Toth et al v. Calcasieu Parish et al

Filing 233

MEMORANDUM RULING denying 221 Motion for Reconsideration re 218 Memorandum Ruling. It is again strongly advised that the parties herein avail themselves of settlement, arbitration, mediation, or otherwise resolve the matter of the alleged lien and the distribution of the settlement funds. Signed by Magistrate Judge Kathleen Kay on 8/22/2011. (crt,Kennedy, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
TOTH, ET AL.

:

DOCKET NO. 06-0998

VS.

:

JUDGE TRIMBLE

CALCASIEU PARISH, ET AL.

:

MAGISTRATE JUDGE KAY

MEMORANDUM RULING
Shortly after withdrawing as plaintiff’s counsel, Norman Yatooma & Associates, P.C.
(NYA) caused to be filed in the record a document entitled “Notice of Claim of Lien.” Doc. 165.
In response to an order of this Court, NYA filed a memorandum [doc. 193] explaining “what
authority exist[ed] under federal law that supports the filing of this ‘lien’ and/or federal statutory
authority that would allow [NYA] to create any sort of impediment to further disposition of this
matter, whether disposition be by settlement, order, judgment, or otherwise . . . .” Doc. 189.
Plaintiffs did not oppose NYA’s filing or dispute the representations made in NYA’s
memorandum.1
On May 1, 2011, we issued a memorandum ruling on NYA’s filing, finding that NYA
had exhibited a “binding, enforceable, and valid lien on the settlement proceeds” in the above

1

As noted in our last memorandum order on the “claim of lien” filing:
[P]laintiffs themselves are unrepresented on this issue and have not participated to
allow the court the benefit of their position on why NYA withdrew and whether
the withdrawal was warranted. Accordingly we are only left to assume that the
representations made by NYA were accurate, their withdrawal was warranted, and
that therefore they are entitled to assert their lien.
Doc. 218, p. 9.

captioned case. Doc. 218. We declined, however, to exercise supplemental jurisdiction over
resolution of any lingering disputes between the parties. Id.
On May 16, 2011, plaintiffs filed the motion for reconsideration of our previous order.
Doc. 221. That motion is now before the court.
Law and Analysis
A motion to alter or amend, or for reconsideration, may be made under either FED. R.
CIV. PROC. 59(e) or 60(b). Shepherd v. Int'l Paper Co., 372 F.3d 326, 328 n. 1 (5th Cir. 2004).
Such a motion “‘calls into question the correctness of a judgment.’” Templet v. HydroChem Inc.,
367 F.3d 473, 478 (5th Cir. 2004) (quoting In Re Transtexas Gas Corp., 303 F.3d 571, 581 (5th
Cir. 2002)). If a motion for reconsideration is filed within twenty-eight days of the judgment or
order of which the party complains, it is considered to be a Rule 59(e) motion; otherwise, it is
treated as a Rule 60(b) motion. See Shepherd, 372 F.3d at 328 n. 1. Here, plaintiffs’ motion was
filed within twenty-eight days of the judgment of which they complain. Therefore, we will
consider it solely as a Rule 59(e) motion. A district court has broad discretion in deciding a Rule
59(e) motion. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).
“In practice, because of the narrow purposes for which they are intended, Rule 59(e) motions
typically are denied.” 11 CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. CIV. § 2810.1 (2d
ed. 2011).
Rule 59(a)(2) states that “the court may . . . open the judgment if one has been entered,
take additional testimony, amend findings of fact and conclusions of law or make new ones, and
direct the entry of a new judgment.” FED. R. CIV. PROC. 59(a)(2). Courts have interpreted this to
mean that a rule 59(e) motion “can only succeed if the movant establishes (1) manifest error; (2)
newly discovered evidence that can be used to raise arguments that could not have been raised

before the judgment or order was issued; or (3) a change in the pertinent law.” Salomon v. Wells
Fargo Bank, N.A., No. 10-0106, 2010 WL 2900783 (W.D. Tex. July 22, 2010) (citing Broyles v.
Texas, 643 F.Supp.2d 894, 897-98 (S.D. Tex. 2009)). “Furthermore, a judgment will not be
amended or altered if to do so would serve no useful purpose.” Jacobs v. Electronic Data
Systems Corp., 240 F.R.D. 595, 599 (M.D. Ala. 2007).
In their motion for reconsideration, plaintiffs do not allege the existence of newly
discovered evidence or a change in the pertinent law. Instead, plaintiffs submit that counsel
“attempted to file their objections to the Claim of Lien through this Court’s ECF system, but was
experiencing difficulties logging into the system.” Doc. 221, p. 20-21. NYA’s Claim of Lien
was filed on November 19, 2009. Doc. 165. We finally resolved the matter on May 1, 2011.
Doc. 218. Plaintiffs had ample time to resolve their procedural problems and to file their
objections. In short, plaintiffs could have raised their arguments before the judgment or order
was issued, but they chose not to. Thus, we must turn our attention to the remaining question of
manifest error.
Plaintiffs argue that NYA lost its right to fees because it wrongfully withdrew and
“‘engaged in disciplinable misconduct prejudicial to [its] client’s case [and] conduct contrary to
public policy that would disqualify any quantum meruit award.’” Doc. 221, p. 17 (quoting
Reynolds v. Polen, 564 N.W.2d 467, 470 (Mich. App. 1997)). In our May 1, 2011, memorandum
ruling, we relied upon NYA’s representation that “‘NYA moved to withdraw, because Plaintiffs
had failed to fulfill their Engagement Agreement obligations to pay costs when incurred and
billed.’”

Doc. 218, p. 9 (quoting Doc. 194, p. 16).

While we recognized that NYA’s

representation of plaintiffs may have been sub-par, we did not find – based solely upon the
record presented to us at the time – that NYA’s representation rose to the level of “disciplinable

misconduct.” Plaintiffs, having not participated in briefing on the subject, did not represent
otherwise. See id.
In our memorandum ruling we did, however, make clear that NYA’s recovery may be
substantially reduced by looking to the following factors: “‘(1) the professional standing and
experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and
the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature
and length of the professional relationship with the client.’” Id. (quoting Crawley v. Schick, 211
N.W.2d 217, 222 (1973)). Further, plaintiff’s argument that compensation under the quantum
meruit standard covers only those services, if any, which produced “definite valuable results,” is
well-advised. See Idalski v. Crouse Cartage Co., 229 F.Supp.2d 730, 742 (E.D. Mich. 2002)
(quoting Reynolds, 564 N.W.2d at 470). In other words, relevant case law indicates that NYA’s
fees should be reduced by the amounts that are attributable to “definite valuable results,” and
then reduced again by looking to the Crawley factors.
But that is not for this court to decide, as our hands are now clean of the matter.
Conclusion
It is again strongly advised that the parties herein avail themselves of settlement,
arbitration, mediation, or otherwise resolve the matter of the alleged lien and the distribution of
the settlement funds.
In light of the forgoing, plaintiff’s motion for reconsideration [doc. 221] is DENIED.
THUS DONE AND SIGNED in Chambers at Lake Charles, Louisiana, on August 22,
2011.

_____________________________________
KATHLEEN KAY
UNITED STATES MAGISTRATE JUDGE