U.S. v. Bd. of County Com'rs of the County of Dona Ana, N.M.

• Decision Date: 15 July 2010
• Docket Number: No. CIV 08-501 JB/WPL,CIV 08-501 JB/WPL
• Parties: UNITED STATES of America, Plaintiff, and Sally H. Ramirez, Plaintiff-Intervenor, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOÑA ANA, NEW MEXICO, Defendant.
• Court: U.S. District Court — District of New Mexico

730 F.Supp.2d 1327

UNITED STATES of America, Plaintiff,

and

Sally H. Ramirez, Plaintiff-Intervenor,

v.BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOÑA ANA, NEW MEXICO, Defendant.

No. CIV 08-501 JB/WPL.

United States District Court,

D. New Mexico.

July 15, 2010.

Gregory J. Fouratt, United States Attorney, Michael Hoses, Elizabeth M. Martinez, Assistant United States Attorneys, Albuquerque, NM, Carolyn Peri Weiss, Jodi B. Danis, John M. Gadzichowski, Rachel Hranitzky, Lori Beth Kisch, Richard S. O'Brien, Trial Attorneys, Employment Litigation Section, Civil Rights Division, United States Department of Justice, Washington, D.C., for Plaintiff.

Paul Michael Gayle-Smith, Law Offices of Paul M. Gayle-Smith, Las Cruces, NM, for Intervenor-Plaintiff Sally Ramirez.

Sally H. Ramirez, Las Cruces, NM, Intervenor-Plaintiff.

Rocio Toriz, Alameda, CA, Raul A. Carrillo, Jr., Steven E. Jones, Carrillo Law Firm, LLC, Las Cruces, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Board of County Commissioners of the County of Doña Ana, New Mexico's Motion for Declaratory Order in Support of Settlement, filed May 20, 2010 (Doc. 341); and (ii) Plaintiff Sally Ramirez' Motion to Withdrawn Documents, filed July 9, 2010 (Doc. 353). The Court held a hearing on June 16, 2010. The primary issues are: (i) whether the Court has jurisdiction over the dispute between Plaintiff-Intervenor Sally H. Ramirez and her counsel of record, Mr. Gayle-Smith, regarding the distribution of the amount of the settlement received from Defendant Board of County Commissioner of the County of Doña Ana, New Mexico between Ramirez, as victim, and Mr. Gayle-Smith, as payment for attorney's fees; and (ii) whether the Court must conduct the trial which resolves the dispute between Ramirez and Mr. Gayle-Smith as a bench trial or a jury trial.

On June 16, 2010, the Court heard from all the parties regarding Mr. Gayle-Smith's Motion to Withdraw, the Motion for Declaratory Order, and Mr. Gayle-Smith's Notice of Attorney Charging Lien, filed June 16, 2010 (Doc. 349). The Court determined that it had jurisdiction over the dispute between Ramirez and Mr. Gayle-Smith, and set this matter for a non-jury trial to take place on July 9, 2010, see Transcript of Hearing at 4:19-5:1 (taken June 16, 2010)("Tr.") (Court) ¹; id. at 36:2-37:24 (Court); id. at 38:15-16, 39:6-8 (Court). On June 30, 2010, Mr. Gayle-Smith and Ramirez settled this matter with the assistance of the Honorable Judge Karen B. Molzen, United States Magistrate Judge. The Court is thus granting Ramirez' Motion to Withdraw Documents and denying the Defendant's Motion for Declaratory Order in Support of Settlement as moot.

PROCEDURAL BACKGROUND

Plaintiff United States of America originally brought this matter before the Court as a suit to enforce Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, against Doña Ana County. In its Complaint, the United States alleged that Ramirez and several of her co-workers had been subject to sexual harassment, see Complaint and Demand for Jury Trial, ¶ 5, at 1, filed May 21, 2008 (Doc. 1), and discrimination on the basis of their sex, see id. ¶ 7, at 2, and the United States demanded a jury trial on "all issues so triable," id. at 5. The Court permitted Ramirez to intervene on June 17, 2009. See Order Granting Unopposed Motion to Intervene, filed June 17, 2009 (Doc. 102). In Ramirez' Complaint, filed with her Motion to Intervene on May 7, 2009, Ramirez demanded a "trial by jury on all counts and issues so triable." Complaint for Civil Rights Violations at 8, filed May 7, 2009 (Doc. 68-1). The Court dismissed the United States' claims by Order filed March 28, 2010, but specifically retained jurisdiction over "the Settlement Agreement to resolve any dispute between the parties pertaining to the Settlement Agreement." Order, filed March 28, 2010 (Doc. 322.) According to the Settlement Agreement, Doña Ana County is to mail "in care of her counsel where appropriate, a certified orbank check made payable, respectively, to Sally Ramirez in the amount of forty-thousand dollars ($40,000.00)." Settlement Agreement Between the United States and Doña Ana County, New Mexico ¶ 16, at 13, filed March 31, 2010 (Doc. 323). Pursuant to the settlement, the Court dismissed Ramirez as a Plaintiff in the underlying action with prejudice on June 16, 2010. See Order of Dismissal, filed June 16, 2010 (Doc. 350).² The Court has not, however, entered a final judgment, so all of the orders in this case remain interlocutory.

A lack of communication appears to exist between Ramirez and Mr. Gayle-Smith. Mr. Gayle-Smith's Motion to Withdraw notes this breakdown. See Motion to Withdraw ¶¶ 3 -4, at 2. According to Mr. Gayle-Smith's motion, Ramirez intended to terminate his services as of May 8, 2010. See id. ¶ 2, at 1. Mr. Gayle-Smith requested in his motion that the settlement check be delivered to himself, rather than Ramirez, so that he may deduct his fees therefrom. See id. at 4. Mr. Gayle-Smith has since requested that the Court order the settlement check be made out to both himself and Ramirez, as is the "custom in this district," Response to Motion for Declaratory Order ¶ 15, at 4, filed June 3, 2010 (Doc. 342), so that he may deduct his fees from the check, and forward the remainder to Ramirez, see id. at 4. Mr. Gayle-Smith is apparently afraid he will not receive any payment for his services from Ramirez without a court order. See id. ¶ 13, at 3. In its motion, Doña Ana County asks the Court to determine how to administer the settlement check, see Motion for Declaratory Order at 13, filed May 20, 2010 (Doc. 341), because of its inability to properly communicate with Ramirez or Mr. Gayle-Smith, see id. at ¶¶ 6, 8, at 2; id. ¶ 10, at 3. The United States opposes Mr. Gayle-Smith's request that the settlement check be made out to anyone other than Ramirez, as the settlement agreement requires. See Response to Defendant's Motion for Declaratory Order ¶ 2, at 1, filed June 4, 2010 (Doc. 343); Settlement Agreement ¶ 16, at 13, filed March 31, 2010 (Doc. 323).

Mr. Gayle-Smith provided notice on June 16, 2010 to all parties and the Court of his charging lien in this case, to which he asserts his written agreement with Ramirez entitles him. See Response to Defendant's Motion for Declaratory Order ¶ 16, at 4; Notice of Attorney Charging Lien ¶¶ 1-2, at 1. In his notice, Mr. Gayle-Smith requests that the Court accept his notice and order the settlement check be made out and delivered to him. See Notice of Attorney Charging Lien ¶¶ 7-9, at 2. Mr. Gayle-Smith indicates that he believes Ramirez owes him $20,000.00-half of her settlement check-in fees for his services. ³ See Notice of Attorney Charging Lien ¶ 6, at 2; Settlement Agreement Between the United States and Doña Ana County, New Mexico ¶ 14, at 11, filed March 31, 2010 (Doc. 323).

The Court heard from all parties regarding the remaining motions-Mr. Gayle-Smith's Motion to Withdraw and Doña Ana County's Motion for Declaratory Order in Support of Settlement-on June 16, 2010. See Tr. at 4:20-23 (Court). At the hearing, Mr. Gayle-Smith reiteratedthat the problem facing himself and Ramirez is a "lack of communication." Tr. at 7:19-20 (Gayle-Smith). Mr. Gayle-Smith expressed his fear that Ramirez will not pay him without a court order, and he asserted that, as of yet, he has received no compensation from Ramirez for his services. See Tr. at 8:2-6 (Gayle-Smith). In an effort to show the seriousness of his position, Mr. Gayle-Smith stated he will "file a motion to tie this money up for years" if Ramirez does not pay him. Tr. at 8:1-2 (Gayle-Smith). The Court witnessed the lack of communication between Ramirez and Mr. Gayle-Smith when Ramirez expressed her belief that Mr. Gayle-Smith had already withdrawn as her attorney as of the last settlement conference, and she stated that she has apparently never seen the Motion to Withdraw. See Tr. at 12: 3-9 (Court, Ramirez). Ramirez stated that it was Mr. Gayle-Smith who initiated the termination of their relationship. See Tr. at 12:6-9 (Ramirez). According to Ramirez, Mr. Gayle-Smith told her that his representation pertained only to the issues of "ret [aliation] and termination." Tr. at 12:12-14 (Ramirez). Ramirez told the Court that Mr. Gayle-Smith had never relayed to her any information regarding his substantive legal work on her behalf, nor had she ever seen any documents regarding fees. See Tr. at 13:3-9 (Ramirez). Additionally, Ramirez contended that Mr. Gayle-Smith told her he would not comply with her request to terminate his services, and that he had been verbally harassing her in other settings. See Tr. at 12:25-13:2, 13:12-15 (Ramirez). Ramirez told that Court that all she wants is "for him to stay away." Tr. at 13:2 (Ramirez).

The other parties to this matter expressed concern about sending the settlement check to Mr. Gayle-Smith. The United States' position was that the settlement check should be made out to none other than Ramirez, "per the terms of the settlement agreement." Tr. at 10:4-7 (Weiss). The United States also expressed concern about "the appropriateness of sending the check to Mr. Gayle-Smith, given the turn of [ ][e]vents," and Mr. Gayle-Smith's willingness to tie the settlement check up for years to ensure his payment. Tr. at 10:13-16, 10:23-25 (Weiss). Doña Ana County did not oppose Mr. Gayle-Smith's Motion to Withdraw, and declined to comment on the merits of the dispute between Mr. Gayle-Smith and Ramirez. See Tr. at 13:24-14:1, 18:22-23 (Carillo). Doña Ana County expressed concern whether Mr. Gayle-Smith should receive the check, given that it was unsure whether Mr. Gayle-Smith represented Ramirez. See Tr. at 16:10-11 (Carillo). When asking the Court to determine to whom the settlement check should be delivered, Doña Ana County characterized Mr. Gayle-Smith's role in the case as "limited," noting his...