Ramgoolie v. Ramgoolie et al
Filing
302
OPINION & ORDER re: 267 MOTION for Reconsideration of April 27, 2020 Order Concerning the Applicability of Charging Lien, filed by Howard A. Bender, 263 MOTION for Reconsideration re; 262 Memorandum & Opinion, filed by Jen ny Ramgoolie. Plaintiff's motion for reconsideration is DENIED. Mr. Bender's motion for reconsideration is DENIED. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 263 and 267. (Signed by Magistrate Judge Sarah Netburn on 10/16/2020) Copies E-mailed By Chambers. (ras)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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10/16/2020
JENNY RAMGOOLIE,
Plaintiff,
16-CV-3345 (VEC)(SN)
OPINION & ORDER
-against-
ANDY RAMGOOLIE,
Defendant.
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SARAH NETBURN, United States Magistrate Judge:
On April 27, 2020, the Court awarded counsel Howard Bender a charging lien and a
retaining lien in light of his withdrawal as Plaintiff Jenny Ramgoolie’s counsel. See ECF No.
262. Plaintiff, now pro se, moves the Court to reconsider the Court’s April 27, 2020 Order,
asserting that the Court overlooked her opposition to Mr. Bender’s initial motion to withdraw as
her counsel. ECF No. 263. Mr. Bender also moves the Court to reconsider the amount and scope
of the charging lien for, among other reasons, declining to attach the lien to any proceeds from
Plaintiff’s related action in Trinidad (the “Trinidad Action”), asserting that the Court overlooked
certain facts in reaching its determination. ECF No. 267. For the reasons below, Plaintiff’s
motion is DENIED and Mr. Bender’s motion is also DENIED.
I.
Legal Standard
A motion for reconsideration under Local Civil Rule 6.3 is governed by the same
standard as Federal Rules of Civil Procedure 59(e) and 60(b). In re Facebook, Inc., IPO Sec. &
Derivative Litig., 43 F. Supp. 3d 369, 373 (S.D.N.Y. 2014), aff’d sub nom. Lowinger v. Morgan
Stanley & Co. LLC, 841 F.3d 122 (2d Cir. 2016). Under Local Rule 6.3, a moving party may file
a motion for reconsideration when it believes the Court overlooked important “matters or
controlling decisions “‘that might reasonably be expected to alter the conclusion reached by the
court.’” Schoolcraft v. City of New York, 248 F. Supp. 3d 506, 508 (S.D.N.Y. 2017) (quoting
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). In evaluating a motion for
reconsideration, the Court should construe Local Civil Rule 6.3 narrowly to ensure that the
motion “is not a vehicle for relitigating old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Sequa Corp.
v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (internal quotation marks omitted); see
also Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y. 2001) (“[A] motion for
reconsideration may not be used to advance new facts, issues or arguments not previously
presented to the Court.”). The standard for granting a motion for reconsideration under Local
Rule 6.3 is “strict, and reconsideration will generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked.” Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012)
(quoting Shrader, 70 F.3d at 257). The decision on a motion for reconsideration is reserved to the
sound discretion of the court and will not be overturned on appeal absent an abuse of discretion.
See Wechsler v. Hunt Health Sys., Ltd., 186 F. Supp. 2d 402, 410 (S.D.N.Y. 2002).
II.
Plaintiff’s Motion to Reconsider
Plaintiff moves the Court to reconsider its order granting Mr. Bender’s charging and
retaining liens. See ECF No. 263. In support of her motion, Plaintiff argues that she never
withdrew her initial opposition to Mr. Bender’s motion to withdraw, or, that to the extent she
withdrew her opposition on the record, that withdrawal was made only with the understanding
that the Court would hold a hearing to determine the amount of attorney’s fees owed to Mr.
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Bender. Presumably, Plaintiff urges the Court to modify the amount of the charging and retaining
liens awarded to Mr. Bender on the basis that the fees were disputed and that plaintiff wished to
be heard on that issue. For the following reasons, Plaintiff’s motion to reconsider is DENIED.
As a threshold matter, Plaintiff did not cite any relevant case law or otherwise advance
this argument in opposition to Mr. Bender’s motion for a charging lien and a retaining lien. For
that reason alone, the Court would be well within its discretion to deny Plaintiff’s motion. See
Diarama Trading Co. v. J. Walter Thompson U.S.A., Inc., 01-cv-2950 (DAB), 2005 WL
1963945, at *1 (S.D.N.Y. Aug. 15, 2005) (noting that parties may not address facts, issues or
arguments not previously presented to the Court in a motion for reconsideration); Banco de
Seguros Del Estado v. Mut. Marine Offices, Inc., 230 F. Supp. 2d 427, 428 (S.D.N.Y.
2002), aff’d sub nom. Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255
(2d Cir. 2003) (internal formatting and citations omitted) (holding that a motion for
reconsideration is only “appropriate where a court overlooks controlling decisions or factual
matters that were put before it on the underlying motion and which, had they been considered,
might have reasonably altered the result before the court”).
In any case, Plaintiff has not established that she withdrew her opposition to Mr.
Bender’s motion to withdraw or that, had she done so, such opposition would affect the
determination of Mr. Bender’s liens. On September 24, 2019, the Court held a telephone status
conference, at which the Court heard the parties on Mr. Bender’s motion to withdraw as
Plaintiff’s counsel. On the record, Plaintiff indicated she did not oppose Mr. Bender’s motion to
withdraw as her attorney. Plaintiff now argues that she withdrew her opposition to his motion
only due to an understanding that the Court would hold a hearing on the amount of Mr. Bender’s
attorney’s fees. While a transcript of the telephone conference indicates that Plaintiff withdrew
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her opposition unconditionally, Plaintiff claims that she conditioned her consent to the motion
during an off-the-record conversation between Mr. Bender, Plaintiff, and the Court. But the
Court granted Mr. Bender’s motion to withdraw on October 7, 2019, see ECF No. 226, after
specifically noting that Plaintiff had withdrawn her opposition. Plaintiff did not move the Court
to reconsider the October 7, 2019 Order on any grounds.
Even if Plaintiff had withdrawn her opposition to Mr. Bender’s motion, the Court’s
decision to grant Mr. Bender’s withdrawal was proper. “[I]t is well-settled that a court has
considerable discretion in deciding a motion for withdrawal of counsel.” Wilson v. Pasquale’s
DaMarino’s, Inc., 10-cv-2709 (PGG), 2018 WL 4761574, at *8 (S.D.N.Y. Sept. 30, 2018)
(internal quotation marks omitted). Mr. Bender demonstrated a satisfactory reason for
withdrawal: Plaintiff’s nonpayment of fees. Mr. Bender’s motion to withdraw rested on the
allegations that Plaintiff had fallen significantly behind in the payment of fees. See TufAmerica,
Inc. v. Codigo Music LLC, 11-cv-1434 (ER), 2017 WL 3475499, at *5 (S.D.N.Y. Aug. 11,
2017) (“Satisfactory reasons include failure to pay legal fees, a client’s lack of cooperationincluding lack of communication with counsel, and the existence of an irreconcilable conflict
between attorney and client.”). The Court granted the motion in part on that basis on October 7,
2019. ECF No. 226. As noted above, Plaintiff did not move the Court to reconsider its opinion
granting Mr. Bender’s motion to withdraw.
Plaintiff’s motion also fails to indicate how the Court should modify the charging lien
and does not provide any legal basis for such modification. Courts in this Circuit routinely assess
charging liens without holding hearings. See Kovach v. City Univ. of New York, 13-cv-7198
(LGS), 2015 WL 3540798, at *4 (S.D.N.Y. June 4, 2015); Winkfield v. Kirschenbaum &
Phillips, P.C., 12-cv-7424 (JMF), 2013 WL 371673, at *3 (S.D.N.Y. Jan. 29, 2013). Here, upon
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review of the record, the Court assessed the amount of Mr. Bender’s charging lien in quantum
meruit according to New York law. See Stair v. Calhoun, 722 F. Supp. 2d 258, 268–69
(E.D.N.Y. 2010) (“The theory of quantum meruit, rather than the retainer agreement, is the basis
for determining the amount at which to fix the charging lien. Although a court is not bound by
the parties’ retainer agreement, it may still use such agreement as guidance in determining the
reasonable value of the services provided.”). In its analysis, the Court reviewed Mr. Bender’s
contemporaneous billing records and found that the hours billed appropriately coincided with the
work completed in the case to date. ECF No. 262. The Court relied on its previous finding that
Mr. Bender’s hourly rate of $375 per hour was reasonable (a finding with which Plaintiff agrees,
as indicated by her most recent motion for attorney’s fees, see ECF No. 258). The Court thus
fixed the amount of the charging lien based on an independent assessment of the value of Mr.
Bender’s legal services. For these reasons, Plaintiff’s motion for reconsideration is DENIED.
III.
Mr. Bender’s Motion for Reconsideration
Mr. Bender argues that the Court’s Order granting the liens mistakenly assumed the
Trinidad Action was filed before Mr. Bender’s appearance as Plaintiff’s counsel in this case and
that the Court should reconsider its conclusion that Mr. Bender should not be entitled to proceeds
from that Action.
As an initial matter, the Court agrees—contrary to its prior assertion—that Mr. Bender
appeared as Plaintiff’s counsel in this case before filing the Trinidad Action. Mr. Bender entered
an appearance in this case on August 4, 2017, and Jenny Ramgoolie filed a complaint initiating
the Trinidad Action on December 7, 2017. See ECF Nos. 83, 128-3. The Court disagrees,
however, that the timing of the Trinidad Action commencement alters the Court’s conclusion in
the April 27, 2020 Order.
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Under N.Y. Judicial Law § 475, an attorney may be entitled to a charging lien where he
appeared for the client by “participating in a legal proceeding on the client’s behalf or by having
his name affixed to the pleadings, motions, records, briefs, or other papers submitted in the
matter.” In re Air Crash at Belle Harbor, New York, on Nov. 12, 2001, 02-cv-4758 (RWS), 2006
WL 3247675, at *2 (S.D.N.Y. Nov. 9, 2006) (quoting Ebert v. New York City Health & Hosps.
Corp., 210 A.D.2d 292, 292–93 (2d Dep’t 1994)). The New York Court of Appeals has held that
this statutory lien “is imposed on the cause of the action and that the proceeds, wherever found,
are subject to it. And this is so even if recovery is obtained in an action different from the one in
which the services were rendered.” Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658
(1993). “This rule is grounded in the remedial nature of § 475: It is designed to prevent the
successor attorney and client from ‘instituting a new action, thereby extinguishing the prior
action, and leaving the discharged attorney without security.’” Adams v. City of New York, Nos.
07-cv-2325 (FB)(RER), 13-cv-271 (FB)(RER), 2014 WL 4649666, *7 (E.D.N.Y. Sept. 16, 2014)
(quoting Cohen, 81 N.Y.2d at 658)).
To determine whether to affix a lien to a plaintiff’s recovery in an action where the
attorney did not appear, courts assess whether the action where the attorney appeared and the
action where he did not form a “logical sequence.” Mason v. City of New York, 12-cv-5885
(PKC), 2016 WL 2766652, at *3 (S.D.N.Y. May 12, 2016) (citing Neimark v. Martin, 7 A.D.2d
934, 934 (2nd Dep’t 1959)). Courts have identified a handful of specific scenarios where two
actions form a “logical sequence.” First, a logical sequence may exist between two actions where
the actions amount to no more than filing “the same claim” twice. Cohen,81 N.Y.2d at 657
(finding logical sequence between claim filed once in state court and later in federal court); see
also Mason, 2016 WL 2766652, at *3 (finding logical sequence between two cases involving the
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same claim but filed several years apart in same federal court). Second, a logical sequence may
exist where the first action is a necessary administrative proceeding to exhaust remedies before
the second action is filed. See Sellick v. Consol. Edison Co. of New York, Inc., 15-cv-9082
(RJS), 2017 WL 1133443, at *4 (S.D.N.Y. Mar. 23, 2017) (finding federal suit was of “a logical
sequence” from proceeding on same claims before the Equal Employment Opportunity
Commission). Third, a logical sequence may exist where the second action incorporates and
builds upon the facts and claims alleged in the first lawsuit. See Adams 2014 WL 4649666, at
*7–9 (finding logical sequence between cases filed six years apart where the latter case included
both the former case’s claims as well as new claims for retaliation based on the plaintiff’s filing
of the former case).
Here, the situation of the Trinidad Action relative to this federal action does not favor a
finding that the two actions form a logical sequence. Both cases concern claims brought by Ms.
Ramgoolie that she was denied compensation owed to her in connection with a family business
venture in Trinidad. Both actions involve similar original defendants. But there is nothing to
suggest a necessary sequence between the initiation of the two actions; rather, they are more
accurately described as parallel actions, pursued by Plaintiff in different jurisdictions with the aid
of separate counsel. While the two actions center around the same allegations, this case was not
initiated as a precedent to filing the Trinidad Action, and the Trinidad Action does not build
upon the claims presented in this case. Further, in contrast to the cases cited by Mr. Bender, the
two actions here continue side by side (as opposed to one’s ending leading to the other’s
commencement).
Moreover, Plaintiff initiated this case pro se. Mr. Bender was involved in this case for
only four months—during which time the litigation was already in fact discovery—before
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separate local counsel initiated the Trinidad Action. In light of that timing, limiting Mr. Bender’s
lien to proceeds only from this action is also consistent with § 475’s policy goal of ensuring
attorneys’ fair compensation. Upon these considerations, therefore, the Court DENIES Mr.
Bender’s request to modify the lien to attach to any proceeds from the Trinidad Action.
Additionally, Mr. Bender argues in response to Plaintiff’s motion for reconsideration that
the Court should reconsider its finding that Mr. Bender’s lien calculation was subject to a
deduction of 2.2 hours because Mr. Bender did not submit updated billing records for June 2019.
See ECF No. 264 at 4; see also ECF No. 262 at 10. Mr. Bender directs the Court to Exhibit 1 to
his declaration in support of his motion for a charging and a retaining lien (ECF No. 227-1),
claiming that the updated time sheet supports modification of his liens. But the submission to
which Mr. Bender refers does not include a contemporaneous accounting for the month of June
2019. See ECF Nos. 227-1, 227-2. While Exhibit 2 (ECF No. 227-2) to the declaration indicates
that Mr. Bender billed 6.9 hours in June 2019, the detailed contemporaneous billing records
(ECF No. 227-1) only detail work performed in July, August, and September 2019. Without a
more specific breakdown of the work performed in June 2019, the Court cannot assess whether
the additional 2.2 hours that appear for the first time in a billing summary in ECF No. 227-2 are
appropriately included in the charging lien. Mr. Bender’s request to increase the amount of
charging lien by $825.00 (2.2 hours times his established reasonable hourly rate) is therefore
DENIED.
Finally, Mr. Bender requests the Court modify the charging lien to include $4,112.85 in
expenses. ECF No. 264 at n.3. First, Mr. Bender states he asserts that basis for reconsideration
“to the extent the Court reconsiders its order” regarding the amount of the charging lien. Id.
Furthermore, Mr. Bender does not direct the Court to any billing records indicating the type or
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amount of expenses incurred, nor has the Court identified that information among the numerous
filings related to the charging lien. Accordingly, the request is DENIED and for the reasons
above, the charging lien shall remain fixed pursuant to the Court’s April 27, 2020 Order.
CONCLUSION
Plaintiff’s motion for reconsideration is DENIED. Mr. Bender’s motion for
reconsideration is DENIED. The Clerk of Court is respectfully directed to terminate the motions
at ECF Nos. 263 and 267.
SO ORDERED.
DATED:
October 16, 2020
New York, New York
cc:
Andy Ramgoolie (by Chambers)
Andyneonusa@gmail.com
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