Bennett v. Internal Revenue Service

Filing 69

ORDER DENYING MOTIONS MADE BY PLAINTIFF'S ATTORNEY. Denying 66 Motion to Reopen Case; denying 67 Motion for Attorney Fees; denying 68 Motion for TRO. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIMOTHY M. BENNETT,
Plaintiff,

No. 09-cv-12352
Hon. Gerald E. Rosen

vs.

UNITED STATES OF AMERICA,
Defendants.
___________________________________/
ORDER DENYING MOTIONS MADE BY PLAINTIFF’S ATTORNEY
This case involved Plaintiff Timothy M. Bennett’s (“Bennett”) challenge to a tax
lien placed on property he owned. The parties stipulated to a dismissal, effectively
resolving the case, in May 2011. Months later, Plaintiff’s attorney in this case, Stephen
Joseph Dunn (“Dunn”), filed three motions concerning the attorney-client relationship
between Dunn and Bennett. First, Dunn filed a motion to reopen the case. Second, Dunn
filed a motion for attorney fees allegedly owed by Bennett. Third, Dunn moved for a
temporary restraining order against Bennett, prohibiting him from disposing of proceeds
that were produced by the sale of the property that was at the center of this case. Having
reviewed Dunn’s motions, the Court finds that the pertinent allegations and legal
arguments are sufficiently addressed in these materials and that oral argument would not
assist in the resolution of this motion. Accordingly, the Court will decide Dunn’s
motions “on the briefs.” See L.R. 7.1(f)(2).

Dunn’s first motion seeks to reopen the case for the purpose of entertaining his
two subsequent motions. As the case need not be reopened in order for the Court to hear
Dunn’s motions for attorney fees and a temporary restraining order, denial of the motion
to reopen is appropriate.
Dunn next seeks a temporary restraining order to prevent Bennett from spending
proceeds from the sale of the property underlying this case. He does so because Bennett
has allegedly refused to compensate Dunn for his services in the prosecution of this
matter. Dunn claims Bennett owes over $116,000. The Court balances four factors when
deciding whether to grant a temporary restraining order: (1) whether the movant has
established a substantial likelihood of success on the merits; (2) whether there exists the
threat of irreparable harm without a temporary restraining order; (3) whether the
temporary restraining order risks substantial harm to others; and (4) whether the public
interest would be harmed. Babler v. Futhey, 618 F.3d 514, 519-20 (6th Cir. 2010). Here,
while the first, third, and fourth factors arguably weigh in Dunn’s favor, the Court will
deny the motion because of an overwhelming lack of irreparable harm.
The Supreme Court has stated that “[t]he basis of injunctive relief in the federal
courts has always been irreparable harm and inadequacy of legal remedies[.]” Sampson
v. Murray, 415 U.S. 61, 88 (1974) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S.
500, 506-07 (1959)). See also Russell v. Ohio, Dept. of Admin. Servs., 302 Fed. App’x
386, 394 (6th Cir. 2008) (same). Irreparable harm and the inadequacy of legal remedies
are essential to the Court’s determination since an injunction is unnecessary if ordinary
legal proceedings will sufficiently redress the parties’ dispute. 11A Charles Alan Wright
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& Arthur R. Miller, Federal Practice and Procedure § 2951 (2011). Here, not only has
Dunn failed to make any showing regarding the irreparable harm he faces, precedent
clearly establishes that “the temporary loss of income, ultimately to be recovered, does
not usually constitute irreparable injury.” Sampson, 415 U.S. at 90-91.
Most cases where irreparable injury is found involve injuries that cannot be easily
quantified or subsequently redressed. For instance, in Council on American-Islamic
Relations v. Gaubatz, 667 F. Supp. 2d 67 (D.D.C. 2009), the court found irreparable harm
in the disclosure of an organization’s confidential, proprietary information. Likewise, in
Kelly v. Evolution Markets, Inc., 626 F. Supp. 2d 364 (S.D.N.Y. 2009), a former
employer faced the prospect of irreparable injury through the loss of customers if an
injunction enforcing the parties’ restrictive covenant was not issued. Finally, in Miller v.
Blackwell, 348 F. Supp. 2d 916 (S.D. Ohio 2004), registered voters faced the irreparable
loss of their right to vote without an injunction against pre-election challenges to their
voter registrations.
By contrast, the harm alleged here is purely monetary; and there are legal
processes available to enable Dunn’s recovery. Further, nothing suggests that these
processes are insufficient in any way. Put another way:
The key word in this consideration is irreparable. Mere
injuries, however substantial, in terms of money, time and
energy necessarily expended in the absence of a stay, are not
enough. The possibility that adequate compensatory or other
corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim
of irreparable harm.

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Virginia Petrol. Job. Ass'n v. Federal Power Com'n, 259 F.2d 921, 925 (D.C. Cir. 1958)
(quoted in Sampson, 415 U.S. at 90) (emphasis original). See also Babler v. Futhey, 618
F.3d 514, 523-24 (6th Cir. 2010) (“Lost wages are readily compensable and do not
constitute irreparable harm.”); Greer v. Detroit Pub. Schools, 10-14623, 2011 WL
196928, at *5 (E.D. Mich. Jan. 18, 2011) (citing Sampson, 415 U.S. at 90). The only
harm alleged by Dunn is a monetary loss. Dunn’s purported injury does not constitute
irreparable harm, and the legal remedies available are perfectly adequate. As such, denial
of Dunn’s motion for a temporary restraining order is appropriate.
Finally, Dunn seeks $40,110.77 from Bennett’s property sale as a charging lien
towards over $116,000 in attorney fees. A charging lien “is an equitable right to have the
fees and costs due for services secured out of the judgment or recovery in a particular
suit.” George v. Sandor M. Gelman, P.C., 506 N.W.2d 583, 584 (Mich. Ct. App. 1993).
Here, Dunn does not have a valid charging lien because there has been neither a judgment
nor a recovery through suit. A judgment is “[a] court's final determination of the rights
and obligations of the parties in a case.” Black’s Law Dictionary 918 (9th ed. 2009).
The term also includes equitable decrees and any order from which an appeal lies. Fed.
R. Civ. P. 54(a). This case was resolved by stipulated dismissal [Dkt. #65]. Furthermore,
the dismissal was without prejudice. See Fed. R. Civ. P. 41(a)(1)(B) (“Unless the notice
or stipulation states otherwise, the dismissal is without prejudice.”). A voluntary
dismissal without prejudice cannot be appealed and does not constitute an equitable
decree. Dearth v. Mukasey, 516 F.3d 413, 416 (6th Cir. 2008). A stipulated dismissal
also does not constitute a final determination of the parties’ rights and obligations.
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Moreover, since the sale of the home took place outside the confines of this
lawsuit, it cannot be said that there has been a “recovery in a particular suit.” George,
506 N.W.2d at 584. As such, Dunn’s claimed charging lien fails as a matter of law. To
recover the fees allegedly owed Dunn should instead pursue a separate claim in a court of
appropriate jurisdiction. Therefore,
IT IS HEREBY ORDERED that Stephen Joseph Dunn’s motion to reopen the case
[Dkt. #66] is DENIED.
IT IS FURTHER ORDERED that Stephen Joseph Dunn’s motion for attorney fees
[Dkt. #67] is DENIED.
IT IS FURTHER ORDERED that Stephen Joseph Dunn’s motion for a temporary
restraining order [Dkt. #68] is DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: February 28, 2012

I hereby certify that a copy of the foregoing document was served upon counsel of record on
February 28, 2012, by electronic and/or ordinary mail.
s/Ruth A.Gunther
Case Manager
[phone]

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