Petition of Harley & Browne
| Decision Date | 04 March 1997 |
| Docket Number | No. 88 Civ. 3559 (DNE).,88 Civ. 3559 (DNE). |
| Citation | 957 F.Supp. 44 |
| Parties | Petition of HARLEY & BROWNE, attorneys and counselors at law of the State of New York, for an Adjudication of said Attorneys' rights in the Matter of Hake v. United States of America. HARLEY & BROWNE, Petitioner, v. RESSLER & RESSLER, Rachel Hake and Terry Hake, and United States of America, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Harley & Browne, New York City (J. Austin Brown, of counsel), pro se, for petitioner.
Ressler & Ressler, New York City (Richard F. Bernstein, of counsel), for respondents Ressler & Ressler, Rachel Hake and Terry Hake.
Mary Jo White, United States Attorney for the Southern District of New York, New York City (Lisa A. Jonas, Assistant United States Attorney, of counsel), for respondent U.S.
Presently before this Court is a petition for attorneys' fees brought by Harley & Browne ("petitioner" or "HB"). This petition is opposed by respondents Ressler & Ressler ("RR"), Rachel Hake and Terry Hake (the "Hakes"), and the United States of America (the "Government") ("respondents"). For the following reasons, the petition is denied.
The action underlying this petition, Hake v. United States, 88 Civ. 3559(DNE), was a medical malpractice action brought under the Federal Tort Claims Act. That action sought damages for a botched surgical procedure performed at the United States Army Hospital at West Point. This surgical procedure severed Rachel Hake's rectal muscles, rendering her incontinent. In January 1988, HB, a New York law firm, was retained by the Hakes to represent them in their malpractice lawsuit. According to its retainer agreement with the Hakes, HB was to receive "an amount equal to 25% of the net sum recovered" in the malpractice action. (Pet. ¶ 5.)
According to the Hakes and RR, another New York law firm which was later substituted for HB as the Hakes' counsel, "[a]fter doing nothing for two years, [HB] assigned the case to an attorney who was unfamiliar with medical terminology, and was unable to locate an expert to review the case — even though [Rachel] Hake gave [the attorney] the names of doctors with firsthand knowledge of her injury." (RR Memo at 2.) The Hakes and RR further contend that the HB attorney "told Hake that the case was about to be dismissed because she could not locate an expert, and that she feared that the [Hakes and the attorney] would be sanctioned for bringing a `frivolous' lawsuit." Id. In August 1989, the Hakes discharged HB and retained RR to represent them in their malpractice action.
In 1992, HB attempted to secure an "attorneys' lien" against 25% of any recovery by the Hakes in their malpractice action pursuant to New York Judicial Law, Section 475. HB contends that it Id. ¶ 10.
After protracted pre-trial and discovery processes, the Hakes' malpractice action ultimately settled in 1993 for $500,000, payable by the Government. (Stipulation and Order of Dismissal, Hake v. United States, 88 Civ. 3559 (Sept. 15, 1993).) On January 4, 1994, before that sum was paid, Lisa A. Jonas, Assistant United States Attorney for the Southern District of New York ("AUSA Jonas"), sent a letter to J. Austin Browne ("Browne") of HB, "informing him that the Government had entered into a settlement of the [Hakes'] malpractice action." (Govt. Memo at 1.) Jonas' letter further stated that although the Government had received an August 15, 1989, notice of attorneys' lien from HB, it was the Government's position that the lien was not valid because it was "not executed or notarized and has no indicia that it has been perfected." Id.; (Notice of Motion at Exh. 2.) The letter further requested any evidence from HB supporting HB's claim that it possessed a valid lien, and advised HB to contact the Government within ten days or the settlement proceeds would be released to the Hakes. (Govt. Memo at 1.) The letter was mailed to HB at the address on the lien. Id. On January 10, 1994, the letter was returned to the Government marked "return to sender, forwarding order expired." Id. at 2. On January 18, 1994, the Government released the settlement proceeds to the Hakes. Id. On February 10, 1994, AUSA Jonas received a telephone call from Browne inquiring about the settlement. Id. AUSA Jonas informed Browne that the Government had released the settlement payment to the Hakes because HB's lien was invalid and the Government was unable to contact HB by mail. Id. AUSA Jonas sent by facsimile to Browne a copy of both her January 4, 1994, letter and the envelope in which it was returned to her. Id.
None of the respondents heard from HB again for approximately sixteen months. At that time, in May 1995, HB brought a petition against RR — not the Hakes or the Government — in the New York County Supreme Court. (RR Memo at 3); (RR Notice of Motion at Exh. D.) In that petition, HB sought the identical relief for which it now petitions this Court. Id. On December 6, 1995, the state court "decline[d] to accept jurisdiction over" the petition, because "[t]he res was already under the jurisdiction of the [f]ederal court," and it "appear[ed] that [HB] raised the issue of attorneys' fees in the federal action, were invited to submit proof, and either failed to or were unable to comply." (RR Notice of Motion at Exh. D.)
HB again waited a substantial period of time before seeking to enforce its lien. The Government — which was not named in HB's state court action — maintains that after releasing the settlement payment, it "did not hear from [HB] again for more than two and one-half years, until October 28, 1996, when [HB] served the Government with the petition at issue in this action." (Govt. Memo at 2.) Similarly, RR explains that, "[a]fter waiting nearly a year after the state court dismissed [its] petition, [HB] filed the current petition for the same relief that the state court denied." (RR Memo at 3.)
The instant petition was filed on October 28, 1996. On November 18, 1996, and December 3, 1996, RR and the Government, respectively, filed their opposition to HB's petition. On November 27, 1996, the docket sheet indicates that HB filed a submission responsive to RR and the Government's opposition. In direct contravention of this Court's Individual Rules, however, this Court was never provided with a courtesy copy of that submission. See (Honorable David N. Edelstein: Individual Rules, Procedures and Forms, at 3 (2d ed.1992).) Because this court finds that HB's failure to provide this Court with courtesy copies of its submission in response to RR and the Government's opposition, this Court will disregard that submission.
There are two primary issues to be resolved in this Opinion: (1) whether this Court possesses the jurisdiction to consider HB's petition; and (2) if so, whether to grant HB's petition. This Court will consider these issues separately.
As an initial matter, this Court notes that it is proper for this Court to exercise jurisdiction over HB's claim for attorneys' fees. Under the doctrine of ancillary jurisdiction, a federal court may exercise jurisdiction over a claim for which no subject matter independently obtains "if the claim is sufficiently related to an initial claim properly before the court." Chesley v. Union Carbide Corp., 927 F.2d 60, 64 (2d Cir.1991) (citing Baylis v. Marriott Corp., 843 F.2d 658, 663 (2d Cir.1988)). The decision to entertain an ancillary claim is discretionary, and turns upon "whether the policies of `judicial economy, convenience, and fairness to litigants' are furthered by the assumption of jurisdiction.'" Id. (quoting Stamford Bd. of Educ. v. Stamford Educ. Ass'n, 697 F.2d 70, 72 (2d Cir.1982)); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Moreover, "[i]t is well-settled that `[a] federal court may, in its discretion, exercise ancillary jurisdiction to hear fee disputes ... when the dispute relates to the main action....'" Chesley, 927 F.2d at 64 (quoting Cluett, Peabody & Co. v. CPC Acquisition Co., 863 F.2d 251, 256 (2d Cir.1988)); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S.Ct. 2447, 2455-56, 110 L.Ed.2d 359 (1990); Petition of Rosenman Colin Freund Lewis & Cohen, 600 F.Supp. 527, 531 (S.D.N.Y.1984). This rule holds true even in cases, such as that at bar, where the main action has been disposed of through settlement. See, e.g., Cluett, Peabody, 863 F.2d at 253; Schmidt v. Zazzara, 544 F.2d 412, 413-14 (9th Cir.1976).
In light of this overwhelming authority, this Court finds that it may, in its discretion, exercise jurisdiction over the instant petition. Moreover, because this Court is familiar with the facts underlying this litigation, and because a state court already has declined to adjudicate HB's petition, this Court finds that judicial economy and the interests of the parties in an expeditious disposition of this matter are best served by this Court's exercise of ancillary jurisdiction over HB's petition to enforce its attorney's lien.
HB petitions this Court to enforce its attorneys' lien pursuant to New York Judicial Law, Section 475 ("Section 475"). Section 475 provides:
From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department of labor, or the service of answer containing a counterclaim, the attorney who appears before a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment, or final order in his client's favor, and...
To continue reading
Request your trial
-
Vitalone v. City of N.Y.
...have a lien on those proceeds, so long as the attorney was counsel of record at one point in the proceedings." Petition of Harley & Browne, 957 F. Supp. 44, 48 (S.D.N.Y. 1997) (citing Klein v. Eubank, 87 N.Y.2d 459, 462, 640 N.Y.S.2d 443, 663 N.E.2d 599 (1996) )."New York law holds, albeit ......
-
Derivatively On Behalf Of Sirius Dev. Llc. v. Calhoun
...July 18, 2006); Hill v. Baxter, No. 98 Civ. 4314(SJF)(ASC), 2005 WL 465429, at *2 (E.D.N.Y. Feb. 7, 2005); Petition of Harley & Browne, 957 F.Supp. 44, 48 (S.D.N.Y.1997); Rankel v. Tracey, No. 84 Civ. 3412(KMW), 1991 WL 156324, at *7 (S.D.N.Y. Aug. 2, 1991); Klein v. Eubank, 87 N.Y.2d 459, ......
-
Moffat v. Branch
...not agree. Federal courts have ancillary jurisdiction to entertain such attorney fee disputes in FTCA cases. Harley & Browne v. Ressler & Ressler, 957 F.Supp. 44, 47 (S.D.N.Y.1997) (stating that "[i]t is well-settled that [a] federal court may, in its discretion, exercise ancillary jurisdic......
-
ANTONMARCHI v. Consolidated Edison Co. of New York
...to have a lien on those proceeds, so long as the attorney was counsel of record at one point in the proceedings." Petition of Harley & Browne, 957 F.Supp. 44, 48 (S.D.N.Y.1997); see Itar-Tass, 140 F.3d at 451. However, "it is well-settled that an attorney loses his right to enforce a chargi......