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Holcombe v. U.S. Airways Group, Inc.

United States District Court, E.D. New York

March 29, 2017

FOUGERE HOLCOMBE, Plaintiff,
v.
US AIRWAYS GROUP, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          JAMES ORENSTEIN, U.S. Magistrate Judge.

         Non-party attorney Vladimir Matsiborchuk ("Matsiborchuk") seeks to enforce a charging lien against his former client, plaintiff Fougere Holcombe ("Holcombe"); she, in turn, seeks to extinguish that lien on that ground that she discharged Matsiborchuk for cause. See Docket Entry ("DE") 114 (Matsiborchuk's original motion) ("MM I"); DE 196 (Matsiborchuk's renewed letter motion) ("MM II"); DE 185 (Holcombe's motion). Upon a referral from the Honorable Sandra L. Townes, United States District Judge, I now deny Matsiborchuk's motion for compensation, and grant Holcombe's motion to extinguish his charging lien.[1]

         I. Background

         Holcombe, initially represented by Matsiborchuk, filed suit in 2008 against her former employer, U.S. Airways, and her union, the International Association of Machinists and Aerospace Workers, for disability-based discrimination and retaliation in violation of federal, state, and municipal law. DE 1 (Complaint). Matsiborchuk continued to represent Holcombe for several years, although the timing and circumstances of the ending of that representation is in dispute. The record is clear, however, that in a letter dated December 24, 2013, written by her current counsel Raymond Nardo ("Nardo"), Holcombe informed Matsiborchuk that she had discharged him for cause and asked him to execute a substitution of counsel form that she had already signed. See DE 187 (memorandum supporting Holcombe's motion) ("H Memo. I") at 2-3; MM I, Ex. 3.

         In the letter discharging Matsiborchuk for cause, Holcombe cited several reasons for her decision. As Nardo described Holcombe's concerns:

[Y]ou have filed documents in her case without her approval and consent, … you have suggested that she obtain a Law Guardian because she is incapable of making decisions due to some incapacity you diagnosed based on your alleged training in the Soviet Union, … you have accused Ms. Holcombe of colluding with courts against you, and you have asked her to pay for your wife's services as your legal assistant. [Holcombe] also had to pay a lien of $2, 000 from a personal injury case to an attorney you referred for expenses allegedly incurred in this federal matter.

MM I, Ex. 3.

         Over a month after Holcombe informed Matsiborchuk of his discharge for cause, on January 27, 2014, Matsiborchuk responded by claiming that he had already withdrawn from representation in October 2012. H Memo. I at 3; MM I, Ex. 4. He refused to execute the substitution form and notified Holcombe that he would pursue a demand for the reasonable value of his services rendered. Id. Holcombe filed a notice of consent to change counsel that same day, DE 110, and the court acknowledged the substitution by Order dated February 6, 2014.

         On February 25, 2014, Matsiborchuk filed a motion seeking several forms of relief: disqualification of the magistrate judge then assigned to the case, a retaining lien in the amount of $4, 398.58 for costs and expenses, and a charging lien of $184, 128.70 for attorney's fees under the doctrine of quantum meruit. DE 114. The court referred the motion to the magistrate judge on March 13, 2014. DE 118. After engaging in settlement negotiations that failed to resolve the dispute, the magistrate judge determined that her recusal was not warranted for the reasons Matsiborchuk had advanced, but nevertheless determined sua sponte that her participation in settlement discussions required her recusal from the fact-finding that would be required to resolve the request for a charging lien. See DE 134. The matter was then reassigned to me on September 26, 2014. DE 134. On September 30, 2014, the court denied Matsiborchuk's remaining requests for relief: the request for a retaining lien was denied outright, [2] and the request for a charging lien was denied as premature without prejudice to renewal upon a determination as to whether he was fired for cause following resolution of the underlying litigation. DE 136.

         Holcombe later settled with the defendants, and the court approved the stipulation of dismissal on January 28, 2016. DE 174. On April 12, 2016, Holcombe asked for leave to seek relief as to her fee dispute with Matsiborchuk. DE 175. She filed her fully briefed motion to extinguish Matsiborchuk's charging lien on August 24, 2016. The submissions included the following materials:[3]

• Holcombe's notice of motion, DE 185;
• Nardo's supporting declaration, with exhibits, DE 186 ("Nardo Decl.");
• Holcombe's supporting memorandum, DE 187 ("H Memo. I");
• Matsiborchuk's affirmation in opposition, with exhibits, DE 188 ("Opp. I");
• Matsiborchuk's declaration with exhibits, DE 189 ("M Decl."); and
• Holcombe's reply memorandum and declaration, DE 190 ("Reply").

         By Order dated November 22, 2016, I scheduled an evidentiary hearing for January 18, 2017, on the issue of whether Holcombe terminated Matsiborchuk for cause. On January 16, 2017, two days prior to the hearing, Matsiborchuk re-filed his original motion to withdraw from 2014, and stated that he was thereby renewing his charging lien and motion for compensation. DE 196.

         The next day, on the eve of the hearing, Matsiborchuk filed a motion to disqualify Nardo on the basis of an alleged conflict of interest. DE 201. On January 18, 2017, I proceeded with the hearing as scheduled. At the start of the hearing, I heard argument on the motion to disqualify and concluded that the alleged conflict of interest was one that Holcombe could and did knowingly waive; I therefore denied the motion. Holcombe testified on direct examination, but Matsiborchuk required additional time to complete his cross-examination, and I scheduled the hearing to continue on February 3, 2017. See DE 202 (minute order); DE 212 (transcript of hearing dated Jan. 18, 2017) ("Tr. I").

         On February 1, 2017, two days before the hearing was to resume, Matsiborchuk filed a motion to disqualify me, vacate my rulings at the hearing and subsequent orders, and reassign the case to a different judge. DE 204. At the outset of the continued hearing on February 3, 2017, I denied that motion. Matsiborchuk then proceeded with his cross-examination of Holcombe, but was unable to complete it in the allotted time. I therefore scheduled the conclusion of the hearing for February 24, 2017. See DE 205 (minute order); DE 213 (transcript of hearing dated Feb. 3, 2017) ("Tr. II").

         Once again, two days before the hearing was to resume, on February 22, 2017, Matsiborchuk moved to disqualify me (and to call me as a witness), and also to transfer this action to another district court. DE 206. I denied the motion by Order dated February 23, 2017. Later the same day, Matsiborchuk filed a letter addressed to the court's Chief Judge asking her to transfer the matter to another district court. DE 207. The Chief Judge, having no authority over this case, properly took no action, but in an abundance of caution I consulted with her, and confirmed that she did not wish to intervene, before proceeding with the conclusion of the hearing on February 24, 2017.[4] At the conclusion of Holcombe's testimony, both sides rested; notably, Matsiborchuk himself did not testify in his own behalf or to impeach Holcombe. At the close of the hearing, I invited each side to submit a post-hearing brief by March 27, 2017. See DE 208 (minute order); DE 214 ...


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