ANTONMARCHI v. CONSOLIDATED EDISON CO. OF NEW YORK No. 03 Civ. 7735 (LTS)(KNF).
678 F.Supp.2d 235 (2010)
Ariel ANTONMARCHI, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, Defendant.
United States District Court, S.D. New York.
January 13, 2010.
Neil Michael. Frank, Peter A. Romero, Frank & Associates, P.C., Farmingdale, NY, Vincent Edward Bauer, Law Offices of Vincent E. Bauer, New York, NY, for Plaintiff.
David J. Reilly, Con Edison Law Department, Mary Schuette, Consolidated Edison Company, New York, NY, Amanda Dealy Haverstick, Proskauer Rose LLP, Newark, NJ, for Defendant.
MEMORANDUM and ORDER
KEVIN NATHANIEL FOX, United States Magistrate Judge.
Ariel Antonmarchi ("Antonmarchi") brings this action against his former employer, Consolidated Edison Company of New York, Inc. ("Con Edison"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the New York State and City Human Rights Laws, and New York's Whistle-Blower Law. Before the Court are: (1) Antonmarchi's
Antonmarchi initiated this action, pro se, against Con Edison on October 1, 2003. Shortly thereafter, he retained Vincent E. Bauer, Esq. ("Bauer") as his attorney. In a letter, dated March 15, 2005, Bauer wrote, to the Court, of the "significant difficulties" he faced working with Antonmarchi, which "culminat[ed] in a heated exchange" in Bauer's office. At a conference, before the Court, to address the difficulties, Antonmarchi accused Bauer of fraternizing with Con Edison employees and altering documents, while Bauer contended, for ethical reasons, he could not allow Antonmarchi to testify at trial. On March 21, 2005, the Court granted Bauer's application, pursuant to Local Civil Rule 1.4, to be relieved of the obligation to continue representing the plaintiff in this action.
In late May 2005, Antonmarchi retained F & A as his counsel. Thereafter, the Court, upon the plaintiff's motion, twice enlarged the time permitted for the completion of discovery. Con Edison filed a motion for summary judgment on November 10, 2005, which the plaintiff opposed. On September 29, 2008, the assigned district judge granted, in part, and denied, in part, the defendant's motion for summary judgment. After learning about the decision on summary judgment, Antonmarchi left a voicemail message for Frank, describing what F & A had "done to" Antonmarchi and his friend, Edward Cunningham ("Cunningham"), an "atrocity." Like Antonmarchi, Cunningham retained F & A in an action against Con Edison; however, Cunningham's case concluded with a grant of summary judgment in favor of Con Edison. In submissions to the Court, Antonmarchi explains that he believes F & A conspired with Con Edison to "lessen" his damages, as evidenced by the assigned district judge's partial grant of summary judgment in favor of the defendant. Antonmarchi contends the grant of summary judgment in Cunningham's case is further evidence that F & A is "in cahoots" with the defendant.
In his voicemail message to Frank, Antonmarchi warned Frank to prepare for a "legal battle" because Antonmarchi intended to "drag [Frank] through the papers,. . . the media, [and] . . . the whole court system."
In a letter, dated October 10, 2008, Frank advised Antonmarchi that, in light of Antonmarchi's voicemail messages, it would be best for him to retain new counsel to pursue his action. Frank requested that the plaintiff have his new counsel send a substitution of counsel form for Frank's signature or F & A would simply "file a motion with the Court to be relieved."
On October 17, 2008, Antonmarchi filed his "motion to dismiss" his attorneys. According
On November 6, 2008, the Court received, from the plaintiff's counsel, a cross-motion, requesting that: (1) counsel be relieved of the obligation of continuing to represent the plaintiff in this action, pursuant to Local Civil Rule 1.4; and (2) the Court fix a lien in this action for recovery of attorney's fees.
In response to Antonmarchi's allegations of misconduct, F & A contends the following
In its cross-motion, F & A also requested that the Court determine and enforce a lien upon the plaintiff's action, pursuant to NYJL § 475. According to Romero, F & A agreed to represent Antonmarchi on a contingency fee basis and "has already advanced more than $4,000 in expenses" on the case. Romero contends his firm is "entitled to a charging lien" because it has "shown just cause for leave to withdraw." F & A moves to have the amount of the lien "determined on a quantum meruit basis," but contends it is premature to calculate that amount; rather, it requests that the Court compute the amount at the conclusion of Antonmarchi's case.
A. "Motion to Dismiss" Attorneys
The district courts in this circuit "liberally construe pleadings and briefs submitted by pro se litigants, . . . reading such submissions `to raise the strongest arguments they suggest[.]'" Bertin v. United States, 478 F.3d 489, 491 (2d Cir.2007) (internal citations omitted). As such, the Court reads Antonmarchi's "motion to dismiss" his attorneys as a motion to proceed pro se.
"[T]he right to self-representation in civil cases . . . is a right of high standing," but it is not without limit. O'Reilly v. New York Times Co., 692 F.2d 863, 867 (2d Cir.1982). As provided for by statute, "parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." See 28 U.S.C. § 1654; see also Local Civil Rule 1.4. The Second Circuit Court of Appeals has placed a "few qualifications. . . on the clear language of" 28 U.S.C. § 1654. O'Reilly, 692 F.2d at 867. First, the right must be asserted timely. See id. Second, the party asserting the right "must clearly and unequivocally discharge any lawyer previously retained." Id. at 868. Third, "[a] person must be litigating an interest personal to him." Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.1998).
The Second Circuit has noted, with respect to timeliness, that "preferably" a litigant will move to proceed pro se prior to the commencement of trial. See id.; see also O'Reilly, 692 F.2d at 868 (finding a plaintiff's motion to proceed pro se to be timely, though filed after a notice of motion for summary judgment). However, courts in this district have granted such motions even after the conclusion of trial. See, e.g., Jolly v. Coughlin, No. 92 Civ. 9026, 1999 WL 20895, at *14 (S.D.N.Y. Jan. 19, 1999) (granting a plaintiff's request to have a law firm "relieved as his counsel and to proceed pro se" on appeal from judgment). In the instant case, Antonmarchi's application to proceed pro se is timely in that it has been made before trial. See generally O'Reilly, 692 F.2d at 870 ("[A] party's right to discharge counsel prior to trial and represent himself does not require any showing of inadequacy.").
As to the third qualification, "the threshold question becomes whether a given matter is plaintiff's own case or one that belongs to another." Iannaccone, 142 F.3d at 558. Insofar as this qualification pertains to cases involving representation of corporations or minors, see id., it does not apply to Antonmarchi's case.
Since none of the qualifications on the statutory right to self-representation apply to Antonmarchi, his motion to discharge his counsel and appear pro se is granted.
B. Cross-Motion to Withdraw as Attorneys of Record
Insofar as granting Antonmarchi's motion relieves F & A of its obligation to represent the plaintiff in the instant action, F & A's motion to withdraw as counsel, pursuant to Local Civil Rule 1.4, is denied as moot.
C. Cross-Motion for Charging Lien
Although a federal court's "jurisdiction to hear fee disputes and lien claims between litigants and their attorneys" is ancillary, Marrero v. Christiano, 575 F.Supp. 837, 839 (S.D.N.Y.1983), the Second Circuit has held that "the discretion to decline supplemental jurisdiction is available only if founded upon an enumerated category of" 28 U.S.C. § 1367(c)(1)-(4).
1. Entitlement to a Charging Lien
NYJL § 475 provides, in pertinent part:
"A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client's cause of action . . . ." Chadbourne & Parke, LLP v. AB Recur
The threshold question is whether Antonmarchi had cause to discharge his attorneys. "Courts typically find a discharge `for cause' where there has been a significant breach of legal duty." Allstate Ins. Co. v. Nandi, 258 F.Supp.2d 309, 312 (S.D.N.Y.2003). A client must show that his former attorney's conduct "constituted a failure to properly represent his interests." See Costello v. Kiaer, 278 A.D.2d 50, 717 N.Y.S.2d 560 (App. Div. 1st Dep't 2000). Antonmarchi's allegations of misconduct against his attorneys pertain almost exclusively to strategic decisions, made by his attorneys, such as seeking enlargements of the time to complete discovery, the time at which to file a motion, and the evidence to include in an opposition brief. Insofar as "differences of opinion concerning strategy do not constitute cause for discharging an attorney[,]" id., the Court finds that the plaintiff did not dismiss his attorneys with cause. The record before the Court evidences that F & A provided "reasonable and necessary services" to Antonmarchi, such that several of Antonmarchi's claims have survived the defendant's summary judgment motion. See Kantor, Davidoff, Wolfe, Mandelker & Kass, P.C. v. Codata Corp., 172 F.3d 38 (2d Cir.1999) (finding law firm was not discharged for cause). At the very least, it cannot be said that Frank or Romero "violated any legally or professionally imposed duty in regard to" Antonmarchi. See Allstate, 258 F.Supp.2d at 312. Therefore, F & A is entitled to a charging lien, pursuant to NYJL § 475.
2. Amount of Charging Lien
"The amount of the charging lien may be determined and fixed prior to the outcome of the underlying suit." Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 219, 651 N.Y.S.2d 525, 527 (App. Div. 1st Dep't 1997). Under NYJL § 475, a charging lien may be determined "on a quantum meruit basis, ascertaining the reasonable value of the legal services rendered up to the date of counsel's withdrawal or discharge. See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 148 (2d Cir. 1998). However, "[i]f the amount of the charging lien has been fixed by agreement,. . . execution is appropriate on the judgment for the amount agreed to by the parties." Itar-Tass, 140 F.3d at 453.
In the instant case, there is no agreement between the parties fixing a charging lien. Rather, F & A requests that the Court fix a charging lien "on a quantum meruit basis." However, Romero argues this amount should be fixed "at the conclusion of [Antonmarchi's] case" because "the court will be in a position to better assess the benefit to Plaintiff or value of the contribution rendered by Frank & Associates."
Among the factors a court must consider in assessing the amount of a charging lien on a quantum meruit basis are: (1) "the difficulty of the matter"; (2) "the nature and extent of the services rendered"; (3) "the time reasonably expended on those services"; (4) "the quality of performance by counsel"; (5) "the qualifications of counsel"; (6) "the amount at issue"; and (7) "the results obtained (to the extent known)." Sequa Corp., 156 F.3d at 148. It is appropriate, after "consider[ing] all the factors relevant to a quantum meruit fee analysis . . . [to] turn to lodestar analysis to reach a specific dollar figure for the value of the services rendered[.]" Id.
In Romero's affirmation submitted with F & A's cross-motion, he contends his firm incurred "$4,516.77 in expenses prosecuting this action." However, the only time record provided by F & A is an invoice of "professional services," dated January 17, 2006, for which the balance due for expenses is $3,080.11. The invoice only documents the hours of services provided between December 1, 2005, and December 23, 2005. F & A fails to identify specifically the legal and non-legal personnel at the firm who rendered the services described in the invoice. No information is provided about Frank or Romero's respective backgrounds and experiences. Moreover, F & A did not provide the Court with information pertaining to the customary fees charged by those who provide similar legal services.
Given the dearth of information provided by F & A regarding the reasonable value of the legal services provided to Antonmarchi, the Court is unable to compute the amount of the charging lien at this juncture. See Universal Acupuncture, 370 F.3d at 264 (holding that a court does not "abuse its discretion by postponing the determination of the fair and reasonable value of an attorney's services  in order to avoid unnecessary delay in the underlying litigation"). However, the Court will permit F & A to cure the deficiencies noted above, by supplementing its cross-motion for a charging lien promptly, with additional information.
For the reasons stated above, Antonmarchi's "motion to dismiss" his attorneys,
F & A's cross-motion for a charging lien, pursuant to NYJL § 475, is granted; however, the Court cannot fix an amount for the lien. On or before February 1, 2010, F & A shall submit, to the Court, supplemental data respecting the fees it incurred in the instant litigation, including, the identity of each person who rendered legal services to the plaintiff, the hours expended by each person, the nature of the work performed, and each person's professional experience and background.
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