Robinson Brog Leinwand Greene Genovese & Gluck P.C. v. John M. O'Quinn & Associates, L.L.P.

Filing 43

OPINION AND ORDER re: 27 MOTION to Dismiss for Lack of Jurisdiction pursuant to Rule 12(b)(2) filed by John M. O'Quinn & Associates, L.L.P., 30 MOTION to Dismiss for Lack of Jurisdiction pursuant to Rule 12(b)(1) filed by John M. O'Quin n & Associates, L.L.P., 33 MOTION to Dismiss pursuant to Rule 12(b)(6) filed by John M. O'Quinn & Associates, L.L.P. The O'Quinn Firm's motion to dismiss or stay the action pending arbitration pursuant to section 11.01 of the Client Agreement (Dkt. No. 30) is granted insofar as the amended complaint is dismissed. The O'Quinn Firm's motions to dismiss for lack of personal jurisdiction (Dkt. No. 27)and for failure to state a claim (Dkt. No. 33)are denied as moot. so ordered. (Signed by Judge Louis L. Stanton on 7/10/2012) (jmi)

IUSDC

SDN~ :]R/GTl\r:~Ill

II

DOCUMENT

. ELECTRONlCALLY FILED \

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

I

- - - - - - - - - - - - - - - - - - -x
ROBINSON BROG LEINWAND GREENE
GENOVESE & GLUCK P.C.,

l

I

DOC#:___
DArE FILED:
.

Plaintiff,

\

'1::_._II~={~~=lJ
..

.--~ -~.

11 Civ. 2730 (LLS)

- against -

OPINION AND ORDER

JOHN M. O'QUINN & ASSOCIATES, L.L.P.
d/b/a THE O'QUINN LAW FIRM,
Defendant.

- - - -x
a

P. C.

iff Robinson

("Robinson

Brog, "

Leinwand Greene Geneovese
a

New

John M. O'Quinn & Associates
(the

"0' Quinn

Firm,"

l

York

ed

law

firm),

L.L.P. d/b/a The 0'

a Texas -based law firm),

&

defendant

nn Law Firm

and a

third law

firm agreed in 2007 jointly to represent putative pI

As part

that agreement

partner,
the

2009,

the

clients

addit

however,

the defendant 0' Quinn Firm promised

following

the

O'Quinn Firm withdrew
in

the

Escala

financing,

from

Lit

ion,

did not

es
contract

s

of

its

founding

representation of

refused

reimburse

to

provide
for

nson

rm for

Robinson Brog sues the O'Quinn

impli

death

had incurred.

expenses Robinson

promis

igation") .

litigation.

to finance t
In

1

iffs

ion (the "Escala

a stock price manipulation lit

Gluck

quantum me
1

negl

t
mis

1

unj ust

of contract,
enrichment,

sentation,

breach

equit

e

estoppel.
The

0'

contending

Quinn

Firm

moves

that

to

trat

agreement signed by

pI

the

covers

Escala

action!

dismiss

Litigation

provision

Robinson

claims

("FAN!)!

Firm

moves
C

to

s

9 U. S. C.

dismiss

12 (b) (2),

P.

§

3.

the 0'

the

amended

asserting that

is

ct

New York, and under Fed.

12(b) (6)! arguing that

amended complaint fails to

state a claim on which relief can
ts

ret

s arbitration clause.

not subject to personal juri
P.

action,

rectly benefited from

thus is estopped from avo

R.

the

that agreement!

Firm argues that Robinson

R.

Brog!s

Act

though Robinson Brog did not s

under Fed.

in

s

must be submitted to arbi trat

pursuant to the Federal Arbitrat

O'Quinn

stay

iffs and some of the att

and thus those cIa

The

or

that

if

the

compla

ed.
is

not

are not stayed, that this case
States District Court for the Sout
28 U.S.C.

§

The O'Quinn Firm

dismissed

and

the

transferred to the
rn District of Texas,

1404(a).
Background

The Joint Representation and Contracts

factual allegations

amended complaint as

true:
In

June

2007!

John

O'Quinn!
2

the

0'

Firm's

founding

partner,

met

wi

partners

from

Robinson Brog,

law firm Christian Smith & Jewell LLP
tigat

Escala
fices

ln

New

discussed the
fraudulent

plaintiff
York.

facts

scheme

"During

of
to

on

Greg

public

traded

meeting,

the

NASDAQ."

Robinson Brog and CS&J on

the Esc

a

co counsel

Litigation

l

meeting

the

participants

stock,
~

which

was

At

that

15.

and reached an agreement with
terms and condit
0

Wl

Brog1s

which involved a

Compl.

Am.

from

and putative

Robinson

1

Escala's

John OIQuinn "negotiat

Brog becoming

at

Escala Litigation l
manipulate

partner

("CS&J"),

Manning

the

a

to whi

nn

1

Mr.

and

CS&J

of Robinson
in

prosecuting

Manning consented."

~

Id.

18.

In August
their

and September 2007
tigation

Escala

Attorney and

Contingent

ch governs

clients
Fee

the OIQuinn Firml

1

entered

Contract

(the

the 0 Quinn Firm and CS&JI s
1

of those clients

l

and provides

of

the OIQuinn

rm1s

Section 9.01

of

and

withdraw

CS&J

to

made

the

12(b) (1)

§

2.011

Mot.

Agreement

Cl
from

of

"Client Agreement
j oint

ff
)

1

representation

(including the value of

before or after the Lit

Client Agreement

is commenced."

Power

the

and

those firms are entitled to

"50% of any net settlement or recovery
any non monetary recovery)

into

CS&J I

Bennett Decl.

("Bennet
permits

representation

certain circumstances.
3

of

Decl.

III)

ion

in Supp.
Ex.

Of Quinn

2.

Firm

clients

in

Client Agreement originally
were

to

agreement.

arbitrate

that

certa

es

That section was later

its parties

arising under the
and now provides in

relevant part:
and all disputes, controversies, claims or demands
s
out of or relat
to (1) this Agreement or
(2) any provisions hereof or (3) the providing of
ces by ATTORNEYS [i.e., the O'Quinn Firm and
CS&J] to THE CLIENT or (4) t
relationship between
ATTORNEYS and THE CLIENT,
r in contract, tort or
otherwise, at law or in
ty, for damages or any
relief, shall be re
by binding arbitration
pursuant to the Federal
tration Act in accordance
with the Commercial Arbitration Rules then in effect
Association.
Any
such arbitration
1 be conducted
Harris County, Texas.
s arbitration provision
I be enforceable
ei
federal or state court
in Harris County, Texas pursuant to the substant
federal laws establi
by the Federal Arbitration
Act.
Any party to any award rendered in
arbi tration proceeding
seek a judgment upon
award and that judgment
be entered by any
or
state
court
s
County,
Texas
jurisdiction.
Amendment to Client Agreement
Robinson

Agreement states,
associate other at

not

formal

to
iffs in

whi

the Escala Litigation,
Client

11.01, Bennett Decl. I Ex. 3.

sentation of the putative

Brog,

undertake the joint

the

§

yet

is not a party to and is not mentioned in
However,

"Attorneys may,

section

8.01

of

Client

at their own expense,

in the representation

use or

the aforesaid

clients."
Several mont

after the

Cl ient
4

was

signed,

in

October

2007,

Robinson

representation
the

Joint

Brog

formally

the Escala

Responsibility

"Joint Responsi

to

join

tigation plaintiffs,

Referral

lity Agreement U

agreed

),

Fee

whi

Letter

in

by signing

Agreement

states:

This letter will confirm that you will agree to
undertake joint representation of the Escala Group
shareholder
Clients
with
Limited
Liability
partnership
of
JOHN
M.
O'QUINN
&
ASSOCIATES
i'.ND
CHRISTIAN
SMITH
&
JEWELL,
LLP
("O'QUINN
("CHRISTIAN" ), (collectively "Handling Attorneys")
U

)

Pursuant
to
Texas
Disciplinary
Rule
ssional Conduct 1.04, you agree to assume joint
responsibility for the prosecution
Client's cause
of action in Georgia with Handling Attorneys.
At the conclusion of the
a case, subject to
you complying with all rules including but not limited
to rule 1.04, if a recovery is made on behalf of
Clients,
the total attorneys' fees of 50% out of
100% of any net settlement or recovery,
that 50%
attorneys' fees
(net recovery) will be divided as
follows (after payment of
1 expenses
the Georgia
case):
61.86% of the net recovery attorney fees will
paid to O'QUINN,
13.14%
net recovery
attorney
s will be paid to CHRISTIAN, and 25% of
the net recovery attorney
s will
paid to you.
In the Georgia case, all reasonable and customary
expenses shall be paid 100% by O'QUINN.
A net settlement or recovery is the amount
remaining
of
the
settlement
or
recovery
after
reimbursing O'QUINN
any charges or expenses of
litigation incurred by or due to being reimbursed to
O/QUINN.
ients will
informed of our respective
roles regarding this matter, and will execute and sign
a separate Consent to Refer Agreement indicating their
approval of an acceptance of same.
If this Joint Responsibility Referral Letter
Agreement is satisfactory, you should sign above your
5

the

(the

name and date below and return the ori
office.
Bennett Decl. I Ex. 1 (emphasis in
representative

A

of

Responsibility Agreement.

0'

to this

inal)

CS&J
The

nal

also
Quinn

signed
Firm

the

Joint

contends

that

it

never signed the agreement.
Because the Texas Disciplinary Rules forb
entering
of

into

ir

signed,

fee-sharing

clients,

arrangements

had referred the
firms

attorneys'
percentage

Firm,

and

ion

clients

to

their Escala Lit
which st

fees would
firm

ly

jo

prosecut

case,

divided among the firms,
would

receive.

consent
CS&J
sign,

that Robinson

ients to the 0'Quinn Firm and CS&J,

would

each

express

0' Quinn

the Consent to Refer

three

without

Rob

and required

attorneys from

See

t

all

and

that

specifying

Consent

to

Refer

Agreement, Bennett Reply Decl. Ex. 2.
Thus,

the three contracts operate as

Agreement establishes the attorney-cl
contingency fee rate,

50%

pay their attorneys'

ion of Attorneys'

cons
and

ass

to Attorneys

clients'

See Client Agreement
services,

undivided interest in and to

sets the

promise to
§

3.01

("In

the client hereby conveys
to

and

the Client

relationship,

and includes

fees.

lows:

pay

to

Attorneys

and

1 of Client's claims and causes

action to the extent of the

age set out in Paragraph

6

It

2.01. ") .

Respons

tration

an

Agreement

Ii

prosecute

des

Escala Lit

and CS&J,

ion

specifies

firm in
to

has

clause.

that

The

Robinson

jointly wi

the

respective percent

had not

formally

0' Quinn

will
rm

The Consent

clients that Robinson Brog,
to the joint

Client Agreement was s

Brog

shares of

event of a net recovery or settlement.
Agreement informs

Jo

woul d,

sentation when

upon t

join

prosecution of the Escala

the clients'

consent to

clients'
ion,

t

stated port

consent,

and reflects

of the net

each

law firm would rece
Robinson Brog's Involvement in the Escala Litigation

According to the

complaint,

Robinson
performed extensive legal work
researching appli
laws,
t
ing the
s,
ewing thousands of pages
materials suppl
by
Manning on Escala and the stamp
iness in
erviewing witnesses in the Uni
States and
consulting
with
liability
damage
luding Bruce Cook, John F
Robert
and Robert Shapiro, drafting and
ting documents and
eadings and conducting
conferences with
CS&J and Manning .
Am.

.

~

26.

Robinson Brog
t

on

leges

that

it

"performed t

(and incurred significant expenses)
its

agreement
ations

that

with

O'Quinn

would

f

7

in rea

and
the

O'Quinn's
Escala

and other
e reliance
express
tigation."

Id.
The O'Quinn Fir.m's Withdrawal

In

October

accident.

One

2009,
year

John

later

notified its Escala Lit

O'Quinn
an

l

ed

attorney

in

an

the

ion clients that

automobile

0' Quinn

Firm

it was withdrawing

as counsel, stating:
After invest
ion, research, and ana
iS
the
0 Quinn Law Firm no longer believes pursuit
your
potential
claims
is
economically
feasible
or
advisable.
Neither common law principles, the Power
of Attorney and Contingency Fee Agreement [POA] , nor
the disc
inary rules require the
rm to pursue a
case that it deems without s
ficant merit and/or
aga
t
its economic
rest.
Further,
in
opinion of t
O/Quinn Firm, based on its ana
is of
potential claims, it would be impractical for the
O'Quinn
rm to proceed with any further handling of
your potential claims.
Accordingly, based upon
O'Quinn Firm's assessment of your cIa
and potential
causes of action
Firm has determined that
must
withdraw from any further representation.
I

1

l

Pursuant to paragraphs 5.01 and 9.01
the POA,
as quoted above, the Firm hereby gives to you thi
days notice of its withdrawal
representation of
you.
You should obtain new lawyers to represent you
forthwi
if you wish to pursue these potential
claims.
In connection with its withdrawal,
the
O'Quinn Firm releases its contingency fee
erest in
its entirety and any claim it
d make to additional
expenses
incurred
in
the
invest
ion
your
potential claims.
Steed Aff.

~

10, Decl. of Norma Bennett

Supp. DeL's 12(b) (2)

Mot. Ex. 1 (brackets in original).
Robinson
tragic,

the

Brog

alleges,

obligation

to

"While
prosecute

8

John

O'Quinn's
finance

death

was

Escala

igation,

including payment of expenses,

is an obligation

the Defendant to Robinson Brog that did not te
0' Quinn's Death.

Am. Compl.

1/

~

nate upon John

31.

Robinson Brog thus sues the O'Quinn firm for
Joint Respons
$12,515 / 000

Es

1

lity Agreement,
which

Lit

a

it

its
because

reasonable

ients.
the

it

expenses

must

complaint

rm contracted to

expenses

ll

incurred

Robinson

the

withdrawn from its

The amended

reimburse

damages" of

recovered

rm not

0' Quinn

customary

tigat

purport

the 0' Quinn

representation
alleges

alleging "expect

would have

ion

of t

further
pay

in

Brog

I

"

Escala
$400,000

for

legal services.
Discussion

The O'Quinn Fir-m's Motion to Submit the Action to Arbitration

The
dismiss

this

amendment
submit

rm argues

OIQuinn

action

to the

its

to

this

should
clause

requires

arbitration

Brog

Court
ration

the

Client Agreement

claims

Al though Rob

because

that

that

Harris

not sign the

from

the

Client Agreement

in

the

Robinson Brog
County,

Texas.

ient Agreement or its
directly

amendment, the O/Quinn Firm contends that Robinson
benefi ted

stay or

t

fore

is

estopped

from avoiding its arbitration clause.
A.

Choice of Law

Section 2 of the FAA "makes written arbitration agreements
9

id,

irrevocable,

exist at

and

law or in equity

Arthur Andersen LLP v.
FAA,

litigants

in
by

application of
involves an

§

556 U.S.
"Section

2.

§

federal

court

to

provision

2.

one of

the parties,'

,"
FAA,

Carlisle,
9 U. S. C.

the

§

556 U. S.

(2009),

turn,

lows

agreements

made

requires

the

to stay the

at

contracts are binding under
arose

revocability,

to

court,

\ on

action if

it

of

at

state

contract

law

stion of who

icable to determine which

issues

630 31

ted) ,

provision purports

(including the

orceabil i ty

556 U.S.

(footnote

2 and enforceable under

§

govern

and

630

iples

background

is bound by them)," state law "is

Carlisle,

invoke

I!

629 30

in

3,

Because "neit

3.

regarding the scope of agreements

law

624,

contract.'

\ issue referable to arbitration under an agreement

in writ

alter

save upon such grounds as

the revocation of a

Carlis

U.S.C.

9

al

enforceable

to

e,

concerning

3

\ if

the

contracts

of

§

generally.'"

(emphasis omitted),

Perry

v. Thomas, 482 U.S. 483, 493 n.9 (1987)
Since
argument

the
is

issue

one

of

Client

because

t

clause,

"shall

be

raised

by

the

state

enforceabili
Agreement,

which

construed under

O'Quinn
law

contains

and

in

determining

whether
10

the

§

estoppel

governs.
t

And

arbitration

in accordance

laws of the State of Texas," Client Agreement
applies

Firm's

with

10.01, Texas law

Client

Agreement's

arbitration clause is enforceable against Robinson Brog.

c.
Robinson

Brog

Direct Benefits Estoppel

contends

that

it

is

arbitration clause in the Client Agreement

1

not

bound

by
is not a

because

signatory to that contract.
1.

"Under the FAA,

ordinary principles of state contract

determine whether there is a val
re Kell

Brown

Root

&

Inc.,

agreement to arbitrate."

166 S. W. 3d 732,

-~--~~.~~---~---~--~~~~--~~

738

"Because arbitration is contractual in nature,
'does not

law

(Tex.

In

2005).

the FAA generally

re parties to arbitrate when they have not agreed

to do so.'"

Id.

1

quoting Volt Info.

Leland Stanford Junior Univ'

l

Scis_._I_Inc. v. Bd. of Trs.

489 U.S. 468

1

478-79 (1989).

Federal
and Texas
state
courts
have
recognized
however
that "[i] t does not follow
that under
the [FAA] an obligation to arbitrate attaches only to
one
who
has
personally
signed
the
arbitration
provision" i
instead
under
certain
circumstances,
principles of contract law and agency may bind a non­
signatory to an arbitration agreement.
l

l

l

166 S. W. 3d at

Kel

738

(omission and brackets in Kel10sg),

qu9tir:l9 Fisser v. Int'l Bank, 282 F.2d 231, 233
One

such circumstance

estoppel."
plaintiff

"Under
seeking

is

the

case of

(2d

1960).

"direct

benefits

'direct benefits estoppel,'
the benefits of

a

contract

a

non signatory

is estopped from

simultaneously attempting to avoid the contract's burdens,
as the obligation to arbitrate disputes.
11

If

Kell

such

166 S.W.3d

at

739.

"Thus,

a

non-signatory plaintiff may be compelled to

arbitrate if it seeks to enforce terms of a contract containing
an arbitration provision."

rd.
2•

By bringing
terms

of

s

suit,

Client

Robinson Brog seeks to enforce the

Agreement

and

therefore

is

estopped

from

avoiding its arbitration clause.
Robinson Brog

in its amended compla

1

that "While

John O'Quinn's death was tragic, the obligation to prosecute and
finance

Escala Litigation,

an obligation
e

t

upon

However,
client

Defendant

t

John

to Robinson Brog

O'Quinn's

death."

Am.

that

is

did not

Compl.

~

31.

it is the Client Agreement that creates the attorney
relationship,

attorneys,
see

including payment of expenses,

allows

for

the

employment

of

additional

thus permitting Robinson Brog's entry into

Client

Agreement

§

8.01

("Attorneys

may,

at

case,
the

own

use or associate other attorneys in the representation
of the
which

aid
the

aims of the

attorneys

ient."),

may withdraw,

see

and sets the terms on

id.

accept employment on the condition that if,
research,
(b) the

and analysis,
pursuit

of

advisable or feasible
Thus,

§

9.01

("Attorneys

investigation,

it ever appears to attorneys that

Client's

Claim

is

no

longer

economical

. the Attorneys may withdraw.")

when the O'Quinn Firm announced its withdrawal from
12

representation of its Escala Lit
the

ion clients,

ient Agreement by its formal name

Contingency

Fee

Agreement ")

letter:

"After

0' Quinn

Law Firm no

aims
law

is

Agreement

lest

in

Power

or

of

analysis,

advisable.

inary

Neither

Whether

"a

Steed

claim

~

f.

seeks

the

common

Contingency
es

re the firm to

pursue a case that it deems without significant
economic interest."

withdrawal

of your potent

Attorney

disc

the

and

ieves pursuit

feasible

[POA] , nor t

it

research,

longer

the

("Power of Attorney and

quoted

invest

economically

princ

and

it referred to

t and/or its

10 (brackets in original).
rect

a

benefit

from

a

contract

containing an arbi tration clause turns on the substance of the
claim,

not

artful

pleading.

In

II

re

WeekI

that

it

L.P.,

180

--------------~~------~------

S.W.3d 127, 131 32 (Tex. 2005)
Robinson
with

an

Brog's

arbitration

clause,

signed

only

contrac

no

agreement

with

O'Quinn

the obligations it seeks to enforce are those

and CS&J,
of

is

posit

the 0' Quinn Firm under

s

contract wi

Robinson Brog and

CS&J.
But Robinson Brog did not represent the O'Quinn Firm in the
litigation:

contemplat
clients.

Robinson

represented

Escala Lit

's authority to represent

came from the Client Agreement, which provided for the
of

Robinson

Brog

into

at
13

client

ion
clients
ssion

relationship

it

est

ished

O'Quinn

attorneys

the

client,"

see

attorneys'
fined

could

representation

ient

fees

Firm

Agreement

payable

the pool

funds

fees

from

set

favorable

associate

other

the

bounds

outcome

of

and

I

the
thus

in which Robinson Brog would share i
disputes

Texas.

(as more elaborately specified

Agreement)

or

aforesaid claims of

8.01) 1;

a

and required the arbitration
share

the

§

upon

"use

that

pool,

aiming its

the Joint Responsibility
Robinson Brog

cannot

evade

the arbitral process required by the Client Agreement which is
its source.
Since Robinson Brog seeks to enforce the Client Agreement,
it

1S

submit

estopped
to

from

avoiding

arbitration

its

aims

1

arbitration
that

clause

are wi thin the

and

must

scope of

that clause.

D. Scope of the Arbitration Clause
The

next

within

quest ion

is

that

scope

whether

Robinson

clause,

Brog' s

ing in

federal

policy favoring arbitration agreements.

Inc.

T.

v.

Kakiuchi

quoting Moses H.
U.S.

11

"If
covered

24

Co.

I

815

F. 2d

840

I

844

nd t
IN

f

1

"'liberal
See Genesco

(2d Cir.

1987)

Cone Mem/l

I

I

460

(1983)

the
by

&

claims

all
/I

ions
Client

underlying
Agreement

I

the
"then

claims
those

'touch matters
claims

must

l

be

1 Each client was
informed of Robinson Brog's participation and of the details
of the fee-splitting percentages and each client consented.
I

l4

arbitrat

whatever

Genesco,

815

F. 2d

the
846,

at

legal

labels

g:tl0~ing

attached

Mitsubishi

to

them.ff

Motors

Inc., 473 U.S. 614, 624 n.13

v.

(1985).

----------~------~------------

"Determining whether a dispute falls within the scope
clause

requires

arbitration clause
One Tex., N.A.,
App'x 272

Co.

__

v.

Buil

should

agreement

[is]

presumption

2003);

at

broad

or

the

., 704 F.2d 59, 63

provisions

hereof

20

aff'd,

75

Aikman Prods.

&

(2d Cir.

1995)

(a

'the

arbitration

broad,

then

there

trable.")

are
Prudential

is

(brackets
Inc.

v.

a
in

Exxon

------------------~--------------------

or

(3)

the

or

THE

CLIENT

ATTORNEYS

and

THE

CLIENT."

arising out

(1)

(4 )

TO

of

or

Its

this Agreement or

providing

of

specification
to

(1)

this

(2)

services

relationship

relating

of

by

between

"claims

or

Agreement"

is

Collins & Aikman,

58 F.3d at

(brackets omitted); accord --------~--------~~--RSR

309 S.W.3d

"the paradigm of a broad clause."

686,

(S.D. Tex.),

Banc

(2d Cir. 1983).

ATTO~~EYS

20

v.

whether

If

sing out of or relating to

demands

Jurec

II

Collins

outset

claims

characterize

ement's arbitration clause covers "claims or

The Client

demands

374

F.3d 16,

narrow.'

quoting

--"'-­

any

the

to

'narrow.'

accord

58

_ _ _ __ _

decide

that

or

court

2d 368,

Inc.,

__

& Aikman,

Collins

Supp.

(5th Cir.

_ _ _ _ _ _ __ _ _ _ _ _- d_ _

"court

'broad'

252 F.

~

F.

as

the

~

arbitration

an

701

action

(Tex. App. 2010)
or

proceeding

(clauses requiring arbitration

aris

out
15

of

or

relating

"any
to

this

Agreement

"are broad

II

possible relati
may

encompass

all

cIa

with the agreement,

that

some

including those cl

'relate to' the agreement")
1.

Robinson Brog' s
estoppel,
0'

claims

for breach

contract,

and equitable estoppel are all

Quinn Firm's

in part on the

1 ure to prosecute the Escala Litigation,

accordingly they
Client

promissory

re

Agreement

an

interpretation of

to

determine

ssible.

wi thdrawal was
of or relate to the
of its arbitrat

whether

Therefore,

section
0'

and

9.01

Quinn

of

Firm's

those claims ari se out

ient Agreement and fall within the scope

clause.
2.

Robinson Brog' s
enrichment,
mis

remaining claims of

ation

Firm's

Joint

tigation, but ins

0' Quinn.
Respons

and

1/) •

lity

clients and
(as requi

to

customary
That

and

unj ust

negligent

on the O'Quinn Firm's fai

fund

all

expenses

promise

is
Its

litigation

expenses.

Georgia
shall

found
functi

Client Agreement,
by Texas law)

are based on the

( "In

Agreement

Responsibil

reasonable

that

promise

contract,

implied

are not

to prosecute the Escala
0'

quantum meruit,

however,

be

only

case,

paid
in

I

100%

the

connection

by

Joint
to

is shown by the fact

it was circulated to each
16

See

ient

and obtained their individual consents.
Furthermore, section 6.01 of the Client Agreement provides,
\\Attorneys agree to be responsible for and to pay all expenses
of

Litigation,

including

deposition expenses,

without

expert witness fees,

expense related to litigation."
to

the

Client

Agreement

and

cus tomary"

Agreement.

determine

See Fort Worth

22 S.W.3d 831,

840

court

travel,

costs,

and any other

It is thus necessary to refer

to

"reasonable

~orth,

limitation,

under

the
Sch.

(Tex.

2000)

which

expenses

Joint
Dist.

are

Responsibili
v.

Ci

of Fort

("instruments pertaining

to the same transaction may be read together to ascertain the
parties' intent, even if the parties executed the instruments at
different

times and the

each other")
98

(Tex.

instruments do not

(footnote omitted)

1981)

treated as one

("instruments
contract

expressly refer to

Jones v. Kell

i

may

be

614 S.W.2d 95,

construed

even though they are

not

together

or

between the

same parties") .
The dispute over the terms and consequences of the O'Quinn
Firm's

withdrawal

the

Client

Agreement

relates

to

that

agreement and is arbitrable under its provision, even though its
determination will also require application of, and recourse to,
the Joint Responsibility Agreement.
E. Dismissal

Section 3 of the FAA, 9 U.S.C.
17

§

3, provides that

t
court in which suit is pending, upon
i
the issue involved in such
satisfied that
t or
ng is referable to arbitration under
an
shall on application of one of t
ies
trial of the action until such
itration
been had within the terms of
as here,
wi

the
scretion

"all of the

scope
to

of

an

dismiss

issues rai

lit

arbitration

the

F.

courts

Supp .
to

2d

356 ,

action

retain

366

issue

(S . D . N . Y .

jurisdiction

prospective arbitral award.

2003).

to

t

That

Fin.

§

11.01.

of

a

since the

or state court

"
ction.

"As no use

stay of this litigation

.,

common for

not apply here,

County Texas having j

Agreement

is

order

provides for entry

judgment upon the award by

Harris,

It

an

confirmation

arbitration provision in the
of

have

courts

i
269

ion lie

in

Amendment to Client

II

exists for directing a
all of the issues in dispute are

subject to arbitration,

11 dismiss the action rather

than issue a stay."

269 F. Supp.

amended complaint is

2d at 366-67.

The

ssed.
Conclusion

The
pending

0'

Quinn

rm's

to

arbitration

Agreement

(Dkt.

No.

complaint is di

ss

to

mot

30)

dismiss

section
ed

is

0' Quinn

18

or

stay

the

act

11.01

of

the

Cl

insofar

as

the

amended

Firm's motions to di

ss

for lack

personal jurisdiction (Dkt. No.

27)

and

lure

to state a claim (Dkt. No. 33) are denied as moot.
So ordered.
Dated:

New York, New York
July 10[ 2012

L.,•.;, L, §-f."J".-,

Louis L. Stanton
U.S.D.J.

19