Drummond v. Respiratory Sleep Solutions dba Stratus Neuro

Filing 37

MEMORANDUM OPINION AND ORDER, GRANTING 24 Plaintiff's Motion to Quash Notice of Lien. Signed by District Judge Terry F. Moorer on 1/7/2025. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JEREMY DRUMMOND,

)
)
Plaintiff,
)
)
v.
)
)
RESPIRATORY SLEEP SOLUTIONS, )
d/b/a STRATUS NEURO,
)
)
Defendant.
)

CIVIL ACT. NO. 1:24-cv-72-TFM-B

MEMORANDUM OPINION AND ORDER
Pending before the Court is the motion to quash.1 Doc. 24, filed November 9, 2024.
Plaintiff Jeremy Drummond seeks to quash the lien that was filed in this matter by Constance
Cooper, Esq., on behalf of the law firm of Barrett & Farahany or, in the alternative, require the
Barrett & Farahany substantiate their claimed fees and expenses. Id. Having considered the
motion, response (Doc. 27), amended reply (Doc. 31), arguments that were presented at oral
argument, and relevant law, the motion is GRANTED as discussed in this opinion.
I.
A.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background
On November 19, 2021, Plaintiff entered into a representation agreement with Non-Party

Barrett & Farahany (“Barrett & Farahany”). Doc. 27-1. Kira Fonteneau, Esq. (“Fonteneau”),
signed the agreement on behalf of Barrett & Farahany. See id. at 4. The agreement includes a
contingency fee agreement. Id. at 2. On March 6, 2024, the complaint in this matter was filed in

1 Plaintiff Jeremy Drummond did not title his motion to quash but refers to a “Motion to Quash”

in the preamble of his motion. See Doc. 24. The motion is also labeled as a “Motion to Quash”
on the electronic docket sheet. See Docket Sheet.
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this Court by Fonteneau, and she remains Plaintiff’s sole attorney of record. Doc. 1; see Docket
Sheet.
On September 10, 2024, Fonteneau announced her intent to resign her employment with
Barrett & Farahany, and her employment with the firm ended on September 25, 2024. Doc. 24 at
2; Doc. 27 at 2. Plaintiff elected to follow Fonteneau to her newly formed firm to continue her
representation of him and pursue the claims that are before this Court. Doc. 24 at 3; Doc. 27 at 2.
The parties in this matter settled the claims and executed relevant settlement documents, which
left only the disbursement of funds to Plaintiff to be resolved. Doc. 24 at 3.
However, before the funds were disbursed, on November 6, 2024, Constance Cooper, Esq.
(“Cooper”), entered an appearance in this matter on behalf of Barrett & Farahany and filed a notice
of attorney’s lien. Doc. 23.
B.

Procedural Background
Plaintiff Jeremy Drummond (“Plaintiff”) originally filed this action with this Court on

March 6, 2024, and brings claims against Defendant Respiratory Sleep Solutions d/b/a Stratus
Neuro (“Defendant”) for violations of the Americans with Disabilities Act (“ADA”), specifically
for a failure to accommodate, discrimination, and retaliation. Doc. 1. Defendant filed its answer
to the complaint on May 30, 2024. Doc. 7.
On November 6, 2024, Cooper filed the notice of attorney’s lien. Doc. 23. In response,
Plaintiff filed the instant motion to quash for which the Court entered a briefing schedule (Doc.
25), and the Court set the matter for a hearing for December 19, 2024 (Doc. 26), as Plaintiff
requested in the motion. The parties timely filed their respective response (Doc. 27) and reply
(Doc. 28). Plaintiff then filed a motion to amend his reply (Doc. 29), which the Court granted
(Doc. 30), and Plaintiff filed an amended reply on December 2, 2024 (Doc. 31). The motion is
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ripe for review based on the briefing and oral argument.
II.

DISCUSSION AND ANALYSIS

Plaintiff presents two arguments in support of the motion: (1) Cooper is not a proper party
to enforce the lien because she was never an attorney of record in this matter and (2) Cooper has
not perfected the lien because she did not submit evidence for the Court to determine a lien amount.
Doc. 24.
In response to Plaintiff’s first argument, Cooper argues a law firm is a proper party to
recover its fee under the Alabama attorney lien statute, which is supported by Alabama case law
that provides examples of law firms that were awarded compensation under the statute. Doc. 27
at 1-8. As to Plaintiff’s second argument, Cooper argues Plaintiff’s position is unsupported by
case law and a trial court is empowered to determine the quantum meruit value for rendered
services, typically after a hearing. Id. at 9. Finally, Cooper requests the Court order Plaintiff pay
Barrett & Farahany for its representation of him pursuant to the representation agreement. Id. at
13.
To dispose of the instant motion, the Court need only address whether Cooper, on behalf
of Barrett & Farahany, is a proper party to enforce the lien pursuant to the relevant state statute.
“Federal courts sitting in a state enforce that state’s statute creating attorneys’ liens.”
Panola Land Buying Ass’n v. Clark, 844 F.2d 1506, 1514 (11th Cir. 1988). The relevant Alabama
statute in this case is Ala. Code § 34-3-61(b), which reads:
Upon actions and judgments for money, [attorneys-at-law] shall have a lien
superior to all liens but tax liens, and no person shall be at liberty to satisfy said
action or judgment, until the lien or claim of the attorney for his fees is fully
satisfied; and attorneys-at-law shall have the same right and power over action or
judgment to enforce their liens as their clients had or may have for the amount due
thereon to them.
When confronted with the issue of who is allowed to enforce a lien in an action under the
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statute, the Northern District of Alabama determined from its review of Alabama case law:
[A]n attorney must have been the attorney of record for the client whose funds he
or she wishes to put a lien on at some point during the litigation. Triplett v. Elliott,
590 So. 2d 908, 910 (Ala. 1991) (affirming trial court award of attorney fees under
lien statute to attorney who had “worked on the present case for . . . two and onehalf years . . . . [,] entered an appearance on [the client’s] behalf, took all of the
depositions, issued subpoenas, prepared all of the pleadings, prepared
interrogatories and requests for production, attended pretrial conferences, filed
exhibit and witness lists, and attended the call of the trial docket . . . .”); Boykin
Timber & Farm Res., Inc. v. Nix, 438 So. 2d 294, 295 (Ala. 1983) (“Only attorneys
of record, the practicing attorneys who actually sign pleadings and actively
participate int eh crucial phases of their clients’ litigation, are proper parties to
enforce a lien under the authority of . . . § 34-3-61.”); McBride v. Ellard, 273 Ala.
467, 142 So. 2d 895, 897 (Ala. 1962) (stating that it is a requirement for intervening
attorney seeking a lien out of settlement funds to allege that he is an attorney of
record in the bill of intervention); Gulf States Steel Co. v. Justice, 204 Ala. 577, 87
So. 211, 212-18 (Ala. 1920) (discussing how, though three attorneys were
employed by contract, because only one attorney had been the attorney of record,
he was the only proper attorney to file a lien against the settlement funds); Eaton v.
Keller Plumbing Co., 587 So. 2d 338, 339 (Ala. Civ. App. 1991) (disallowing
general partner of two no longer existing law firms from claiming a lien under §
34-3-61 because she “was not attorney of record at the time,” and was thus “not a
proper party to claim or enforce a lien” under the statute); see also, e.g., In re
McCrackin, BK 04-73189-CMS-13, 2007 Bankr. LEXIS 1834, 2007 WL 1526435,
*2-4, (Bankr. N.D. Ala. May 24, 2007) (applying Alabama lien statute and allowing
recovery for attorney who had filed suit for plaintiff (i.e., attorney of record) and
who had been retained under a contingency fee agreement, but whose employment
had been terminated before settlement of the case); Harlow [v. Sloss Indus. Corp.],
813 So. 2d [879,] 890 [(Ala. Civ. App. 2001)] (allowing attorney admitted to appear
pro hac vice to recover under the statute); Goldberg & Assocs., P.C. v. Donohoe,
777 So. 2d 144, 144-46 (Ala. Civ. App. 2000) (remanding case to trial court to
determine amount owed to former attorneys of record who intervened and sought
recovery under § 34-3-61); Carnes v. Shores, 55 Ala. App. 608, 318 So. 2d 304,
306-08 (Ala. Civ. App. 1975) (allowing former attorney of record to intervene in a
lawsuit to recover from settlement funds under a predecessor statute to § 34-3-61).
Twin Pines Coal Co., Inc. v. Twin Pines, LLC, Civ. Act. No. 2:09-cv-1403-SLB, 2013 U.S. Dist.
LEXIS 22053, at *16-*18, 2013 WL 622369, at *4 (N.D. Ala. Feb. 19, 2013).
In this case, the only attorney who has entered a notice of appearance on behalf of Plaintiff
is Fonteneau.
Cooper cites to several Alabama cases to support her argument that a law firm is a proper
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party to recover its fee under the Alabama attorney lien statute: Rose v. Penn & Seaborn, LLC, 295
So. 3d 94 (Ala. 2019), Ex parte Lambert Law Firm, LLC, 156 So. 3d 939, 941(Ala. 2014),
Goldberg, 777 So. 2d 144, Harris v. Cappell & Howard, P.C., 280 So. 3d 419 (Ala. Civ. App.
2019), Pop, McGlamry, Kilpatrick, Morrison & Norwood, P.C. v. Dubois, 266 So. 3d 1064, 1081
(Ala. Civ. App. 2017), and Gaines & Gaines, P.C. v. Hare, Wynn, Newell & Newton, 554 So. 2d
445 (Ala. Civ. App. 1989).
None of Cooper’s cited cases, however, directly address the issue of who is a proper party
to file a lien pursuant to Ala. Code § 34-3-61. Some of the cases to which Cooper cites are
distinguishable in that any liens that were filed in those matters were filed by at least one attorney
who had entered a notice of appearance for the party against whom the lien was filed. See Rose,
295 So. 3d at 96 (detailing plaintiff’s previous attorneys filed a notice of an attorney’s lien after
plaintiff terminated their representation of him); Ex parte Lambert Law Firm, LLC, 156 So. 3d at
941-42 (holding, in a mandamus action to halt the transfer of funds before the amount of attorneys’
liens were determined, an attorney of record who represented the plaintiff demonstrated a clear
legal right to have the trial court determine the amount of his lien before it distributed settlement
funds); Harris, 280 So. 3d at 424 (stating the general rule that the proper party to enforce an
attorney’s lien is an attorney of record).
In Goldberg, the appellate court concluded the trial court erred when it failed to award
attorney’s fees to plaintiff’s former attorneys and remanded the matter for the trial court to
determine the appropriate fees to be awarded to the former law firm. 777 So. 2d at 146.
Importantly, as Plaintiff notes in his reply, an attorney of record filed the lien. Id.
In the remaining case that Cooper cites, Dubois, the appellate court did not address the trial
court’s finding that the claimant law firm was not a real party in interest for purposes of Ala. Code
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§ 34-3-61 and, instead, affirmed the trial court decision to not award the law firm attorney’s fees
because the firm failed to show it was entitled to such pursuant to the factors that are described in
Peebles v. Miley, 439 So. 2d 137 (Ala. 1983). Dubois, 266 So. 3d at 1083.
Accordingly, since Cooper was not an attorney of record for Plaintiff in this matter, she
does not have standing pursuant to Ala. Code § 34-3-61 to enforce Barrett & Farahany’s lien. The
Court notes Barrett & Farahany is not foreclosed from pursuing their claims through other means
or in other venues. Nothing in this opinion should be construed as a determination on the merits
of what Barrett & Farahany seeks.
III.

CONCLUSION

Accordingly, the motion to quash (Doc. 24) is GRANTED, and the notice of attorney’s
lien (Doc. 23) is QUASHED.
DONE and ORDERED this 7th day of January 2025.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE

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