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Dr. Jin Zhao v. State University of New York et al

August 15, 2011

DR. JIN ZHAO,
PLAINTIFFS,
v.
STATE UNIVERSITY OF NEW YORK ET AL.,
DEFENDANT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

Susan Warnock, Esq. ("Warnock"), previously-retained counsel for plaintiff Dr. Jin Zhao ("plaintiff"), seeks a charging lien on plaintiff's award from her January 10, 2011 settlement with defendants State University of New York, SUNY Downstate Medical Center, The Research Foundation of the State University of New York, and Dr. Olcay Batuman (collectively, "defendants"). (See ECF No. 124, Letter Motion for Attorney Fees, dated 1/19/2011; ECF No. 128, Motion for Attorney Fees, dated 2/16/2011.)

On April 19, 2011, Magistrate Judge Robert M. Levy issued a Report and Recommendation ("R&R") recommending that Warnock's motion be granted in part and that she be awarded a $56,758.78 lien on plaintiff's settlement award. (ECF No. 135, Report and Recommendation ("R&R") at 11.)*fn1 On May 2, 2011, plaintiff filed timely objections to the R&R. (ECF No. 136, Appeal/Objection to Magistrate Judge Robert M. Levy's Report and Recommendation ("Zhao Obj.").) On May 3, 2011, Warnock filed a declaration supporting Judge Levy's Report and Recommendation and responding to plaintiff's objections. (ECF No. 137, Declaration In Support of Report & Recommendations ("Warnock Resp.").) On May 24, 2011, plaintiff submitted an unauthorized response further objecting to the R&R.*fn2 (See ECF No. 138, Affidavit/Affirmation in Reply to Attorney Susan Warnock's Declaration of 5/3/11 ("Zhao Sur-Reply").) After a de novo review of the record in light of plaintiff's objections pursuant to 28 U.S.C. § 636(b)(1), the court incorporates the R&R by reference and adopts it in its entirety.

STANDARD OF REVIEW

I. Review of Report and Recommendation

To the extent that a party makes specific objections to a magistrate judge's findings, the court must make a de novo determination. Arista Records LLC v. Doe, 604 F.3d 110, 116 (2d Cir. 2010); Fed. R. Civ. P. 72(b). In reviewing a Report and Recommendation, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). See also Fed. R. Civ. P. 72(b)(3). "In this district and circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not." Illis v. Artus, No. 06-CV-3077, 2009 U.S. Dist. LEXIS 77596, at *3 (E.D.N.Y. Aug. 27, 2009) (quoting Scientific Components Corp. v. Sirenza Microdevices, Inc., No. 03-CV-1851, 2006 U.S. Dist. LEXIS 61872, *2 (E.D.N.Y. Aug. 30, 2006)).

BACKGROUND

I. The Underlying Dispute

The relevant facts in this matter are set forth in detail in Judge Levy's thorough R&R. (See R&R at 1-4.) Briefly, the pertinent facts are as follows. On July 24, 2003, plaintiff retained Warnock to represent her in a wrongful termination suit against her former employer. (See ECF 128-3 at 1,*fn3 Retainer Agreement dated 7/24/2003 ("Retainer").) The parties executed a retainer agreement in which plaintiff agreed to pay Warnock and Weizhong "Rachel" Yu, Esq. ("Yu") "1/3 of any monies which [plaintiff] might recover as a contingent fee less any monies [plaintiff] ha[s] disbursed to [Warnock and Yu] for costs and expenses." (Id. at 1.) The retainer agreement also provided that "[s]hould [plaintiff] terminate [Warnock and Yu] as [her] attorneys and hire new counsel prior to receiving a settlement from [plaintiff's] employer, [Warnock and Yu] shall be entitled to a lien on the proceeds of such settlement commensurate with the time [they] have spent on [plaintiff's] matter." (Id. at 2.) Between July 2003 and January 2011, Warnock took numerous actions on plaintiff's behalf, including drafting and filing the complaint, attending several court conferences, drafting a memorandum in opposition to defendants' motion for summary judgment, and preparing for trial.

On January 3, 2011, a week before trial was scheduled to begin, Warnock advised the court in an ex parte status report and subsequent ex parte conference that she believed her continued representation of plaintiff was at risk. (See ECF No. 115, Status Report Request for Ex Parte Conference; ECF No. 130, Sealed Transcript of Proceedings held on January 3, 2011 before Judge Levy at 3.)

On January 6, 2011, four days before the scheduled trial, plaintiff informed Warnock's associate, Yu, by telephone that plaintiff "was thinking about changing her attorneys" or even "defending" herself at trial. (ECF No. 128-2, Declaration of Weizhong Yu dated 2/16/2011 ("Yu Decl.") ¶¶ 21, 22. See also ECF No. 136, Zhao Obj. ¶ 3-1c.) When Yu pressed plaintiff regarding how she wanted to proceed, plaintiff told her in Mandarin, "please release your heart, I will handle myself. I will appear to the Court on Monday and I will have an interpreter with me." (ECF No. 128-2, Yu Decl. ¶ 22.) At 1:09 p.m., Warnock sent plaintiff an e-mail stating that it had come to her attention "that you intend to proceed with the trial of this action on your own" and asking plaintiff to reply by 3:00 p.m. to inform Warnock whether she wished to terminate her as her counsel. (ECF No. 128-4 at 4, E-mail from Susan Warnock to Zhao Xiaopin dated 1/6/2011 at 1:09 p.m. ("1:09 p.m. Warnock E-mail").) At 4:36 p.m., Warnock sent a follow-up e-mail stating, "if I do not hear from you by 5:00 PM today, I will have no alternative but to notify Judge Matsumoto and opposing counsel that you have discharged my firm as your counsel . . . ." (ECF No. 128-4 at 5, E-mail from Susan Warnock to Zhao Xiaopin dated 1/6/2011 at 4:36 p.m. ("4:36 p.m. Warnock E-mail").) Yu attempted to call plaintiff shortly after 5:00 p.m. on January 6 and again at around 9:30 a.m. on January 7; no one answered the phone on either occasion. (ECF No. 128-2, Yu Decl. ¶ 25. See also ECF No. 128-4 at 3, Telephone Records for Weizhong Yu.)

At 11:40 a.m. on January 7, 2011, plaintiff faxed Warnock a letter stating, "[t]his is to confirm that I have informed you verbally that you and your law office have been discharged as my attorney . . . ." (ECF. No. 128-4 at 6, FaX from Jin Zhao to Susan Warnock dated 1/7/2011 at 11:40 a.m. ("11:40 a.m. Zhao Fax").) She also requested that Warnock "immediately inform all parties and the court that you are no longer my attorney . . . ." (Id.) That day, plaintiff retained Ming Hai, Esq. as her new attorney. (ECF No. 129, Affidavit/Declaration of Ming Hai in Opposition, filed 2/17/2011, at 1.) Nevertheless, because Warnock had not yet been relieved as counsel, she spent the weekend preparing for trial, and she appeared for trial at 9:00 a.m. on January 10, 2011. (ECF No. 128, Declaration of Susan Warnock, dated 2/16/2011 ("Warnock Decl.") ¶¶ 24--25.) Prior to jury selection, the court relieved Warnock as counsel and substituted Ming Hai, Esq. and Suhail Amar, Esq. as counsel for plaintiff. (Minute Entry dated 1/10/2011.) That afternoon, plaintiff settled her claim with defendants for $70,000. (See ECF No. 141-2, Trial Transcript, dated 1/10/2011, at 13-14.)

Warnock now seeks to impose a charging lien on the proceeds of plaintiff's settlement with defendants pursuant to New York Judiciary Law Section 475 ("Section 475"), asserting that she is entitled to $84,110.00 in fees for the time she expended on plaintiff's case, as well as $650.78 in disbursements, for a total of $84,766.78. (ECF No. 128, ...


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