NEES v. BRISTOL-MYERS SQUIBB COMPANY et al
Filing
21
ORDER denying 11 Plaintiff's Motion to Quash Attorney's Lien; granting 13 Levin Papantonio's Motion to Enforce Attorney's Lien; denying as moot 15 Plaintiff's Motion Requesting Judicial Notice and Order Directing Release of Settlement Funds. The Settlement Administrator BrownGreer is directed to distribute the amounts specified in this order from the settlement funds. Signed by MAGISTRATE JUDGE GARY R JONES on 05/21/20. (grj)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
IN RE: ABILIFY (ARIPIPRAZOLE)
PRODUCTS LIABILITY LITIGATION,
Case No. 3:16-md-2734
Judge M. Casey Rodgers
Magistrate Judge Gary R. Jones
This Document Relates to:
Nees, 3:18-cv-876
______________________________/
ORDER
The matter before the Court is a dispute between Plaintiff Myles
Jacob Nees and his former counsel, Levin, Papantonio, Thomas, Mitchell,
Rafferty & Proctor, P.A. (“Levin Papantonio”), concerning the entitlement to
attorney’s fees and costs.1 Plaintiff retained Levin Papantonio to represent
him in this case pursuant to a contingency fee agreement. ECF No. 13 at
24–30. While represented by Levin Papantonio, Plaintiff settled his claim
against Defendants as part of this multidistrict litigation’s settlement
program. After agreeing to settlement but prior to the disbursement of any
funds, however, Plaintiff directed his counsel to withdraw from further
representation. ECF Nos. 4, 7. Levin Papantonio now asserts that it is
owed its attorney’s fees and costs as part of the contingency. The firm has
1
The district court referred this matter to the undersigned for disposition in accordance
with 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). ECF No. 17.
filed a “Notice of Attorney’s Lien,” otherwise known as a charging lien, ECF
No. 5, and moves to enforce the lien against the settlement funds, ECF No.
13. Plaintiff, on the other hand, moves to quash the lien, arguing: (1) he did
not have a fee agreement with Levin Papantonio; and (2) even if an
agreement existed, Levin Papantonio forfeited entitlement to payment
when the firm voluntarily withdrew from representing him and because
there was good cause for discharging his former counsel. ECF No. 8.
Upon careful consideration, the undersigned concludes that Levin
Papantonio’s motion to enforce the charging lien is due to be GRANTED.
As discussed below, Plaintiff cannot avoid satisfying his end of the parties’
contingency agreement—namely, the payment of fees and costs—after
relying on his learned and experienced counsel to litigate this matter
through settlement. What’s more, the law does not allow Plaintiff to turn
this dispute concerning the enforcement of a charging lien into a forum for
a malpractice claim against his former counsel. Simply put, Plaintiff had
the music and now must pay the piper.
I. BACKGROUND
The relevant history of this dispute began on August 10, 2017, when
Plaintiff contacted Levin Papantonio seeking representation in a potential
case involving Abilify. ECF No. 13-1 ¶ 3 (“Declaration of Christopher G.
2
Paulos”). On August 15, 2017, following a prospective client interview,
Levin Papantonio sent an initial packet to a telephone number and email
address (mylesjacobnees@gmail.com) Plaintiff previously provided to the
firm. Id.; see also ECF No. 13-2 ¶ 10 (“Declaration of Donald Kratt,” Chief
Information Officer for AssureSign).
The initial packet included the “Attorney-Client Employment
Agreement in Mass Torts Cases” (the “Retainer Agreement”) for Plaintiff to
sign using AssureSign. ECF No. 13-1 ¶¶ 3–4. AssureSign is an internetbased service platform that allows documents to be signed electronically.
ECF No. 13-2 ¶ 3. AssureSign documents and data are encrypted in
storage and at rest, the participants’ electronic signatures contain biometric
and forensic elements, and the program’s methods ensure that all
transactions are confidential, secure, and can only be accessed by
authorized users. Id. ¶¶ 3–5. Pertinent here, AssureSign maintains an
audit trail reflecting each step completed during the life of a document,
including the email addresses and IP addresses of the signatories and
recipients, as well as the dates and times that each step in the process is
executed. Id. ¶¶ 3–4.
The audit trail data for Plaintiff’s Retainer Agreement with Levin
Papantonio (ECF No. 13–2 ¶¶ 10–12) reflects that a link for the initial
3
packet, which included the Retainer Agreement, was sent to Plaintiff’s
email address on August 15, 2017, following an unsuccessful attempt to
deliver the packet via SMS text message. That same day, the AssureSign
link was opened on a device with an IP address assigned to a T-Mobile
user. Plaintiff did not electronically sign the Retainer Agreement during that
session. On August 16, 2017, the AssureSign link was opened on a
Windows desktop or laptop device. During this session, the Retainer
Agreement was reviewed and signed. Immediately thereafter, an email
was sent to Levin Papantonio (msmith@levinlaw.com) and Plaintiff
(mylesjacobnees@gmail.com) advising the parties that the document was
signed. Levin Papantonio downloaded the completed document on August
16, 2017, and the document has not been altered or tampered with since it
was completed in the AssureSign system.
The following day, on August 17, 2017, Levin Papantonio attorney
and shareholder Christopher Paulos reviewed the completed Retainer
Agreement and executed it on behalf of the firm. ECF No. 13-1 ¶ 5. The
Retainer Agreement, which is an exhibit to Levin Papantonio’s motion, ECF
No. 13 at 24–30, states in relevant part that Plaintiff hired Levin Papantonio
“to provide legal services” in his “claim for damages arising out of Abilify”
and agreed to pay Levin Papantonio a variable contingency fee of: (1) 33
4
and 1/3 percent of any recovery up to $1 million if the recovery occurred
before the defendants filed an answer to the complaint; or (2) 40 percent of
any recovery up to $1 million if the recovery occurred after the defendants
filed an answer. ECF No. 13 at 24. As to costs, 2 Plaintiff agreed to “pay all
expenses incurred by [Levin Papantonio] in handling [his] case” and was
cautioned that all costs advanced on his behalf would bear interest. Id. at
24–25. Lastly, the Retainer Agreement provided Plaintiff with the right to
cancel the agreement by written notice within seven days after signing it.
Id. at 26. Mr. Paulos sent a copy of the fully executed Retainer Agreement
to Plaintiff on August 25, 2017, with a welcome letter. Id. at 34–35; ECF
No. 13-1 ¶ 7.
Levin Papantonio proceeded to perform a pre-suit investigation of
Plaintiff’s allegations, including “sending preservation letters, requesting
potentially relevant records, collecting physical and documentary evidence
in Mr. Nees’ and third parties’ possession, hiring and working with experts,
2
The retainer agreement provides a non-exhaustive list of what expenses constitute
reimbursable costs: “cash and non-cash expenditures for filing fees; subpoenas;
depositions; witness fees; in-house and outside investigation services; expert witness
fees; state court and multi-district litigation assessments; medical records and reports,
computer research; photographs; in-house and outside photocopies; facsimiles; longdistance calls; postage and overnight delivery charges; common benefit charges;
mediation fees; travel costs; in-house and outside media services; outside professional
fees and costs for resolving medical liens, estate, guardianship, and bankruptcy matters;
Medicare set-aside report preparation; and similar expenses incurred in performing legal
services for [Mr. Nees].” ECF No. 13 at 24–25.
5
and preparing the case for litigation.” ECF No. 13-1 ¶ 9. Mr. Paulos states
that “Mr. Nees cooperated with and was apprised of these efforts
throughout the process.” Id.
On April 21, 2018, Levin Papantonio filed suit in this multidistrict
litigation on behalf of Plaintiff. ECF No. 1. Levin Papantonio timely and
properly served Defendants, ECF No. 13-1 ¶ 11, and, pursuant to the
Court’s Order on Procedures for Direct Filing and Master Pleadings,
Defendants’ Master Answer was deemed adopted in this case, Case No.
3:16-md-02734-MCR-GRJ, ECF No. 106 at 6. Levin Papantonio litigated
the liability and damages issues pertinent to Plaintiff’s case while
continuing to engage in discovery and additional efforts to collect evidence
in support of Plaintiff’s claims. ECF No. 13-1 ¶ 12.
Plaintiff contacted Levin Papantonio on May 22, 2018, to inform
counsel of the possibility that he would be incarcerated in Oregon. Id. ¶ 13.
This presented “heightened logistical challenges” in handling Plaintiff’s
case, but, with the assistance of counsel, Plaintiff timely complied with
relevant case management orders and discovery obligations. Id.
On February 21, 2019, the Court formally announced a global
settlement of this multidistrict litigation and adopted a settlement program
for the resolution of individual plaintiffs’ claims. Case No. 3:16-md-027346
MCR-GRJ, ECF No. 1131. Levin Papantonio says that during the course
of the settlement program, Plaintiff was provided multiple letters discussing,
in detail, the terms and conditions of settlement, the MDL assessment
procedures, and his own rights and responsibilities with respect to
participating in the settlement. ECF No. 13-1 ¶ 15. Plaintiff and Levin
Papantonio also had multiple phone calls to discuss those letters, the
settlement program, his various options in both continued litigation and
settlement, and his decision to opt in or out. Id. ¶ 16.
Plaintiff, through counsel, submitted a claims package to the Claims
Administrators on June 4, 2019, through the Settlement Program portal and
sought funds from the Extraordinary Damages Fund (“EDF”). Id. ¶ 17. In
August 2019, the Claims Administrators offered Plaintiff a Processed Loss
award of 39.9420 points and denied his EDF claim. Id. ¶ 18. Plaintiff
authorized Levin Papantonio to appeal both the Processed Loss Point
Award and EDF denial on his behalf. Id. The appeal was successful,
resulting in an additional 14.511 points under the Process Loss program,
and an EDF award offer of $15,000 gross/$5,632.31 net, translating into
$34,462.76 in additional funds for Plaintiff. Id. The total value of Plaintiff’s
final settlement award was $113,819.53. Id. On September 19, 2019,
Plaintiff irrevocably accepted the final settlement award by signing and
7
returning the “Confidential Release, Indemnity, and Assignment” (the
“Settlement Release”) to Levin Papantonio, who submitted the Settlement
Release to the Claims Administrators on September 25, 2019. ECF No. 13
at 37-50; ECF No. 13-1 ¶ 19.
Levin Papantonio states that between October 23 and October 29,
2019, Plaintiff contacted Levin Papantonio by phone at least twice to inform
the firm that he wished “to deal directly” with the Claims Administrators but
had been informed they would not discuss his case with him as long as he
was represented by counsel. ECF No. 13-1 ¶ 20. Plaintiff also addressed
the fees and costs due to counsel under the Retainer Agreement and
sought a “significant downward departure” from the agreed-upon
contingency fee. Id. When Levin Papantonio declined to renegotiate the
fees and costs, Plaintiff threatened to “file a bar complaint” unless the firm
agreed to lower or waive the fees and costs. Id.
Plaintiff contacted Levin Papantonio on November 1, 2019, by
telephone. Id. ¶ 21. Mr. Paulos claims that Plaintiff terminated Levin
Papantonio from further representation in this case and all other potential
matters. ECF No. 13-1 ¶¶ 21–23. Plaintiff states in at least two filings that
Mr. Paulos agreed to file a motion for leave to withdraw, although Plaintiff
further asserts that there was “good cause” for terminating Levin
8
Papantonio. ECF No. 8 at 2; ECF No. 11 at 1, 9. On November 6, 2019,
Levin Papantonio sent Plaintiff a letter summarizing the November 1, 2019,
telephone call, explaining the remaining work to be done on Plaintiff’s
Abilify case, and enclosing relevant communications, records, and filings.
ECF No. 13 at 55–57; ECF No. 13-1 ¶ 26. The next day, Levin Papantonio
filed its motion for leave to withdraw, ECF No. 4, and a “Notice of Attorney’s
Lien,” stating a claim “for fees and costs owed for legal services rendered
and expenses paid in this matter,” ECF No. 5. Levin Papantonio mailed a
copy of the filed charging lien to Plaintiff via certified mail on November 7,
2019. ECF No. 13 at 69; ECF No. 13-1 ¶ 27. 3
Levin Papantonio has filed a motion to enforce the charging lien,
which also addresses Plaintiff’s relevant filings. ECF No. 13. Relevant
here, Plaintiff has filed an “Ex Parte Response to Notice of Attorney’s Lien,”
ECF No. 8, a “Motion to Quash Attorney’s Lien,” ECF No. 11, and an “Ex
Parte Reply to Levin Papantonio’s Motion to Enforce Attorney’s Lien and
Request for Jury Trial,” ECF No. 14.
3
Plaintiff complains that he did not receive a signed copy of the charging lien, but he
admits to receiving “an unsigned Notice of Attorney’s Lien dated November 6, 2019[.]”
ECF No. 8 at 3.
9
II. DISCUSSION
A.
The legal principles governing charging liens
“‘Federal courts, although they recognize no common-law lien in favor
of attorneys, give effect to the laws of the states in which they are held.’”
Gottlieb v. GC Fin. Corp., 97 F. Supp. 2d 1310, 1311 (S.D. Fla. 1999)
(quoting Webster v. Sweat, 65 F.2d 109, 110 (5th Cir. 1933)). In other
words, “[t]he rights and obligations of parties to a contract, which provides
attorneys’ fees upon the happening of a contingency, are governed by state
law.” Zaklama v. Mount Sinai Med. Ctr., 906 F.2d 650, 652 (11th Cir.
1990).
For nearly 170 years, the Florida Supreme Court has recognized “an
equitable right to have costs and fees due to an attorney for services in the
suit secured to him in the judgment or recovery in that particular suit.”
Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428
So. 2d 1383, 1384 (Fla. 1983) (citing Carter v. Davis, 8 Fla. 183 (1858);
Carter v. Bennett, 6 Fla. 214 (Fla. 1855); Randall v. Archer, 5 Fla. 438 (Fla.
1854)). The state’s highest court explained the basis for this right more
than a century ago:
While our courts hold the members of the bar to strict
accountability and fidelity to their clients, they should afford them
protection and every facility in securing them their remuneration
for their services. An attorney has a right to be remunerated out
10
of the results of his industry, and his lien on these fruits is
founded in equity and justice.
Bennett, 6 Fla. at 258 (emphasis in original).
As a product of common law, “[n]o statutes outline the requirements
for valid attorney’s liens in Florida.” Daniel Mones, P.A. v. Smith, 486 So.
2d 559, 561 (Fla. 1986). Instead, the proceedings are equitable in nature,
Nichols v. Korelinger, 46 So. 2d 722, 724 (Fla. 1950), and subject to a welldeveloped body of case law, Sinclair, Louis, 428 So. 2d at 1384–85. See
also Austin Laurato, P.A. v. United States, 539 F. App’x 957, 961 (11th Cir.
2013) (“The requirements for imposing an attorney’s charging lien are not
codified in a Florida statute, but rather are governed by case law.”). 4
There are four requirements for an attorney to impose a valid
charging lien: (1) an express or implied contract between the attorney and
the client; (2) an express or implied understanding between the parties for
the payment of fees or costs from the client’s recovery; (3) either an
attempt to avoid the payment of fees or costs or a dispute as to the amount
involved; and (4) timely notice of the lien. Daniel Mones, P.A., 486 So. 2d
at 561; Sinclair, Louis, 428 So. 2d at 1385. The charging lien attaches only
4
Because an attorney’s charging lien sounds in equity, Plaintiff is not entitled to a jury
trial on the validity of the lien. Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d
1343, 1352 (11th Cir. 2019).
11
to the “tangible fruits” of the attorney’s services. Correa v. Christensen,
780 So. 2d 220, 220 (Fla. 5th DCA 2001).
B.
Levin Papantonio has a valid charging lien for attorney’s
fees and costs against Plaintiff’s settlement funds
Plaintiff asks the Court to quash Levin Papantonio’s charging lien
because: (1) the firm does not have a valid contingency fee agreement with
Plaintiff; (2) any contingency fee agreement with Plaintiff does not establish
entitlement to fees and limits any claim for costs; (3) the firm agreed to
withdraw from further representation; (4) there was good cause for
discharging Levin Papantonio; and (5) the notice of attorney’s lien was not
signed, and therefore did not comply with Federal Rule of Civil Procedure
11. ECF No. 11. Each of these arguments fails because Levin Papantonio
has satisfied all four requirements for a valid charging lien.
First—the contract. The fee agreement between an attorney and a
client is subject to the general principles of state contract law. Lugassy v.
Indep. Fire Ins. Co., 636 So. 2d 1332, 1335 (Fla. 1994). The Retainer
Agreement between Levin and Papantonio and Plaintiff, which appears to
be signed by both parties (Plaintiff and counsel), is before the Court as an
exhibit to the firm’s instant motion. ECF No. 13 at 24–30. Plaintiff,
nevertheless, says the Retainer Agreement is invalid. ECF No. 11 at 2.
12
Liberally construing Plaintiff’s pro se filings, the Court surmises that
Plaintiff challenges the validity of the Retainer Agreement on two grounds.
Plaintiff first “disputes the authenticity of his signature.” ECF No. 8 at 3.
Notably, Plaintiff does not expound on this argument elsewhere in his
filings other than by asserting Levin Papantonio uses a “Master Signature”
for Plaintiff “to complete any form they wish.” Id. at 7. Plaintiff’s vague
implications that his counsel or some unidentified person fraudulently
signed the Retainer Agreement bear no weight. Moreover, the audit trail
and accompanying affidavit from AssureSign, ECF No. 13-2, provide
exhaustive forensic evidence to extinguish any doubt that Plaintiff reviewed
and executed the Retainer Agreement in August 2017 when it was
delivered to him by email.
Plaintiff also avers that Mr. Paulos did not have the authority to bind
the entire firm of Levin Papantonio to the Retainer Agreement. ECF No. 8
at 3, 7. This argument is nonesense. Mr. Paulos states he had the
authority as a partner to execute the Retainer Agreement on the firm’s
behalf, ECF No. 13 at 10, and “there [is] no requirement that each
individual lawyer within the firm execute separate agreements with the
client.” Barwick v. Dillian, Lambert, P.A. v. Ewing, 646 So. 2d 776, 779
(Fla. 3d DCA 1994); see also Travelers Property Cas. Co. of Am. V.
13
Paramount Lake Eola, L.P., No. 6:08-cv-805-Orl-28GJK, 2010 WL
2977981, at *7 (M.D. Fla. June 21, 2010), report and recommendation
adopted, 2010 WL 2977978, at *1 (M.D. Fla. July 26, 2010) (discussing
Barwick). Levin Papantonio, therefore, has demonstrated the existence of
a contract to represent Plaintiff.
Second—an agreement as to fees and costs. There is no question
that the Retainer Agreement provides for a variable contingency fee
payable to Levin Papantonio and for the reimbursement of costs should
Plaintiff prevail in his Abilify claim. ECF No. 13 at 24–25. Plaintiff,
however, claims that Levin Papantonio relinquished any entitlement to an
award of fees and costs under the Retainer Agreement by voluntarily
withdrawing from representation or, alternatively, because there was good
cause for discharging Levin Papantonio. See, e.g., ECF No. 8 at 1–5; ECF
No. 11 at 1–2.
Generally speaking, an attorney who voluntarily withdraws from a
case prior to the realization of the client’s contingency relinquishes any
claim for fees. See Faro v. Romani, 641 So. 2d 69, 71 (Fla. 1994) (“We
hold that when an attorney withdraws from representation upon his own
volition, and the contingency has not occurred, the attorney forfeits all
rights to compensation.”); see also Aldar Tobacco Grp., LLC v. Am.
14
Cigarette Co., Inc., 577 F. App’x 903, 907 (11th Cir. 2014) (“[A]ttorney's
voluntary withdrawal from representation before the occurrence of the
contingency forfeits any and all claim to compensation.”). And as Plaintiff
points out in his memorandum, ECF No. 12, there is an expansive body of
case law in Florida addressing an attorney’s entitlement to a contingency
fee where the attorney voluntarily withdraws from representation or is
discharged with or without cause prior to the conclusion of a case. See
Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 29–30 (discussing the
holdings in Faro v. Romani, 641 So. 2d 69 (Fla. 1994); Searcy, Denney,
Scarola, Barnhart & Shipley, P.A. v. Scheller, 629 So.2d 947, 954 (Fla. 4th
DCA 1993), and Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982)).
The problem for Plaintiff is that is not the case before the Court
because the contingency occurred prior to Levin Papantonio filing its
motion for leave to withdraw on November 7, 2019. ECF No. 13 at 20.
Plaintiff does not dispute that he executed a settlement agreement with
Defendants in September 2019 that fully resolved his claims in this
multidistrict litigation. ECF No. 13 at 37-50. Although counsel would have
continued to assist Plaintiff with the remaining ministerial tasks described in
the firm’s closing letter to Plaintiff, id. at 55, Levin Papantonio already
15
obtained for Plaintiff the bargained-for object of representation—resolution
of and compensation for Plaintiff’s claims.
Levin Papantonio, therefore, did not withdraw from representation
before the contingency occurred, and the cases relied on by Plaintiff are
inapt. Instead, well-established Florida law recognizes Levin Papantonio’s
entitlement to the fruits of its labor regardless of whether counsel’s
withdrawal was voluntary. See, e.g., Harrington v. Estate of Batchelor, 924
So. 2d 861, 862 (Fla. 3d DCA 2006) (“Since there is no dispute that a
settlement agreement was executed settling one of the claims described in
the fee agreements before the attorneys’ representation was terminated,
the attorneys are entitled to the agreed upon contingency fees.”); Cooper v.
Ford & Sinclair, P.A., 888 So. 2d 683, 690 (Fla. 4th DCA 2004) (“The
contingency requirement had been met and the attorneys were entitled to
rely upon the provisions of the written contingency fee contract to
determine the amount of their fee.”); id. (“[T]he case law demonstrates that
if an attorney is discharged after the contingency has already occurred, the
attorney can rely on the contingency agreement for his fee.”); King v.
Nelson, 362 So. 2d 727, 728 (Fla. 2d DCA 1978) (rejecting argument to
limit compensation to quantum meruit where plaintiff agreed to a settlement
“and it was subsequent to and not prior to his agreement to the settlement
16
that he advised his first attorneys that he was discharging them”); see also
Eakin v. United Tech. Corp., 998 F. Supp. 1422, 1429 (S.D. Fla. 1998) (“If
Acosta obtained the contingency, he will be entitled to his contingency fee
under the contract.”); Town of Medley v. Kimball, 358 So. 2d 1145, 1147
(Fla. 3d DCA 1978). At bottom, “[a] client may not accept the benefits of a
valid contingency fee contract and subsequently contest his obligations
thereunder.” Zaklama, 906 F.2d at 653.
In the same vein, Plaintiff invites this Court to evaluate whether Levin
Papantonio was discharged for good cause because counsel was
“dishonest, unethical, misleading,” or “negligent.” ECF Nos. 8, 11; see also
ECF Nos. 14, 19. The Court, however, declines to delve into this briar
patch because it is beyond the analysis undertaken in those cases where
counsel is discharged after the occurrence of the contingency. The
Eleventh Circuit has explained that whether a client “has grounds for a
malpractice or negligence case in state court is irrelevant” where the
“contractual examination of the contingency fee agreement … has shown
that [counsel] did all that was required of them in order to recover their
percentage of the judgment proceeds.” Zaklama, 906 F.2d at 653; see also
Eakin, 998 F. Supp. at 1428 n.4 (S.D. Fla. 1998) (“[A]s the Eleventh Circuit
has expressly held, any malpractice claim a client may have against an
17
attorney is not relevant for purposes of determining whether the attorney is
entitled to his or her contractual fee.”).
In short, Levin Papantonio satisfied the second requirement for a
charging lien because it has demonstrated an agreement with Plaintiff as to
the payment of attorney’s fees and costs. Plaintiff’s arguments pertaining
to the voluntariness of Levin Papantonio’s withdrawal and cause for
discharge are irrelevant because counsel filed the motion seeking leave to
withdraw after Plaintiff settled his Abilify claims.
Turning to the third requirement—an attempt to avoid the payment of
fees or costs or a dispute as to the amount involved. This case presents
both. As demonstrated in this order, Plaintiff has attempted to avoid paying
his former counsel the contingency fee and costs described in the Retainer
Agreement. Plaintiff also disputes the amount of any award of attorney’s
fees to Levin Papantonio; that is, he argues the variable contingency fee
should not reach 40 percent because the Defendants’ Master Answer
predated the Complaint. ECF No. 8 at 3.
The Court can swiftly resolve the dispute as to the amount of fees at
this juncture. As part of the MDL, the Court ordered that Defendants’
Master Answer was deemed adopted “to all properly served Complaints …
in any case now in the future pending in MDL No. 2734.” Case No. 3:1618
md-02734-MCR-GRJ, ECF No. 106 at 6. This provision—enacted for
efficiency and expediency—includes Plaintiff’s case, which was part of the
multidistrict litigation. Accordingly, the automatic adoption of the Master
Answer in Plaintiff’s case triggered the 40 percent contingency fee provided
in the Retainer Agreement.
Fourth (and finally)—timely notice of the lien. “[A]n attorney
attempting to enforce a charging lien must notify his or her client in some
way before the conclusion of the original proceeding that he or she intends
to pursue the charging lien.” Baker & Hostetler, LLP v. Swearingen, 998
So. 2d 1158, 1161 (Fla. 5th DCA 2008). Mr. Nees admits that Levin
Papantonio sent him a draft of the Notice of Attorney’s Lien. ECF No. 11 at
1. The fact that the draft was not signed in accordance with Federal Rule
of Civil Procedure 11 is immaterial because there is no such requirement in
the law governing charging liens.
Moreover, an attorney may give timely notice of a charging lien by
pursuing the lien in the original action before the close of the original
proceeding. Daniel Mones, P.A., 486 So. 2d at 561; see also Heller v.
Held, 817 So. 2d 1023, 1025–26 (Fla. 4th DCA 2002) (“In order to be
‘timely,’ notice of an attorney’s charging lien must be filed before the lawsuit
has been reduced to judgment or dismissed pursuant to a settlement.”).
19
Because Levin Papantonio filed and pursued its charging lien before this
settled case was dismissed, it gave timely notice to Plaintiff. 5
In view of the above, the Court concludes that Levin Papantonio has
satisfied the four requirements for a valid charging lien against Plaintiff for
the attorney’s fees and costs detailed in the Retainer Agreement.
Therefore, Plaintiff’s “Motion to Quash Attorney’s Lien,” ECF No. 11, is due
to be DENIED.
C.
The disbursement of attorney’s fees and costs
The Court must now turn to the relief sought by Levin Papantonio—
enforcement of the charging lien against the settlement funds held by the
Settlement Administrator. ECF No. 13 at 22. The Court has the authority
to order a distribution of the settlement funds as deemed appropriate.
Indeed, Plaintiff filed a motion during the pendency of the instant dispute
requesting the Court exercise this authority to authorize the distribution of
certain undisputed funds he is owed from the settlement. ECF No. 15. 6
5
The same reasoning applies to the question of whether Plaintiff has perfected the
charging lien for enforcement, but Plaintiff does not raise that particular issue as a barrier
to enforcement. See Hall, Lamb & Hall, P.A. v. Sherlon Invest. Corp., 7 So. 3d 639, 641
(Fla. 3d DCA 2009) (“To perfect a charging lien, the lienor-attorney need only
demonstrate that he or she provided the parties to the litigation with timely notice of the
interest.” (citing Sinclair, Louis, 428 So. 2d at 1384)).
6
Because the Court resolves Levin Papantonio’s charging lien in this order, that motion,
ECF No. 15, is due to be DENIED AS MOOT.
20
And, as a matter of Florida law, “[a] summary proceeding in the original
action represents the preferred method of enforcing an attorney’s charging
lien.” Daniel Mones, P.A., 486 So. 2d at 561.
Levin Papantonio requests disbursement of attorney’s fees in the
amount of 40 percent of the net settlement amount as the contingency fee,
which in this case is $45,175.56. ECF No. 16 at 3, 5. A portion of Levin
Papantonio’s fees, $7,228.09, is allocated as an MDL assessment for the
Common Benefit Fund (6.4 percent of the total 9 percent of the net
settlement). Case No. 3:16-md-02734-MCR-GRJ, ECF No. 848 at 6. For
the reasons explained above, Levin Papantonio is entitled to this
compensation under the Retainer Agreement.
Levin Papantonio also seeks reimbursement from the settlement
funds for costs in the amount of $5,047.23. ECF No. 16 at 3, 5. The
described costs include the case filing fee, copies of medical records,
consulting services, and charges relating to copies, telephone calls,
printing, and postage, plus interest, totaling $2,110.82. Plaintiff agreed to
pay these costs plus interest in the Retainer Agreement. ECF No. 13 at
24–25. The Court also concludes that 2.6 percent from the total 9 percent
MDL assessment for the Common Benefit Fund, totaling $2,936.41, is
21
properly charged to Plaintiff as a cost, rather than having it further deducted
from Plaintiff’s attorney’s fees.
In sum, Levin Papantonio’s motion to enforce the charging lien, ECF
No. 13, is GRANTED to the extent that the Settlement Administrator,
BrownGreer, is authorized to distribute (1) $37,947.47 in attorney’s fees
and $2,110.82 in costs from Plaintiff’s settlement funds to Levin
Papantonio, and (2) $10,164.507 from Plaintiff’s settlement funds to the
MDL Common Benefit Fund. 8
III. CONCLUSION
Accordingly, it is ORDERED:
1.
Plaintiff’s “Motion to Quash Attorney’s Lien,” ECF No. 11, is
DENIED.
2.
Plaintiff’s “Motion Requesting Judicial Notice and Order
Directing Release of Settlement Funds,” ECF No. 15, is
DENIED AS MOOT.
3.
Levin Papantonio’s “Motion to Enforce Attorney’s Lien,” ECF
No. 13, is GRANTED. The Settlement Administrator,
BrownGreer, is authorized to distribute (1) $37,947.47 in
7
The $10,164.50 represents: (1) payment of attorney’s fees in the amount of $7,228.09
(6.4%) to the Common Benefit Fund, which amount is deducted from the attorney’s fees
payable to Levin Papantonio; and (2) payment of costs in the amount of $2,936.41
(2.6%) to the Common Benefit Fund, which is paid by the Plaintiff.
8
It is unclear whether Plaintiff continues to dispute the validity of the “Medical Lien
Holdback” claimed by the Lien Resolution Administrator, ECF No. 16 at 5, 7, so the Court
will not order the distribution of Plaintiff’s entire settlement funds at this juncture. Plaintiff
may be able resolve this matter with the Settlement Administrator following entry of this
order and without the need for further intervention by the Court.
22
attorney’s fees and $2,110.82 in costs from Plaintiff’s
settlement funds to Levin Papantonio, and (2) $10,164.50 from
Plaintiff’s settlement funds to the MDL Common Benefit Fund.
DONE AND ORDERED this 21st day of May 2020.
s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge
23
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