United States District Court, D. Nevada
REPORT AND RECOMMENDATION [DOCKET NO. 116]
J. KOPPE UNITED STATES MAGISTRATE JUDGE
James Kohl has withdrawn as Defendant's counsel in this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
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.
alleges that Defendant violently attacked her at the Aria
Casino. See Am. Compl. (Docket No. 18) at ¶
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.
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 in the amount of $187, 364 for work
performed in this case. See Docket No. 116. That is
the motion currently before the Court.
MAGISTRATE JUDGE AUTHORITY
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).
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. 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).
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.
ENTITLEMENT TO RELIEF
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.
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.
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 ...