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HARLEY & BROWNE v. UNITED STATES

March 4, 1997

Petition of HARLEY & BROWNE, attorneys and counselors at law of the State of New York, for an Adjudication of said Attorneys' rights in the Matter of HAKE
v.
UNITED STATES OF AMERICA. HARLEY & BROWNE, Petitioner, -against- RESSLER & RESSLER, RACHEL HAKE and TERRY HAKE, and UNITED STATES OF AMERICA, Respondents.



The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 Presently before this Court is a petition for attorneys' fees brought by Harley & Browne ("petitioner" or "HB"). This petition is opposed by respondents Ressler & Ressler ("RR"), Rachel Hake and Terry Hake (the "Hakes"), and the United States of America (the "Government") ("respondents"). For the following reasons, the petition is denied.

 BACKGROUND

 The action underlying this petition, Hake v. United States, 88 Civ. 3559 (DNE), was a medical malpractice action brought under the Federal Tort Claims Act. That action sought damages for a botched surgical procedure performed at the United States Army Hospital at West Point. This surgical procedure severed Rachel Hake's rectal muscles, rendering her incontinent. In January 1988, HB, a New York law firm, was retained by the Hakes to represent them in their malpractice lawsuit. According to its retainer agreement with the Hakes, HB was to receive "an amount equal to 25% of the net sum recovered" in the malpractice action. (Pet. P 5.)

 According to the Hakes and RR, another New York law firm which was later substituted for HB as the Hakes' counsel, "after doing nothing for two years, [HB] assigned the case to an attorney who was unfamiliar with medical terminology, and was unable to locate an expert to review the case--even though [Rachel] Hake gave [the attorney] the names of doctors with firsthand knowledge of her injury." (RR Memo at 2.) The Hakes and RR further contend that the HB attorney "told Hake that the case was about to be dismissed because she could not locate an expert, and that she feared that the [Hakes and the attorney] would be sanctioned for bringing a 'frivolous' lawsuit." Id. In August 1989, the Hakes discharged HB and retained RR to represent them in their malpractice action.

 In 1992, HB attempted to secure an "attorneys' lien" against 25% of any recovery by the Hakes in their malpractice action pursuant to New York Judicial Law, Section 475. HB contends that it "served several notices of their attorneys' lien upon both the United States of America and [RR]. On or about May 11, 1992, [HB] filed the Affidavit of Service of the Notice of Attorneys' Lien with the Clerk of the united States District Court for the Southern District of New York." Id. P 10.

 After protracted pre-trial and discovery processes, the Hakes' malpractice action ultimately settled in 1993 for $ 500,000, payable by the Government. (Stipulation and Order of Dismissal, Hake v. United States, 88 Civ. 3559 (Sept. 15, 1993).) On January 4, 1994, before that sum was paid, Lisa A. Jonas, Assistant United States Attorney for the Southern District of New York ("AUSA Jonas"), sent a letter to J. Austin Browne ("Browne") of HB, "informing him that the Government had entered into a settlement of the [Hakes'] malpractice action." (Govt. Memo at 1.) Jonas' letter further stated that although the Government had received an August 15, 1989, notice of attorneys' lien from HB, it was the Government's position that the lien was not valid because it was "not executed or notarized and has no indicia that it has been perfected." Id. ; (Notice of Motion at Exh. 2.) The letter further requested any evidence from HB supporting HB's claim that it possessed a valid lien, and advised HB to contact the Government within ten days or the settlement proceeds would be released to the Hakes. (Govt. Memo at 1.) The letter was mailed to HB at the address on the lien. Id. On January 10, 1994, the letter was returned to the Government marked "return to sender, forwarding order expired." Id. at 2. On January 18, 1994, the Government released the settlement proceeds to the Hakes. Id. On February 10, 1994, AUSA Jonas received a telephone call from Browne inquiring about the settlement. Id. AUSA Jonas informed Browne that the Government had released the settlement payment to the Hakes because HB's lien was invalid and the Government was unable to contact HB by mail. Id. AUSA Jonas sent by facsimile to Browne a copy of both her January 4, 1994, letter and the envelope in which it was returned to her. Id.

 HB again waited a substantial period of time before seeking to enforce its lien. The Government--which was not named in HB's state court action--maintains that after releasing the settlement payment, it "did not hear from [HB] again for more than two and one-half years, until October 28, 1996, when [HB] served the Government with the petition at issue in this action." (Govt. Memo at 2.) Similarly, RR explains that, "after waiting nearly a year after the state court dismissed [its] petition, [HB] filed the current petition for the same relief that the state court denied. (RR Memo at 3.)

 The instant petition was filed on October 28, 1996. On November 18, 1996, and December 3, 1996, RR and the Government, respectively, filed their opposition to HB's petition. On November 27, 1996, the docket sheet indicates that HB filed a submission responsive to RR and the Government's opposition. In direct contravention of this Court's Individual Rules, however, this Court was never provided with a courtesy copy of that submission. See (Honorable David N. Edelstein: Individual Rules, Procedures and Forms, at 3 (2d ed. 1992).) Because this court finds that HB's failure to provide this Court with courtesy copies of its submission in response to RR and the Government's opposition, this Court will disregard that submission.

 DISCUSSION

 There are two primary issues to be resolved in this Opinion: (1) whether this Court possesses the jurisdiction to consider HB's petition; and (2) if so, whether to grant HB's petition. ...


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