Davis v. Arundel et al
Filing
88
ORDER RE: ATTORNEY'S LIEN. WITHDRAW the 76 reference of the 75 lien claimant's Motion for Enforcement of Attorney's Lien. The 75 lien claimant's Motion for Enforcement of Attorney's Lien is GRANTED on the terms stated in this order. The 81 Plaintiff's Objection to Review of Motion for Enforcement of Attorney's Lien for Lack of Subject Matter Jurisdiction, Or, in The Alternative, Request to Recuse Judge Watanabe from Review Of Motion to Enforce Attorney's Lien and Related Actions Pursuant to 28 U.S.C. § 455(b)(1) is DENIED, by Judge Robert E. Blackburn on 03/22/2012.(wjcsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 09-cv-02768-REB-MJW
HEATHER DAVIS,
Plaintiff,
v.
KUTAK ROCK, LLP,
Defendant.
ORDER RE: ATTORNEY’S LIEN
Blackburn, J.
This matter is before me on the following: (1) the lien claimant’s Motion for
Enforcement of Attorney’s Lien [#75]1 filed April 7, 2011; and (2) the Plaintiff's
Objection to Review of Motion for Enforcement of Attorney’s Lien for Lack of
Subject Matter Jurisdiction, Or, in The Alternative, Request to Recuse Judge
Watanabe from Review Of Motion to Enforce Attorney’s Lien and Related Actions
Pursuant to 28 U.S.C. § 455(b)(1) [#81] filed April 22, 2011. The plaintiff filed a
response [#82] to the motion to enforce, the lien claimant filed a combined reply in
support of her motion and response to the plaintiff’s objection [#86], and the plaintiff filed
a combined reply and response [#87]. I grant the claimant’s motion to enforce and deny
the plaintiff’s motion.
The motion to enforce [#75] was referred [#76] to United States Magistrate Judge
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“[#75]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
Michael Watanabe. Reviewing the docket in this case, I conclude that it would be most
efficient for the court to rule on the two pending motions listed above in one order.
Thus, after consulting with Judge Watanabe, I withdraw the reference [#76] of the
motion to enforce [#75].
I. JURISDICTION
I have jurisdiction over this matter under 28 U.S.C. § 1367 (supplemental).
II. ANALYSIS
The above captioned case is an employment discrimination case brought by the
plaintiff, Heather Davis, against her former employer, Kutak Rock, LLP, and two
individual defendants. In her complaint, the plaintiff asserted employment discrimination
claims under Title VII and several claims under Colorado law. Third Amended
Complaint and Jury Demand [#24] filed March 31, 2010. Ultimately, the plaintiff and the
defendants reached a settlement and filed a stipulated motion [#65] to dismiss this
case. The motion was granted.
The lien claimant, Diane S. King, of King and Greisen, LLP, is an attorney who
represented Ms. Davis when Ms. Davis filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC). The EEOC charge concerned the same
alleged employment discrimination at issue in the plaintiff’s complaint in this case.
Shortly after this case was filed, Ms. King filed a Notice of Lien [#5]. In the notice Ms.
King states that she previously was counsel to Ms. Davis “concerning Ms. Davis’ claims
for violation of her civil rights and termination from employment, which matters
reference claims connected with this litigation. While a client of King & Griesen, LLP,
she [Ms. Davis] incurred attorneys fees and expenses due to the firm under her fee
agreement in the unpaid amount of $18,855.21.” Notice [#5], p. 1. After the plaintiff
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agreed to a settlement with the defendants, the amount claimed in the Notice of Lien
was deposited in the court registry. In her present motion, Ms. King seeks an order
enforcing her attorney’s lien against the funds in the court registry.
Ms. Davis objects to the enforcement of the lien on four bases. First, Ms. Davis
asserts that Ms. King failed to comply with the duty to confer stated in D.C.COLO.LCivR
7.1.A. I disagree. The e-mail exchanges reflected in the attachment to Ms. Davis’
response [#82] demonstrate Ms. King’s satisfactory effort to confer with Ms. Davis
before filing the motion to enforce the attorney’s lien. At the time Ms. Davis was not
represented by counsel in this case. however, Ms. Davis is an attorney.
Second, Ms. Davis contends that an attorney’s lien is not proper in this case
because Ms. King never represented Ms. Davis in this case. It is undisputed that Ms.
King never entered an appearance in this case. Under §12-5-119, C.R.S., an attorney
has lien rights when she has “obtained or assisted in obtaining, in whole or in part” relief
for the client. “An attorney's lien attaches automatically to any monies or property due
or owing to the client on any underlying judgment the attorney may have obtained or
assisted in obtaining . . . .” Gold v. Duncan Ostrander & Dingess, P.C., 143 P.3d
1193 (Colo. App. 2006).
Even though Ms. King did not personally appear in this case, her lien is based on
work done in this lawsuit. Of course, the filing of an EEOC charge is a jurisdictional
prerequisite to a Title VII lawsuit in federal court. Shikles v. Sprint/United
Management Co., 426 F.3d 1304, 1317 (10th Cir. 2005). Ms. King’s representation of
Ms. Davis in filing Ms. Davis’ EEOC charge provided the foundation without which Ms.
Davis could not have filed this lawsuit. In part, Ms. King obtained or assisted in
obtaining the relief ultimately achieved by Ms. Davis. Ms. King has a valid attorney’s
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lien under §12-5-119, C.R.S. Garrick v. Weaver, 888 F.2d 687, 690 (10th Cir. 1989).
Third, Ms. Davis contends that the court does not have jurisdiction over the issue
of the propriety of the attorney’s lien. I disagree. In the context of an attorney’s lien
dispute, a federal court does not have jurisdiction to adjudicate the amount of attorney
fees owing to the attorney “with respect to matters unrelated to litigation before the
court.” Jenkins v. Weinshienk, 670 F.2d 915, 919 (10th Cir. 1982). However,
“(d)etermining the legal fees a party to a lawsuit properly before the court owes its
attorney with respect to the work done in the suit being litigated, easily fits the concept
of ancillary jurisdiction.” Id. at 918. Ancillary jurisdiction now is referred to as
supplemental jurisdiction. Ellis v. All Steel Const., Inc., 389 F.3d 1031, 1034 (10th Cir.
2004); 28 U.S.C. § 1367. For the reasons discussed above, I conclude that Ms. King’s
representation of Ms. Davis with regard to Ms. Davis’ EEOC charge constitutes work
done in this lawsuit.
Fourth, Ms. Davis argues that Ms. King’s lien is barred by the applicable statute
of limitations. Again, I disagree. Ms. Davis contends that the three year period of
limitations stated in §13-80-101(1)(a), C.R.S., applies here. That subsection concerns
“(a)ll contract actions, including personal contracts . . .except as otherwise provided in
section 13-80-103.5.” Section 13-80-103.5(a), C.R.S., provides a six year period of
limitations for “(a)ll actions to recover a liquidated debt or an unliquidated, determinable
amount of money due to the person bringing the action . . . .” The latter statute applies
to Ms. King’s attorney fees claim against Ms. Davis. Rotenberg v. Richards, 899 P.2d
365, 368 (Colo. App. 1995). Ms. King’s effort to enforce her attorney’s lien is timely.
An attorney’s lien attaches only “to the extent of the attorneys’ reasonable fees
remaining due and unpaid.” Gold v. Duncan Ostrander & Dingess, P.C., 143 P.3d
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1193 (Colo. App. 2006). The current record does not contain information sufficient for
the court to determine the amount of reasonable attorney fees tied to Ms. King’s lien.
Under D.C.COLO.LCivR 54.3, I direct Ms. King to file with the court a motion seeking a
specific amount of reasonable attorney fees. After Ms. Davis has had an opportunity to
respond, I will determine the reasonable amount of attorney fees secured by Ms. King’s
attorney’s lien. If Ms. King establishes a reasonable amount of attorney fees tied to the
attorney’s lien, I will direct enforcement of the lien against the funds currently held in the
court registry in that amount.
THEREFORE, IT IS ORDERED as follows:
1. That after consulting with the magistrate judge, I WITHDRAW the reference
[#76] of the lien claimant’s Motion for Enforcement of Attorney’s Lien [#75] filed April
7, 2011;
2. That the lien claimant’s Motion for Enforcement of Attorney’s Lien [#75]
filed April 7, 2011, is GRANTED on the terms stated in this order;
3. That on or before April 12, 2012, the lien claimant, Diane King, SHALL FILE a
motion seeking a specific amount of reasonable attorney fees secured by her attorney’s
lien in this case;
4. That Ms. King’s motion SHALL COMPLY with the requirements of
D.C.COLO.LCivR 54.3;
5. That on or before May 2, 2012, the plaintiff, Heather Davis, MAY FILE a
response to the motion;
6. That the Plaintiff's Objection to Review of Motion for Enforcement of
Attorney’s Lien for Lack of Subject Matter Jurisdiction, Or, in The Alternative,
Request to Recuse Judge Watanabe from Review Of Motion to Enforce Attorney’s
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Lien and Related Actions Pursuant to 28 U.S.C. § 455(b)(1) [#81] filed April 22,
2011, is DENIED.
Dated March 22, 2012, at Denver, Colorado.
BY THE COURT:
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