Oneida Ind. NY, et al v. County of Oneida, NY, et al
DECISION and ORDERED, that the R&R (Dkt. No. 624) is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Bond, Schoeneck & Kings Motion to have the Court recognize its right to a fee (Dkt. No. 130) is GRANTED to the extent outlined in Magistrate Judge Treeces Report-Recommendation (Dkt. No. 624). Signed by Senior Judge Lawrence E. Kahn on July 12, 2011. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ONEIDA INDIAN NATION, et al.,
COUNTY OF ONEIDA, et al.,
ONEIDA INDIAN NATION, et al.,
-againstSTATE OF NEW YORK, et al.,
DECISION and ORDER
This matter comes before the Court following a Report-Recommendation (“R&R”) filed on
February 18, 2001 by the Honorable Randolph F. Treece, United States Magistrate Judge, pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3 of the Northern District of New York. Dkt. No.
624/122.1 Judge Treece’s R&R addresses Bond, Schoeneck & King’s (“BSK”) Motion to have the
Court recognize its right to a fee pursuant to the Retainer Agreement and charging lien in
connection with its previous representation of the Oneida Nation. Dkt. No. 130/55. After fourteen
This Motion was filed concurrently in two separate, but related, actions designated as Civil Case Numbers
5:74-CV-187 (LEK/DRH) and 5:70-CV-35 (LEK). In his R&R, Judge Treece refers to the former as the “Reservation
Case,” and the latter as the “Test Case.” This decision will cite case numbers in both dockets by using the Docket
Number in the Reservation Case, followed by the Docket Number in the Test Case, except where the cited docket entry
is only available in one of the case dockets.
days from the service thereof, the Clerk has sent the entire file to the undersigned, including the
Objection to Report and Recommendations by BSK, which was filed on March 4, 2011, and the
Objection of Bertram E. Hirsch (“Mr. Hirsch”), which was filed on March 25, 2011. Objection to
Report and Recommendations by Bond, Schoeneck, & King (“BSK’s Objection”) (Dkt. No.
625/136); Objection to Report and Recommendations by Attorney Bertram E. Hirsch (“Hirsch’s
Objection”) (Dkt. No. 631/129). Responses were filed on March 23, 2011. Dkt. Nos. 629/127 and
630/128. Additionally, the Oneida Indian Nation of New York has filed a Motion to strike BSK’s
Objection because it was not filed under seal. Dkt. No. 632/130.
A. Motion to Strike
Plaintiff Oneida Indian Nation of New York (“NY Oneida”) has moved pursuant to Fed. R.
Civ. P. 12(f) and 37(c), Local Rule 1.1(d), and the Court’s inherent authority, to strike BSK’s
Objections. NY Oneida argues that BSK’s Objection should be stricken because BSK filed this
document in violation of the sealing order entered in these cases, and then failed to ask the Court to
correct the error. Dkt. No. 645/130.
While the Court cautions BSK to be more diligent in its procedures for honoring its
obligations to file under seal in future cases, it does not find that striking BSK’s Objection to the
R&R is appropriate in this case. Whether to grant a Rule 12(f) motion “is within the district court’s
discretion”; however, such motions “are disfavored and not routinely granted.” Holmes v. Fischer,
No. 09-CV-00829S(F), 2011 U.S. Dist. LEXIS 831, at *14 (W.D.N.Y. Jan. 4, 2011). Imposing
sanctions based on the Court’s inherent power is also generally disfavored:
In order to impose sanctions pursuant to its inherent power, a finding of bad faith is
necessary. Awards should be imposed based on clear evidence that the challenged actions
are entirely without color, and are taking for reasons of harassment or delay or for other
improper purposes and such sanctions require ‘a high degree of specificity in factual
Rivera v. Sharp, 2010 U.S. Dist. LEXIS 62556, at *4 (D.V.I. June 21, 2010) (quoting Wolters
Kluwer Fin. Srvcs., Inc. v. Scivantage, 525 F. Supp. 2d 448, 539 (S.D.N.Y. 2007). BSK’s failure to
file under seal was accidental, it attempted to contact the Clerk’s office and opposing counsel
regarding its mistake, the R&R had already been filed publicly and outlined the parties’ dispute over
attorney’s fees, and BSK’s Objection contained little or no confidential or embarrassing
information. See generally BSK’s Memorandum in opposition to NY Oneida’s motion to strike
(Dkt. No. 633/131); R&R; and BSK’s Objection. The Court does not find that BSK’s failure to file
its Objection under seal rises to the level of bad faith or involves otherwise compelling
circumstances, and therefore it exercises it denies the Motion to strike BSK’s Objection.
1. BSK’s Objection to the Report-Recommendation
This Court is to “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b). “A
[district] judge . . . may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. Where, however, an objecting “‘party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court reviews
the Report and Recommendation only for clear error.’” Farid v. Bouey, 554 F. Supp. 2d 301, 307
(N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007)
(citations and quotations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at
*2-3 (N.D.N.Y. Sept. 22, 1997). “A [district] judge . . . may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
BSK specifically objects to section IV of Magistrate Judge Treece’s R&R which awarded
BSK attorneys’ fees in these Oneida land claim cases. Judge Treece awarded BSK $5,174.54 of the
$57,494.54 that Plaintiffs recovered from Defendants. R&R at 56. BSK objects to Magistrate
Judge Treece’s award on the ground that it is entitled to a larger fee “based upon the value of the
recovery that has been achieved.” BSK’s Objection at 20. Rather than arguing that it is entitled to
more of the money awarded in the judgment in No. 70-CV-35, BSK contends that its contingent fee
in the Oneida land claim recovery includes Oneida Nation of York businesses, including a casino
established under a gaming compact approved by the Secretary of the Interior in 1993, as well as to
any value created by a trust land decision made by the Department of Interior in 2008. Id. at 14-15.
BSK argues that everything the Oneida Nation has gained as a result of the legal principle
underlying the $57,494.54 damage award, namely that a 1795 purchase of some Oneida lands by
New York was invalid because it violated federal law, should be included it the “amount recovered”
under the Retainer Agreement. Id. at 3, 15, 20.
The Court has considered BSK’s Objection, has undertaken a de novo review of the record,
and has determined that the R&R should be approved. With respect to BSK’s argument that the
term “recovery” should include relief not contained in the final judgment, such as income generated
by the Oneida Casino, the Court notes that BSK fails to cite any case in which a contingent fee
interest was extended beyond the award contained in a final judgment resolving the litigation or
beyond the terms of a settlement. See Universal Acupuncture Pain Servs., P.C. v. Quadrino &
Schwartz, P.C., 370 F.3d 259, 264 (2d Cir. 2004) (holding that attorney’s fees in quantum meruit
could be appropriate where the client settled without a monetary award, if the attorney was fired by
the client without cause and prior to the completion of litigation); Pueblo of Santo Domingo v.
United States, 54 Fed. Cl. 240, 245 (2002) (holding that counsel for an Indian tribe were entitled to
the maximum allowable percentage of the tribe’s recovery in a settlement it reached with the United
States); Walker v. Dovetails, Inc., No. 201CV0526, 2011 U.S. Dist. LEXIS 18357, at *9 (E.D. Va.
Feb. 24, 2011) (including a pre-judgment payment from defendant to plaintiff in calculating an
attorney’s fee because that payment was credited toward the Court’s judgment); Dewey v.
Volkswagon of America, 728 F. Supp. 2d 546 (D.N.J. 2010) (valuing a class-action settlement that
included non-cash benefits such as free repairs); McCoy v. Health Net, Inc., 267 F. Supp. 2d 448
(D.N.J. 2008) (valuing non-cash benefits in another class-action settlement, such as the ability of
consumers to obtain free credit reports); Western Shoshone Identifiable Grp. v. United States, 652
F.2d 41, 47-48 (Ct. Cl. 1981) (affirming an attorney’s fee that constituted 10% of the award
obtained in litigation based upon the application of a multi-factor test). Judge Treece specifically
addressed this argument by stating that “the Retainer Agreement neither explicitly or implicitly
embraces that interpretation” and that “[t]he Court cannot imagine what all of this would portend in
terms of a fee.” R&R at 56.
In determining the applicable law, Judge Treece correctly stated that the Second Circuit has
rejected the proposition “that [the] statutory requirements governing federal approval of certain
contracts between Indians and non-Indians give rise to a federal common law governing such
contracts.” Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 753
(2d Cir. 1996) (citing Gila River Indian Cmty. v. Hanningson, Durham & Richardson, 626 F.2d 708,
714-15 (9th Cir. 1980)). Magistrate Judge Treece also correctly concluded that, in the absence of a
federal common law governing contracts between Indians and non-Indians, state contract law must
be applied to the extent that federal Indian law does not override it. Niagara Mohawk Power Corp.,
However, rather than relying on contract law principles in its Objection, BSK cites cases on
common fund fee awards in class action lawsuits, fee awards in tribal claims against the federal
government, and other statutory fee awards. BSK’s Objection at 15-19. These cases are not
applicable when a contingency fee agreement governs attorneys’ fees. Niagara Mohawk Power
Corp. at 747. Under New York law, when a term in a fee agreement between an attorney and a
client is ambiguous, the New York Court of Appeals has held that “[w]hile, in the law generally,
equivocal contracts will be construed against the drafters, courts as a matter of public policy give
particular scrutiny to fee arrangements between attorneys and clients, casting the burden on
attorneys who have drafted the retainer agreements to show that the contracts are fair, reasonable,
and fully known and understood by their clients.” Shaw v. Mfrs. Hanover Trust Co., 68 N.Y.2d
172, 176 (1986).
The Retainer Agreement itself does not expressly state that BSK is entitled to recover
casinos, trust land, or anything that the Oneida tribes came by outside of a land claim settlement or
judgment. Dkt. No. 630/128, Ex. A. Instead, the Retainer Agreement states, “The compensation of
the Attorneys for the services to be rendered under the terms of this contract is to be wholly
contingent upon a recovery for the Nation from the State of New York, or any political sub-division
or department to it.” Id. at 2. The Retainer Agreement goes on to specify the percentages that BSK
is entitled to for “amounts recovered by the Nation from the State of New York or any political
subdivision, or instrumentality, or agency thereof on account of such claim as a result of or through
the instrumentality of attorney’s services, advice or assistance.” Id. Nowhere in the fee agreement
is the term “amounts recovered” defined or is its meaning delineated. Finally, in the context of a
contingency arrangement between a client and an attorney, the plain meaning of “amounts
recovered” might not include revenue generated by the client outside of recovery obtained through a
settlement or final judgment.
It follows, therefore, that BSK can only recover if it proves that it advised its client before
making the fee agreement that the term “amounts recovered” might give BSK an interest in these
items. To the contrary, there are indications in the record that BSK advised its client that its fees
would be limited to money damages: in its reply memorandum, BSK stated that the Oneida Nation
sought counsel to secure “monetary compensation” and that the firm pursued “narrow relief” in the
form of the land’s “rental value.” Dkt. No. 472 (Test Case document). Furthermore, BSK’s expert
attached documents in which BSK advised the Oneida Nation that the aim of the litigation was to
get “money damages” and that BSK “would receive no compensation for our services unless we
succeeded in collecting something.” Dkt. No. 143 (Reservation Case document).
Based upon the foregoing, the Court finds that BSK has not proven that it advised its client
that “recovery” or “amounts recovered” would include revenue generated by political and business
agreements, such as the licensing and establishment of a casino, that were completely apart from the
damages or settlement obtained in the lawsuits. And because BSK has not carried its burden of
showing that its client fully knew and understood that the term “amounts recovered” included
revenue generated separately from a judgment or settlement, the term “amounts recovered” must be
construed against the attorney who drafted it. Thus, Magistrate Judge Treece was correct to
construe “amounts recovered” to include only the recovery obtained in the Test Case against the
State of New York.
BSK also argues that Magistrate Judge Treece’s calculation of a fee award was premature
and that BSK was entitled to an evidentiary hearing on the amount of the fee. BSK’s Objection at 1,
3, 8. However, the Court notes that BSK has failed to ask the Court to receive further evidence, and
furthermore, the Court finds that BSK has failed to proffer any proof that it could have offered in
support of a greater fee. See 28 U.S.C. 636(b)(1) (in BSK’s Objections, it could have asked the
Court to “receive further evidence”). Instead, BSK has not offered, or referenced in its submissions,
any new evidence in support of a greater fee. The Court has considered BSK’s Objection and has
undertaken a de novo review of the record, and it has determined that the R&R should be approved.
B. Mr. Hirsch’s Objections to the Report-Recommendation
Mr. Hirsch does not object to the legal conclusions contained in Magistrate Judge Treece’s
R&R, but rather, attempts to correct two factual errors he asserts are contained in the R&R. Hirsch
Objection. First, the R&R contains a reference to Mr. Hirsch being the plaintiff’s attorney in Homer
v. Halbritter, 1994 U.S. Dist. LEXIS 16513 (N.D.N.Y. November 15, 1994). R&R at 44. Shortly
thereafter, the R&R makes reference to a 1993 letter written by George Shattuck, in which it is
claimed that Mr. Hirsch was then representing the Oneida Indian Nation of New York. Id. It would
appear that Mr. Hirsch objected to the R&R in order to correct this error. Upon reviewing the
counsel listed in Homer, the Court notes that Mr. Hirsch does not appear to have been an attorney in
that case. Id. The Court may not amend or correct the R&R in this respect, because it is limited to
the record before it, and the record contains a document that lists Mr. Hirsch as an attorney in
Homer. Smith Decl., Ex. 45. However, insofar as the R&R stated that Mr. Hirsch was attorney in
that case, the Court notes that the R&R may have been in error.
Accordingly, it is hereby:
ORDERED, that the R&R (Dkt. No. 624/122) is APPROVED and ADOPTED in its
ENTIRETY; and it is further
ORDERED, that BSK’s Motion to have the Court recognize its right to a fee (Dkt. No.
130/54) is GRANTED to the extent outlined in Magistrate Judge Treece’s R&R (Dkt. No. 624/122);
and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.
July 12, 2011
Albany, New York
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