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Guerrero v. Wharton

United States District Court, D. Nevada

June 17, 2019

KELLY GUERRERO, Plaintiffs,
v.
VINCENT NEIL WHARTON, Defendants.

          REPORT AND RECOMMENDATION [DOCKET NO. 116]

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE

         Attorney James Kohl has withdrawn as Defendant's counsel in this case. Docket No. 113. Pending before the Court is Mr. Kohl's motion to foreclose on an attorney lien. Docket No. 116. Defendant filed a response in opposition, and Mr. Kohl filed a reply. Docket Nos. 121, 123. The motion is properly resolved without a hearing. See Local Rule 78-1.

         For the reasons explained below, the undersigned RECOMMENDS that the motion be GRANTED in part and that Mr. Kohl's fees be awarded in the amount of $148, 962.50 and his costs be awarded in the amount of $21, 207.06.

         I. BACKGROUND

         Plaintiff alleges that Defendant violently attacked her at the Aria Casino. See Am. Compl. (Docket No. 18) at ¶ 8.[1] In particular, Plaintiff alleges that Defendant unexpectedly grabbed her by the hair from behind and yanked her down to the pavement on her back. Id. Plaintiff alleges that Defendant appeared at that time to be under the influence of drugs or alcohol. See Id. Plaintiff brought suit invoking this Court's diversity jurisdiction, suing Defendant for (1) assault and battery, and (2) intentional infliction of emotional distress. See Id. at ¶¶ 1, 12-20.

         Mr. Kohl moved to withdraw as Defendant's counsel in this case, citing a failure by Defendant to pay fees owed. See Docket No. 101. That motion was granted. Docket No. 113. Mr. Kohl subsequently sought to foreclose on his retaining lien[2] in the amount of $187, 364 for work performed in this case. See Docket No. 116. That is the motion currently before the Court.

         II. MAGISTRATE JUDGE AUTHORITY

         Before turning to the substance of the pending motion, the Court first evaluates its authority to decide the matter. The authority of the undersigned magistrate judge is derived from 28 U.S.C. § 636, which generally provides magistrate judges with the authority to “hear and determine” non-dispositive matters. See 28 U.S.C. § 636(b)(1)(A); see also S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1259 (9th Cir. 2013). By contrast, dispositive matters are sometimes referred to magistrate judges, but in those circumstances a magistrate judge submits a recommendation to the assigned district judge that is subject to the district judge's de novo review. See 28 U.S.C. § 636(b)(1)(B); see also CMKM Diamonds, 729 F.3d at 1259-60. Section 636 specifically enumerates eight different types of matters to be treated as “dispositive.” See 28 U.S.C. § 636(b)(1)(A)-(B). When a matter falls outside of those expressly enumerated as dispositive, the Ninth Circuit has adopted a functional approach of looking to the nature and effect of the issued ruling to determine whether the underlying matter should be considered dispositive or non-dispositive. Flam v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015).

         This matter involves a determination of a request to foreclose on an attorney's retaining lien, which in turn requires a determination of the fees owed by Defendant to his attorney and then entry of judgment in that amount.[3] Such a motion is not one of the motions enumerated in Section 636 as being dispositive, so the undersigned will evaluate its nature and effect to determine whether its resolution is within a magistrate judge's authority. As a general matter, magistrate judges have the authority to decide a request for attorneys' fees arising out of a distinct pretrial event, such as attorneys' fees arising out of a discovery dispute. See Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991). On the other hand, case-wide attorneys' fees determined in relation to entry of judgment must be treated as a dispositive matter beyond a magistrate judge's authority. See Fed. R. Civ. P. 54(d)(2)(D). Similarly with respect to foreclosing on an attorney lien, resolution of that motion “may result in dispositive rulings as between the attorney and client, even if it has no bearing on the dispositive issues in the underlying litigation.” Montgomery v. eTreppid Techs., LLC, 2008 WL 11401772, at *4 (D. Nev. Sept. 22, 2008). As a result, courts have often taken a cautious approach and treated such a motion as being dispositive in nature. See id.; see also Holcombe v. U.S. Airways Grp., Inc., 2017 WL 10084142, at *9 (E.D.N.Y. Aug. 4, 2017); Guardian Life Ins. Co. of Am. v. Wilds, 2014 WL 5293706, at *2 n.2 (D. Colo. Oct. 16, 2014).

         In light of the above, the undersigned will treat the motion as being dispositive in nature and will issue a report and recommendation to the assigned district judge.

         III. ENTITLEMENT TO RELIEF

         As a threshold matter, Defendant disputes whether Mr. Kohl is entitled to a judgment on his retaining lien. In particular, Defendant argues that the Court lacks subject matter jurisdiction over that matter, that the retaining lien cannot be reduced to judgment, and that relief is unwarranted because the amount owed is disputed. See Resp. at 9-12. As Mr. Kohl's papers make clear, however, none of Defendant's arguments is persuasive.

         First, district courts have ancillary jurisdiction over fee disputes generated by an attorney's withdrawal. See, e.g., Curry v. Del Priore, 941 F.2d 730, 731 (9th Cir. 1991). “Determining the legal fees a party to a lawsuit properly before the court owes its attorney, with respect to the work done in the suit being litigated, easily fits the concept of ancillary jurisdiction.” Federal Sav. & Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004) (quoting Jenkins v. Weinshienk, 670 F.2d 915, 919 (10th Cir. 1982)). As such, while this fee dispute is not a central component to the claims brought in this case, it is a matter well within the Court's jurisdiction to resolve.

         Second, the state's law in which a federal court sits governs resolution of an attorney lien. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir. 1998) (federal courts resolve attorney liens by applying state law). Nevada statute allows for a retaining lien by an attorney for the fees owed to that attorney by his client. See N.R.S. 18.015(4)(b). That statutory scheme was amended in 2013 to make clear that a retaining lien is not passive in nature, and that judgment may be sought from the Court in “any civil action.” N.R.S. 18.015(1)(b); see also Fredianelli v. Price, 402 P.3d 1254, 1256 (Nev. 2017). Such relief may be sought by the filing of a motion for adjudication and enforcement of the lien. See N.R.S. 18.015(6). Defendant's reliance on case law predating the 2013 amendments is not persuasive. Compare Resp. at 11-12 with Fredianelli, 402 P.3d at 1256 (concluding that the “passive” lien discussion in Argentena Consol. Mining ...


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