10-3163-cv
Simon v. Sack
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of December, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PETER W. HALL,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 JEAN P. SIMON,
15
16 Plaintiff-Appellant,
17
18 v. 10-3163-cv
19
20 JONATHAN SACK,
21
22 Petitioner-Appellee,
23
24 UNUM, UNUM PROVIDENT, PROVIDENT LIFE AND CASUALTY INSURANCE
25 COMPANY, THE PAUL REVERE LIFE INSURANCE COMPANY, FIRST UNUM
26 LIFE INSURANCE COMPANY, PROVIDENT LIFE AND ACCIDENT INSURANCE
27 COMPANY, UNUM PROVIDENT CORPORATION, UNUM GROUP,
28
29 Defendants.
30 _____________________________________
31
1 FOR PLAINTIFF-APPELLANT: Jean P. Simon, pro se,
2 New York, NY.
3
4 FOR PETITIONER-APPELLEE: Jonathan Sack,
5 Sack & Sack, LLP,
6 New York, NY.
7
8 Appeal from a judgment of the United States District
9 Court for the Southern District of New York (Scheindlin,
10 J.).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the judgment of the district court is
13 AFFIRMED.
14 Appellant Jean P. Simon, pro se, appeals the district
15 court’s judgment granting Appellee Jonathan Sack’s petition
16 for attorney’s fees in quantum meruit and awarding $89,160
17 in fees, plus prejudgment interest running from October 28,
18 2008, the date of Sack’s discharge. We assume the parties’
19 familiarity with the underlying facts, the procedural
20 history of the case, and the issues presented for review.
21 We generally review an award of attorney’s fees for an
22 abuse of discretion, see Universal Acupuncture Pain Servs.,
23 P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 262 (2d
24 Cir. 2004), but review a district court’s legal conclusions,
25 such as whether a recovery in quantum meruit is appropriate,
26 de novo, see Pierce v. Underwood, 487 U.S. 552, 558 (1988).
2
1 [1] Simon challenges the finding that Sack was not
2 terminated for cause. Under New York law, a lawyer may be
3 discharged at any time, with or without cause. See
4 Universal Acupuncture, 370 F.3d at 263. A lawyer discharged
5 for cause is not entitled to legal fees. See id. In this
6 context, “cause” requires more than simply “[p]oor client
7 relations, differences of opinion, or personality
8 conflicts.” Garcia v. Teitler, 443 F.3d 202, 212 (2d Cir.
9 2006). Instead, a client must show “impropriety or
10 misconduct on the part of the attorney.” Id. A lawyer who
11 is discharged without cause prior to the conclusion of the
12 case may recover in quantum meruit the fair and reasonable
13 value of the services rendered. Universal Acupuncture, 370
14 F.3d at 263. This is true even if the attorney was
15 initially employed under a contingent fee contract. Id.
16 The district court’s conclusion that Simon did not
17 discharge Sack for cause was based on its factual finding
18 that Simon’s testimony as to the events surrounding Sack’s
19 termination lacked credibility, was unsupported in the
20 record, and was manufactured in order to avoid paying
21 attorney’s fees. On appeal, such credibility determinations
22 are entitled to deference, see Phoenix Global Ventures, LLC
23 v. Phoenix Hotel Assocs., 422 F.3d 72, 76 (2d Cir. 2005)
3
1 (per curiam), and Simon has not directed our attention to
2 evidence undercutting the district court’s credibility
3 determination, nor has he left us with a “definite and firm
4 conviction that a mistake has been committed.” Drake v.
5 Portuondo, 553 F.3d 230, 240 (2d Cir. 2009) (internal
6 quotation mark omitted).
7 [2] Simon argues that a New York attorney may not recover
8 in quantum meruit absent the required “letter of
9 engagement.” See N.Y. Comp. Codes R. & Regs. tit. 22,
10 § 1215.1. While Simon takes issue with various cases cited
11 by both Sack and the district court on this issue, Simon has
12 not directed our attention to any controlling New York case
13 holding that an attorney who violates the letter of
14 engagement rule may not recover in quantum meruit. Indeed,
15 the weight of New York authority suggests the opposite.
16 See, e.g., Roth Law Firm, PLLC v. Sands, 920 N.Y.S.2d 72, 73
17 (N.Y. App. Div. 2011) (“Plaintiff’s failure to comply with
18 the letter of engagement rule does not preclude it from
19 seeking recovery of legal fees under such theories as
20 services rendered, quantum meruit, and account stated.”
21 (internal citations omitted)); Kramer Levin Naftalis &
22 Frankel LLP v. Canal Jean Co., Inc., 900 N.Y.S.2d 646, 646
23 (N.Y. App. Div. 2010) (“Nor does [a law firm’s] failure to
4
1 provide a written retainer agreement, as required by 22
2 NYCRR 1215.1, bar its claims for account stated . . . .”);
3 Miller v. Nadler, 875 N.Y.S.2d 461, 462 (N.Y. App. Div.
4 2009) (“Plaintiff’s failure to comply with the rules on
5 retainer agreements (22 NYCRR 1215.1) does not preclude it
6 from suing to recover legal fees for the services it
7 provided.” (internal citations omitted)). Accordingly, we
8 find no error in the district court’s conclusion that Sack
9 was entitled to quantum meruit recovery in the absence of a
10 letter of engagement.
11 [3] In determining that $89,160 represented the fair and
12 reasonable value of the services rendered, the district
13 court properly considered the quality of the services
14 provided by Sack and his firm, the amount Sack would have
15 received under the original contingent-fee agreement, and
16 Sack’s detailed testimony about the extent of the services
17 his firm provided and the amount of time expended in
18 performing those services. See Sequa Corp. v. GBJ Corp.,
19 156 F.3d 136, 148 (2d Cir. 1998) (“Among the factors to be
20 considered in [ascertaining the reasonable value of services
21 rendered] are the difficulty of the matter, the nature and
22 extent of the services rendered, the time reasonably
23 expended on those services, the quality of performance by
5
1 counsel, the qualifications of counsel, the amount at issue,
2 and the results obtained (to the extent known).”). Although
3 Simon contends on appeal that Sack’s failure to maintain
4 contemporaneous time records forecloses his fee claim as a
5 matter of law, “New York courts have specifically rejected
6 the hard and fast rule that reconstructed time records can
7 never serve as a basis for compensation in favor of wider
8 trial court discretion in evaluating fee petitions.”
9 Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53
10 (2d Cir. 1992) (internal quotation marks omitted).
11 [4] Simon challenges the district court’s calculation of
12 prejudgment interest from the date of Sack’s October 2008
13 termination rather than the date of the October 2009
14 settlement. We review a district court’s decision to award
15 prejudgment interest, as well as the determination of the
16 date from which such interest accrues, for abuse of
17 discretion. See U.S. Fid. & Guar. Co. v. Braspetro Oil
18 Servs. Co., 369 F.3d 34, 81 (2d Cir. 2004); New England Ins.
19 Co. v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599,
20 602-03 (2d Cir. 2003). Here, the district court’s decision
21 to impose prejudgment interest at New York’s statutory rate
22 from the date on which Sack was discharged was appropriate.
23 See N.Y. C.P.L.R. § 5001(b) (“Interest shall be computed
6
1 from the earliest ascertainable date the cause of action
2 existed . . . .”); Universal Acupuncture, 370 F.3d at 263
3 (“Under New York law, a lawyer’s right to recover in quantum
4 meruit accrues immediately upon discharge.”). Moreover,
5 Simon’s reliance on Klein v. Eubank, 693 N.Y.S.2d 541, 543
6 (N.Y. App. Div. 1999), which held that the date of
7 settlement, rather than the date of the attorney’s
8 termination, is the date on which prejudgment interest
9 should run, is not persuasive in light of New York Court of
10 Appeals precedent suggesting that an attorney’s quantum
11 meruit cause of action comes into existence at the time of
12 discharge. See Cohen v. Grainger, Tesoriero & Bell, 622
13 N.E.2d 288, 290 (N.Y. 1993) (“[A] discharged attorney may
14 recover the ‘fair and reasonable value’ of the services
15 rendered, determined at the time of discharge and computed
16 on the basis of quantum meruit.” (internal citations
17 omitted)); Lai Ling Cheng v. Modansky Leasing Co., 539
18 N.E.2d 570, 573 (N.Y. 1989) (holding that “[i]mmediately
19 upon his discharge, [an attorney] was entitled to be
20 compensated in a fixed dollar amount, quantum meruit”);
21 Tillman v. Komar, 181 N.E. 75, 76 (N.Y. 1932) (holding that
22 “[o]n the termination of the contract of retainer a cause of
23 action for the reasonable value of his services immediately
7
1 accrued to the attorney” and therefore “[s]ince he is
2 entitled at the present time to enforce his claim by action,
3 he need not . . . be compelled to await the outcome of the
4 litigation from which he has been displaced”); see also
5 Ballow Brasted O’Brien & Rusin P.C. v. Logan, 435 F.3d 235,
6 242 n.7 (2d Cir. 2006) (“On a question of New York law, we
7 are not bound by a decision of the Appellate Division if we
8 have persuasive evidence that the New York Court of Appeals
9 would reach a different conclusion.” (internal quotation
10 marks omitted)).
11 [5] Finally, Simon argues that the district court forced
12 him to proceed pro se in the summary judgment proceedings
13 when it denied his potential counsel’s request for a
14 continuance to file an opposition to Sack’s motion. We
15 review a district court’s denial of a continuance for abuse
16 of discretion and affirm “unless there is a showing both of
17 arbitrariness and of prejudice” to the moving party. Farias
18 v. Instructional Sys. Inc., 259 F.3d 91, 99-100 (2d. Cir.
19 2001).
20 Here, Simon fails to establish either. The continuance
21 ruling did not prejudice Simon because the district court
22 denied Sack’s summary judgment motion after determining that
23 there were disputed issues of material fact and that a
8
1 hearing was necessary. Nor was the decision arbitrary.
2 Simon had notice of the fee dispute well in advance of the
3 filing of Sack’s summary judgment motion, and had ample time
4 to retain an attorney to handle the litigation.
5 Accordingly, there was no abuse of discretion in the denial
6 of the continuance request.
7 We have considered all of Simon’s remaining arguments
8 and find them to be without merit. Accordingly, we AFFIRM
9 the judgment of the district court.
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
9