Keyes Law Firm, LLC v. Napoli Bern Ripka Shkolnik, LLP et al
MEMORANDUM ORDER Granting 550 Motion for Judgment as a Matter of Law on Count VI Constructive Trust; Entering Judgment in favor of Defendants on Count VI Constructive Trust, and against Plaintiff Keyes Law Firm. Signed by Judge Richard D. Bennett on 9/14/2020. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KEYES LAW FIRM, LLC,
NAPOLI BERN RIPKA SHKOLNIK,
LLP, et al.,
Civil Action No. RDB-17-2972
Currently pending before this Court is Defendants Paul J. Napoli, Napoli Shkolnik,
PLLC, Napoli Shkolnik & Associates, PLLC, Paul Napoli Law, PLLC, Napoli Law, PLLC,
Napoli Bern Ripka Shkolnik, LLP, Napoli Bern, LLP, Napoli Bern & Associates, LLP, Napoli
Bern Ripka, LLP, Napoli Bern Ripka Shkolnik & Associates, LLP, Law Offices of Napoli
Bern, LLP, Law Offices of Napoli Bern Ripka & Associates, LLP, Law Offices of Napoli Bern
Ripka Shkolnik LLP, and Law Offices of Napoli Bern Ripka Shkolnik & Associates LLP’s
(collectively, “Defendants”) Motion for Judgment as a Matter of Law on Count VI –
Constructive Trust (ECF No. 550).1 The parties’ submissions have been reviewed, and no
Also pending in this case are the following post-trial motions: Plaintiff’s Motion Requesting Award
of Attorneys’ Fees and Costs (ECF No. 452); Plaintiff’s Post-Trial Brief in Support of Award of Pre-Judgment
Interest (ECF No. 467); Plaintiff’s Motion Requesting Award of Attorneys’ Fees and Costs (ECF No. 493);
Plaintiff’s Supplemental Motion Requesting Award of Attorneys’ Fees and Costs (ECF No. 507); Napoli
Defendants’ Motion to Strike, or in the Alternative, Opposition to Plaintiff’s Supplemental Motion Requesting
Award of Attorneys Fees and Costs (ECF No. 518); and Legacy Defendants’ Motion to Strike, or in the
Alternative, Opposition to Plaintiff’s Supplemental Motion Requesting Award of Attorneys Fees and Costs
(ECF No. 519).
On August 27, 2020, this Court entered an Order deferring the adjudication of Plaintiff’s request for
an award of attorneys’ fees and expenses and all related motions (ECF Nos. 452, 493, 507, 518, 519) until after
the conclusion of the appeals that have been noted or will be noted in this case. (Order, ECF No. 560.) The
Court will address the Plaintiff’s Post-Trial Brief in Support of Award of Pre-Judgment Interest (ECF No. 467)
hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below,
Defendants’ Motion for Judgment as a Matter of Law on Count VI – Constructive Trust (ECF
No. 550) is GRANTED. Judgment will be entered in favor of Defendants on Count VI –
Constructive Trust, and against Plaintiff Keyes Law Firm.
This case arises out of 2,174 “association agreements” between Plaintiff Keyes Law
Firm (“Keyes”), Paul Napoli, Marc Bern, and multiple law firm Defendants (collectively,
“Defendants”). Pursuant to these agreements, Plaintiff Keyes and an associated Bankruptcy
Firm, formerly known as the David Law Firm and now known as The Cooper Hart Firm (“the
Bankruptcy Firm”)2, referred thousands of asbestos-related claims to Defendant Napoli Bern
Ripka Shkolnik (“NBRS”). In the event that the clients prevailed, Keyes, the Bankruptcy Firm,
and NBRS were to divide any contingency fees earned in most cases as follows: NBRS was
to receive 24% of the fees, the Bankruptcy Firm was to receive 10% of the fees, and Keyes
was to receive 6% of the fees.3 (Joint Trial Exhibit 2, Association Agreements.) Under the
association agreements, NBRS was to send Keyes a single check representing both Keyes’
share and the Bankruptcy Firm’s share and Keyes was to then forward the Bankruptcy Firm
its 10% share. (See July 18, 2013 Association Agreement, ECF No. 552-1 (“When disbursing
attorneys’ fees, for each disbursement [Defendants] will send a single check to [Keyes]
by separate opinion and order, with pre-judgment interest based on the final amended judgment amount
entered on September 4, 2020. (ECF No. 562.)
The Bankruptcy Firm is not a party to this case.
In some cases, the association agreements provided for different breakdowns of fees, but the majority
of the agreements provide that the Bankruptcy Firm was to receive 10% of each settlement.
representing [Keyes’] share of the attorneys’ fees, as well as [the Bankruptcy Firm’s] share.
[Keyes] will then write [the Bankruptcy Firm] a check for its portion of the fees.”).)
This case proceeded to a jury trial on December 9, 2019. On Sunday evening,
December 8, 2019, on the eve of trial, counsel for the Bankruptcy Firm sent a letter to Keyes’s
counsel and Defendants’ counsel, advising them that Keyes was relieved of its obligation to
remit to the Bankruptcy Firm its share of the gross recoveries of the 2,174 subject clients.
Specifically, the Bankruptcy Firm’s letter provided,
None of the parties or their counsel is authorized to speak or act for the
[Bankruptcy Firm]…. [The Bankruptcy Firm] does not want or expect any
money by virtue of the Lawsuit and hereby relieves [Plaintiff] KLF of the
obligation, if any, to pay a portion of any recovery from the Lawsuit to [the
(12/8/2019 Bankruptcy Firm Letter, ECF No. 407-2.)
In light of this last-minute development, the parties and the Court agreed that the issue
of the Bankruptcy Firm’s share would be addressed as a post-trial matter within the context
of relief sought under the constructive trust count (Count VI). The record reflects that counsel
for the Plaintiff and Defendants agreed that the issue of any constructive trust and distribution
of the Bankruptcy Firm’s share would be addressed in that fashion. The jury rendered a verdict
against the Napoli Defendants and the majority of the Legacy Defendants, determining that
the total settlement recovery for the 2,174 subject clients is $45,300,000, resulting in a verdict
in favor of Keyes in the amount of $1,502,882.00. (Jury Verdict, ECF No. 445.) On
September 4, 2020, this Court ordered that the total settlement recovery amount should be
amended to $31,700,000.
(ECF No. 562.)
Accordingly, ten percent of that amount
representing the potential Bankruptcy Firm’s share would be $3,170,000.
The parties agree that the amount previously remitted to the Bankruptcy Firm pursuant
to the fee-sharing agreement among the parties and Subject Clients is $1,072,422.76. Thus,
the Bankruptcy Firm’s 10% share would have been $3,170,000 (i.e. 10% of the total recoveries)
minus $1,072,422.76 (i.e. the amount remitted to the Bankruptcy Firm). Accordingly, there is
no dispute that the net Bankruptcy Firm share would have been $2,097,577.24. The parties
disagree about whether and how this amount should be disbursed. On July 15, 2020, this
Court held a telephonic conference to address the constructive trust count, and ordered that
the parties submit additional briefing on the issue. (ECF Nos. 545, 547.) The issue has now
been fully briefed.
STANDARD OF REVIEW
The Defendants contend that Keyes lacks standing to pursue any claim as to the 10%
share to which the Bankruptcy Firm would have been entitled. Accordingly, the Defendants
contend that this Court lacks subject matter jurisdiction on the constructive trust claim, initially
set forth in Count VI of the Second Amended Complaint.
A party may challenge the subject matter jurisdiction of a federal court “at any time,
including on direct appeal.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998); see
also Wright & Miller, Civ. Prac. & Proc. § 1350 (3d ed. 2020). After judgment has been entered,
a party may do so by motion for relief from judgment under Rule 60(b)(4) of the Federal Rules
of Civil Procedure. See Wright & Miller, § 1350.
An assertion of lack of subject matter
jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis
v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005).
Under Article III of the United States Constitution, the judicial power of the United
States extends only to “cases” and “controversies.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90,
133 S.Ct. 721, 184 L.Ed.2d 553 (2013). “A case becomes moot—and therefore no longer a
‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer
“live” or the parties lack a legally cognizable interest in the outcome.’ ” Id. at 91, 133 S.Ct.
721 (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). “No
matter how vehemently the parties continue to dispute the lawfulness of the conduct that
precipitated the lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual
controversy about the plaintiff's particular legal rights.’” Id. (quoting Alvarez v. Smith, 558 U.S.
87, 92, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009)).
Accordingly, a court's subject matter
jurisdiction depends on the existence of an actual case or controversy. S.C. Coast. Conservation
League v. U.S. Army Corps. of Eng'rs, 789 F.3d 475, 482 (4th Cir. 2015). “[T]he absence of
jurisdiction may be raised at any time during the case, and may be based on the court’s review
of the evidence.” Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).
Finally, if a party lacks standing, the court automatically lacks subject matter
jurisdiction. See Pitt County v. Hotels.com, L.P., 553 F.3d 308, 312 (4th Cir. 2009). To meet the
standing requirement, a plaintiff must show “injury in fact,” which is an “invasion of a legally
protected interest which is (a) concrete and particularized, … and (b) actual or imminent, not
conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130,
119 L.Ed.2d 351 (1992) (internal citations and quotation marks omitted). Second, the injury
must be “fairly traceable to the challenged action of the defendant.” Friends for Ferrell Parkway,
LLC v. Stasko, 282 F.3d 315, 320 (4th Cir. 2002) (citing Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693, 145 L.Ed.2d 610 (2000); Lujan, 504
U.S. at 560-61, 112 S. Ct. 2130; Allen v. Wright, 468 U.S. 737, 751 (1984)). Third, it must be
“likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Id. It is the plaintiff’s burden to establish both standing and subject matter
jurisdiction. Id.; Lovern, 190 F.3d at 654.
Defendants seek judgment in their favor as a matter of law on Plaintiff’s constructive
trust claim, asserting that this Court lacks subject matter jurisdiction because Plaintiff lacks
standing to pursue the claim. As a preliminary matter, Keyes is incorrect in its assertion that
the Court determined at trial that Plaintiff was entitled to a constructive trust. While the Court
contemplated ways to address the Bankruptcy Firm’s abandoned share, it did not render a final
decision and specifically determined that the constructive trust claim would be handled as a
Defense counsel: I mean, my view is that we should take the 10% issue, and it
should be a post-trial issue.
The Court: Well, that’s right. That’s what I’m saying. And my point is that’s
exactly what we’re doing….
(12/16/2019 P.M. Trial Tr. at 126:10-14, ECF No. 522; 12/17/2019 P.M. Trial Tr. at 91:492:6, ECF No. 516.) Indeed, the Court’s jury instructions provided:
The issue of the ten percent fee is not an issue you need to consider. In
calculating damages, you are not to include the ten percent fee as monies owed
the Keyes Law Firm. The Court will address the handling of the ten percent
fee as a matter of law after the trial through the imposition of a constructive
(12/18/2019 Trial Tr. at 13:9-14, ECF No. 436.)
Consequently, with the benefit of post-trial briefing, the Court finds that judgment
must be entered in favor of Defendants on the constructive trust claim (Count VI), because
Plaintiff does not have any legally cognizable claim to the Bankruptcy Firm’s share, thereby
depriving this Court of subject matter jurisdiction over Plaintiff’s claim. In short, there is no
Bankruptcy Firm share to which Keyes can assert a constructive trust, and accordingly, there
is a lack of both constitutional standing and prudential standing. Furthermore, this Court does
not have equitable power to restructure the association agreements between Keyes, the
Bankruptcy Firm, and the Defendants so as to apportion a 4 to 1 ratio of distribution.
There is no Bankruptcy Firm share to which Keyes can assert a
Plaintiff’s constructive trust claim alleged, “by virtue of recoveries that were received
or will be received in the future by Subject Clients, the defendants have acquired … funds that
belong to [Plaintiff] KLF and the Bankruptcy Firm, namely, their percentage shares of those
funds as outlined in the Association Agreements.” (2d Am. Compl. ¶ 117, ECF No. 274.)
Further, Plaintiff alleged, “KLF and the Bankruptcy Firm have a good and equitable claim to
and interest in such shares that is superior to any claim or interest than any defendant might
attempt to assert.” (Id. ¶ 118.) Keyes’s assertion of a superior equitable position is not
supported by the record in this case. That record reflects that the Bankruptcy Firm’s referral
to Keyes and Keyes’s subsequent referral to the Defendants establishes that neither the
Bankruptcy Firm nor Keyes ever rendered any active legal services to any of the 2,174 subject
clients. Furthermore, Keyes’s own witness, Marc Bern, Mr. Napoli’s former law partner,
testified that many of the cases were weak, that many of the cases “did not have a good
outlook,” and that the difficulty in litigating the cases “certainly was” draining the resources
of Defendant NBRS. (12/10/2019 A.M. Trial Tr. at 60-61, ECF No. 415.)
Plaintiff Keyes bases its entitlement to the Bankruptcy Firm’s 10% fee on the
association agreements’ direction that Defendants remit a single check to Plaintiff representing
both Plaintiff’s and the Bankruptcy Firm’s share, whereupon Plaintiff would send the
Bankruptcy Firm its share of the fees. (Id. ¶¶ 116-119; see also July 18, 2013 Association
Agreement, ECF No. 552-1.) Despite the Bankruptcy Firm’s abandonment of any interest in
its 10% share on December 8, 2019, Plaintiff nonetheless asserts that it is entitled to that share.
This assertion is not supported by Plaintiff’s own allegations in the Second Amended
Complaint, the evidence in the record, or by law.
Quite simply, Plaintiff does not have a legally cognizable interest in the Bankruptcy
Firm’s share and cannot pursue such a claim on behalf of this third party. See Jemal’s Fairfield
Farms, LLC v. Prince George’s County, 319 F. Supp. 2d 618, 623 (D. Md. 2004) (“[C]ourts
generally decline to exercise jurisdiction…where the plaintiff ‘rest[s] his claim to relief on the
legal rights or interests of third parties.’”) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975));
Powers v. Am. Express Fin. Advisors, Inc., 82 F. Supp. 2d 448, 453 (D. Md. 2003) (party did not
have standing to assert a constructive trust on behalf of a third party). The Bankruptcy Firm
specifically disavowed its interest in the judgment in this case (“[the Bankruptcy Firm] does
not want or expect any money by virtue of the Lawsuit”), disavowed any parties’ right to
collect fees on its behalf (“[n]one of the parties or their counsel is authorized to speak for or act for the
[Bankruptcy Firm]”), and released any contractual obligation by Plaintiff to the Bankruptcy Firm
(“[the Bankruptcy Firm] hereby relieves KLF of the obligation, if any, to pay a portion of any recovery from
the Lawsuit to [the Bankruptcy Firm]”). (12/8/2019 Bankruptcy Firm Letter, ECF No. 407-2
(italics added).) Plaintiff’s assertion that it has suffered a legally cognizable interest rests on
the mistaken theory that Plaintiff was entitled to the Bankruptcy Firm’s share all along.
However, “a plaintiff generally must assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499.
Keyes’s claim to the Bankruptcy Firm share lacks constitutional
The constitutional standing inquiry determines whether a particular litigant “is entitled
to have the court decide the merits of the dispute or of particular issues.” Warth, 422 U.S. at
498, 95 S.Ct. 2197. In order to satisfy the constitutional standing requirements, three factors
must be met:
(1) [the party] has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative, that the injury will be redressed by a
Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009) (citing Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)); accord
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Individual standing is not merely a pleading requirement, but an “indispensable part of the
plaintiff’s case” that “must be supported in the same way as any other matter on which the
plaintiff bears the burden of proof.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Miller v. Brown, 462
F.3d 312, 316 (4th Cir.2006) (“The party attempting to invoke federal jurisdiction bears the
burden of establishing standing.”).
Upon review of Plaintiff’s Second Amended Complaint, this Court concludes that
Plaintiff does not have constitutional standing to bring the constructive trust claim alleged in
Count VI. Plaintiff Keyes has not and cannot assert any “injury in fact” related to the
Bankruptcy Firm’s share. Indeed, Plaintiff’s allegations distinguish its share of the referral fees
from the Bankruptcy Firm’s share, and Plaintiff does not allege that it is owed the Bankruptcy
Firm’s share. (See 2d Am. Compl. ¶ 117, ECF No. 274 (“defendants have acquired … funds
that belong to [Plaintiff] KLF and the Bankruptcy Firm, namely, their percentage shares of
those funds as outlined in the Association Agreements.”).)
There is simply no concrete,
particularized, actual or imminent injury alleged by Plaintiff relating to the Bankruptcy Firm’s
share. Accordingly, Plaintiff does not have constitutional standing to assert a claim to that
Even if there was constitutional standing, Keyes’s claim lacks prudential
Nor can Plaintiff assert prudential standing on behalf of the Bankruptcy Firm. As this
Court has previously noted, in order to establish prudential standing: (1) “the party asserting
the right must have a ‘close’ relationship with the third party”; and (2) “the third party must
be hindered in bringing suit to vindicate its own rights.” Zaycer v. Sturm Foods, Inc., 896 F. Supp.
2d 399, 408 (D. Md. 2012) (citing Kowalski v. Tesmer, 543 U.S. 125, 128-29 (2004)). The
Bankruptcy Firm unequivocally gave up its right to any share of the fees in this case, and
Plaintiff cannot now claim that the Bankruptcy Firm was hindered in bringing suit to vindicate
any such right. Likewise, Plaintiff Keyes cannot assert this claim on behalf of the subject
clients, who contractually agreed to give up 40 percent of the recovery in their respective cases.
Accordingly, Plaintiff cannot rely on prudential standing to assert its claim.
Plaintiff’s injury in this case clearly lies in its entitlement to the 6% of fees it is owed
under the association agreements, an injury which was capable of being, and indeed was,
redressed by the jury’s verdict in its favor. Moreover, Plaintiff Keyes never rendered any legal
service of any kind to the subject clients. (12/10/2019 P.M. Trial Tr. at 18-23, ECF No. 512.)4
Instead, the association agreements provided that all legal representation was to be performed
[Defendants] have agreed to undertake representation of [subject client].
[Defendants] will be responsible for every aspect of representation, including
filing a complaint in a timely manner, propounding and responding to
discovery, deposing plaintiff, deposing fact witnesses, conducting medical and
expert work-up, handling motions practice, and, if applicable, trying the case
and handling any post-trial matters.
(July 18, 2013 Association Agreement, ECF No. 552-1.)
Keyes’s claim to the Bankruptcy Firm’s share lacks constitutional
standing in any declaratory judgment claim.
Keyes’s effort for a declaratory judgment claim as to a constructive trust is essentially
predicated on “this Court’s determination of the parties’ rights.” (Pl.’s Opp’n at 20, ECF No.
552 (SEALED).) In short, Keyes alternatively requests that this Court apportion what would
have been the Bankruptcy Firm’s 10% share on a “ratio proportional to” the original shares
of the Defendants and Keyes. (Pl.’s Opp’n at 2, ECF No. 552 (SEALED).) While this Court
had discussed with counsel the potentiality of a 4:1 ratio, this Court does not have the
jurisdiction to impose such a ratio. Furthermore, equitable principles do not support it. The
original association agreements between the Bankruptcy Firm, Keyes, and the Defendants did
not specifically provide for an 80% and 20% distribution of any and all contingency fees.
Rather, it specifically provided for a 40% contingency fee with Keyes being entitled to the
At trial, Mary Keyes testified that she has not tried a case since she opened her law firm in early 2009.
(12/10/2019 P.M. Trial Tr. at 19:25-20:2, ECF No. 512.)
For the same reasons that Plaintiff lacks standing as to the Bankruptcy Firm’s share
under a constructive trust, so too it lacks standing to determine its rights to the Bankruptcy
Firm’s share under a declaratory judgment claim.5 See O’Bannon v. Friedman’s, Inc., 437 F. Supp.
2d 490, 494 (D. Md. 2006) (“The test for whether a case or controversy exists is whether the
dispute ‘is definite and concrete, touching the legal relations of parties having adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.’”) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-42, 57 S. Ct. 461, 81
L.Ed. 617 (1937)). In addition, Plaintiff’s declaratory judgment claim, which alleged that
Defendants failed “to remit to KLF its contractual share of the settlements recovered by the
Subject Clients” (2d Am. Compl. ¶ 90, ECF No. 274), was resolved when the jury awarded
damages to Plaintiff on its breach of contract claim, based on the same allegations as its
declaratory judgment claim. See Dorset Indus. v. Unified Grocers, Inc., 893 F. Supp. 2d 395
(E.D.N.Y. 2012) (“Where…the same conduct underlies the Plaintiff’s causes of action for
declaratory judgment and breach of contract, courts generally dismiss the declaratory judgment
claim as duplicative in favor of ‘the better or most effective remedy’ of ‘the underlying
litigation itself’”) (citations omitted).
In sum, for the reasons stated above, the Court finds that Plaintiff Keyes lacks standing
to pursue the Bankruptcy Firm’s share of the settlement recoveries, and judgment is entered
in favor of the Defendants on the constructive trust claim (Count VI).
The Defendants have taken exception to Keyes’s claim for declaratory judgment with respect to the
constructive trust in light of the briefing schedule established by the Court. (See Defs.’ Reply at 12 n.2, ECF
No. 556 (SEALED).) In light of this Court’s rejection of this theory, no further briefing is required.
For the reasons stated above, it is HEREBY ORDERED this 14th day of September,
1. Defendants’ Motion for Judgment as a Matter of Law on Count VI – Constructive
Trust (ECF No. 550) is GRANTED;
2. JUDGMENT IS ENTERED in favor of Defendants on Count VI – Constructive
Trust, and against Plaintiff Keyes Law Firm;
3. An Amended Judgment shall be prepared; and
4. The Clerk of this Court shall transmit copies of this Order to the parties.
Richard D. Bennett
United States District Judge
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