901 F.2d 36 (4th Cir. 1990), 89-1418, English & Smith v. Metzger

Docket Nº:89-1418.
Citation:901 F.2d 36
Party Name:ENGLISH & SMITH, a Virginia partnership, Plaintiff-Appellee, v. Michael H. METZGER, Defendant-Appellant.
Case Date:April 17, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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901 F.2d 36 (4th Cir. 1990)

ENGLISH & SMITH, a Virginia partnership, Plaintiff-Appellee,


Michael H. METZGER, Defendant-Appellant.

No. 89-1418.

United States Court of Appeals, Fourth Circuit

April 17, 1990

Argued Dec. 6, 1989.

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Jeffrey Dwight Ullman, Ullman & Holtzman, New York City, for defendant-appellant.

David Benjamin Smith, English & Smith, Alexandria, Va., for plaintiff-appellee.

Julian Karpoff, Karpoff, Title & Mitnick, Arlington, Va., on brief, for defendant-appellant.

Before WIDENER, CHAPMAN, and WILKINSON, Circuit Judges.

WIDENER, Circuit Judge:

Michael Metzger appeals from the district court's entry of summary judgment against him on plaintiff's contract claim. Metzger's only assignment of error challenges the district court's exercise of in personam jurisdiction. We affirm.


In late 1986 Michael Metzger, a California lawyer, undertook to represent Robert Pemberton in a criminal prosecution involving drugs and a related civil forfeiture proceeding, both of which were pending in the United States District Court for the Northern District of California. In November 1986 Metzger telephoned David B. Smith, a partner in the plaintiff law firm, and agreed with Smith that Smith would become his co-counsel in the Pemberton forfeiture case on a contingent fee basis. Smith, a Virginia lawyer whose offices are located in Alexandria, Virginia, is a recognized authority on forfeiture law and is the author of the only book on the subject. 1 To memorialize their arrangement, Metzger and Pemberton signed a contingent fee agreement in San Francisco and mailed it to Smith. Smith signed the agreement in Alexandria and mailed it back to Metzger.

The contingent fee agreement provided that, if Metzger and Smith were successful in preventing the forfeiture of any or all of the property described in the agreement, they would receive fifty percent of the property or fifty percent of its fair market value, with the other fifty percent going to Pemberton. Metzger and Smith orally agreed that they would divide their share of any recovery equally; that is, Metzger and Smith each would receive twenty-five percent of the total property saved, or twenty-five percent of its value.

Smith performed all his work in Virginia in connection with the defense of the forfeiture case, and Metzger performed all his work in California. As a part of their work in defending the case, Smith and Metzger also exchanged several telephone calls and letters between Virginia and California.

On October 23, 1987, Pemberton, Metzger, and the government entered into a plea agreement that effectively settled both the criminal case and the forfeiture proceeding. A stipulation of settlement was filed in the forfeiture proceeding on November 18, 1987. The settlement provided that Pemberton would forfeit all property in issue here except $80,000,

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which was to be paid out of proceeds from the sale of a wine collection that was part of the seized property.

After the funds were received, 2 Metzger contended that the forfeiture case was settled solely as a result of his work in the related criminal case and refused to pay Smith his $20,000 share of the recovery. Smith then brought this breach of contract suit in the United States District Court for the Eastern District of Virginia. The district court entered...

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