Bruton v. Carnival Corp.

• Decision Date: 21 August 2012
• Docket Number: Case No. 11–21697–CV.
• Citation: 916 F.Supp.2d 1262
• Parties: Berneva BRUTON, Plaintiff, v. CARNIVAL CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Florida

916 F.Supp.2d 1262

Berneva BRUTON, Plaintiff,

v.CARNIVAL CORPORATION, Defendant.

Case No. 11–21697–CV.

United States District Court,

S.D. Florida.

Aug. 21, 2012.

David Charles Appleby, John Heyward Hickey, Hickey Law Firm, P.A., Miami, FL, Jeffrey Charles Fox, Greenspoon Marder, P.A., Fort Lauderdale, FL, Juan Pablo Gonzalez–Sirgo, J.P. Gonzalez–Sirgo, P.A., Coral Gables, FL, for Plaintiff.

John Michael Magee, Carnival Cruise Lines, Miami, FL, for Defendant.

ORDER

EDWIN G. TORRES, United States Magistrate Judge.

This matter is before the Court on two pending motions filed in this closed case that relate to a purported charging lien filed by pre-litigation counsel to Plaintiff, Attorney Jeffrey Fox (“Fox”). First, present counsel for Plaintiff filed a Motion to Allow Settlement Distribution and to Strike Charging Lien [D.E. 38], that is fully ripe for disposition. Fox responded in opposition to that motion [D.E. 43]. Second, at the same time Fox filed his own Motion for Attorneys' Fees and “Notice of Charging Lien” [D.E. 42]. That latter motion relates to the same issues as the former motion and seeks to further the argument that Fox and his law firm are entitled to fees and costs under a charging lien in this case.

I. BACKGROUND

A lengthy recitation of all the particular details of the parties' pending dispute is not necessary, given the Court's rulings herein. According to Attorney Fox, he and his firm were retained by Plaintiff in August 2010 to pursue personal injury claims against the Defendant. Fox claims that legal work was undertaken on Plaintiff's behalf from that date through February 23, 2011, which included review of medical records, legal research, together with communications with the client, the client's doctors, and the Defendant. Significantly, however, no time was expended by Fox or his firm in filing any litigation on the client's behalf, especially not this federal action. Fox acknowledges, in fact, that on March 14, 2011, Fox and his firm were discharged by the Plaintiff as counsel on her behalf.

Following Fox's discharge, the Plaintiff sought other counsel to represent her. Attorney Gonzalez–Sirgo filed this action on May 11, 2011. [D.E. 1]. Plaintiff's present counsel, John Hickey of the Hickey Law Firm, P.A., filed his appearance as co-counsel of record for Plaintiff shortly thereafter. [D.E. 9]. The litigation proceeded until it was successfully settled at mediation on or about December 23, 2011. Fox and his firm had no involvement in the litigation after March 2011, which consequently means that Fox never filed any appearance in this case as counsel for Plaintiff. For the same reason, Fox did not participate in the mediation that resulted in the settlement of the case.

Importantly, there is no factual dispute that after Fox's discharge he never filed a notice of charging lien in this action, nor did he ever send his client any such notice. Instead, Fox confirms that he had no other contact with the case after his discharge until he received an email from Plaintiff's present counsel on or about May 16, 2012, advising him of the settlement and asking if Fox or his co-counsel intended to claim any entitlement to fees and costs against their former client. Fox then, for the first time, forwarded a written notice of client on or about May 17, 2012. Fox did not file with the Court, however, any such notice of charging lien. The Court, pursuant to the settlement, had already closed the case back in December 2011. The Court then formally dismissed the case with prejudice on May 24, 2012.

Plaintiff then filed the pending motion for approval of distribution and/or motion to strike charging lien, arguing that he had received a charging lien demand from Fox and his firm that should be stricken as untimely and defective. [D.E. 38]. Fox responded in opposition, arguing that his notice was timely since he had not heard of this case at all until counsel communicated with him and, further, that he was entitled to reimbursement of fees and costs incurred in representing the client prior to his discharge. Plaintiff replied, pointing out that former counsel had presented no authority showing that his notice was timely under Florida law or otherwise valid where counsel did not participate in the action and did not contribute to the resolution of the case. Fox filed his own cross-motion for fees [D.E. 42], which was the first time that he filed a notice in this action seeking to effectuate his charging lien.

II. ANALYSIS

A. The Court Lacks Jurisdiction

The federal courts are courts of limited jurisdiction. We possess only the power strictly authorized by the Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The court's jurisdiction cannot be be expanded merely through judicial decree. Id. (citations omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal citations omitted).

With the underlying claims in this litigation now being settled and dismissed, this Court's jurisdiction would ordinarily be extinguished. Any contractual dispute between Fox and Plaintiff, his client, are governed by state law. That dispute gives rise to no claims arising under federal law. And Fox and Plaintiff are all residents of the state of Florida; thus, diversity of jurisdiction is lacking. Accordingly, such dispute(s) would normally be beyond the limited jurisdiction that this federal court would have. Florida state court, which does have general jurisdiction over these parties and these claims, would be the appropriate forum to litigate such a dispute, assuming that counsel wished to pursue it and face the defenses and likely counter-claims available in an action at law.

There are narrow exceptions, however, to this general rule. One such exception, the doctrine of ancillary jurisdiction—that has been codified in part through federal statute, 28 U.S.C. § 1367—“recognizes federal courts' jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them.” Id. at 378, 114 S.Ct. 1673. Justice Scalia's opinion for the Court in Kokkonen described this ancillary jurisdiction as a way “to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379–80, 114 S.Ct. 1673. The Court, however, emphasized that the doctrine's limits are quite narrow. “[N]o controversy can be regarded as dependent or ancillary unless it has direct relation to property or assets actually or constructively drawn into the court's possession or control by the principal suit.” Id. (quoting Fulton Nat'l Bank of Atlanta v. Hozier, 267 U.S. 276, 280, 45 S.Ct. 261, 69 L.Ed. 609 (1925)).

As other cases have described it, ancillary jurisdiction “rests on the premise that a federal court acquires jurisdiction of a case or controversy in its entirety,” Jenkins v. Weinshienk, 670 F.2d 915, 918 (10th Cir.1982), and “may extend to claims having a factual and logical dependence on ‘the primary lawsuit.’ ” Peacock v. Thomas, 516 U.S. 349, 355, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996) (citations omitted). “The basis of the doctrine of ancillary jurisdiction is the practical need ‘to protect legal rights or effectively to resolve an entire, logically entwined lawsuit.’ ” Id. (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 377, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978)).

Ancillary jurisdiction is thus not a permissive doctrine; rather, it represents the “constitutional limits of federal judicial power.” Owen Equip., 437 U.S. at 371, 98 S.Ct. 2396. Although a district court's exercise of ancillary jurisdiction is discretionary, the court must be cautious in its willingness to expand its jurisdiction. See, e.g., Foster v. Bd. of Trs. of Butler County Comm. Coll., 771 F.Supp. 1118, 1120 (D.Kan.1991).

One well recognized application of this narrow doctrine is the resolution of disputes between a party to a federal lawsuit and that party's attorneys over the proper amount of fees due the attorneys for work performed in the lawsuit. See, e.g., Gottlieb v. GC Financial Corp., 97 F.Supp.2d 1310 (S.D.Fla.1999) and Zaklama v. Mount Sinai Medical Center, 906 F.2d 650 (11th Cir.1990) (both adjudicating post-judgment attorneys' fees disputes under Florida law charging liens); see also Rivera–Domenech v. Calvesbert Law Offices PSC, 402 F.3d 246, 250 (1st Cir.2005) (“Courts have rested the exercise of jurisdiction over [attorney-client] fee disputes related to proceedings before them on the doctrine of ancillary jurisdiction.”); Garcia v. Teitler, 443 F.3d 202, 207–09 (2nd Cir.2006) (federal courts have ancillary jurisdiction to address attorney fee disputes in ongoing criminal cases); Garrick v. Weaver, 888 F.2d 687, 690 (10th Cir.1989) (quoting Jenkins, 670 F.2d at 918: “It is well established that ‘[d]etermining the legal fees a party to a lawsuit properly before the court owes its attorney, with respect to the work done in the suit being litigated, easily fits the concept of ancillary jurisdiction.’ ”); Foster, 771 F.Supp. at 1120 (“Courts have exercised ancillary jurisdiction over disputes between attorneys and clients over the proper amount of attorneys' fees due to the attorneys for work performed in the underlying litigation.”).

In the context of attorney fee disputes, the exercise of ancillary jurisdiction is particularly appropriate because courts have inherent jurisdiction to supervise the bar and to insure compliance with the reasonableness standard set forth in the attorneys' rules of ethics and professional responsibility. E.g., Garcia, 443 F.3d at 207;Rosquist v. Soo Line R.R., 692 F.2d 1107, 1111 (7th Cir.1982); In re Michaelson, 511 F.2d 882, 888 (9th Cir.1975); Broughten v. Voss, 634 F.2d 880 (5th Cir.1981) (...