United States of America v. Southeastern Oklahoma State University et al

Filing 391

MEMORANDUM OPINION AND ORDER striking 361 SECOND MOTION for Costs and 363 SECOND MOTION for Attorney Fees. See order for details. Signed by Judge Robin J. Cauthron on 12/28/2021. (jjs)

Case 5:15-cv-00324-C Document 391 Filed 12/28/21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DR. RACHEL TUDOR,
Plaintiff,
vs.
SOUTHEASTERN OKLAHOMA
STATE UNIVERSITY and THE
REGIONAL UNIVERSITY SYSTEM
OF OKLAHOMA,
Defendants,

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No. CIV-15-324-C

MEMORANDUM OPINION AND ORDER
After the jury found in favor of Plaintiff on her claim, the Court entered judgment
in her favor. Defendants then appealed and Plaintiff cross-appealed. While the appeal
was pending, Plaintiff parted ways with two of the lawyers who represented her at trial –
Ezra Young and Brittany Novotny.

The Tenth Circuit recently entered judgment

affirming in part and reversing in part the Court’s judgment. Following entry of the Tenth
Circuit’s Opinion, Young and Novotny filed a supplemental request for attorneys’ fees and
a renewed bill of costs. Defendants and Plaintiff’s current lawyers have objected to those
requests, arguing that Young and Novotny are not the proper party to seek attorneys’ fees
or costs because they no longer represent Plaintiff.
The fee request in this case is governed by 42 U.S.C. § 2000e–5(k). In pertinent
part that statute states: “In any action or proceeding under this subchapter the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . as part of the
costs . . . .” For purposes of the present dispute, the dispositive portion of the statute is

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the phrase “prevailing party.” In Soliman v. Ebasco Services, Inc., 822 F.2d 320 (2d Cir.
1987), the Second Circuit was faced with a situation similar to the one in this case. The
plaintiff in Soliman brought a Title VII claim against her employer. She obtained a
favorable jury verdict. Soliman’s attorney then filed a request for attorney’s fees. The
trial court entered judgment and denied the request for fees. The attorney then filed an
appeal of the denial of fees and Soliman sent a letter to the Court stating she did not approve
of the appeal. The Second Circuit held:
Thus, independent of his client, an attorney has no personal right to
an award of statutory attorney’s fees under 42 U.S.C. § 2000e-5(k). Of
course, an attorney also lacks standing to appeal an award of prejudgment
interest without his client’s authorization. We find no authorization of this
appeal by Ms. Soliman. The record contains only Ms. Soliman’s statement
that the notice of appeal filed by her attorney was unauthorized. Since the
prevailing party has not authorized the appeal, and her attorney lacks
standing to prosecute it in his own name, it must be dismissed.
Soliman, 822 F.2d at 323. The Tenth Circuit has reached a similar conclusion. In Weeks
v. Indep. Sch. Dist. No. I-89 of Oklahoma Cty., OK., Bd. of Educ., 230 F.3d 1201 (10th
Cir. 2000), the Court disqualified the plaintiff’s attorney for misconduct and separate
counsel appeared for plaintiff at trial, securing a favorable verdict. After the Court
reduced certain cost requests and the attorney fee request, the disqualified attorney
appealed. The Tenth Circuit held the disqualified attorney lacked standing to appeal either
the cost or fee issue. Id. at 1213. Noting, as the Second Circuit had, that the term
“prevailing party” means the party not the attorney. Id.

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Young and Novotny raise two arguments in support of their quest for attorneys’
fees. First, they note that where a client assigns the right to collect fees to counsel then
counsel has an interest in the fees. In support of this argument Young and Novotny direct
the Court to United Transp. Union Loc. 1745 v. City of Albuquerque, 352 F. App’x 227
(10th Cir. 2009), to support their argument that a fee award may be assigned and then the
attorney may act without the client. Factually this case is very different from the one at
bar. In United Transportation, the attorney fee had been paid by the plaintiff to the
attorney when a third party attempted to collect. The Tenth Circuit noted that after the
award is entered, the attorney secures a right to it and may act to protect that right. Id. at
230. The other cases cited by Young and Novotny follow the same reasoning. Indeed,
one of the cases, Manning v. Astrue, 510 F.3d 1246 (10th Cir. 2007), reaffirms that it is
only the party who can apply for fees and cannot assign the right to seek them. Id. at 1252.
Only after the party has received an award and assigned it to her attorney can the attorney
act to collect the award. Id. The second basis raised by Young and Novotny is this
Court’s February 10, 2020, Order (Dkt. No. 352) which permitted Young and Novotny to
withdraw and participate in any future attorneys’ fees proceedings. Reliance on that Order
is misplaced, as at the time it was entered, Plaintiff had not made clear that Young and
Novotny were not authorized to seek fees on her behalf. Rather, the Order was entered
primarily to permit new counsel to represent Plaintiff from that point forward. Further,
the Order recognized the existence of Young and Novotny’s attorneys’ lien which as
discussed below remains relevant.
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After consideration of the governing law and the arguments of the parties, the Court
finds that Young and Novotny’s supplemental motion for attorneys’ fees must be stricken
for lack of standing. As discussed below, that does not necessarily mean that Young and
Novotny are not entitled to recover attorneys’ fees or costs. Rather it simply means they
cannot press a claim for those fees or costs against Defendants.

The right to seek

attorneys’ fees and costs exists only in Plaintiff, and she has made clear she does not
authorize the supplemental Motion of Young and Novotny.
As noted, Young and Novotny assert they have a valid attorneys’ lien pursuant to 5
Okla. Stat. § 6. Any such valid lien attaches to any judgment in Plaintiff’s favor and would
permit Young and Novotny to collect directly from Plaintiff. See Mehdipour v. Holland,
2007 OK 69, ¶ 22, 177 P.3d 544, 549. Further, Young and Novotny claim a contractual
right to their attorneys’ fees from Plaintiff. Even absent a valid lien, in the event that
contractual right is found to be enforceable, Young and Novotny could again collect their
fees directly from Plaintiff. See Lashley v. Moore, 1925 OK 397, 240 P. 704. Finally,
Oklahoma recognizes the doctrine of quantum meruit as a mechanism for recovery of
attorneys’ fees when counsel is discharged by a client and other remedies are unavailable.
See Self & Assocs., Inc. v. Jackson, 2011 OK CIV APP 126, 269 P.3d 30. The Court
makes no determination which, if any, of these avenues are available to Young and
Novotny. Rather, the Court merely observes that there are numerous options available
through which those attorneys can be compensated for the time they spent representing
Plaintiff. The Court also notes that under each of those possible avenues of recovery, any
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attorneys’ fees will be paid by Plaintiff, not Defendants, thus potentially substantially
impacting the amount of recovery Plaintiff may obtain from Defendants. In the absence
of compromise, pursuit of attorneys’ fees under these options will require initiation of new
litigation. It seems in Plaintiff’s interest that Plaintiff and her former and present counsel
seek a method to resolve this issue among themselves.
As set forth more fully herein, the revised Bill of Costs (Dkt. No. 361) and Attorneys
Young and Novotny’s Supplemental Motion for Recovery of Attorneys’ Fees (Dkt. No.
363) are STRICKEN.
IT IS SO ORDERED this 28th day of December 2021.

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