The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge
In this diversity suit, plaintiff Steven A. Chernis ("Chernis"), an attorney
proceeding pro se, seeks compensation for legal services rendered to defendants Beatrice Swarzman ("Swarzman") and David S. Hochstadt ("Hochstadt"). The parties consented to my exercise of jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636(c). (Docket No. 20). They further agreed to waive a full trial and have this matter decided through a summary bench trial, in which the Court would make factual findings, including credibility determinations, on the basis of the parties' written submissions. (See Docket No. 21; letter from Chernis to the Hon. Kimba M. Wood, dated May 8, 2006).
Having reviewed the parties' submissions, for the reasons set forth below, the Court will direct the entry of judgment against Swarzman and Hochstadt in the amount of $38,091.29.
As a preliminary matter, Chernis urges the Court to disregard the statement of facts in the defendants' memorandum of law because defense counsel is "a stranger, and an incompetent, unqualified, lay or expert witness to the underlying events." (Reply Affirm. of Steven A. Chernis, Esq., dated July 20, 2006*fn1 ("Chernis Reply Affirm."), at 9). Chernis also contends that "the tender of the Memorandum violates [his] substantial rights to an oath, to pre-trial discovery, and to cross-examination." (Id. at 9-10). Chernis, however, expressly agreed to a summary bench trial in which there would be no live testimony. (See Docket No. 21). Moreover, the defendants' memorandum does not constitute "testimony," or render defense counsel a "witness." Rather, the statement of facts in the defendants' memorandum is properly supported by sworn affidavits. There is consequently no basis for Chernis' application.
That said, my findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure are as follows:
1. Prior Course of Dealings Between Chernis and Hochstadt
In or around 1993 or 1994, Hochstadt hired Chernis to represent him in connection with a dispute involving Hochstadt's former attorney. (Affirm. of Steven A. Chernis, Esq., dated July 20, 2006 ("Chernis Affirm."), at 3; Aff. of David Hochstadt, sworn to on July 13, 2006 ("Hochstadt Aff."), ¶¶ 2-3). Hochstadt paid Chernis a $10,000 retainer after Chernis advised him that he would be billed for any fees that exceeded $10,000 at the rate of $275 per hour. (Chernis Affirm. at 3; Hochstadt Aff. ¶ 3). The matter was resolved within a few months before the retainer was exhausted. (Hochstadt Aff. ¶ 3). Despite the brevity of the engagement, Chernis and Hochstadt became friends and thereafter socialized. (Chernis Affirm. at 4; Hochstadt Aff. ¶ 4).
By 1994, Hochstadt was the president of his residential cooperative ("Coop"). Acting for the Coop, Hochstadt retained Chernis in connection with another matter. (Hochstadt Aff. ¶ 5). Chernis and the Coop entered into a written retainer agreement, dated April 22, 1995, in which Chernis agreed to charge his "standard rate of $275 per hour," discounted ten percent for the first fifty hours and fifteen percent for the next one hundred hours. (Aff. of Silvana D. Raso, Esq., sworn to on July 13, 2006 ("Raso Aff."), Ex. H at 1-2). Chernis agreed that his bill for the matter "shall be submitted and will be payable every other month." (Id. at 2). However, Chernis first submitted a bill to the Coop after five months, and his final bill was rendered five months later. (Hochstadt Aff. ¶ 6; Chernis Reply Affirm. at 24).
In November 1995, the Coop again retained Chernis to represent it in connection with a dispute with a neighboring apartment building. (Hochstadt Aff. ¶ 7). Chernis did not bill the Coop until May 11, 1999, after the litigation had ended. (Id.). In his cover letter enclosing the bill, Chernis stated that "[t]he ostensibly inordinate delay in presenting my bill resulted from nothing other than my own failure, and the trust and good will which I maintain toward the management of [the Coop], its members, shareholders and residents." (Raso Aff. Ex. I). Chernis billed for 250.5 hours of service, at the rate of $275 per hour, or a total of $68,887.50, less a "Professional Discount Per Retainer" of fifteen percent ($453.75) for twelve of his hours. (Id.).
Hochstadt contends that he was "totally outraged" to learn that Chernis had not rendered periodic bills to the Coop in connection with this matter. (Hochstadt Aff. ¶ 8). Hochstadt notes that he was unaware of the more than four year gap in billing because the property manager handled such matters. (Id. ¶ 7). He further avers that he told Chernis "very clearly" that if Chernis ever were retained again, he would not be paid "unless he rendered monthly billings just as other lawyers did." (Id. ¶ 10). According to Hochstadt, Chernis apologized and undertook to bill monthly in the future. (Id.; see also Chernis Affirm. Ex. H (letter from Hochstadt to Chernis, dated July 29, 2003, at 4)).
Chernis disputes Hochstadt's version of the events related to the May 1999 Coop bill. Chernis characterizes Hochstadt's alleged outrage as "false and feigned," noting that "[t]he bill was simply paid and that was the end of it." (Chernis Reply Affirm. at 24). Without going so far as to say that Hochstadt never complained about the lack of periodic billing, Chernis notes that "there is not a single written complaint from Mr. Hochstadt about billing." (Id.) (emphasis added). Thus, in his view, the circumstances of the bill "merely confirmed the custom and practice between [Chernis and Hochstadt], and the casual nature of [their] relationship." (Id.).
On April 17, 2000, Chernis sent the Coop a letter, addressed to Hochstadt's attention, which stated that he was increasing his hourly fee to $375 per hour, but would charge the Coop a "courtesy discount" rate of $325 per hour "in light of [their] long history together." (Chernis Affirm. Ex. B).
2. Chernis' Representation of Swarzman
Swarzman is Hochstadt's mother-in-law. (Hochstadt Aff. ¶ 13). In or around 1995, she began dating Jerry Rosen ("Rosen"), whose wife, Gladys Rosen ("Gladys"), recently had died. (Aff. of Beatrice Swarzman, sworn to on July 13, 2006 ("Swarzman Aff."), ¶ 3). By the following year, their relationship had evolved to the point that Rosen gave Swarzman a diamond ring that had belonged to Gladys. (Id. ¶ 5). He memorialized this "gift" in a letter which stated that it was given "without any promises or commitments." (Raso Aff. Ex. A). An insurance valuation listed the replacement value of the ring at the time as $73,000. (Id. Ex. C).
The relationship between Swarzman and Rosen ended in 1999. (Swarzman Aff. ¶ 12). Thereafter, on August 24, 2000, Rosen's son, Barry Rosen ("Barry"), demanded that Swarzman return the ring, claiming that it belonged to Gladys' estate. (See Swarzman Aff. ¶ 13; Raso Aff. Ex. M at 2; Chernis Affirm. Ex. D at 14). Swarzman apparently expected to be sued and asked Hochstadt for help in finding an attorney to represent her. (Swarzman Aff. ¶ 15). Hochstadt contacted Chernis and arranged a meeting. (Hochstadt Aff. ¶ 12).
On September 1, 2000, Chernis met with Swarzman, Hochstadt, and Swarzman's daughter, Irene Hochstadt ("Irene"). (Swarzman Aff. ¶ 17; Hochstadt Aff. ¶¶ 12-13; Aff. of Irene Hochstadt, sworn to on July 13, 2006 ("Irene Aff."), ¶ 2; Chernis Affirm. at 5). During the meeting, Swarzman and the others showed Chernis several documents that allegedly proved her entitlement to the ring.*fn2 (Swarzman Aff. ¶ 22; Hochstadt Aff. ¶ 15; Irene Aff. ¶ 3; Chernis Affirm. at 5). After learning the facts, Chernis opined that the New York courts lacked personal jurisdiction over Swarzman, who was a New Jersey resident. (Hochstadt Aff. ¶ 14).
Chernis did not provide a retainer agreement or letter of engagement during the meeting. (See Swarzman Aff. ¶ 18; Hochstadt Aff. ¶ 20; Irene Aff. ¶ 9; Chernis Reply Affirm. at 3). Moreover, "[t]here was never any discussion with [Swarzman] as to what fees would be paid by [her]."*fn3 (Swarzman Aff. ¶ 18). Indeed, because Chernis was Hochstadt's friend, Swarzman "assumed that [she] would not be billed at all or would be billed a minimal amount." (Id.). Hochstadt nevertheless told Swarzman, in Chernis' presence, that he "would assist her in paying any reasonable legal fees that may be incurred." (Hochstadt Aff. ¶ 26).
On March 30, 2001, Barry delivered to Swarzman's doorman a summons and verified complaint in an action that he had commenced in Supreme Court, Nassau County, which sought money damages and the return of the ring. (Chernis Affirm. Ex. D at 23). Based on the September 2000 meeting, his study of the documentation, and his professional experience, Chernis believed that the optimal course of action was "to immediately dismiss the action -- on motion -- from Nassau County, New York. Let [Barry], at his own personal cost, inconvenience, disadvantage and expense, proceed in a foreign forum, in New Jersey." (Chernis Affirm. at 8).
Chernis states that he attended a second meeting with Swarzman, Hochstadt, and Irene on April 13, 2001. (Id. at 10). At this meeting, Chernis allegedly advised Hochstadt to consider retaining a "less expensive" attorney than himself, but Hochstadt rejected the recommendation and instructed Chernis to file an answer. (Id. at 10-11). Swarzman does not recall such a meeting. Indeed, according to Swarzman, after the initial September 1, 2000, meeting, Chernis never called her "to discuss strategy or to propose how he wanted to handle the case." (See Swarzman Aff. ¶¶ 23, 25). The affidavits of Hochstadt and Irene are silent as to whether this meeting took place.
On April 28, 2001, Chernis filed an answer on behalf of Swarzman, asserting that the New York courts lacked personal jurisdiction over her because (a) she was a resident of New Jersey, and (b) service of process was defective. (Chernis Affirm. Ex. D at 20).
On June 26, 2001, Chernis filed a motion which was styled as a "Motion for Summary Judgment Dismissing Complaint" pursuant to Rules 3211(a)(8) and 3212 of the New York Civil Practice Law and Rules ("CPLR"), based upon the defenses asserted in the answer. (See id. at 5-10). Barry cross-moved for sanctions alleging that Chernis' claim that service upon the doorman was impermissible was "blatantly frivolous." (Id. at 36). In his reply papers, Chernis, in turn, sought expenses and attorney's fees for the "frivolous conduct" of Barry's counsel. (Id. at 80). Barry filed a surreply, accusing Chernis of having improperly sent the court an ex parte letter and papers which were "derogatory of [Barry] and his counsel, insulting in tone, and filled with unprofessional and unnecessary 'jabs' at [Barry] and/or his counsel." (Id. at 88-89). In yet another letter to the court, seeking to respond to Barry's surreply, Chernis acknowledged that he would understand if his letter found "its way to a convenient shredder." (Raso Aff. Ex. N at I). Nevertheless, Chernis advanced thirteen bullet points, two of which were that * No attempt [was] made to explain why suit was not commenced in New Jersey, as it should have been.
* No attempt [was] made to explain why this action was not courteously "discontinued" when the reality of the law was made to shine brightly upon counsel's naked eye. Instead, a "waste" of judicial and other time, money and effort was initiated and perpetrated.
On October 25, 2001, the state court referred Swarzman's motion to a hearing officer or other appropriate official to determine whether the court had long-arm jurisdiction over Swarzman and denied the parties' cross-motions for sanctions.*fn4
(Chernis Affirm. Ex. D at 2-4). Chernis contends that he obtained Hochstadt's consent to file an appeal from this order (rather than participating in the hearing) during a telephone conversation on October 31, 2001. (Chernis Affirm. at 17). Indeed, according to Chernis, "[i]t has always been my practice to inform my client of material developments in the course of litigation . . . . I have never prosecuted an appeal without a client's knowledge and consent." (Id.). According to Swarzman, however, "Chernis did not ever write to me or call me regarding any strategy or position he was taking in the case. He never consulted with me regarding my opinions or ideas after our September 1, 2000 meeting." (Swarzman Aff. ¶ 28). Despite Swarzman's assertion, it appears that Chernis was still in contact with Hochstadt because Hochstadt remitted $500 to Chernis as an advance against disbursements on March 9, 2002. (Chernis Affirm. at 18 & Ex. C at 16).
On November 17, 2001, Chernis filed a notice of appeal with the Appellate Division, Second Department. (Raso Aff. Ex. O). Barry then filed a cross-notice of appeal on December 5, 2001. (Id. Ex. P). Subsequently, in his appellate brief, Chernis argued that the motion court had erred by directing that a hearing be held to determine whether there was ...