernst & Whinney, 489 U.S. 169, 175 (1989). A motion pursuant to 5
Rule 59(e) “must be filed no later than 28 days after the entry of the 6
judgment,” Fed. R. Civ. P. 59(e), and a court may not grant an 7
extension to file such a motion, Fed. R. Civ. P. 6(b)(2). 8
At issue in this case is whether the initial judgment—entered 9
on August 27, 2013—or the second judgment—entered on October 10
29, 2014 after Tru‐Art accepted the remittitur—determines when the 11
28‐day period began to run for Tru‐Art’s Rule 59(e) motion for 12
prejudgment interest. We find that, in the instant case, the 13
timeliness of Tru‐Art’s motion is based on the first judgment entered 14
on August 27, 2013. 15

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8 No. 15‐3415‐cv
We have held that, in certain circumstances, a plaintiff may 1
timely move for prejudgment interest for the first time on remand.1 2
See, e.g., Adams v. Lindblad Travel Inc., 730 F.2d 89, 93‐94 (2d Cir. 3
1984); see also Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d 4
Cir. 1994); In re Frigitemp Corp., 781 F.2d 324, 328 (2d Cir. 1986). Tru‐ 5
Art argues that such holdings are analogous to the instant case. We 6
disagree. In Adams v. Lindblad Travel Inc., for example, the plaintiff 7
requested prejudgment interest on appeal, was entitled to recover 8
prejudgment interest as a matter of right under the applicable 9
statutes, and the district court was instructed to engage in a 10
recalculation or reconsideration of damages on remand. 730 F.2d at 11
93‐94. As a result, we noted that the parties did not have any 12
“legitimate expectation that the issues relating to the ultimate award 13
[were] finally decided” and that the district court would have 14
“ample opportunity” on remand to make any findings necessary to 15
1 We also have held that a district court may award prejudgment
interest sua sponte if the initial judgment is vacated on appeal and the case
is remanded for a recalculation of damages, and that we may award such
interest sua sponte if the question of damages is open on appeal and an
award is “mandated by the interests of justice.” See Newburger, Loeb & Co.
v. Gross, 611 F.2d 423, 433–34 (2d Cir. 1979). Our holding in the instant
case does not implicate these determinations.

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9 No. 15‐3415‐cv
calculate prejudgment interest, such as the accrual date of the cause 1
of action. Id. 2
Here, prejudgment interest was not mandatory pursuant to 3
the applicable statute—Section 303(b) of the Labor Management 4
Relations Act, 29 U.S.C. § 187(b). See Wickham Contracting Co. v. Local 5
Union No. 3, Int’l Bhd. of Elec. Workers, 955 F.2d 831, 836 (2d Cir. 6
1992). Tru‐Art also did not file its motion for prejudgment interest 7
until after it had accepted the remittitur.2 At the time of Tru‐Art’s 8
motion, therefore, the damages award had been finally decided. 9
McNabola v. Chicago Transit Authority, 10 F.3d 501, 521 (7th Cir. 10
1993) is instructive. There, the Seventh Circuit held that, when both 11
an initial judgment and a judgment that is entered after a remittitur 12
exist, the timeliness of a motion for prejudgment interest should be 13
determined based on the second judgment only if the Rule 59(e) 14
motion “bear[s] some relationship” to the basis for altering the 15
original judgment—e.g., the determination that damages were 16
2 Tru‐Art did state that it was entitled to prejudgment interest in a
letter to the court, dated September 4, 2013, in which it opposed the
amount of a supersedeas bond that Local 137 had proposed. Tru‐Art,
however, did not formally move to alter or amend the judgment.

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10 No. 15‐3415‐cv
excessive. Id. The Seventh Circuit concluded that the plaintiff—who 1
moved for prejudgment interest for the first time approximately four 2
months after the initial judgment had been entered and only after 3
the defendant had moved for a new trial on the ground that the jury 4
had awarded excessive damages—had not timely filed a motion for 5
such interest. Id. at 520‐21. The court noted that, “[a]lthough 6
[plaintiff] could have filed a Rule 59(e) motion challenging the 7
remittitur after entry of a ‘second final judgment’, he could not for 8
the first time file a motion for prejudgment interest because such a 9
motion was addressed to the initial and not the [second] judgment.” 10
Id. at 521 (citation omitted). 11
Several district courts in this circuit have adopted this rule in 12
similar contexts. See Kazazian v. Bartlett & Bartlett LLP, No. 03 Civ. 13
7699 (LAP), 2007 WL 4563909, at *3 (S.D.N.Y. Dec. 19, 2007) 14
(“Plaintiff’s new Rule 59(e) motion to amend the Amended 15
(Corrected) Judgment will only be considered timely . . . to the 16
extent it seeks to amend something altered by the previous 17
amendment.”); see also Padilla v. Maersk Line, Ltd., No. 07 Civ. 3638 18

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11 No. 15‐3415‐cv
(RMB/THK), 2012 WL 4009555, at *1 (S.D.N.Y. Sept. 12, 2012) 1
(“Where both an original and an amended judgment exist, a party 2
may not [base] its own untimely request for alteration of the 3
[original] judgment on a wholly independent ground from the one 4
that gave rise to the amended judgment.” (citation omitted)). 5
We now adopt the timeliness rule stated by the Seventh 6
Circuit in McNabola as the law of our circuit. When both an initial 7
judgment and an amended judgment exist, the timeliness of a Rule 8
59(e) motion is determined from the date of the amended judgment 9
only if the motion bears some relationship to the district court’s 10
alteration of the first judgment. McNabola, 10 F.3d at 521. Phrased 11
differently, when a district court alters its judgment, a party 12
aggrieved by the alteration must ask for correction of that alteration to 13
have the timeliness of their correction determined from the date of 14
the altered judgment. Id. If the Rule 59(e) motion bears no 15
relationship to the district court’s alteration of the initial judgment, 16
the motion’s timeliness is determined from the date of the earlier 17
judgment. 18

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12 No. 15‐3415‐cv
As noted by the Seventh Circuit in McNabola, the time limit 1
stated in Rule 59(e) would be ineffective if parties could continually 2
file motions unrelated to the basis for the new judgment, thereby 3
preventing the judgment from becoming final. See id. Here, 4
although the district court entered a second judgment after we 5
vacated the damages award—and did not merely amend its own 6
judgment—the same logic applies because the district court offered 7
a remittitur of the damages awarded in the first judgment, which 8
Tru‐Art accepted. Tru‐Art, therefore, in effect seeks to amend the 9
first judgment, which did not include discretionary prejudgment 10
interest. Tru‐Art’s motion, which was filed more than a year after 11
the first judgment was entered, was untimely in relation to that 12
judgment and does not “bear some relationship” to Local 137’s 13
appeal, which gave rise to the second judgment. See id. 14
Further, even assuming arguendo that Tru‐Art’s motion for 15
prejudgment interest had been timely filed, we find the district court 16
appropriately considered the relevant factors stated in Wickham 17
Contracting Co. v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 955 18

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13 No. 15‐3415‐cv
F.2d at 834, and did not abuse its discretion in determining that 1
based on these factors prejudgment interest would overcompensate 2
Tru‐Art. 3
Accordingly, we affirm the district court’s denial of Tru‐Art’s 4
motion for prejudgment interest.3 5
II. Costs 6
Pursuant to Federal Rule of Civil Procedure 54(d)(1), costs 7
ordinarily “should be allowed to the prevailing party.” A motion 8
for costs, unlike one for prejudgment interest, is not a motion to alter 9
or amend a judgment under Rule 59(e) and is not subject to the same 10
timeliness standard. See Osterneck, 489 U.S. at 174‐75; Buchanan v. 11
Stanships, Inc., 485 U.S. 265, 268 (1988) (finding a motion for costs is 12
not brought pursuant to Rule 59(e) because it “does not involve 13
reconsideration of any aspect of the decision on the merits”). 14
3 Tru‐Art argues in the alternative—for the first time in its reply brief—
that its motion for prejudgment interest was timely filed pursuant to
Federal Rule of Civil Procedure 60(b). We ordinarily do not consider
issues raised for the first time in a reply brief. McBride v. BIC Consumer
Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). In any event, the argument
does not merit our attention because Tru‐Art does not state the basis for
which it should be granted relief under Rule 60(b).

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14 No. 15‐3415‐cv
A party seeking to recover costs in the United States District 1
Court for the Eastern District of New York, however, must file with 2
the Clerk of Court a notice of taxation of costs “[w]ithin thirty (30) 3
days after the entry of final judgment, or, in the case of an appeal by 4
any party, within thirty (30) days after the final disposition of the 5
appeal, unless this period is extended by the Court for good cause 6
shown.” E.D.N.Y. Local Civ. R. 54.1(a). “Any party failing to file a 7
notice of taxation of costs within the applicable thirty (30) day 8
period will be deemed to have waived costs.” Id. 9
Tru‐Art first requested to file a motion for costs on October 8, 10
2014—forty‐nine days after we had issued our mandate. Although 11
the district court allowed Tru‐Art to file its motion, it did not extend 12
the deadline for Tru‐Art to file a notice of costs with the Clerk. 13
Absent such an extension and because Tru‐Art has not provided any 14
reason for its failure to file this notice, much less shown good cause, 15
Tru‐Art has waived its claim for costs.4 16
4 Tru‐Art’s argument that its motion for costs is timely pursuant to
Rule 60(b) fails for the same reasons stated above with respect to Tru‐Art’s
motion for prejudgment interest.

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15 No. 15‐3415‐cv
III. Postjudgment Interest 1
The district court did not address Tru‐Art’s claim for 2
postjudgment interest, stating only that “Plaintiff’s motion for 3
prejudgment interest and costs is denied.” J.A. 163. On appeal, Tru‐ 4
Art argues that the district court abused its discretion in failing to 5
state any reason why it denied postjudgment interest. Local 137 did 6
not object to Tru‐Art’s request for postjudgment interest before the 7
district court and does not now dispute Tru‐Art’s entitlement to 8
postjudgment interest on appeal. 9
Pursuant to 28 U.S.C. § 1961, “[t]he award of post‐judgment 10
interest is mandatory on awards in civil cases as of the date 11
judgment is entered.” Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 12
1996). “[Section 1961ʹs] terms do not permit of the exercise of 13
judicial discretion in its application.” Carte Blanche (Singapore) Pte., 14
Ltd. v. Carte Blanche Intʹl, Ltd., 888 F.2d 260, 269 (2d Cir. 1989) 15
(citation omitted). Accordingly, we remand this case to the district 16
court to calculate and award postjudgment interest. 17

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16 No. 15‐3415‐cv
CONCLUSION 1
For the reasons stated above, we AFFIRM the district court’s 2
denial of Tru‐Art’s motion for prejudgment interest and costs. We 3
VACATE the district court’s order to the extent that it denied 4
postjudgment interest and REMAND the action for the district court 5
to calculate and award such interest. 6

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