NORMAN v. HADDON TOWNSHIP et al
Filing
136
MEMORANDUM OPINION AND ORDER granting in part and denying in part 131 Motion for Settlement. Signed by Magistrate Judge Joel Schneider on 7/23/2018. (tf, )
[Doc. No. 131]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JUANITA NORMAN, Administratrix
ad Prosequendum of the ESTATE
OF SHERRON J. NORMAN,
Deceased,
Plaintiff,
Civil No. 14-6034 (NLH/JS)
v.
HADDON TOWNSHIP, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on plaintiff’s “Motion for
Approval
and
Distribution
of
Settlement
and
for
Reasonable
Counsel Fees.” [Doc. No. 131]. There is no opposition to the
motion. An in-person hearing and oral argument was held on July
16, 2018. For the reasons to be discussed, plaintiff’s motion is
GRANTED and DENIED in part without prejudice.1 The Court approves
as fair and reasonable the parties’ $800,000 settlement. The
Court
also
enhanced
approves
contingency
plaintiff’s
fee
of
counsel’s
33
1/3%
application
for
($250,634.85)
an
and
reimbursement of costs ($48,020.25).
Background
Pursuant to 28 U.S.C. §636(c), the parties consented to the
jurisdiction of this Court to hear and decide this motion. [Doc.
No. 133].
1
1
This case arises from the tragic death of Sherron J. Norman
(“Norman”) who was unfortunately a drug addict most of his adult
life. As confirmed in video evidence, on September 29, 2012,
Norman was behaving bizarrely—shouting, hitting the counter and
cash register, and ultimately pulling down his pants, at a Crown
Fried Chicken fast food restaurant on Mt. Ephraim Avenue in
Haddon
Township,
New
Jersey.
After
911
was
called,
various
patrol officers and EMS personnel arrived at the scene. Haddon
Township’s officers were first to arrive. Although denied by
defendants, plaintiff contends the police officers struck Norman
numerous times. Norman was then placed in the back of a patrol
car, lying face down and left unattended. When an officer and
EMT checked on Norman he was unresponsive. Norman was later
pronounced
dead
at
Our
Lady
of
Lourdes
Hospital.
Defendants
contend that at all relevant times Norman was in a “zombie like”
state
and
combative.
Defendants
contend
they
were
bitten
by
Norman, he was out of control and he acted violently. Plaintiff
contends
Norman
died
from
positional
asphyxia
and
cardiopulmonary arrest during restraint for bizarre behavior.
Relying upon the autopsy report of the Gloucester County Medical
Examiner and the opinion of a separate forensic pathologist,
defendants contend the cause of death was cocaine intoxication.
On
sister,
March
was
13,
2013,
granted
Juanita
Norman
Administration
2
Ad
(“Juanita”),
Prosequendum
Norman’s
by
the
Surrogate’s Office in Camden County. Juanita filed her sixteencount complaint on September 28, 2014 against 21 defendants.
These
defendants
included
five
municipalities,
their
police
chiefs and their respective officers who responded to the scene.
To put it mildly, the litigation was vigorously contested. After
defendants’ motions for summary judgment were decided on June
29, 2017 [Doc. Nos. 97, 98], only the Haddon Township defendants
remained
in
the
case.
The
case
settled
in
April
2018
for
$800,000 on the eve of jury selection. At all relevant times the
husband and wife civil rights duo of Sharon and Stanley King,
King and King, LLC, represented Norman.
Norman was not married when he died. He had at least one
child, O.L., who lives with her court-appointed guardian. Norman
may also have another minor child, K.J., who lives with his
grandparents.
In order to confirm the beneficiaries of Norman’s Estate a
separate action was recently filed in the Chancery Division Probate Part, Camden County Superior Court. The action seeks to
confirm that O.L., and possibly K.J., is a beneficiary of the
Estate. The action also seeks to expand Juanita’s role to that
of Administratrix of the Estate of Norman so that she will be
permitted to distribute the funds of the Estate pursuant to the
Chancery Division’s Order. Separate counsel was hired to handle
the Estate issues and he appeared at the July 16, 2018 hearing.
3
According to counsel, the Chancery Division will not only decide
the beneficiaries of the Estate, but also how the net settlement
funds
will
be
paid
and
distributed
after
the
payment
of
plaintiff’s attorney’s fees and costs.2
Counsel’s motion seeks approval for a 33 1/3% contingency
fee and reimbursement of out-of-pocket expenses of $48,020.25.
The proposed attorney’s fee represents 1/3 of plaintiff’s net
recovery
rather
than
25%
as
is
normally
the
case
where
the
beneficiary of a settlement is a minor.
Discussion
Given the action filed in state court and the fact that an
experienced probate Judge will decide who the beneficiaries of
Norman’s Estate are and how the net settlement funds will be
paid and distributed, there are only two issues this Court has
to decide. One, whether the proposed $800,000 settlement should
be approved as fair and reasonable. Two, whether plaintiff’s
counsel is entitled to an enhanced contingent fee of 33 1/3%
rather than 25%, and whether reimbursement of counsel’s costs in
the amount of $48,020.25 should be approved.
1.
Settlement Approval
The Court has no hesitation approving the settlement of the
case for the total sum of $800,000. The Court is intimately
Since these distribution issues will fortunately be decided by
the state court, plaintiff’s request that this Court decide the
issues will be denied without prejudice.
2
4
familiar with the case having managed the proceedings since the
Fed. R. Civ. P. 16 Scheduling Conference was held on January 7,
2015. Throughout the history of the case the Court has held
numerous
conferences
and
hearings
and
is
familiar
with
the
strengths and weaknesses of the parties’ litigation positions.
Given
the
liability
issues
in
dispute,
and
the
real
possibility of a defense jury verdict, the Court finds $800,000
is a fair, reasonable and appropriate settlement. While Norman’s
death was tragic, the facts of life are that the decedent was
not
a
evening
particularly
of
his
sympathetic
death
the
plaintiff.
police
were
After
all,
confronted
on
with
the
an
undressed drug induced individual who was behaving bizarrely.
Further, defendants presented formidable experts who opined that
defendants were not to blame for Norman’s death. In addition,
Norman did not make an economic loss claim and the extent of his
pain and suffering damages was subject to dispute. In addition,
the Court is convinced defendants were not going to pay any more
money to settle if plaintiff did not accept their last $800,000
offer. Under all these circumstances, the $800,000 settlement is
eminently fair and reasonable.
2.
Attorney’s Fees and Costs
Since the beneficiary of the decedent’s estate is a minor,
plaintiff’s contingency fee is limited by N.J.R. 1:21-7(c)(6).
This
Rule
limits
a
contingency
5
fee
to
25%
where
the
amount
recovered is for the benefit of a minor.3 Plaintiff’s attorneys,
however, request an enhanced fee pursuant to N.J.R. 1:21-7(f).4
This Rule provides:
If at the conclusion of a matter an attorney considers
the fee permitted by paragraph (c) to be inadequate,
an application on written notice to the client may be
made to the Assignment Judge or the designee of the
Assignment Judge for the hearing and determining of a
reasonable fee in light of all the circumstances. This
rule shall not preclude the exercise of a client’s
existing right to a court review of the reasonableness
of an attorney’s fee.
Plaintiff’s application for an enhanced contingent fee raises
two issues. One, whether an enhancement may be awarded where the
beneficiary is a minor. Two, whether plaintiff’s attorneys are
entitled to an enhancement. The answer to both questions is yes.
As to whether an enhanced contingency fee may be awarded in
a minor’s case, the question was answered in the affirmative in
Murphy v. Mooresville Mills, 132 N.J. Super. 197 (App. Div.
1975). In Murphy the court held that the enhancement provision
in N.J.R. 1:21-7(f) applies in a case where the beneficiary is a
minor. Specifically, the court wrote:
The Rule only applies if settlement occurs before a jury is
empaneled. To the credit of plaintiff’s counsel, they did not
wait to settle until after jury selection which was imminent. If
settlement was delayed, plaintiff’s attorneys did not need Court
approval to recover the contingent fee of 33 1/3%/30% set forth
in their Agreement to Provide Legal Services. See Plaintiff’s
Motion, Exhibit A.
4 Plaintiff’s retainer specifically provides that in the event of
a settlement the law firm may petition for a reasonable fee
pursuant to N.J.R. 1:21-7(f). Id. at 2, ¶3.A.
3
6
We perceive nothing in the rule [N.J.R. 1:21-7(f)] or
in reason which would warrant limiting the rule’s
relaxation provision to all contingent fee cases
except those involving infants…. When the rule is read
as a whole it evidences a clear intention to make all
contingent fees, including those in infants’ tort
cases, subject to increase with Court approval in
special cases.
Id. at 199. More recently in A.W. v. Mount Holly Twp. Bd. of
Educ.,
453
N.J.
Super.
110
(App.
Div.
2018),
the
Appellate
Division indicated in dicta that an attorney can apply for an
enhanced
contingent
fee
in
a
minor’s
case.
While
the
court
rejected the attorney’s argument that she was entitled to her
45% agreed upon contingency fee in a LAD and NJCRA case, the
court indicated plaintiff could file for an enhanced fee under
Rule 1:21-7(f). Id. at 120.
Having
decided
that
an
enhanced
contingency
fee
may
be
awarded in the case, the Court must decide whether plaintiff’s
proposed
33
1/3%
fee,
rather
than
25%,
is
appropriate.
The
answer is an emphatic yes. Important factors the Court considers
in this regard are whether the case presented problems which
required exceptional skills beyond what is normally encountered
and whether the case was unusually time consuming. Estate of
McMahon
v.
Turner
Corp.,
C.A.
No.
05-4389
(JBS),
2007
WL
2688557, at *3 (D.N.J. Sept. 7, 2007). The Third Circuit has
recognized:
“[t]he
New
Jersey
caselaw
instructs
that
the
attorney seeking an increased fee must demonstrate that (1) the
fee
allowed
under
[Rule
1:21-7(c)]
7
is
not
reasonable
compensation for the services actually rendered, and (2) the
case presented problems which required exceptional skills beyond
that
normally
encountered
in
such
cases
or
the
case
was
unusually time consuming.” Mitzel v. Westinghouse Elec. Corp.,
72 F.3d 414, 418 (3d Cir. 1995)(citing Wurtzel v. Werres, 201
N.J. Super., 544, 549 (App. Div. 1995)); see also A.W., 453 N.J.
Super. at 119.
If
there
ever
was
an
exceptional
case
to
warrant
an
enhanced fee in a minor’s case this is it. Plaintiff’s counsel’s
work in the case was superb. Given the circumstances surrounding
Norman’s death and the unsympathetic situation he presented, it
is
likely
not
many
attorneys
would
have
represented
Norman.
Nevertheless, eyeing a potential injustice, Sharon and Stanley
King
undertook
the
representation.
The
Kings
undertook
the
representation knowing they faced an expensive and long uphill
battle. Plaintiff’s attorneys were retained approximately six
(6) years ago and invested four (4) years of litigation before
the case settled. The engagement likely came at a great personal
sacrifice. The Kings work in a small firm and the substantial
resources counsel invested in terms of time and money likely
foreclosed them from accepting more lucrative engagements. The
Kings
wisely
retained
qualified
experts
at
the
inception
of
their engagement, including the retention of a renowned former
Chief
Medical
Examiner,
City
of
8
New
York.
Moreover,
it
is
significant that plaintiff’s lodestar in the case is in excess
of $1 million. Even with an enhancement to 33 1/3% plaintiff’s
counsel are earning less than 1/4 of the time they invested. In
short, the record supports the Court’s finding that plaintiff’s
counsel’s efforts “were long, arduous and assiduous in achieving
an excellent result for plaintiff[].” Murphy, 132 N.J. Super. at
200.5
As
to
the
request
for
reimbursement
of
out-of-pocket
litigation expenses in the amount of $48,020.25, the request
will also be approved. The Court has the authority to approve
the expenses incident to litigation filed for the benefit of a
minor. N.J.R. 4:44-3; see also 42. U.S.C. §1988(b). The Court
has reviewed counsel’s cost request and finds that all claimed
costs were reasonably incurred and are reasonable as to their
amount. Thus, counsel’s costs shall be reimbursed.
One
additional
point
will
be
mentioned.
All
citizens
deserve to be represented by competent counsel when a potential
injustice occurs.6 Like it or not, unless the prospect of an
enhanced fee is possible the meek and downtrodden may not be
able to attract competent counsel to handle unpopular or unduly
This case is not an isolated occurrence. See King v.
Gloucester, 483 F. Supp. 2d 396 (D.N.J. 2007). In addition, the
Court has no doubt plaintiff’s final attorney fee is reasonable
taking into account the factors listed in R.P.C. 1.5(a).
Further, counsel’s enhanced contingent fee is hardly a windfall
given the lodestar in the case.
6 To be clear, the Court is not weighing in one way or the other
as to the merits of Norman’s claims.
5
9
difficult cases. Lawyers should be incentivized to represent all
persons, not just those with largesse. Fortunately, Sharon and
Stanley King put the welfare of their clients ahead of their
potential for personal gain. An enhancement pursuant to N.J.R.
1:21-7(f) is a necessary vehicle to partly reward them for their
sacrifices.7 An enhanced contingency fee in a case like this is
“necessary
to
incentivize
attorneys
to
shoulder
the
risk
of
nonpayment to expose potential violations of the law and to
achieve
compensation
for
injured
parties.”
Cf.
In
re:
Southeastern Milk Antitrust Litigation, Master File No. 2:08-MD1000, 2012 WL 12875983, at *4 (E.D. Tenn. 2012).
Conclusion
For all the reasons discussed herein, the Court approves
plaintiff’s settlement and plaintiff’s counsel’s request for an
enhanced contingency fee and reimbursement of costs incurred.
The Chancery Division – Probate Part, Camden County Superior
Court, will determine the beneficiaries of Norman’s Estate and
how the net settlement funds will be distributed and paid. An
appropriate Order follows.
ORDER
Accordingly, for the foregoing reasons,
The Court would be remiss it if did not also mention that at
all relevant times defense counsel zealously represented his
clients and exhibited the professionalism and skill of an
experienced litigator.
7
10
IT IS HEREBY ORDERED this 23rd day of July, 2018, that
plaintiff’s Motion for Approval and Distribution of Settlement
and for Reasonable Counsel Fees is GRANTED in part and DENIED in
part without prejudice; and it is further
ORDERED as follows:
1.
The
settlement
of
the
case
for
the
total
sum
of
$800,000 is APPROVED as fair and reasonable as to the amount.
2.
By no later than August 24, 2018, defendants shall pay
the settlement sum to be deposited in the Attorney Trust Account
of King & King, LLC.
3.
Pursuant to N.J.R. 1:21-7(f), plaintiff’s counsel is
entitled to an enhanced contingent fee of 33 1/3% of the net
proceeds paid to decedent’s estate.
4.
The
Court
approves
reimbursement
to
plaintiff’s
counsel of $48,020.25 for the out-of-pocket costs they paid to
prosecute the case.
5.
After
plaintiff’s
Attorney
defendants’
counsel
Trust
are
Account
settlement
authorized
payment
of
to
their
payment
withdraw
clears,
from
attorney’s
their
fees
and
costs. This amount totals $298,655.10 ($800,000 - $48,020.25 =
$751,979.75 x .3333 = $250,634.85 + $48,020.25 = $298,655.10).
6.
Account
The
remaining
($501,344.90)
sum
shall
in
not
following occurs:
11
plaintiff’s
be
Attorney
distributed
until
Trust
the
a.
A
Court
Order
is
received
from
the
Chancery
Division – Probate Part, Camden County Superior Court, listing
the beneficiaries of Norman’s Estate and how the net settlement
funds will be distributed and paid. The Court shall be served
with a copy of the Order.
b.
releases
Defendants are served with signed and executed
from
the
guardian
of
each
beneficiary
of
Norman’s
Estate.
c.
outstanding
Defendants
Judgments
are
served
against
the
with
proof
decedent
that
(Kimberly
the
two
Liptak
($11,025.00) and Gloucester City Welfare ($11,806.71)) have been
paid.
7.
Plaintiff’s counsel shall comply with the provisions
in the Order to be entered by the Chancery Division – Probate
Part, Camden County Superior Court; and it is further
ORDERED that given the involvement of the Chancery Division
–
Probate
request
Part,
for
beneficiaries
an
of
Camden
Order
County
asking
Norman’s
Superior
this
Estate
Court
and
how
Court,
to
the
plaintiff’s
determine
the
Estate’s
net
settlement funds will be distributed and paid is DENIED without
prejudice; and it is further
12
ORDERED the Clerk of the Court shall open this matter for
the purpose of entering this Order and then shall close the
file.8
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: July 23, 2018
Although not binding on the Court, Norman consented to their
attorneys’ fee application.
8
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?