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Rios v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

September 18, 2019

ABBY RIOS, Plaintiff,
v.
WAL-MART STORES, INC., a Delaware corporation; Defendant.

          ORDER

          Kent J. Dawson, United States District Judge.

         Presently before the Court is Plaintiff’s Motion to Adjudicate Attorney’s Fee Lien (#249). Plaintiff’s former counsel, Liborious Agwara (“Agwara”) filed a response in opposition (#254) to which Plaintiff replied (#256).

         Also before the Court is Plaintiff’s Motion to Dismiss Liborious Agwara, Esq.’s Complaint in Interpleader (#253). Liborious Agwara filed a response in opposition (#258) to which Plaintiff replied (#259).

         Finally before the Court is Liborious Agwara’s Motion to Remand to State Court (#257). Plaintiff filed a response in opposition (#260) to which Agwara replied (#261).

         I. Procedural Background

         On or about August 14, 2009, Plaintiff Abby Rios slipped and fell at Defendant’s Wal-Mart store. As result of her fall, Rios suffered injuries. Agwara claims to have “supervised and directed Ms. Rios’ medical treatment in accordance with her injuries and/or complaints of pain” beginning in August 2009. Thus, began a long and tortured representation of Plaintiff documented in the Court’s Order (#107) in which the magistrate judge granted Plaintiff’s emergency motion to reopen discovery and extend trial date. In that order, the Court noted that Plaintiff had withheld evidence of prior spinal injury and evidence of a need for future spinal surgery which resulted in an order limiting what evidence could be produced at trial. Further the Court noted that counsel was belatedly attempting to get the case in order before trial.

         On or about August 19, 2009, Agwara and Plaintiff executed a contingency fee agreement that provided a forty percent (40%) contingent fee for litigation concluded after post-trial motions or appeals. If the client were to terminate Agwara’s services then Plaintiff agreed to pay a reasonable fee for work performed and expenses. Agwara did not file suit until June 29, 2011. He barely survived a motion for summary judgment in an Order (#38) entered October 5, 2012. Plaintiff then took no action of record for six (6) months even though the scheduling order required counsel to file a Proposed Joint Pre-trial Order within thirty (30) days of the order on summary judgment (during this delay created by Plaintiff’s counsel, one of Plaintiff’s treating physicians and expert witnesses died). Additionally, as trial approached on October 21, 2013, Plaintiff was forced to seek a “short” (four month) trial continuance because counsel had left the country for a family emergency (his father had passed away six months previously). The motion was filed shortly after Defendant’s motion to exclude evidence of damages that had not been disclosed by Plaintiff.

         Perhaps frustrated by the constant delays and mismanagement of her case, Plaintiff discharged Agwara and substituted current counsel on February 12, 2014. On or about February 13, 2014, Agwara filed Notice of Attorney Lien on Plaintiff Rios by serving her current counsel. Agwara also served Notice on Wal-mart by serving its counsel. At no time has Agwara filed a motion to adjudicate that attorney’s lien.

         On September 18, 2015, Plaintiff prevailed at trial. The Court later granted Defendant’s Motion for Judgment as a Matter of Law vacating the verdict. However, Plaintiff prevailed on appeal and Judgment (#247) was entered on November 21, 2018. Satisfaction of Judgment was filed on December 11, 2018. Though Agwara had no funds to deposit in the court’s registry, on December 26, 2018, he filed a complaint in interpleader (“the interpleader action”) in state court naming as defendants Plaintiff Abby Rios, her counsel--the law firm of Black & Lobello, and presumably all the medical providers to whom Agwara had referred Rios when he was still supervising and directing Rios’ medical treatment.

         Plaintiff filed Notice of Removal on January 4, 2019, removing the interpleader action in accordance with the Court’s ancillary jurisdiction over the attorney’s lien.[1] Plaintiff then filed a Motion to Adjudicate Attorney’s Lien (#253) on January 15, 2019. Plaintiff asserts that all medical lien holders have been paid which has not been controverted by Agwara. Further, no defendant in the interpleader has made an appearance other than Rios, who filed a motion to dismiss. It appears that only Agwara’s attorney’s lien remains to be litigated.

         II. Analysis

         A. Motion to Adjudicate Attorney’s Lien

         In the present action, Agwara filed notice of what is typically referred to as a charging lien. See Leventhal v. Black & LoBello, 305 P.3d 907, 909 (Nev. 2013). “A charging lien is ‘a unique method of protecting attorneys’”. Id. (quoting Sowder v. Sowder, 977 P.2d 1034, 1037 (N.M.Ct.App.1999)). A charging lien allows an attorney, on motion in the case in which the attorney rendered the services, to obtain and enforce a lien for fees due for services rendered in the case. See Argentena Consol. Mining Co. v Jolley Urga Wirth Woodbury & Standish, 216 P.3d 779, 782 (Nev. 2009). The lien “is not dependent on possession, as in the case of the general or retaining lien. It is based on natural equity-the client should not be allowed to appropriate the whole of the judgment without paying for the services of the attorney who obtained it.” 23 Williston on Contracts § 62:11 (4th ed. 2002).

         While the lien is based on equity, in Nevada it is enforceable by statute. Leventhal, 305 P.3d at 909; Nev. Rev. Stat. § 18.015. The statute requires four actions before a court can adjudicate and enforce the lien. First, there must be a “claim, demand or cause of action, ... which has been placed in the attorney’s hands by a client for suit or collection, or upon which a suit or other action has been instituted.” NRS 18.015(1). The parties agree that this requirement has been met. The lien is the amount of the agreed-upon fee or, if none has been agreed upon, a reasonable amount for the services rendered “on ...


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