Bretillot et al v. Burrow et al
Filing
108
MEMORANDUM OPINION AND ORDER. At this point it is sufficient to find that the Objections are wholly without merit and are overruled. The Court adopts the Report and Recommendation. The petitioner's applications for a charging lien and a "qu asi-retaining lien" are denied. The petitioner's application for retaining lien is granted in the amount of $9,440. The petitioner's application for a judgment in quantum meruit is denied without prejudice. The documents pertainin g to this application should remain under seal. The defendants are precluded from using the documents and they are ordered to destroy whatever copies of these documents that remain in their possession or control at the conclusion of the litigation. (Signed by Judge John G. Koeltl on 10/24/2015) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
AUDREY BRETILLOT,
Plaintiff,
14 Civ. 7633
(JGK)(MHD)
- against MEMORANDUM OPINION
AND ORDER
CLIVE BURROW, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The Court has received the Report and Recommendation of
Magistrate Judge Dolinger, dated June 30, 2015. That Report and
Recommendation concerns the efforts by the petitioner, Daniel
Abraham, to obtain various forms of relief from the plaintiff,
Audrey Bretillot. In particular, the petitioner sought a
charging lien and a retaining lien. He also sought what he
described as a “quasi-retaining lien” which would have
prohibited the plaintiff from relying on various copyrights at
issue in this case. The petitioner also sought a “remedy in
quantum meruit.” The total amount of fees that the petitioner
sought was $14,300. (See Pet’r’s Mem. at 5-8, 10, Mar. 11,
2015).
After a thorough and well-reasoned 78 page Report and
Recommendation the Magistrate Judge recommended that the
petitioner’s request for a charging lien be denied and the
request for a retaining lien be granted, although it is doubtful
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that the petitioner had any records that the plaintiff would
seek to use in this case. (R. & R. at 20, 27-28). The Magistrate
Judge also recommended that the Court deny the request to
preclude the plaintiff from relying on copyrights that had been
obtained and which the petitioner asserted were obtained through
his efforts because such relief was not supported by any legal
authority. (Id. at 30-32).
The Magistrate Judge also analyzed the petitioner’s claim
for quantum meruit relief, and found the amount sought to be
exaggerated. (Id. at 45). The true value of the service
performed, in excess of an initial amount of $10,000 that had
already been paid, amounted to only $9,440. (Id.). However, the
Magistrate Judge recommended that the claim for quantum meruit
relief be denied without prejudice, primarily because it was
unclear whether the plaintiff was responsible for the payment of
the petitioners’ fees. (Id. at 50-55). The plaintiff denied that
she was responsible and the retainer agreement was between the
petitioner and Mr. Feerst, the original lead counsel for the
plaintiff whom the plaintiff ultimately terminated. (See Pet’r’s
Mem. Ex. 1, Mar. 11, 2015). While the plaintiff paid the initial
retainer for the petitioner, she did so with a check payable to
Mr. Feerst. (Bretillot Decl. at ¶¶ 3-12, Mar. 18, 2015). The
Magistrate Judge correctly concluded that there were disputed
issues of fact whether the plaintiff or Mr. Feerst, who is not a
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party in this action, should be responsible for the petitioner’s
fees. (R. & R. at 59-60). It was therefore recommended that the
quantum meruit claim be dismissed without prejudice to allow the
petitioner to bring a separate plenary action in quantum meruit
where all the interested parties will be “afforded the tools and
stages of litigation.” (Id. at 60).
Finally, the Magistrate Judge recommended that the
plaintiff’s application to seal the papers associated with the
petitioner’s fee motion be granted. (Id. at 71). The Magistrate
Judge also recommended that the defendants be precluded from
using those documents in the course of the litigation and that
they be ordered to destroy whatever copies that remain in their
possession or control at the conclusion of the litigation. (Id.
at 77).
The only objections that were filed to the Report and
Recommendation were the ones filed by the petitioner (Pet’r’s
Mem. in Opp’n, Aug. 18, 2015 [“Objections”]). Those objections
are without merit and the Court therefore adopts the Report and
Recommendation in its entirety.
A few additional comments on the Objections are in order.
The Objections could not reasonably be the basis for rejecting
the well-reasoned Report and Recommendation. The Objections fail
to cite a single legal authority, and refer generally to the
Record of submissions to the Magistrate Judge but fail to cite
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to a single document with citation to the Record. Such
Objections are the equivalent of no Objections and fail for
their own lack of substance. See, e.g., Watkins v. Smith, 561 F.
App’x 46, 47-48 (2d Cir. 2014) (summary order) (finding appeals
with briefs “nearly barren of citations and devoid of any
relevant authority” but consisting of “unsubstantiated ad
hominem attacks against other members of the bar and the
judiciary” so frivolous as to warrant sanction); Gortat v.
Capala Brothers, Inc., No. 07cv3629 (ILG), 2010 WL 3417847, at
*1 (E.D.N.Y. Aug. 27, 2010) (finding that the defendants’
objection to a Magistrate Judge’s order was “completely devoid
of citation to legal authorities”, and should “arguably fail on
that basis alone”)
On their face, the Objections also misstate the Record as
explained by the Magistrate Judge. The Objections contend that
the Magistrate Judge “found” that the “[p]etitioner is entitled
to recover an award in quantum meruit.” (Objections at 1, 12).
Those statements are at best misleading. The Magistrate Judge
found that there were disputed issues of fact that precluded a
finding that the plaintiff was liable for a quantum meruit award
to the petitioner for the petitioner’s claimed fees. (R. & R. at
46-55, 58). The petitioner simply underscores these issues of
fact – which could not have been decided on the current
application – when he excoriates the plaintiff’s submission to
4
the Magistrate Judge (although without a specific citation to
the Record): “Plaintiff’s claim that she was ‘unaware that she
was liable for additional payment’ is a tissue of lies . . . .”
(Objections at 12). See also id. at 13 (“The fact that she has
not done so – has studiously avoided doing so – is a telling
blow against her veracity.”).
The petitioner resists the notion that any discount
should be taken from the amount that he claims is owed based on
his time sheets. (Id. at 14). However, the petitioner fails to
address any of the problems that the Magistrate Judge explained
with respect to the petitioner’s time entries and the petitioner
fails to cite any authority to counter the Magistrate Judge’s
discount from the petitioner’s time sheets. (R. & R. at 43-45
(finding a number of the entries in the petitioner’s time
records vague or otherwise incomprehensible, several entries
where the calculated hours worked failed to match the start and
end time recorded, and a few entries that reflect a seemingly
excessive amount for tasks described)).
Perhaps most troubling, despite their lack of legal
authority or citations to the Record, the Objections are filled
with invective not only against the plaintiff, but also against
the Magistrate Judge. Portions of the Report are described as
“absurd” (Objections at 12), “nonsensical” (id. at 13), as
having “no reasonable basis” (id. at 14), and “wholly
5
incomprehensible” (id. at 16). The Objections also contain the
following statement that approaches or exceeds the threshold for
sanctionable conduct: “the Report takes great pains to concoct a
grossly-reduced bill based upon a wholly-invented formula.
Petitioner will not dignify this prevarication by responding to
it directly.” (Id. at 14). See Koehl v. Bernstein, 740 F.3d 860
(2d Cir. 2014) (case dismissed with prejudice because of the
offensive, abusive, and insulting language by the pro se
plaintiff against the Magistrate Judge); Phelan v. Karandy, No.
9:11-CV-636 (NAM/RFT), 2012 WL 2235125, at *2 (N.D.N.Y. June 15,
2012) (dismissing the complaint of a pro se plaintiff with
prejudice for, among other things, the plaintiff’s offensive and
unfounded remarks asserting the Magistrate Judge presiding over
the case was lying); In re Henderson, No. 6:09-cv-714, 2009 WL
5030788, at *1 (N.D.N.Y. Dec. 14, 2009) (warning appellants that
continued personal attack against a bankruptcy judge, including
baselessly accusing the judge of making false statements, “will
be dealt with in the harshest available manner”).
CONCLUSION
At this point it is sufficient to find that the Objections
are wholly without merit and are overruled. The Court adopts the
Report and Recommendation. The petitioner’s applications for a
charging
lien
and
a
“quasi-retaining
6
lien”
are
denied.
The
petitioner’s application for retaining lien is granted in the
amount of $9,440. The petitioner’s application for a judgment in
quantum
meruit
is
denied
without
prejudice.
The
documents
pertaining to this application should remain under seal. The
defendants are precluded from using the documents and they are
ordered
to
destroy
whatever
copies
of
these
documents
that
remain in their possession or control at the conclusion of the
litigation.
SO ORDERED
Dated:
New York, New York
October 24, 2015
________/s/__________________
John G. Koeltl
United States District Judge
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