Luther v. John W. Stone Oil Distrib., L.L.C.
| Decision Date | 15 July 2014 |
| Docket Number | CIVIL ACTION NO: 11-1184 |
| Parties | DENNIS LUTHER, JR. v. JOHN W. STONE OIL DISTRIBUTOR, L.L.C., ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is Curtis's Appeal and Objections to Magistrate Judge Report and Recommendation (R. Doc. 116), which on July 2, 2014, was construed by the presiding District Judge as a Motion for Reconsideration, and transferred to the undersigned for determination and resolution. See R. Doc. 121.
This maritime personal injury action was brought by Plaintiff, Dennis Luther, Jr. ("Luther") against Defendant, John W. Stone Oil Distributor, L.L.C., Stone Buccaneer M/V, collectively ("Defendants") on May 18, 2011. See R. Doc. 10. Luther brought this action under the Jones Act, 46 U.S.C. § 30104, to recover damages resulting from personal injuries he sustained on October 8, 2010, while working for John W. Stone Oil Distributor, L.L.C. See id.
On March 20, 2014, the undersigned conducted a settlement conference in this matter. See R. Doc. 107. During this conference, negotiations and settlement discussions between the parties were successful and a settlement was reached. See R. Doc. 109. The only remaining issue was the division of the contingency attorneys' fee between Intervenor, Lawrence N. Curtis and Larry Curtis, APLC, ("Curtis") who represented Luther from January 4, 2011, until his discharge, on May 2,2011.
Also, on March 20, 2014, the undersigned ordered Curtis to submit a memorandum in support of his request for fees and costs no later than ten (10) days from the settlement that was confected. Id. On March 31, 2014, Curtis filed Intervener's Brief Regarding Attorney's Fees and Expenses (R. Doc. 110) into the record, seeking $11,894.84 for the professional fees earned, due and owing to him for the legal services he allegedly provided to Luther. In his brief, Curtis contended that on January 4, 2011, Luther entered into a "Retainer Contract" with him to secure the legal services of his law corporation, Larry Curtis, APLC, in connection with the above captioned matter. See R. Doc. 110, p. 1. The terms and conditions of the "Retainer Contract" were in writing, and signed by both Curtis and Luther. Id. at 1-2.
Curtis contends that he incurred fees and legal expenses in conjunction with performing legal services on Luther's behalf, beginning on January 4, 2011, until he was discharged by Luther on May 2, 2011. Curtis contends that he forwarded his expenses to Luther's current attorney, Ryan Beasley, Sr., on October 6, 2011, at which time totaled $10,233.46. Id. at 2. Since that time, Curtis contends that he is now owed $11,894.84, as he is entitled to recover the professional fees earned, due, and owing for the legal services as well as for the expenses he incurred on behalf of Luther. Id.
On April 7, 2014, Luther filed his Reply Memorandum in opposition to Curtis' motion, contesting that Curtis is entitled to a fee despite the retainer agreement, because he was terminated as Luther's counsel before the petition was filed and took no steps in the furtherance of the claim, even though he itemized entries for work not performed See R. Doc. 111. On April 10, 2014, the presiding District Judge issued an Order of Dismissal, reserving Curtis's claim in intervention to be resolved by the undersigned. See R. Doc. 112.
On May 7, 2014, the undersigned issued a Report and Recommendation (R. Doc. 115) recommending that Curtis' Brief Regarding Attorney's Fees and Expenses (R. Doc. 110), seeking an apportionment of the settlement in accordance with the contingency fee originally signed between he and Luther, be denied because Curtis did not play a significant, nor minimal part in the progression and / or settlement of Luther's action. See R. Doc. 115, p. 8. The undersigned's Report and Recommendation also recommended that Curtis' request for$11,894.84 in expenses he allegedly incurred in representing Luther be disallowed for his failure to substantiate these charges. Id. at 9.
On May 27, 2014, Curtis filed an Appeal and Objections to Magistrate Judge Report and Recommendation (R. Doc. 116) before the presiding District Judge, which was noticed for submission and ordered to be heard on the briefs on June 18, 2014. See R. Doc. 120. On July 2, 2014, the presiding District Judge treating Curtis's objections as a Motion for Reconsideration, transferred the appeal and objections to the undersigned for determination and resolution. See R. Doc. 121.
The Federal Rules of Civil Procedure ("Rules") do not formally recognize a motion to reconsider. Voisin v. Tetra Technologies, Inc., No. 08-1302, 2010 WL 3943522 (E.D. La. Oct. 6, 2010); citing Pryor v. United States Postal Serv., 769 F.2d 281, 285 (5th Cir.1985). However, the Fifth Circuit treats motions to reconsider as either motions to alter or amend judgment pursuant to Rule 59(e) or motions for relief from judgment pursuant to Rule 60, depending upon the time at which the motion is filed. Lavespere v. Niagra Machine & Tools Works, Inc., 910 F.2d 167, 173 (5th Cir.1990).
The federal courts in this circuit, however, treat a motion to reconsider, when filed within28 days of the underlying ruling, as a motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e), otherwise it is analyzed under Rule 60(b) if it is served after that time. Castro v. Tanner, No. 12-2049, 2013 WL 5935181, at *1, (E.D. La. Nov. 5, 2013); accord Dixon v. 24th Jud. Dist. Ct., No. 12-3026, 2013 WL 4517932, at *1 (E.D.La. Aug. 23, 2013); Freeport-McMoran Sulphur, LLC v. Mike Mullen Energy Equip. Res., No. 03-1496, 2004 WL 1488665, at *1 (E.D. La. June 30, 2004); see also, Lavespere v. Niagra Mach. & Tools Works, Inc., 910 F.2d 167, 173 (5th Cir.1990). Luther's motion was submitted to the Court within that time period and thus shall be addressed here under Rule 59(e).
A court's reconsideration of a prior order under Rule 59(e) is an extraordinary remedy that should be used only sparingly and not to re-litigate old matters or to raise new arguments that could have been urged earlier, that simply have been resolved to the movant's dissatisfaction, or to present evidence that should have been brought with the earlier motion. See Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990); Karim v. Finch Shipping Co., 111 F.Supp.2d 783, 784 (E.D .La.2000); Clancy v. Employers Health Ins. Co., 101 F.Supp.2d 463, 465 (E.D.La.2000). See also, Clay v. Daichi Shipping, 2000 WL 6269 (E.D.La. Jan. 5, 2000); Campbell v. St. Tammany Parish School Bd., 1999 WL 777720 (E.D. Sept. 29, 1999.) Instead, Rule 59(e) "serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence." Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir.1989); CEF Funding, LLC v. Sher Garnder Cahill Richter Klein & Hilbert, LLC, No. 09-6623, 2011 WL 1792691, at *1 .
The Court therefore, will only consider the motion when the moving party establishes at least one of the following factors: (1) the motion is necessary to correct manifest errors of law or factupon which the judgment is based; (2) the movant presents new evidence; (3) the motion is necessary in order to prevent manifest injustice; and (4) the motion is justified by an intervening change in the controlling law. Castro, 2013 WL 5935181 at *1;Gregg v. Weeks Marine, Inc., No. 99-1586, 2000 WL 802865, at *2 . See also In re Katrina Canal Breaches, 2007 WL 496856 (E.D.La. Feb. 12, 2007); see also, e.g., Motiva Enterprises, LLC v. Wegmann, 2001 WL 246414 (E.D.La. Mar. 12, 2001); Clay v. Daichi Shipping, 2000 WL 6269 (E.D.La. Jan. 5, 2000); Fields v. Pool Offshore, Inc., 1998 WL 43217 (E.D.La. Feb. 3, 1998).
Curtis objects to the undersigned's Report and Recommendation on three grounds: (1) first, that the undersigned erred when she failed to determine the highest ethical contingency fee to which Luther contractually agreed; (2) second, that the undersigned erred when she found that he was terminated as Luther's attorney with cause; and (3) third, that the undersigned erred in finding that Curtis was not entitled to recover expenses and costs. See e.g., R. Doc. 116-1, p. 3-7, 19-20.1
In opposition, Luther argues that the undersigned properly determined that Curtis was discharged as counsel for Luther with cause, and that the undersigned did not err in failing to apportion a portion of the fee to Curtis, because Curtis did not advance Luther's case. See R. Doc. 118, pp. 2-5. In reviewing the initial Report and Recommendation, the undersigned finds that reconsideration of its determination that Curtis was terminated with cause, as well as its applicationof the Saucier2 factors is not warranted, as suggested by Curtis.
Here, the record reveals that although Luther retained Curtis on January 4, 2011 to represent him in an action related to personal injuries he allegedly suffered on or around October 8, 2010, Luther's complaint in this action was not filed on May 2, 2011, when Luther, concerned with the progress of his case, and with difficulty reaching his attorney, discharged Curtis and retained the Cao Law Firm as his counsel in this matter. See R. Doc. 115, p. 6; see also R. Doc. 110-1, p. 1, R.Doc. 111, p. 1-3.
As stated in the initial Report and Recommendation, Louisiana courts have found that attorney's in similar circumstances as those described above were found to have been terminated with cause. See e.g., Langley v. Norton, No. 99-2653, 2003 WL 21991643 at *6 (E.D. La. Aug. 19, 2003)( that good cause existed where attorney met with client on only a few occasions to discuss the case and each time the attorney was unfamiliar with the client's case); O'Rourke v. Cairns, 683 So.2d 697, 702 (La.1996) (...
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