Terrence Lee v. USA, et al
Filing
Filed opinion of the court by Judge Easterbrook. The judgment of the district court denying the motion for leave to intervene is affirmed. The other two appeals (Nos. 14-3087 and 15-1065) are dismissed for want of jurisdiction.. Richard A. Posner, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Daniel A. Manion, Circuit Judge. [6665082-1] [6665082] [14-3087, 14-3489, 15-1065]
Case: 14-3087
Document: 53
Filed: 05/22/2015
Pages: 4
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-‐‑3087, 14-‐‑3489 & 15-‐‑1065
VENISCIA HUMPHREY, parent and next friend of Teniscia
Humphrey-‐‑Lee,
Plaintiff-‐‑Appellee,
v.
UNITED STATES OF AMERICA,
Defendant.
Appeal of TERRENCE LEE
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 3327 — Manish S. Shah, Judge.
____________________
ARGUED MAY 19, 2015 — DECIDED MAY 22, 2015
____________________
Before POSNER, EASTERBROOK, and MANION, Circuit Judg-‐‑
es.
EASTERBROOK, Circuit Judge. Veniscia Humphrey brought
this suit under the Federal Tort Claims Act on behalf of her
daughter Teniscia Humphrey-‐‑Lee, alleging that medical
malpractice during Teniscia’s birth in 2008 left her perma-‐‑
Case: 14-3087
2
Document: 53
Filed: 05/22/2015
Pages: 4
Nos. 14-‐‑3087, 14-‐‑3489 & 15-‐‑1065
nently disabled. Teniscia’s father Terrence Lee participated
in the litigation (at least, a lawyer observed on his behalf)
but did not ask to be joined as a party under Fed. R. Civ. P.
19. (Humphrey and Lee are not married; Teniscia lives with
her mother, but both parents are Teniscia’s legal custodians.)
The case was settled for approximately $13 million, used to
buy an annuity to provide care over the course of Teniscia’s
life. Arlette Porter, who represents Lee, demanded a share of
the 25% contingent fee that had been negotiated between
Humphrey and her lawyer, who opposed this request, ob-‐‑
serving among other things that (a) Lee was not a party to
the case, and (b) Porter had not performed any of the legal
work that led to the settlement.
Settlement was reached in January 2014. Only later did
Lee move to file an amended complaint naming himself as a
plaintiff, apparently for the sole purpose of opening the door
to Porter’s claim for attorneys’ fees. The district court denied
Lee’s motion, stating that Lee not only had approved the
January settlement but also had not filed an administrative
claim, as the FTCA requires, and therefore could not be a
plaintiff. 2014 U.S. Dist. LEXIS 105680 (N.D. Ill. July 24, 2014).
Nine months after the settlement (and a few weeks after the
suit had been dismissed on Humphrey’s motion), Lee filed a
motion to intervene, again with the goal of bolstering Por-‐‑
ter’s quest for fees. On October 24, 2014, the district court
denied that motion as untimely. Porter then filed a motion
seeking fees notwithstanding Lee’s non-‐‑party status; that
motion was denied on January 7, 2015. Lee has filed three
appeals, one from each order. The only one of these that re-‐‑
quires discussion is the appeal from the denial of the motion
to intervene, because if Lee is not a party then neither of the
other orders is open to question—and neither was a final de-‐‑
Case: 14-3087
Document: 53
Nos. 14-‐‑3087, 14-‐‑3489 & 15-‐‑1065
Filed: 05/22/2015
Pages: 4
3
cision with respect to Lee, as 28 U.S.C. §1291 requires. (Por-‐‑
ter might have been entitled to appeal the order denying her
request for attorneys’ fees, but she did not do so; Lee is the
only appellant.)
This suit was filed in 2010. Lee contends that he did not
know about the suit until 2012. We may suppose that this is
so and that he should have been notified earlier. (Humphrey
contends that Lee was notified earlier, before the suit began,
and declined to participate. We need not decide who is cor-‐‑
rect.) Still, when Porter began to monitor proceedings in
2012, she did not ask the court to order Lee’s joinder under
Rule 19, nor did Lee file a motion to intervene. Porter also
neglected to file an administrative FTCA claim on Lee’s be-‐‑
half. At oral argument, Porter asserted that she thought that
Lee had become a party automatically because she attended
depositions and judicial hearings, but that is not how federal
litigation works. It takes a formal step—such as joinder un-‐‑
der Rule 19 or intervention under Rule 24—to add a party.
By the time Porter realized the need for formalities, the
case had been settled (with Lee’s approval) and the only is-‐‑
sue concerned whether Porter would receive a portion of the
fee provided by the contract between Humphrey and her
lawyer. A district judge does not abuse his discretion by
deeming untimely a post-‐‑judgment effort to intervene for
the purpose of adding a new issue. Would-‐‑be parties cannot
watch the litigation proceed for years and then jump in after
its end. See, e.g., Heartwood, Inc. v. United States Forest Service,
316 F.3d 694, 701 (7th Cir. 2003).
If Porter has a claim to a share of the fees as a matter of
quantum meruit, the right forum would have been state
court. This federal suit ended when it was dismissed as part
Case: 14-3087
4
Document: 53
Filed: 05/22/2015
Pages: 4
Nos. 14-‐‑3087, 14-‐‑3489 & 15-‐‑1065
of the settlement. Porter needed an independent basis of
federal jurisdiction in order to continue a post-‐‑dismissal bat-‐‑
tle. See, e.g., Kokkonen v. Guardian Life Insurance Co., 511 U.S.
375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996). But
Humphrey, Lee, and their lawyers are citizens of Illinois,
and the allocation of fees is not a federal question just be-‐‑
cause the underlying litigation is federal. See Gunn v. Min-‐‑
ton, 133 S. Ct. 1059 (2013) (discussing malpractice, but the
principle is equally applicable to disputes about fees).
The supplemental jurisdiction sometimes permits a dis-‐‑
trict court to resolve a fee dispute between the litigant and
her lawyer, see Goyal v. Gas Technology Institute, 718 F.3d 713,
717 (7th Cir. 2013), because the resolution affects the prevail-‐‑
ing party’s net recovery, but here the only remaining fight
pits one lawyer against another and cannot affect Teniscia’s
gross or net recovery. Nor can resolution be supported by a
retention of jurisdiction in the district court’s order dismiss-‐‑
ing the suit; there was no such retention. Cf. Baer v. First Op-‐‑
tions of Chicago, Inc., 72 F.3d 1294, 1299–1301 (7th Cir. 1995).
We have not found a decision holding that a fee dispute be-‐‑
tween counsel for a party and counsel for a non-‐‑party is part
of the original case or controversy for the purpose of 28
U.S.C. §1367(a). This implies that the district court could not
have allowed intervention even on a timely motion; but, as
the motion was denied, we need not consider how far the
supplemental jurisdiction might stretch.
The judgment of the district court denying the motion for
leave to intervene is affirmed. The other two appeals (Nos.
14-‐‑3087 and 15-‐‑1065) are dismissed for want of jurisdiction.
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