Case 1:19-cv-01578-VEC Document 432 Filed 04/24/25 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`IN RE: NAVIDEA BIOPHARMACEUTICALS
`LITIGATION
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`VALERIE CAPRONI, United States District Judge:
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`4/24/25
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`19-CV-1578 (VEC)
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`OPINION AND ORDER
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`After five years of protracted litigation and incessant motion practice, this case was
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`whittled down to a single breach of contract counterclaim against Navidea Biopharmaceuticals,
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`Inc. (“Navidea”) by Michael Goldberg. After a three-day trial, the jury returned a verdict in
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`Navidea’s favor. Verdict Sheet, Dkt. 408. Goldberg moved pursuant to Federal Rule of Civil
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`Procedure 60(b)(6) and 54(b) to reinstate his quantum meruit claim, Dkt. 412, which the Court
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`had dismissed in response to Navidea’s Motion to Dismiss more than five years ago. Dkt. 61
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`(“MTD Op.”). The Court construes Goldberg’s motion as one for reconsideration of that
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`decision. For the reasons set forth below, Goldberg’s motion is DENIED.
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`Following trial, both parties moved for attorneys’ fees pursuant to a fee-shifting provision
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`in the August Agreement, the contract that gave rise to this dispute. Navidea Fees Mot., Dkt.
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`423; Goldberg Fees Mot., Dkt. 425. That provision shifts the obligation to pay the prevailing
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`party’s attorneys’ fees to the losing party. Because neither party is the prevailing party, both
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`motions for fees are DENIED.
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`BACKGROUND1
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`This litigation began when Navidea sued Goldberg for breach of contract, among other
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`claims. Am. Compl., Dkt. 15. Goldberg asserted multiple counterclaims, including breach of
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`The Court assumes familiarity with the underlying facts and procedural history of this case, which are set
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`forth in detail in the Court’s multiple opinions in this case. See MTD Op., Dkt. 61; Motion for Attorneys’ Fees
`Opinion, Dkt. 134; Opinion Adopting Report & Recommendation, Dkt. 207; Motion for Reconsideration Opinion,
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`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #:
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`DATE FILED:
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`Case 1:19-cv-01578-VEC Document 432 Filed 04/24/25 Page 2 of 14
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`contract and quantum meruit, against Navidea and its subsidiary Macrophage. Answer, Dkt. 31.
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`Because Goldberg did not allege that the August Agreement is invalid or unenforceable, the
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`Court dismissed his quantum meruit counterclaim; although quantum meruit can be alleged in
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`the alternative to breach of contract, to do so requires allegations (also in the alternative) that the
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`contract is not enforceable. See MTD Op. at 17–18. After extensive motion practice, the Court
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`resolved on summary judgment all of the claims other than Goldberg’s breach of contract claim
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`against Navidea. See Summary Judgment Op. at 28. Some claims were resolved in Goldberg’s
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`favor, id. at 12–13, 19, and another was resolved in Macrophage’s favor, see id. at 28.
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`In advance of the final pretrial conference, having received proposed requests to charge
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`and proposed verdict sheets from the parties, Joint Pretrial Order, Dkt. 386, the Court provided
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`the parties with its proposed preliminary jury instructions, final jury charge, and verdict sheet.
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`The proposed preliminary jury instructions and charge both stated that in order to prevail on his
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`breach of contract claim, Goldberg had to prove, inter alia, that there was a valid contract
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`between him and Navidea. Declaration of Gregory Zimmer (“Zimmer Decl.”) Ex. 1 at 4, Dkt.
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`414–1; id. Ex. 2 at 12, Dkt. 414–2.
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`At the final pretrial conference, Goldberg objected to the Court’s proposed preliminary
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`jury instructions and final jury charge, asserting that the Court had already determined that the
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`August Agreement was a valid and binding contract when it decided Navidea’s motion to
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`Dkt. 261; Daubert Opinion, Dkt. 290; Summary Judgment Opinion, Dkt. 339; Motion for Reconsideration Opinion,
`Dkt. 351.
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`The Court will refer to the relevant submissions as follows: Goldberg memorandum of law in support of his
`motion for reconsideration, Dkt. 413, as “Goldberg Mem.”; Navidea’s memorandum of law in opposition to
`Goldberg’s motion for reconsideration, Dkt. 417, as “Navidea Opp.”; Goldberg’s reply in support of his motion for
`reconsideration, Dkt. 418, as “Goldberg Reply”; Navidea’s motion for attorney fees, Dkt. 423, as “Navidea Fees
`Mot.”; Goldberg’s motion for attorney fees, Dkt. 425, as “Goldberg Fees Mot.”; Navidea’s response in opposition to
`Goldberg’s Fees Motion, Dkt. 429, as “Navidea Fees Opp.”; and Goldberg’s response in opposition to Navidea’s
`Fees Motion, Dkt. 430, as “Goldberg Fees Opp.”
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`dismiss his counterclaims. Zimmer Decl. ¶ 6. Because the Court intended to submit the question
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`of the August Agreement’s validity to the jury, Goldberg moved for a declaration that the August
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`Agreement between the parties was a valid and binding contract and for leave to reinstate his
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`quantum meruit claim. Goldberg Mot., Dkt. 398. The Court denied the motion. December 17,
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`2024 Order, Dkt. 406.
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`After both parties had rested, the jury was charged as follows:
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`To prevail on his breach of contract claim, Dr. Goldberg must prove, by a
`preponderance of the evidence, three elements:
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`First, that there was a valid contract between him and Navidea;
`Second, that Navidea did not do what it was required to do under the
`contract; and
`Third, that Dr. Goldberg was damaged by Navidea’s breach.
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`Jury Instructions at 11, Dkt. 409. The jury returned a verdict in favor of Navidea, finding that
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`Goldberg did not prove his breach of contract claim. See Verdict Sheet.
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`Goldberg, relying on Fed. R. Civ. P. 54(b) and 60(b)(6) and the Court’s inherent
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`authority, moved to “reinstate” his quantum meruit claim. Goldberg Mot., Dkt. 412. For the
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`reasons that follow, that motion is DENIED. Both parties moved for an award of attorneys’ fees
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`pursuant to the fee shifting provision in the August Agreement. Those motions are also
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`DENIED.
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`DISCUSSION
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`I.
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`Legal Standard for Goldberg’s Motion to “Reinstate” his Quantum Meruit
`Claim
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`Rule 60(b)(6) is a catch-all provision that permits a district court to grant relief from a
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`final judgment for “any . . . reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Rule 54(b)
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`provides that “any order or other decision . . . that adjudicates fewer than all the claims or the
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`rights and liabilities of fewer than all the parties does not end the action as to any of the claims or
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`parties and may be revised at any time before the entry of a judgment adjudicating all the claims
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`and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).
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`As a general matter, Rule 60(b) motions are “disfavored”, Simon v. United States, No.
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`12- CV-5209, 2020 WL 832887, at *3 (S.D.N.Y. Feb. 20, 2020), and relief is “properly invoked
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`only when there are extraordinary circumstances justifying relief” or “when the judgment may
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`work an extreme and undue hardship,” Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986)
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`(citations omitted). See also Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004) (cleaned up)
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`(“[A] proper case for Rule 60(b)(6) relief is only one of extraordinary circumstances, or extreme
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`hardship.”). The burden of proof is on the party seeking relief from the judgment. Marrero
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`Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004).
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`Because Goldberg seeks to reinstate a claim that the Court already dismissed, his motion
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`is construed as a motion for reconsideration. The standard governing motions for
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`reconsideration “is strict, and reconsideration will generally be denied unless the moving party
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`can point to controlling decisions or data that the court overlooked.” Analytical Survs., Inc. v.
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`Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted); see also S.D.N.Y. Loc.
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`Rule 6.3 (requiring the movant to “set[ ] forth concisely the matters or controlling decisions
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`which the moving party believes the court has overlooked”). Such a motion “is neither an
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`occasion for repeating old arguments previously rejected nor an opportunity for making new
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`arguments that could have been previously advanced.” Associated Press v. U.S. Dep’t of Def.,
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`395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005); see also Goonan v. Fed. Reserve Bank of N.Y., No. 12-
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`CV-3859, 2013 WL 1386933, at *2 (S.D.N.Y. Apr. 5, 2013) (citation omitted) (“Simply put,
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`courts do not tolerate such efforts to obtain a second bite at the apple.”). Rather, reconsideration
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`is appropriate “only when the [moving party] identifies an intervening change of controlling law,
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`the availability of new evidence, or the need to correct a clear error or prevent manifest
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`injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104
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`(2d Cir. 2013) (citation omitted). The purpose of Rule 6.3 is to “ensure the finality of decisions
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`and to prevent the practice of a losing party examining a decision and then plugging the gaps of a
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`lost motion with additional matters.” Naiman v. N.Y. Univ. Hosps. Ctr., No. 95-CV-6469, 2005
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`WL 926904, at *1 (S.D.N.Y. Apr. 21, 2005) (citation omitted). The decision whether to grant a
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`motion for reconsideration is left to the court’s discretion. Aczel v. Labonia, 584 F.3d 52, 61 (2d
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`Cir. 2009).
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`II.
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`Goldberg’s Motion for Reconsideration to Reinstate his Quantum Meruit Claim
`is Denied
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`Goldberg argues that his quantum meruit claim should be reinstated because the Court
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`“reversed” its prior decision that the August Agreement was a valid and binding contract when it
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`charged the jury that Goldberg had to prove that the August Agreement was a valid contract (as
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`one of the three elements of a breach of contract claim). Goldberg Mem. at 10, Dkt. 413.
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`Goldberg asserts that he was prejudiced by the Court’s early decision dismissing the claim
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`because if he had been able to pursue his quantum meruit claim in the alternative, he would have
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`taken discovery on that claim and would have developed damages theories in relation to it. Id. at
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`5. Further, Goldberg contends that he is not challenging the propriety of the Court’s jury
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`instructions, but rather he seeks relief in light of what he perceives to be the Court’s reversal of
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`its prior order. Goldberg Reply at 6, Dkt. 418.
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`A. Goldberg’s Motion is Untimely
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`Goldberg’s motion, which seeks to “reinstate” a claim that was dismissed more than five
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`years ago, is untimely. Under this district’s local rules, a motion for reconsideration must be
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`filed within 14 days of the court order being challenged. S.D.N.Y. Loc. Rule 6.3. Here, the
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`Court’s opinion about which Goldberg complains was dated December 26, 2019, MTD Op., and
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`this motion was filed on January 15, 2025, Dkt. 412.
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`Goldberg contends that his motion is timely, as he raised his issues with the preliminary
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`and final jury instructions at the final pretrial conference, and because the Court permitted him to
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`file post-trial motions. Goldberg Reply at 5–6. None of Goldberg’s arguments as to timeliness
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`carries the day. Goldberg’s argument is based on his view that he raised this issue as soon as he
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`understood that the Court had reversed its prior decision (in fact, the Court did not reverse any
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`prior decision). The fact that the Court permitted him to file a motion following trial does not re-
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`set the time frame within which he could have sought reconsideration of the court’s order
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`dismissing his quantum meruit claim or eliminate the import of the local rules.
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`The untimeliness of a “motion for reconsideration under Local Civil Rule 6.3 . . . is
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`reason enough to deny the motion.” McGraw-Hill Glob. Educ. Holdings, LLC v. Mathrani, 293
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`F. Supp. 3d 394, 397 (S.D.N.Y. 2018) (concluding that such a motion filed twenty-seven days
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`after the order at issue was untimely). Still, the Court proceeds to evaluate Goldberg’s motion
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`under Rule 60, as the timeliness requirement in Local Rule 6.3 does not apply if another “statute
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`or rule” provides otherwise. S.D.N.Y. Loc. Rule 6.3. Under Rule 60, a motion “must be made
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`within a reasonable time.” Fed. R. Civ. P. 60(c)(1). Rule 54(b) provides that any court order or
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`decision “may be revised at any time before the entry of a judgment adjudicating all the claims
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`and all the parties’ rights and liabilities”; it does not, however, bestow on a party the right to file
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`a motion without any time constraints. Fed. R. Civ. P. 54(b). Although Goldberg’s motion for
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`reconsideration that was filed five years after the decision complained-of was not filed within “a
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`reasonable time,” the Court will proceed to consider the merits of the motion.
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`B. The Motion For Reconsideration is Meritless
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`Goldberg fails to articulate “extraordinary circumstances” or “extreme hardship” and
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`otherwise fails to meet the rigorous standard for a motion for reconsideration. Contrary to
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`Goldberg’s argument, the Court did not “reverse” its prior rationale for dismissing his quantum
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`meruit claim nor did it “hold” in the context of its opinion on Navidea’s motion to dismiss that
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`there was a valid contract. In the opinion on the motion to dismiss, the Court held that Goldberg
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`had not adequately alleged a claim for quantum meruit in the alternative to his breach of contract
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`claim because he did not challenge the validity of the contract. MTD Op. at 17–18.
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`This litigation arose from a poorly drafted contract; at the summary judgment phase, the
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`Court held that because the provision governing Navidea’s obligation to issue stock to Goldberg
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`was ambiguous, the intent of the parties regarding the August Agreement was a question of fact
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`to to be tried. Summary Judgment Op. at 25, Dkt. 339. At trial, in both the preliminary jury
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`instructions and final jury charge, the Court instructed the jury on the three elements of a breach
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`of contract claim under Delaware law. As the counterclaim plaintiff, it was Goldberg’s burden
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`to prove those elements. It is axiomatic that the first element that a plaintiff must prove in a
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`breach of contract case is the existence of a contract. See VLIW Tech., LLC v. Hewlett-Packard
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`Co., 840 A.2d 606, 612 (Del. 2003). Goldberg erroneously contends that the Court required the
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`jury to decide whether the August Agreement was a valid and binding contract. That is simply
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`false. Although prior to trial Goldberg asked the Court to include a question on the verdict sheet
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`asking whether the August Agreement was a valid and binding agreement, Joint Pretrial Order
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`Ex. 4 at 22, Dkt. 386–4, the verdict sheet that was actually submitted to the jury asked whether
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`Goldberg proved all of the elements of his breach of contract claim, a question to which he did
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`not object. See Verdict Sheet. As to contract formation, the jury was charged that the parties
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`agreed that there was an offer, acceptance, and consideration but disagreed on what was required
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`of each party. See Jury Instructions at 12. Accordingly, the jury was never asked to determine,
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`as a standalone question, whether there was a valid contract.2
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`In short, even if this motion were timely, it would be denied because it is meritless.
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`Goldberg is not permitted to turn back the clock five years to reinstate a quantum meruit claim
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`because the jury rejected his breach of contract claim. Litigation would never end if that were a
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`standard practice. Accordingly, Goldberg’s motion for “reinstatement” of his quantum meruit
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`claim is denied.
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`III. The Parties’ Motions for Attorneys’ Fees are Denied
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`The parties each request an award of attorneys’ fees and costs. Goldberg asserts that he
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`incurred $752,532.00 in attorneys’ fees and costs successfully defending two of Navidea’s
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`contract claims at the summary judgment stage, Gregory Zimmer Affidavit ¶¶ 25, 27, 40, 43, 46,
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`49, Dkt. 427; Navidea asserts that its fees and costs for the entirety of this litigation total
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`$1,843,325.33, Navidea Fees Mot. at 12, Dkt. 424.
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`Under the American Rule and Delaware law, each party is required to pay its own legal
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`fees. Sternberg v. Nanticoke Mem’l Hosp., Inc., 62 A.3d 1212, 1220 (Del. 2013). “An exception
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`to [the American Rule] is found in contract litigation that involves a fee shifting provision. In
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`these cases a trial judge may award the prevailing party all the costs it incurred during litigation.”
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`Id. at 1218 (citing Mahani v. EDIX Media Grp., Inc., 935 A.2d 242, 245 (Del. 2007)). Absent
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`“qualifying language that fees are to be awarded claim-by-claim or on some other partial basis, a
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`contractual provision entitling the prevailing party to fees will usually be applied in an all-or-
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`Given Goldberg’s position, it is surprising that he did not object to the proposed verdict sheet or propose a
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`special interrogatory to determine whether the premise for the quantum meruit claim he wanted “reinstated” had
`been satisfied, i.e., that the finder of fact concluded that there was no contract.
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`nothing manner.” AFH Holding. & Advisory, LLC v. Emmaus Life Scis., Inc., 2014 WL
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`1760935, at *2 (Del. Super. Ct. Apr. 16, 2014) (citation omitted). In an all-or-nothing case, the
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`Court analyzes the “predominance in the litigation” to determine the prevailing party. Duncan v.
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`STTCPL, LLC, 2020 WL 829374, at *15 (Del. Super. Ct. Feb. 19, 2020). “To establish
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`predominance, the party must prevail on the case’s chief issue[s].” Id. (citing 2009 Caiola Fam.
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`Tr. v. PWA, LLC, 2015 WL 6007596, at *33 (Del. Ch. Oct. 14, 2015)).
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`The fee-shifting provision (the “Fee Provision”) of the August Agreement provides:
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`Any action brought to enforce the terms of this Agreement or adjudicate any
`dispute arising out of this Agreement, involving a request for a temporary or
`preliminary injunction, shall be brought exclusively in the federal and state courts
`located in New York, New York. . . . The prevailing party in any such dispute will
`be entitled to recover its reasonable attorneys’ fees and costs.
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`Navidea Fees Mot., Ex. D at 2, Dkt. 424–13.
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`A. The Court Adopts the All-or-Nothing Approach
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`The Court must first address the threshold issue of the interpretation of the Fee Provision
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`before deciding which party, if any, is the “prevailing party.” Navidea contends that, under
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`Delaware law, the Court must adhere to “an all-or-nothing approach involving an inquiry into
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`which party predominated in the litigation, as opposed to a claim-by-claim or other partial basis
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`approach” when assessing the Fee Provision. Navidea Fees Opp. at 3, Dkt. 429 (citing Bako
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`Pathology LP v. Bakotic, 288 A.3d 252, 281 (Del. 2022)). If the parties had intended for “a
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`claim-by-claim recovery,” then they would have needed to use specific language in the Fee
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`Provision to “authorize the court to exercise discretion to award less than ‘all’ the prevailing
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`party’s fees in a case where the prevailing party had achieved a less than full victory.” Id. at 4
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`n.3 (citing Duncan, 2020 WL 829374, at *15). Navidea argues that Goldberg could have
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`contracted for a different arrangement than the all-or-nothing approach, but the parties used the
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`term “prevailing party,” which is a legal “term of art that the parties bargained for in the
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`contract.” Id. at 5 (citing Eletson Holdings, Inc. v. Levona Holdings Ltd., 731 F. Supp. 3d 531,
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`610 (S.D.N.Y. 2024)). In contrast, Goldberg claims that the Court already decided to apportion
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`fees on a claim-by-claim basis, having determined on summary judgment that Goldberg was
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`entitled to fees on Navidea’s breach of contract claim, Summary Judgment Op. at 13 n.9, and
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`Navidea’s breach of the implied covenant of good faith and fair dealing claim, id. at 19 n.13, and
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`that Defendant Macrophage (collectively with Navidea, the “Company”) was entitled to fees on
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`Goldberg’s breach of contract claim against Macrophage, id. at 28 n.19. Goldberg contends that
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`the Court’s prior decision is settled, and the Court is not required to adopt the all-or-nothing
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`approach. Goldberg Fees Opp. at 4, Dkt. 430.
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`Although the Court previously held that the parties were entitled to fees pursuant to the
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`August Agreement for the claims on which they respectively prevailed at summary judgment, the
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`parties have since briefed Delaware law regarding fee shifting provisions in mixed-results cases
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`like this one. In light of that briefing, the Court reconsiders its prior decision and finds that the
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`Fees Provision requires the traditional application of an all-or-nothing approach. That approach
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`requires determining which party, if either, predominated in the ligation. See Bako Pathology
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`LP, 288 A.3d at 281. Having chosen the term “prevailing party” in the Fees Provision, the Court
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`concludes that the parties intended for the term to be applied as courts have traditionally treated
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`the term. See Brandin v. Gottlieb, No. CIV A 14819, 2000 WL 1005954, at * 28 (Del. Ch. July
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`13, 2000).
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`In Bako Pathology, the Delaware Supreme Court examined fee-shifting provisions
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`contained in two separate contracts. See 288 A.3d at 279–81. The parties’ Employment
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`Agreement provided fee-shifting “to the prevailing party in any legal proceeding to construe,
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`apply, interpret, enforce or defend any of the Company’s rights in this Agreement,” while the
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`parties’ Partnership Agreement provided fee-shifting to the “prevailing party in any dispute
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`between the parties hereto,” and defined “prevailing party” as “the party who is determined in
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`the proceeding to have prevailed or who prevails by dismissal, default or otherwise.” Id. at 280.
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`The Court found a difference between the two contracts: the Partnership Agreement speaks of a
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`“prevailing party” in terms of the overall dispute while the Employment Agreement speaks to the
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`“prevailing party” in terms of success on claims involving rights under the Employment
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`Agreement. Id. at 281. The Court found the difference to be important and held that fees should
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`have been awarded under the Employment Agreement but not the Partnership Agreement. The
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`result varied even though the term “prevailing party” appeared in both provisions.
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`In this case, the Fee Provision, which awards fees to the “prevailing party in any such
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`dispute” is similar to the operative provision in the Partnership Agreement in Bako; the Delaware
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`Supreme Court held that provision required fee shifting for the prevailing party in the overall
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`dispute. Navidea Fees Mot., Ex. D at 2; see 288 A.3d at 282. Because the parties have not
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`presented any evidence or provided any context from which the Court could conclude that the
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`parties intended for fees to be apportioned on a claim-by-claim basis when drafting the August
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`Agreement, the Fees Provision is a clear and unequivocal fee shifting provision that shifts fees
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`and costs on an all-or-nothing basis.
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`B. Neither Party Is the “Prevailing Party” for Purposes of Attorneys’ Fees
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`Having adopted the all-or-nothing approach under Delaware law, whether to award
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`attorneys’ fees and costs hinges on whether Goldberg or Navidea is the “prevailing party” now
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`that all the dust has settled. Navidea asserts that it is the “prevailing party,” arguing that it
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`prevailed on “on the case’s chief issue” – whether Navidea owed Goldberg millions of shares of
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`Navidea stock. Navidea Fees Opp. at 4 (quoting Duncan, 2020 WL 829374, at *15). Because a
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`jury held that Goldberg did not prove his breach of contract claim, Navidea contends that it is the
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`only prevailing party under Delaware law. Id. at 5. Conversely, Goldberg asserts that he is the
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`“prevailing party” because he defeated Navidea’s two breach of contract claims, and Navidea
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`voluntarily withdrew its third claim for declaratory judgment. Goldberg Fees Opp. at 7; Navidea
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`Letter, Dkt. 411. Although Navidea prevailed at trial in defeating Goldberg’s breach of contract
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`claim, and Macrophage successfully defeated Goldberg’s breach of contract claim, by
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`Goldberg’s calculations, because he defeated Navidea and Macrophage’s breach of contract
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`claims against him, he “would be the prevailing party by a margin of 3 to 1.” Goldberg Fees
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`Opp. at 7.
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`Although the Fee Provision of the August Agreement is a valid and enforceable
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`contractual term, neither Navidea nor Goldberg can be crowned the prevailing party. Delaware
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`courts “typically look[] to the substance of a litigation to determine which party predominated.”
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`Vianix Delaware LLC v. Nuance Commc’ns, Inc., No. 3801, 2010 WL 3221898, at *28 (Del. Ch.
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`Aug. 13, 2010) (citation omitted). Although a party does not have to win every disputed claim to
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`be a prevailing party under Delaware law, courts have discretion to find that neither party is a
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`“prevailing party” in cases with mixed results. See Mrs. Fields Brand, Inc. v. Interbake Foods,
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`LLC, No. 12201, 2018 WL 300454, at *2 (Del. Ch. Jan. 5, 2018) (finding no prevailing party
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`when there were two “chief” issues in the case and the parties each prevailed on one issue);
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`Duncan, 2020 WL 829374, at *15 (Del. Super. Ct. Feb. 19, 2020) (“Considering the results of
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`the parties’ summary judgment motions, the parties split their success. Namely, both parties
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`succeeded as to one chief issue, but failed as to the other. . . . Because [the parties] each won and
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`lost on a chief issue in this case, on balance, there can be no finding that either predominated in
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`Case 1:19-cv-01578-VEC Document 432 Filed 04/24/25 Page 13 of 14
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`the litigation so as to be the ‘prevailing party.”’); Vianix Delaware LLC, 2010 WL 3221898, at
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`*28 (finding that because “each side prevailed on a handful of issues,” including successful
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`defenses and recovery for damages much less than claimed, there was no prevailing party and
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`declining all requests for attorneys’ fees).
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`Both Goldberg and Navidea won some claims and lost on others. The chief issue of this
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`case revolved around the interpretation of the poorly drafted August Agreement and the parties’
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`respective obligations. Goldberg successfully defeated Navidea’s two contractual claims
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`asserted against him, and Navidea withdrew its declaratory judgment claim following trial.
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`Macrophage, a subsidiary of Navidea, defeated Goldberg’s breach of contract claim on summary
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`judgment, and Navidea defeated Goldberg’s breach of contract claim at trial. To be declared the
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`prevailing party, a litigant must achieve “predominance in the litigation.” Brandin, 2000 WL
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`1005954, at *28. Neither Goldberg nor Navidea has managed that here. The parties have
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`litigated for years, equally split the core issues of this litigation, and find themselves in exactly
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`the same position vis-à-vis each other and who-owes-whom under the August Agreement as they
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`were in prior to Navidea beginning the litigation. Under these circumstances, the Court is
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`constrainted to conclude that neither party “predominated.” Given this equipoise, justice
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`demands that both parties pay their own attorneys’ fees and costs.
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`The parties’ motions for fees are DENIED.
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`Case 1:19-cv-01578-VEC Document 432 Filed 04/24/25 Page 14 of 14
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`CONCLUSION
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`For the foregoing reasons, Goldberg’s motion for reconsideration along with the parties’
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`motions for fees are all DENIED. The Clerk of Court is respectfully directed to terminate the
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`open motions at docket entries 412, 423, and 425 and close the case.
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`SO ORDERED.
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`Date: April 24, 2025
` New York, NY
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`_________________________________
` VALERIE CAPRONI
` United States District Judge
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