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Marion S. Mishkin Law office v. Lopalo

United States Court of Appeals, Second Circuit

August 26, 2014

MARION S. MISHKIN LAW OFFICE, Plaintiffs' Liaison Counsel: 21 MC 100 Bodily Injury, Non-Respiratory, Non-Injestion Cases, Appellant,
v.
CHRISTOPHER R. LOPALO, STANLEY KALATHARA, SCOTT EPSTEIN, MICHAEL SCOTT LEVINE, NEIL C. MASCOLO, JR., JEFFREY A. NEMEROV, JEFFREY SINGER, ANDREW J. SMILEY, FRANK A. ANDREA, III, CHRISTOPHER DOWNE, EVAN SACKS, ANDREW RICHARD DIAMOND, MICHAEL SETH LEYDEN, MICHAEL F.X. RYAN, JOEL MYRON LUTWIN, JOHN S. PARK, JOSEPH L. DECOLATOR, LEONARD LINDEN, STEVEN L. BARKAN, JOSEPH EHRLICH, DAVID JAROSLAWICZ, DAVID LAURENCE KREMEN, MICHAEL KREMINS, NOAH H. KUSHLEFSKY, Appellees. [1]

Argued April 29, 2014

Appeal from the June 11, 2013 order of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, J.) denying appellant, the Marion S. Mishkin Law Office, an award of attorneys' fees for services performed as plaintiffs' liaison counsel in the bodily injury, non-respiratory cases arising out of the events of September 11, 2001. Because we find the district court abused its discretion in denying Mishkin any fee for her work without further inquiry, we vacate and remand.

E. CHRISTOPHER MURRAY, Ruskin Moscou Faltischiek, P.C., Uniondale, NY, for Appellant Marion S. Mishkin Law Office.

JOSHUA BARDAVID, New York, NY, for Appellees. Frank A. Andrea, III, Michael Scott Levine, Joel Myron Lutwin, Neil C. Mascolo, Jr., John S. Park, Jeffrey Singer and Andrew J. Smiley.

DAVID L. KREMEN, Oshman & Mirisola, LLP, New York, N.Y. for Appellee Oshman & Mirisola, LLP (incorrectly sued as David Laurence Kremen).

Before: WALKER, POOLER, and WESLEY, Circuit Judges.

OPINION

Page 145

POOLER, Circuit Judge.

The Marion S. Mishkin Law Office (" Mishkin" ) appeals from the June 11, 2013 order of the United States District Court for the Southern District of New York (Alvin R. Hellerstein, J.) denying an award of attorneys' fees for services performed as plaintiffs' liaison counsel in the bodily injury, non-respiratory cases arising out of the events of September 11, 2001. The district court, while acknowledging Mishkin should receive a fee for her work as liaison counsel, denied her any fee after finding her fee application inflated and unsubstantiated by contemporaneously kept time records. We find the district court abused its discretion in denying Mishkin a fee without further inquiry, and thus we vacate and remand for further proceedings.

BACKGROUND

The underlying cases in this appeal involve state law claims for non-respiratory injuries suffered while working at the World Trade Center site after the September 11 attacks. Mishkin alleges that at some point prior to 2005 the New York State Supreme Court appointed her as liaison counsel for all plaintiffs in cases where plaintiffs claimed a physical injury while working at the World Trade Center site. However, there is no state court order in the record reflecting such an appointment. In 2005, the underlying cases

Page 146

were removed from state court to the United States District Court for the Southern District of New York. Initially, the cases were included in the class of roughly 10,000 respiratory-related illnesses pending before that court. When the cases were transferred, Mishkin and defendants' liaison counsel wrote to the district court, introducing themselves and proposing a briefing schedule for a remand motion. The district court denied the remand motion on December 4, 2006. In 2006, the district court asked Mishkin to provide a report regarding the non-respiratory plaintiffs, and referred to her as " liaison counsel" in acknowledging that report's receipt.

The district court did not enter an order actually appointing Mishkin liaison counsel in federal court until May 21, 2008. Her term was short, as the district court, unhappy with Mishkin's performance, removed her as liaison counsel in an order dated August 28, 2008. On September 12, 2008, the attorneys for the non-respiratory plaintiffs sent a joint letter to the district court urging Mishkin be reinstated as liaison counsel. The letter stated that:

The sum and substance of Marion's contribution to the interests of all concerned in this litigation cannot be overstated. Through these past five years, Marion generated hundreds of group-wide status, strategy and summary reports, coordinated group-wide meetings and appeared for our group in all of the court conferences in State and Federal Court, all to keep our group informed of the numerous procedural and substantive intricacies of this litigation. She has regularly furnished us with all of the pertinent court orders and corresponded with us on a continuous basis to promote the group's understanding of the issues and facilitate the group's compliance with the Court's procedures, instructions and deadlines. Marion authored and orally argued nearly all the briefs for our group and engaged in many productive discussions for us with the defense attorneys throughout these years.

App'x at 50.

The district court relented and reappointed Mishkin on April 3, 2009, with the caveat that she must work with a newly appointed co-liaison counsel. The appointment order tasked liaison counsel, in part, with coordinating responses to queries from the district court and defendants, facilitating plaintiffs' compliance with district court orders, maintaining an official service list, " consider[ing] proposals for future case management orders or other case management procedures and issues," and performing other administrative tasks as necessary. App'x at 28-29.

On January 23, 2012, Mishkin submitted an application for $1,868,445 in fees for her work as liaison counsel. The district court denied that application without prejudice to renew. At its hearing on the issue, the district court found Mishkin's application sought fees for work that exceeded her role as liaison counsel. The district court found Mishkin " is entitled to a fee as liaison counsel. But it has to be in relationship to the work that she should be doing as liaison counsel." App'x at 940. The district court also ruled that Mishkin could only claim fees for work done while she was appointed by the district court, excluding her time in state court and any time in federal court when she was not acting by an order of appointment.

On April 26, 2013, Mishkin submitted a revised fee application seeking $418,995 in fees for work done after May 21, 2008 and excluding the period of time the district court had removed her as liaison counsel. Several plaintiffs' counsel--responsible for funding ...


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