Coulter v. Wiggins et al

Filing 59

OPINION AND ORDER denying 17 motion for summary judgment by Rogers, Bennett, and Lee against Wiggins; denying 38 motion for summary judgment by Wiggins against McBride, Green, Rogers, Bennett, and Lee; denying 39 motion for summary judgment by Wiggins against Coulter. Signed by Judge Susan Webber Wright on 2/10/2014. (mmd)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
NATE COULTER,
Plaintiff,
vs.

ROBERT L. WIGGINS, JR. and
WIGGINS, CHILDS, QUINN and
PANTAZIS LLC,
Defendants.
LARRY MCBRIDE, SYLVESTER
ROGERS, OZZIE GREEN,
CORNELIUS BENNETT, and
CLIFTON LEE,
Intervenors,

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No. 4:13-cv-00267-SWW

OPINION AND ORDER
Nate Coulter, an Arkansas attorney, brings this action against Robert L. Wiggins, Jr., an
Alabama attorney, and Wiggins’ Alabama law firm, Wiggins, Childs, Quinn and Pantazis, LLC
(collectively, Wiggins), for breach of contract.1 Coulter claims that Wiggins has refused to pay
him under the terms of his engagement by Wiggins as local counsel for work he performed in an
employment discrimination action brought by six plaintiffs–Cornelius Bennett, et al., v. Nucor
Corp., et al., No. 3:04-cv-00291-SWW (E.D. Ark.) (“Bennett”)–that went to trial in this Court
and resulted in a jury verdict in the total amount of $1,200,000 ($200,000 to each of the six
plaintiffs). Coulter claims that as a result of Wiggins’ breach of their contract, he is entitled to,

1

This action was originally filed in the Circuit Court of Pulaski County, Arkansas, but it
was removed to this Court by Wiggins on May 2, 2013.

inter alia, judgment against Wiggins in the amount of $131,106.82–the amount Coulter claims
he is due under the parties’ agreement.
Five of the six plaintiffs in Bennett–Larry McBride, Ozzie Green, Sylvester Rogers,
Cornelius Bennett, and Clifton Lee–have intervened in this action, fearing that Wiggins, who
they hired to represent them in the Bennett action, intends to satisfy his alleged obligation to
Coulter by using sums that intervenors claim are owed to them by Wiggins.2 Intervenors assert
claims of breach of contract, breach of fiduciary duty, and fraud against Wiggins.
Before the Court are the following motions: (1) motion for summary judgment [doc.#17]
by Rogers, Bennett, and Lee against Wiggins; (2) motion for summary judgment [doc.#38] by
Wiggins against McBride, Green, Rogers, Bennett, and Lee; and (3) motion for summary
judgment [doc.#39] by Wiggins against Coulter. Responses and replies to these motions have
been filed and the matter is ripe for resolution. For the reasons that follow, the Court denies the
motion for summary judgment by Rogers, Bennett, and Lee against Wiggins, denies the motion
for summary judgment by Wiggins against McBride, Green, Rogers, Bennett, and Lee, and
denies the motion for summary judgment by Wiggins against Coulter.
I.
In order to pursue the Bennett action in this Court, it was necessary for Wiggins to
associate as local counsel an attorney who maintains an office for the practice of law in the State
of Arkansas and who is authorized to practice in the United States District Court for the Eastern

2

The sixth plaintiff in Bennett–Rodney Washington–has not intervened in this action.
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District of Arkansas.3 Wiggins engaged an Arkansas attorney to serve as local counsel but that
attorney had to withdraw after a conflict arose. Wiggins subsequently approached Coulter who
agreed to serve as local counsel in the Bennett action.4
The fee agreement between Wiggins and Coulter was set forth in a series of
correspondence between Wiggins and Coulter in 2007. In an email dated April 25, 2007,
Coulter outlined the circumstances under which he would serve as local counsel for Wiggins,
stating as follows:
I will take on this limited roll of serving as local counsel, on the understanding
that your firm will be advancing all the expenses of the litigation and doing the
bulk of the motion practice work.
To comply with the code of professional conduct here, I would request that you
get approval from the clients in writing for me to be associated and to share in the
fees recovered, if any. Assuming you have the clients under a fee agreement that
gives you 40%, I will agree to serve as their Arkansas counsel for one fourth of
that fee, or 10% of the gross recovery.
I would of course keep my time in order to facilitate a fee petition at the end of
the case if the plaintiffs prevail.
The following day, April 26, 2007, Wiggins responded to Coulter’s email, stating as
follows:

3

See Rule 83.5(d) of the Local Rules of the United States District Court for the Eastern
and Western Districts of Arkansas (“Any attorney who is a member in good standing of the Bar
of any United States District Court, or of the highest court of any state or territory or insular
possession of the United States, but is not admitted to practice in the District Courts in Arkansas,
may, upon oral or written application, be permitted to appear and participate in a particular case.
The application shall designate a member of the Bar of these Courts who maintains an office in
Arkansas for the practice of law with whom the court and opposing counsel may readily
communicate regarding the conduct of the case.”).
4

Coulter also agreed to serve as local counsel in a separate action, Danny Lee v. Nucor
Corp., et al., No. 3:07-cv-0098-JMM (E.D. Ark.), but only the Bennett action is at issue in the
parties’ dispute now before the Court.
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Thank you for agreeing to help us. The role you outlined in your email is fine
with us. If at some point you wish to expand it, we would be happy for you to do
so. We traditionally do all the motion practice, paper discovery etc. and try not to
burden our local counsel except for key events like hearings or trials.
We will contact Danny and Clifton and get their approval and send you copies for
your records. I want to make sure I fully understand the fee splitting you set out
in your email. You will take 25% of our 40% of the clients’ recovery or ten % of
the total clients’ recovery. I assume that in addition to this you will submit your
lodestar fees, as we will, we [sic] but that you are not seeking 25% of our
lodestar-type fee.5
...
By letter to Coulter dated August 27, 2007, Wiggins summarized their fee agreement in
the Bennett and Lee actions as follows:
Re:

Cornelius Bennett, et al., v. Nucor Corp., et al.
Case No. 3:04CV00291 SWW
Eastern District of Arkansas, Jonesboro Division
Danny Lee v. Nucor Corp., et al.
Case No. 3:07-cv-00098-JMM
Eastern District of Arkansas, Jonesboro Division

Dear Nate:
Thank you again for agreeing to serve as our local counsel in the above
referenced cases.
As previously discussed, attorneys’ fees are paid on a contingency basis.
You will take 25% of our 40% of the clients’ recovery or 10% of the clients’
recovery. Costs incurred by both your firm and our firm will be deducted from
the clients’ recovery before the percentage of your fees and our firms’ attorneys’
fees are calculated. Separately, and in addition to these fees, you will submit your
lodestar fees. We will also submit lodestar fees for our attorneys. You will not
receive any percentage of our attorneys’ lodestar fees, and likewise we will not
receive a percentage of your lodestar.
If this fee arrangement is not acceptable to you, please let us know.

5

These two emails are attached to Coulter’s complaint as Exhibits A and B.
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We are sending a letter to our clients asking them to authorization [sic]
your representation of them in the above-referenced cases. When we receive the
signed authorizations back from our clients, I will forward a copy of them to you.
Thank you again for agreeing to serve as our local counsel. I look forward
to our association.6
Wiggins never obtained written approval from the Bennett plaintiffs for Coulter to serve
as local counsel as Wiggins stated would be done in the emails and letter to Coulter summarizing
their fee agreement.7 In this respect, Rogers, Bennett, and Lee each state in an affidavit that he
never agreed to retain Coulter to represent him and never agreed to pay Coulter any fee.
Wiggins, however, states in an affidavit that the Bennett plaintiffs authorized the hiring of
Coulter, physically met and consulted with Coulter at the trial of the Bennett action, and agreed
that Coulter would be paid pursuant to, and as a part of, the 2005 fee and expense contract the
Bennett plaintiffs entered into with Wiggins.
Wiggins fee and expense contract with the Bennett plaintiffs states, inter alia, that
Wiggins will receive one third of all amounts recovered (excluding expenses) or the lodestar fee
awarded by the Court, whichever is greater:

6

Wiggins argues that the two emails attached to Coulter’s complaint are not in reference
to the Bennett action but are in reference to the Lee action and another separate action. These
emails, however, are entirely consistent with Wiggins’ August 27, 2007 letter to Coulter
summarizing their fee agreement in the Bennett and Lee actions. In this respect, Coulter states,
and Wiggins apparently does not dispute, that he sent the two emails to Wiggins in August 2007
to facilitate Wiggins “tak[ing] care of getting the documentation for the Bennett case, our
agreement in the Bennett case...” It seems clear, then, and the letter of August 27, 2007 so
evidences, that the fee agreement between Wiggins and Coulter were interrelated as to the
Bennett and Lee actions.
7

Wiggins has submitted letters he claims he sent the Bennett plaintiffs seeking the return
of written authorization for Coulter to serve as local counsel but Wiggins only submits unsigned
authorization letters.
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3.

Contingent Legal Fees

Client recognizes that he/she may recover money as a result of a successful
completion of this litigation. Any recovery will be the result of either an award
by the court or a settlement. Should Client recover money, Client agrees to pay
Attorneys the greater of Attorneys’ ‘lodestar’ . . . or a sum equal to thirty-three
percent (33%) of the total amount of the Gross Value of the settlement or award.
‘Gross Value’ means the total of all monetary awards ...including back and front
pay, damages and Attorneys’ fees, but excluding ‘expenses.’
In addition, Wiggins’ fee and expense contract with the Bennett plaintiffs states that
Wiggins will be reimbursed all costs expended:
4.

Expenses

Client understands and agrees that Attorneys shall be reimbursed (out [o]f any
recovery obtained) for all expenses advanced by Attorneys in the prosecution of
Client’s claims before there is any distribution of Attorneys’ fees of the Client’s
recovery.8
Wiggins states he told the Bennett plaintiffs that Coulter had been brought into the
Bennett action to serve as their local counsel and that Coulter would be paid pursuant to the
terms of paragraph 3 of Wiggins’ fee and expense contract with the Bennett plaintiffs, i.e. that
Coulter was one of the “Attorneys” referred to in paragraphs 3 and 4 of the fee and expense
contract. Wiggins states that the Bennett plaintiffs agreed to pay Coulter on that basis without
objection.
Judgement on the jury verdict in the Bennett action, which also provided for interest and

8

Paragraph 6 of the fee and expense contract provides that “[i]f the Client does not abide
by any of the paragraphs 2, 3, 4 or 5, above, Attorneys shall have the lien on any recovery
regarding Client’s claims for their legal fees and/or expenses. Client Hereby grants Attorneys a
lien on any claims that are the subject of Client’s claims and Attorneys’ representation under this
Agreement. The Attorneys’ lien will be for all sums owed to Attorneys under this Agreement.
The lien will attach to any recovery Client may obtain, whether by court award or judgment,
settlement, arbitration award, or otherwise.”
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costs, was entered on November 4, 2009. The parties thereafter filed cross appeals to the United
States Court of Appeals for the Eighth Circuit.
On September 22, 2011, the Eighth Circuit affirmed the judgment on the jury verdict.
Following the Eighth Circuit’s decision, Wiggins received $201,459.71 on behalf of each
Bennett plaintiff. The Bennett plaintiffs thereupon executed reimbursement agreements with
Wiggins that provide as follows:
Disbursement of Funds To [plaintiff] (Bennett, et. al, vs. Nucor)
Amount deposited in escrow/trust account: $201,459.71
Less share of expenses:
([plaintiff] share is 1/6 of $300,000 total)

$50,000.00
_____________________

Subtotal after expenses:

$151,459.71

Less 1.3 attorney fee as per contract:

$50,486.57

Total Disbursement as of December 9, 2011 $100,973.14
I, [plaintiff], acknowledge that I have received this accounting of the funds
received on his behalf from Nucor Corporation and Nucor-Yamato LP in payment
of his judgment in the case Bennett, et al. Nucor. I have read the foregoing
disbursement schedule or had it read to me. I fully understand and agree to the
disbursement schedule set forth above, including the amount I am to receive. I
also acknowledge that my attorneys handled my claim satisfactorily and hereby
release and discharge all claims or complaints against them. I further
acknowledge that the above disbursements were made pursuant to my agreement
with my attorneys.
Based on the reimbursement agreements, Wiggins, in December 2011, paid each Bennett
plaintiff $100,973.14 in partial satisfaction of his judgment.
Also in December 2011, the Bennett plaintiffs timely moved for attorney’s fees and costs.
By order entered September 10, 2012, the Court awarded the Bennett plaintiffs attorney’s fees in

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the amount of $920,688.9 As the lodestar awarded by the Court was greater than 33% of the total
amount of the “Gross Value” recovered ($2,120,688), Wiggins claimed the lodestar fee pursuant
to the terms of paragraph 3 of Wiggins’ fee and expense contract with the Bennett plaintiffs.
Prior to the Court’s ruling on the Bennett plaintiffs’ motion for attorney’s fees, Wiggins,
by checks issued in December 2011 and January 2012, paid WCQP approximately $600,000 out
of the Bennett plaintiffs’ gross recovery. Wiggins states that amount was “the fee and expense
portions that were not in dispute.” Coulter, however, states that Wiggins was not entitled to
appropriate the Bennett plaintiffs’ monies before he knew how the Court was going to rule on the
fee request and that he never told Coulter he had taken approximately $600,000 in fees as of
January 2012.
Following the Court’s order on the Bennett plaintiffs’ motion for attorney’s fees,
Wiggins, on November 20, 2012, sent an email to Coulter notifying him that a contingent
percentage fee would not be claimed from the Bennett plaintiffs’ judgments. The email
provided:
Nate:
We are trying to finalize the payments to the 6 clients from their individual
judgments of $201,459.71. Because of the independent fee award, we are not
planning on claiming any contingent percentage fee from this amount. Given this
fact, what do you want me to do on your fees?
Coulter’s understanding of his and Wiggins’ fee agreement, as reflected in the April 2007
emails and August 2007 letter, is that he would receive an amount equal to 10% of the clients’
gross recovery, which was $120,875.82, and that in addition (rather than in lieu of), he was

9

The Court also awarded costs in the amount of $136,977.12.
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entitled to submit his separate lodestar petition, which was $10,231.00.10 Coulter states that
when the time came to submit a fee application, Wiggins requested that Coulter not submit his
separate lodestar fee application because his requested hourly rate was so much lower than what
Wiggins wanted this Court to award him. Coulter states that Wiggins agreed to pay him his
lodestar fee if he would not submit his own petition, to which Coulter agreed not to do, but that
Wiggins made no request to amend or modify the separate contingency fee amount equal to 10%
of the gross recovery received by the Bennett plaintiffs. Coulter states that following this
Court’s fee award that was substantially less than what Wiggins requested, Wiggins made a
unilateral decision to “waive” the contingency fee component of his fee and expense contract
with the Bennett plaintiffs, choosing instead to rely entirely on his lodestar fee application. As
reflected in Wiggins’ November 20, 2012 email, Coulter states that Wiggins asked him what he
wanted to do in light of this development and that he informed Wiggins that his agreement was
with Wiggins, that it contained no provision allowing Wiggins to escape his obligation to pay
Coulter the promised 10% of the Bennett plaintiffs’ gross recovery by “waiving” his own
contingency fee, and that Coulter was entitled to receive from Wiggins the 10% amount based on
the recovery and his lodestar amount.
Wiggins, however, claims that the only contract that ever applied to Coulter was the fee
and expense contract that Wiggins had with the Bennett plaintiffs. He states that Coulter never
asked Wiggins to assist him in obtaining a new fee and expense contract with the Bennett

10

The combined total of 10% of the gross recovery and the lodestar fee is $131,106.82
and it is that amount that Coulter seeks by way of his action against Wiggins. Compl. at ¶ 5.
The Court notes that Wiggins states there is no case or controversy about payment of Coulter’s
lodestar and that he has continuously offered to pay Coulter his full lodestar that he set forth in
his affidavit.
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plaintiffs and that it was always understood that the fee and expense contract that Wiggins had
with the Bennett plaintiffs would apply to Coulter. Wiggins states that the Bennett plaintiffs and
Coulter agreed to that arrangement and that the only thing Coulter asked Wiggins to do was to
get the Bennett plaintiffs’ permission for Coulter to represent them, which Wiggins states he did.
Wiggins goes on to state that he and his firm never agreed to pay Coulter to represent the Bennett
plaintiffs out of their own pocket nor did they hire or retain Coulter to represent Wiggins.
Rather, Wiggins states that Coulter represented no one other than the Bennett plaintiffs and that
his sole appearance or work was as the Bennett plaintiffs’ local counsel in the Bennett action.
In the meantime, in December 2012, McBride and Green executed Final Disbursement of
Funds agreements with Wiggins.11 McBride’s Final Disbursement of Funds agreement, dated
December 21, 2012, provides as follows:
Final Disbursement of Funds To Larry McBride (Bennett, et. al, vs. Nucor)
Amount deposited in escrow/trust account: $201,459.71
Less amount already paid last year:

$100,933.14

Less share of expenses Nucor not
required to reimburse:

$50,000.00

Less amount reserved for possible
payment to local attorney:

$5,833.00
______________
$44,695.5712

Final amount due on judgment:

11

Bennett plaintiff Rodney Washington, who as previously noted is not involved in this
current action, also executed a Final Disbursement of Funds agreement, dated May 21, 2013.
12

Actually, the sum total of McBride’s Final Disbursement of Funds agreement is
$44,693.57. The Court notes that although McBride’s and Green’s Final Disbursement of Funds
agreements indicate they were earlier paid $100,933.14 in partial satisfaction of their judgment,
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I, Larry McBride, acknowledge that I have received this accounting of the
$201,459.71 from Nucor Corporation and Nucor-Yamato LP in payment of my
judgment in the case Bennett, et al v Nucor. I have read the foregoing
disbursement schedule. I fully understand and agree to the disbursement schedule
set forth above, and agree that it complies with my original fee and expense
agreement by deducting $50,000 for expenses in the case that I have not been
reimbursed by Nucor. I also acknowledge that my attorneys handled my claim
satisfactorily and hereby release and discharge all claims or complaints against
them. I further acknowledge that the above disbursements were made pursuant to
my original contract with my attorneys.
Green’s Final Disbursement of Funds agreement, dated December 7, 2012, provides as
follows:
Final Disbursement of Funds To Ozzie Green (Bennett, et. al, vs. Nucor)
Amount deposited in escrow/trust account: $201,459.71
Less amount already paid last year:

$100,933.14

Less share of expenses Nucor not
required to reimburse:

$50,000.00
______________

Final amount due on judgment:

$50,526.57

I, Ozzie Green, acknowledge that I have received this accounting of the
$201,459.71 from Nucor Corporation and Nucor-Yamato LP in payment of my
judgment in the case Bennett, et al. Nucor. I have read the foregoing
disbursement schedule. I fully understand and agree to the disbursement schedule
set forth above, and agree that it complies with my original fee and expense
agreement by deducting $50,000 for expenses in the case that have not been
reimbursed by Nucor. I also acknowledge that my attorneys handled my claim
satisfactorily and hereby release and discharge all claims or complaints against
them. I further acknowledge that the above disbursements were made pursuant to
my original contract with my attorneys.
Wiggins states he has paid McBride and Green according to their Final Disbursement of

Wiggins and intervenors seem to agree, and the Disbursement of Funds agreements in the record
reflect, that each Bennett plaintiff was earlier paid $100,973.14 in partial satisfaction of their
respective judgment.
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Funds agreements and that they are now paid in full. McBride and Green, however, claim they
were induced to sign these agreements by Wiggins’ alleged false statements.
For their part, Rogers, Bennett, and Lee apparently declined to execute Final
Disbursement of Funds agreements and, according to Wiggins, have declined to accept payment
until the amount remaining due under their fee and expense contract has been determined by the
Court. In this respect, Wiggins states that at the intervenors’ instruction, he declined to disburse
the $130,000 demanded by Coulter until his claim has been determined by the Court or
otherwise resolved, and Wiggins states that he also has withheld litigation expenses that
intervenors contracted to reimburse in paragraph 4 of their fee and expense contract. Wiggins
states that the resolution of these issues requires interpretation of the same contractual provisions
of the intervenors’ fee and expense contract that is at issue in Coulter’s claim and Wiggins’
defense to such claim.
There apparently is also a dispute concerning the amount of unreimbursed expenses owed
by each Bennett plaintiff. Wiggins’ motion for judgment on the pleadings against the complaint
in intervention [doc.#11], which the Court denied without prejudice by order entered June 18,
2013 [doc.#12], states in footnote 2 as follows:
The six Bennett plaintiffs were responsible under ¶ 4 of their contract to pay the
$424,150 in expenses remaining unpaid after they were credited with the
$136,977[.12] in expenses that Nucor reimbursed on their behalf. WCQP,
however, has limited the amount of expenses withheld to 25% ($50,000) of the
$200,000 judgment of each plaintiff, leaving $124,150 in such expenses
unsecured.
Citing this footnote, Rogers, Bennett, and Lee state that Wiggins is limiting
unreimbursed expenses to $50,000 for each Bennett plaintiff. Wiggins, however, states in an
affidavit that footnote 2 only referred to the modification Wiggins reached with the other three
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Bennett plaintiffs–McBride, Green, and Washington–and that it did not refer to Rogers, Bennett,
and Lee, who rejected that proposed modification. Similarly, Wiggins states in his response to
the motion for summary judgment filed by Rogers, Bennett, and Lee that their assertion that the
fee and expense contract between Wiggins and the Bennett plaintiffs was modified to limit
unreimbursed expenses to $50,000 for each Bennett plaintiff “is a disputed issue of fact” as
Wiggins’ affidavit states that no such agreement was reached with Rogers, Bennett, and Lee.
Elsewhere, however, Wiggins states that “[r]ather than deducting the full $412,721.85 of the
unreimbursed expenses from the Bennett plaintiffs’ damage award as their contract provides,
WCQP agreed to forego reimbursement of all but $300,000 of that sum ($50,000 each for a total
of $300,000)” and that the December 2011 disbursement agreements signed by the Bennett
plaintiffs “stipulate[] ‘$50,000' to be the proper sum to be deducted from their damage awards
for unreimbursed expenses.”
II.
Rogers, Bennett, and Lee move for summary judgment against Wiggins on grounds that
the dispute between Coulter and Wiggins has nothing to do with the money owed the Bennett
plaintiffs, that Wiggins is limiting unreimbursed expenses to $50,000 for each Bennett plaintiff,
and that Rogers, Bennett, and Lee are thus each owed $50,486.57.
Wiggins moves for summary judgment against McBride, Green, Rogers, Bennett, and
Lee on grounds that they are all contractually responsible to pay the expenses remaining unpaid
after they were credited with the $136,977 in expenses that Nucor reimbursed on their behalf and
that McBride’s and Green’s breach of fiduciary duty and fraud claims fail because a breach of
contract is not a proper basis for allegations of breach of fiduciary duty and fraud.

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Wiggins moves for summary judgment against Coulter on grounds that he only entered
into an agreement with Wiggins to divide the contingent percentage of the Bennett plaintiffs’
damages that would be due to Wiggins, if any, pursuant to Wiggins’ fee and expense contract
with the Bennett plaintiffs and that Wiggins’ fee and expense contract with the Bennett plaintiffs
allowed the attorneys for the Bennett plaintiffs, which included Coulter, to receive the greater of
either their lodestar or 33% of the total award, but not both.
A.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P.
56(a). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite
“to particular parts of materials in the record,” or show “that the materials cited do not establish
the absence or presence of a genuine dispute,” or “that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). “The court need
consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P.
56(c)(3). The inferences to be drawn from the underlying facts must be viewed in the light most
favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986) (citations omitted). Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of
a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and
quotation marks omitted). However, “[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita, 475 U.S. at 587 (citation omitted). “Only disputes over facts that might affect the

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outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that
are irrelevant or unnecessary will not be counted.” Id.
B.
The Court has considered the record and determines that there are simply too many
disputed issues of material fact at this time to grant summary judgment to any party. These
issues include (but are not limited to) the nature of Coulter’s fee agreement with Wiggins and the
amount he is due under that agreement, whether Wiggins is withholding money due the Bennett
plaintiffs in order to pay those sums allegedly due Coulter, whether Wiggins’ fee and expense
contract with the Bennett plaintiffs applies to Coulter, whether the Bennett plaintiffs authorized
the hiring of Coulter as local counsel, whether Wiggins is limiting the amount of expenses to
$50,000 for each Bennett plaintiff, whether the circumstances surrounding the execution of
McBride’s and Green’s Final Disbursement of Funds agreements will support breach of
fiduciary duty and fraud claims, and the circumstances (or relevance) surrounding Wiggins
allegedly taking some $600,000 from the Bennett plaintiffs out of his firm’s trust account before
he knew how the Court was going to rule on his lodestar fee request. Many of these issues will
involve credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts that are jury functions and not those of a judge. Reeves, 530 U.S. at
150.
III.
For the foregoing reasons, the Court denies the motion for summary judgment [doc.#17]
by Rogers, Bennett, and Lee against Wiggins, denies the motion for summary judgment

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[doc.#38] by Wiggins against McBride, Green, Rogers, Bennett, and Lee, and denies the motion
for summary judgment [doc.#39] by Wiggins against Coulter.
IT IS SO ORDERED this 10th day of February 2014.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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