Civil Action No. 04-1338 RCL/DAR.
May 5, 2005
REPORT AND RECOMMENDATION
This action was referred to the undersigned United States Magistrate Judge for a two-fold purpose: (1) determination of the intentions of the parties with respect to settlement; and (2) consideration of Attorney Jimmy A. Bell's Motion to Intervene ("motion to intervene") (Docket No. 16). Upon consideration of the representations of Plaintiff and of counsel for Defendant at a settlement conference on April 1, 2005, and the memoranda in support of and in opposition to the motion to intervene, the undersigned will recommend (1) that the parties be permitted to implement the settlement on the terms to which they have agreed; and (2) that the motion to intervene be denied.
The court (Lamberth, J.) granted Mr. Bell's second Motion to Withdraw as Counsel by an order filed on March 23, 2005 (Docket No. 14).
(1) Settlement. Plaintiff, then proceeding pro se, and counsel for Defendant appeared before the undersigned on April 1, 2005 for a settlement conference. Plaintiff and counsel for Defendant represented that they had reached an agreement with respect to settlement, and requested that they be permitted to execute their agreement. Plaintiff and counsel for Defendant advised the undersigned of all of the terms of their settlement agreement.
Consistent with Local Civil Rule 84.9, neither the oral communications of the parties nor the terms of the parties' settlement agreement will be discussed herein.
See n. 1, supra.
The undersigned finds that the parties have reached an agreement with respect to the settlement of this action, and that both parties wish to settle this action on the terms to which they agreed. Additionally, the undersigned finds, for the reasons discussed in greater detail in the second section of the instant Report and Recommendation, that the issue addressed in the motion to intervene represents no impediment to a settlement of this action on the terms to which Plaintiff and counsel for Defendant agreed. Accordingly, the undersigned recommends that the parties be permitted to execute their settlement agreement.
See also Opposition to Attorney Jimmy A. Bell's Motion to Intervene, Exhibit 10, second page (January 26, 2005 letter to Plaintiff from counsel for Defendant) ("AARP is pleased that you have accepted its offer[.]").
(2) Motion to Intervene. Mr. Bell, Plaintiff's former counsel, seeks to intervene as of right pursuant to Rule 24(a)(2). Mr. Bell, in the memorandum in support of his motion, represents that Plaintiff agreed to pay him 40% of any settlement or jury verdict; that "Plaintiff agreed to the settlement . . . while [he] was still counsel of record for Plaintiff"; and that Defendant intends to distribute the proceeds of the settlement directly to Plaintiff, and Plaintiff does not intend to pay him 40% of the proceeds. Memorandum of Points and Authorities in Support of Attorney Jimmy A. Bell's Motion to Intervene ("Bell's Memorandum") at 1-2.
Plaintiff, in her opposition, asks that the court "dismiss all claims made by Attorney Bell in the above captioned case." Plaintiff's Opposition at 3. Plaintiff submits that the settlement to which she agreed is "the package which was offered . . . on June 25, 2004[,]" before she retained Mr. Bell, and denies that Mr. Bell negotiated a settlement on her behalf. Id. at 2-3. Plaintiff also submits that Rule 24(a)(1) of the Federal Rules of Civil Procedure "does not speak to parties outside of the case being allowed to intervene in any matters relative to the case." Id. at 1.
Mr. Bell, in his reply, disputes Plaintiff's assertion that he, Bell, did not negotiate a settlement on Plaintiff's behalf, and maintains that he may intervene as of right in this action in order to seek a resolution of his dispute with Plaintiff regarding the terms of their retainer agreement.
Mr. Bell sought, and was granted, leave to file his reply under seal. Neither Plaintiff nor Mr. Bell sought leave to file Plaintiff's opposition, or the exhibits thereto, under seal.
Rule 24(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that upon timely application,
anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. FED. R. CIV. P. 24(a)(2); see also Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003). However, Mr. Bell has not claimed any interest relating to the property or transaction "which is the subject of [this] action[,]" and instead, seeks this court's intervention in his fee dispute with his former client. See, e.g., Plaintiff's Opposition, Exhibit 4 at page four (January 13, 2005 letter to Plaintiff from Mr. Bell) ("It seems to me that we have a fee dispute."). Mr. Bell offers no authority for the proposition that a plaintiff's former counsel may intervene as of right pursuant to Rule 24(a)(2) for the purpose of obtaining attorney's fees claimed in accordance with a retainer agreement, and the undersigned knows of no authority which so holds.
A single reported decision addresses the determination by a federal court of a motion filed by a plaintiff's former counsel to intervene as of right to raise an issue involving attorney's fees. See Swann v. City of Dallas, 172 F.R.D. 211 (N.D. Tex. 1997). In Swann, the court granted the motion of the plaintiff's former counsel to intervene. However, the facts of Swann are distinguishable from those presented in the instant case in several material respects. In Swann, an action brought under 42 U.S.C. §§ 1983 and 1985, the court, after a verdict in favor of the plaintiff, entered a final judgment and awarded attorneys' fees to the two lawyers appointed by the court to represent the plaintiff. The defendants filed a supersedeas bond to suspend execution of the judgment pending appeal. The plaintiff thereafter discharged her court-appointed counsel and decided to proceed pro se on appeal. The plaintiff's former counsel sought to intervene for the limited purpose of requesting a modification of the supersedeas bond to require payment of the attorneys' fees award directly to them should the trial court's judgment and award of fees be affirmed on appeal. The plaintiff did not oppose the motion to intervene. The court found that the plaintiff's former counsel "[had] a legally cognizable interest in the portion of the judgment allocated to pay attorneys' fees."Swann, 172 F.R.D. at 213. In marked contrast with the facts presented in Swann, this court did not appoint Mr. Bell to represent Plaintiff; this court has not entered any judgment which includes an award of attorney's fees; and Plaintiff does not consent to Mr. Bell's intervention. Mr. Bell does not offer authority for the proposition that his fee dispute with Plaintiff is "a legally cognizable interest" in this action for purposes of Rule 24(a)(2). Nor does Mr. Bell suggest — unlike the movants in Swann — that his ability to protect his interests will be impaired if his motion to intervene is denied. See Swann, 172 F.R.D. at 214. Indeed, Mr. Bell, in his written submissions, suggests the application of the law of contracts to resolve the dispute with his former client, and he will be free to pursue any remedies available consistent with the terms of his contract with Plaintiff.
In a comparable context, this court has held that a lawyer's dispute with his former law partners regarding the division of the fees to have been paid pursuant to a settlement "is entirely separate and apart from the instant lawsuit[,]" and that "[i]ntervention will not contribute to judicial economy[.]"Laker Airways Ltd. v. Pan American World Airways, 109 F.R.D. 541, 544-45 (D.D.C. 1985).
For these reasons, the undersigned finds that Mr. Bell has no legally cognizable interest in this action; that the denial of his motion to intervene will not impair his ability to protect his interests; and that his intervention would not contribute to judicial economy. Accordingly, the undersigned will recommend that Mr. Bell's motion to intervene be denied.
Upon consideration of the entire record, and for the reasons set forth herein, it is
RECOMMENDED that Plaintiff and Defendant be permitted to implement the settlement to which they have agreed; and it is
FURTHER RECOMMENDED that Attorney Jimmy A. Bell's Motion to Intervene (Docket No. 16) be DENIED.