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Farrell Fritz, P.C v. Bruce J. Mabey

November 23, 2011

FARRELL FRITZ, P.C., PLAINTIFF,
v.
BRUCE J. MABEY, DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Farrell Fritz, P.C. ("Plaintiff"), a New York law firm, sued Bruce J. Mabey ("Defendant"), a citizen of the State of Utah, for unpaid legal bills. Pending before the Court is Plaintiff's unopposed motion for summary judgment; for the following reasons this motion is GRANTED.

BACKGROUND

The following summary is based on the undisputed facts as set forth in Plaintiff's papers. As required when moving for summary judgment against a pro se litigant, Plaintiff sent Defendant "notice of the requirements of Rule 56." Irby v. N.Y.C. Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001).

Defendant has not responded to Plaintiff's Local Civil Rule 56.1 Statement of Undisputed Facts, or otherwise opposed Plaintiff's motion. Accordingly, to the extent Plaintiff's facts are supported by admissible evidence, they are deemed admitted. See LOCAL CIV. R. 56.1(c); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) ("If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.").

In early 2008, Defendant retained Plaintiff to represent him in litigation pending in the United States District for the Eastern District of New York. (Pl. 56.1 Stmt. ¶ 3.) Defendant signed an engagement letter in connection with this representation. (Id. at ¶ 3.) The engagement letter provided that Plaintiff would "render statements on a monthly basis, and the statements will describe the services rendered in the prior month, together with any disbursements incurred. Disbursements include such items as filing fees, overnight mail services, messenger services, and the like. Our statements are due and payable upon receipt." (Id. at ¶ 5.)

Plaintiff provided Defendant with legal services. Among other things, Plaintiff filed an answer, made Court appearances, and engaged in motion practice. (Id. at ¶¶ 6-8.) In accordance with the engagement letter, Plaintiff sent Defendant monthly statements for those legal services. (Id. at ¶ 9.) The invoices totaled $83,194.25. (Id. at ¶¶ 10-18.) Apart from a minimal amount,*fn1 Defendant did not pay Plaintiff for the services, (id. at ¶¶ 19, 24), nor did he dispute or object to any of the invoices (id. at ¶¶ 20-23). Plaintiff was eventually granted permission to withdraw as attorney of record in Defendant's litigation. (Id. at ¶ 26.)

Having received no further payment from Defendant, Plaintiff filed this action seeking the balance of $80,194.25. Defendant filed an answer, but has not defended this action further. Plaintiff now moves for summary judgment. As required in cases of pro se litigants, Plaintiff sent notice to Defendant explaining the procedures of a summary judgment motion and the consequences of not responding. (Docket No. 15, Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment.) Nonetheless, Defendant has not opposed the motion.

DISCUSSION

The Court first addresses subject matter jurisdiction and then considers the merits of Plaintiff's motion.

I. Subject Matter Jurisdiction

As an initial matter, the Court has diversity subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332. Notwithstanding Defendant's vague denial of subject matter jurisdiction, (Answer ¶ 2*fn2 ), there is no genuine dispute that Defendant is a domiciliary of Utah, (id. at ¶ 1), and that Plaintiff is a corporation located in New York (id.). Inasmuch as the amount in controversy exceeds $75,000, Plaintiff satisfies the requirements for diversity jurisdiction.

II. Summary Judgment Standard of Review

The Court shall grant a motion for summary judgment pursuant to Rule 56 if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56. The burden of showing that there is no genuine issue of material fact rests with the moving party. McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997) (citing Adicks v. S.H. Kress & Co., 398 U.S. 144, 161, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)); see also Christman v. Utica Nat. Ins Group, 375 F. Appx. 106 (2d Cir. 2010). In determining whether the moving party has met this burden, "the court is required to resolve all ambiguities in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. Once the moving party has established that there is no genuine issue of material fact, "the non-movant 'must set forth ...


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