15-1887-cv
Fisher, Byrialsen & Kreizer, PLLC v. Stevens, Hinds & White, P.C.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with
this Court, a party must cite either the Federal Appendix or an electronic
database (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 20th day of April, two thousand and seventeen.
Present:
PETER W. HALL,
DENNY CHIN,
Circuit Judges,
LASHANN DEARCY HALL,*
District Judge.
FISHER, BYRIALSEN & KREIZER, PLLC,
Respondent - Appellee, 15-1887-cv
ANTRON MCCRAY, LINDA MCCRAY, KEVIN
RICHARDSON, GRACE CUFFEE, CONNIE RICHARDSON,
CRYSTAL CUFFEE, ANGELA CUFFEE, RAYMOND
SANTANA, JR., JOANN SANTANA, KHAREY WISE,
MICHAEL WISE, DOLORIS WISE, DANIEL WISE,
VICTOR WISE, NORMAN WISE, YUSEF SALAAM,
SHARONNE SALAAM, AISHA SALAAM, SHAREEF
SALAAM,
Plaintiffs,
v.
* JudgeLaShann DeArcy Hall, United States District Judge for the Eastern
District of New York, sitting by designation.
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15-1887-cv
Fisher, Byrialsen & Kreizer, PLLC v. Stevens, Hinds & White, P.C.
STEVENS, HINDS & WHITE, P.C.,
Appellant,
v.
THE CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, NEW YORK COUNTY DISTRICT
ATTORNEY'S OFFICE, NEW YORK COUNTY DISTRICT
ATTORNEY ROBERT MORGENTHAU, CITY POLICE
COMMISSIONER RAYMOND KELLY, FORMER NEW
YORK CITY POLICE COMMISSIONER BENJAMIN WARD,
FORMER NEW YORK CITY POLICE DEPARTMENT CHIEF
OF DE COLANGELO, FORMER NEW YORK CITY POLICE
DEPARTMENT MANHATTAN C ROSENTHAL, FORMER
NEW YORK CITY POLICE DEPARTMENT CHIEF OF
PA SELVAGGI, NEW YORK CITY POLICE DETECTIVE
RAMON ROSARIO, NEW YORK CITY POLICE DETECTIVE
CARLOS GONZALEZ, NEW YORK CITY POLICE
DETECTIVE HARRY HILDEBRANDT, NEW YORK CITY
POLICE DETECTIVE MICHAEL SHEEHAN, NEW YORK
CITY POLICE DETECTIVE JOHN HARTIGAN, NEW YORK
CITY POLICE DETECTIVE THOMAS MCKENNA, NEW
YORK CITY POLICE DETECTIVE HUMBERTO ARROYO,
NEW YORK CITY POLICE DETECTIVE SCOTT JAFFER,
NEW YORK CITY POLICE DETECTIVE JOHN
O'SULLIVAN, NEW YORK CITY POLICE DETECTIVE
JOHN TAGLIONI, NEW YORK CITY POLICE
SUPERVISORY DETECTIVES DEPUTY POWELL, BILL
KELLY, NEW YORK CITY POLICE DETECTIVE, POLICE
OFFICER ROBERT NUGENT, NEW YORK CITY POLICE
DETECTIVE, BRUNO FRANCISCI, NEW YORK CITY
POLICE DETECTIVE, THOMAS MCCABE, NEW YORK
CITY POLICE DETECTIVE, NEW YORK CITY POLICE
SUPERVISORY DETECTIVE JOSEPH FINSTON,
LIEUTENANT JACK DOYLE, NEW YORK CITY POLICE
SUPERVISORY DETECTIVE, JOHN DOES, NEW YORK
CITY POLICE DETECTIVES, MARY ROES, NEW YORK
CITY POLICE DETECTIVES, NEW YORK COUNTY
ASSISTANT DISTRICT ATTORNEY LINDA FAIRSTEIN,
ELIZABETH LEDERER, NEW YORK COUNTY ASSISTANT
DISTRICT ATTORNEY, TIM CLEMENTS, NEW YORK
COUNTY ASSISTANT DISTRICT ATTORNEY, JOHN DOES,
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15-1887-cv
Fisher, Byrialsen & Kreizer, PLLC v. Stevens, Hinds & White, P.C.
1-5, ETC., WHOSE IDENTITIES ARE UNKNOWN BUT WHO
WERE YORK CITY POLICE OFFICERS, DETECTIVES,
AND/OR SUPERVISORY PERSONNEL, JANE DOES, 1-5,
ETC., WHOSE IDENTITIES ARE UNKNOWN BUT WHO
WERE YORK CITY POLICE OFFICERS, DETECTIVES,
AND/OR SUPERVISORY PERSONNEL, RICHARD ROES, 1-
5, ETC., WHOSE IDENTITIES ARE UNKNOWN BUT WHO
WERE YORK COUNTY ASSISTANT DISTRICT ATTORNEYS,
SUPERVISORS AND/OR AGENTS, RACHEL ROES, 1-5,
ETC., WHOSE IDENTITIES ARE UNKNOWN BUT WHO
WERE YORK COUNTY ASSISTANT DISTRICT ATTORNEYS,
SUPERVISORS AND/OR AGENTS,
Defendants.
For Appellant: JAMES G. MCCARNEY (Gareth W. Stewart, on the brief),
New York, NY.
For Appellee: JAMES R. DEVITA, Doar Rieck Kaley & Mack, New York,
NY.
Appeal from the Southern District of New York’s Opinion and Order dated
March 31, 2015, Opinion and Order dated May 21, 2015, and June 8, 2015 Minute
Entry order (Ellis, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s orders are AFFIRMED.
Following the settlement of a § 1983 case against New York City, appellee
Stevens, Hinds & White, PC (“SHW”) petitioned the district court for a portion of
the attorneys' fees recovered by Fisher, Byrialsen & Kreizer, PLLC (“FBK”). SHW
appeals from the district court’s attorney’s fees award of $237,997.50, the district
court’s denial of its Rule 60(b) motion and its request for pre-judgment interest, and
the district court’s denial of its post-judgment discovery request.
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15-1887-cv
Fisher, Byrialsen & Kreizer, PLLC v. Stevens, Hinds & White, P.C.
Federal courts have jurisdiction over the parties’ attorneys’ fees dispute
pursuant to 28 U.S.C. § 1367. Itar-Tass Russian News Agency v. Russian Kurier,
Inc., 140 F.3d 442, 445–46 (2d Cir. 1998). We assume the parties’ familiarity with
the underlying facts, the procedural history, the arguments presented on appeal,
and the district court’s rulings.
The Court reviews de novo the district court’s interpretation of a retainer
agreement. Rubens v. Mason, 387 F.3d 183, 188 (2d Cir. 2004). A district court’s
award of attorney’s fees is reviewed for abuse of discretion. McDaniel v. Cty. of
Schenectady, 595 F.3d 411, 416 (2d Cir. 2010). A district court exceeds the bounds
of its discretion “‘when (1) [the court’s] decision rests on an error of law (such as
application of the wrong legal principle) or a clearly erroneous factual finding, or (2)
its decision—though not necessarily the product of a legal error or a clearly
erroneous factual finding—cannot be located within the range of permissible
decisions.’” Id. (quoting Kickham Hanley P.C. v. Kodak Ret. Income Plan, 558 F.3d
204, 209 (2d Cir. 2009)).
“A client may discharge an attorney at any time, with or without cause.”
Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658, 622 N.E.2d 288, 289
(1993). New York Judiciary Law § 475 provides that “the attorney who appears for
a party has a lien upon his or her client’s cause of action, claim or counterclaim,
which attaches to a verdict, report, determination, decision, award, settlement,
judgment or final order in his or her client’s favor, and the proceeds thereof in
whatever hands they may come; and the lien cannot be affected by any settlement
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15-1887-cv
Fisher, Byrialsen & Kreizer, PLLC v. Stevens, Hinds & White, P.C.
between the parties before or after judgment, final order or determination.” N.Y.
Jud. Law § 475; Itar–Tass Russian News Agency, 140 F.3d at 449. In certain
circumstances, an attorney discharged without cause “may elect to receive
compensation immediately based on quantum meruit or on a contingent percentage
fee based on his or her proportionate share of the work performed on the whole
case.” Cohen, 81 N.Y.2d at 658, 622 N.E.2d at 290 (emphasis added). There is no
authority, however, that would permit a discharged attorney to elect to receive a
contingent percentage fee where the original negotiated fee agreement with the
client did not provide for a contingency fee arrangement. Cf. Cohen, 81 N.Y.2d at
658, 622 N.E.2d at 290 (finding discharged attorney who had contingency fee
arrangement with former client had elected to receive contingent percentage fee
from incoming attorney); Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454,
458–59, 539 N.E.2d 570, 572 (1989) (same).
It is clear the retainer agreement here reflected an hourly fee arrangement.
The retainer agreement unambiguously provided two payment plan options, hourly
fee and contingency fee, and the client circled and initialed “Plan A,” the hourly
option. First, we do not consider SHW’s strained arguments that the options “Plan
A” and “Plan B” were alternative payment options, and that “Plan B” was triggered
when the client did not pay SHW upon substitution, because those arguments were
not raised before the district court. Sequa Corp. v. GBJ Corp., 156 F.3d 136, 148
(2d Cir. 1998). Additionally, any evidence that Wise never paid SHW the hourly
fee, and that SHW and Wise had a silent contingency fee agreement, is not
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Fisher, Byrialsen & Kreizer, PLLC v. Stevens, Hinds & White, P.C.
admissible to show that SHW and Wise negotiated a fee arrangement different than
that expressly provided in the retainer. Seiden Assocs., Inc. v. ANC Holdings, Inc.,
959 F.2d 425, 428 (2d Cir. 1992) (“The language of a contract is not made
ambiguous simply because the parties urge different interpretations. Nor does
ambiguity exist where one party’s view ‘strain[s] the contract language beyond its
reasonable and ordinary meaning. ’” (citation omitted)).
In addition, because SHW was engaged not on a contingency fee but on an
hourly basis, SHW cannot now claim that it is entitled to a percentage of the
contingency fee based on its proportionate share of work performed on the entire
case. All the cases that SHW cites for support are inapposite because in each one
the attorney who had exited the representation of the client had a contingency fee
arrangement in place prior to her discharge. Cohen, 81 N.Y.2d at 658, 622 N.E.2d
at 290; Lai Ling Cheng, 73 N.Y.2d at 458–59, 539 N.E.2d at 572; Young, Fenton,
Kelsey & Brown v. Wein, 111 A.D.3d 1194, 1195 (N.Y. App. Div. 3d Dep’t 2013);
Nabi v. Sells, 70 A.D.3d 252, 253 (N.Y. App. Div. 1st Dep’t 2009). Because SHW
was retained by Wise under an hourly fee arrangement, and having been replaced
by another law firm, SHW is entitled under New York law to seek “the ‘fair and
reasonable value’ of the services rendered” determined on the basis of quantum
meruit. See Cohen, 81 N.Y.2d at 658, 622 N.E.2d at 290.
The district court reasonably determined the quantum meruit of SHW’s
compensation by looking to SHW’s billing records attached to the February 2010
substitution letter and the original 2003 retainer agreement. McDaniel, 595 F.3d at
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15-1887-cv
Fisher, Byrialsen & Kreizer, PLLC v. Stevens, Hinds & White, P.C.
416. In addition, SHW is not entitled to prejudgment interest on its $231,212.50
quantum meruit award because it did not request interest until its post-judgment
Rule 60 reply brief. Conn. Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d Cir.
2010).
We have considered SHW’s remaining arguments and find them to be
without merit. Accordingly, the district court’s Opinion and Order dated March 31,
2015, Opinion and Order dated May 21, 2015, and June 8, 2015 Minute Entry Order
are AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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