United States District Court, W.D. New York
TOMMY L. HAMILTON, Plaintiff,
NIAGARA FRONTIER TRANSPORTATION AUTHORITY, CHARLES MARTHA, NORMAN J. BIRNER, and WILLIAM McGEE, Defendants.
DECISION AND ORDER
KENNETH SCHROEDER, JR. United States Magistrate Judge.
accordance with 28 U.S.C. § 636(c), the parties have
consented to have the undersigned conduct all further
proceedings in this consolidated case, including entry of
final judgment. Dkt. #14 & Dkt. #20.
commenced on October 28, 2008 and continued through the
morning of October 30, 2008, at which time the parties, with
the assistance of the Court, continued to discuss the
possibility of settlement. After discussion with his attorney
and with the Court, plaintiff agreed to settle his claims and
that agreement was placed on the record in open court. The
Court noted plaintiff's participation with his attorney
in the settlement discussions and confirmed plaintiff's
understanding that this settlement resolved all claims
asserted in plaintiff's complaint and amended complaint.
Decision and Order entered December 5, 2008, the Court
authorized plaintiff's attorney to sign the Confidential
Complete Settlement Agreement and Release and the Stipulation
of Dismissal with Prejudice and to take any additional steps
as may be required to finalize the settlement. Dkt. #131.
Decision and Order entered May 21, 2009, the Court denied
plaintiff's motion to amend the terms of the Release and
granted counsel's motion to withdraw from representation
of plaintiff and to transfer the settlement proceeds from
counsel's escrow account to the Clerk of the Court for
the Western District of New York. Dkt. #140. Plaintiff was
advised that the settlement proceeds would be released to him
once he executed the Release. Dkt. #140.
128.71 was received by the Court on June 9, 2009.
Decision and Order entered April 10, 2014, notice of which
was provided to plaintiff, the settlement proceeds were
transferred to the Treasury of the United States in an
account for unclaimed funds based upon plaintiff's
failure to claim the funds for five years. Dkt. #141. $696.93
in interest has accrued on the deposit, for a total of $49,
825.64 currently in the unclaimed funds account.
Notice of Motion filed January 6, 2017, plaintiff's
appointed counsel, Jeremy Colby, seeks an additional
attorneys' fee from the settlement proceeds. Dkt. #142-1,
¶ 9. In support of the motion, counsel declares that
although he compromised his fee to $25, 000 during settlement
negotiations, the hourly billings for representation of
plaintiff total more than $107, 000. Dkt. #142-1, ¶ 10.
In light of plaintiff's abandonment of the settlement
proceeds, counsel requests “that the remaining proceeds
(or part thereof) be paid to Webster Szanyi LLP to satisfy
the substantial unpaid fee incurred in prosecuting and trying
this matter for Plaintiff.” Dkt. #142-1, ¶ 11. In
the event that plaintiff chooses to retrieve his settlement
proceeds, counsel requests payment for time spent on this
matter post-settlement, including efforts to encourage
plaintiff to collect his settlement, transferring the
settlement proceeds to the Court following plaintiff's
refusal to do so, and filing this motion. Dkt. #142-1, ¶
16. The motion was served upon plaintiff at his last known
address. Dkt. #142-4.
Notice of Motion dated January 13, 2017, attorney Harvey
Sanders seeks $950 plus interest at 12% per year beginning in
June of 2001, for legal services rendered to plaintiff
related to this litigation between April 2000 and April 2001
pursuant to a retainer agreement signed by plaintiff on
October 16, 2000. Dkt. #144-1, ¶ 4 & Dkt. #144-2.
The retainer agreement provides for an hourly rate of $75.00
for attorney time plus payment of disbursements. Dkt. #144-2,
pp.2-3. The retainer agreement further provides for an
assessment of interest at the rate of 1% per month or 12% per
year for amounts due more than 30 days beyond the date of
invoice. Dkt. #144-2, p.4. Mr. Sanders attaches invoices
totaling 5.95 of attorney time plus $30.00 for clerical time and
$6.00 for disbursements. Dkt. #144-2, pp.6-12. In support of
the motion, Mr. Sanders declares that plaintiff never
objected to the invoices totaling $950 in legal services
rendered between April 13, 2000 and December 13, 2000, but
never provided payment for those services. Dkt. #144-1,
¶ 4. Mr. Sanders further declares that he informed
subsequent counsel and appointed pro bono counsel of
the outstanding legal fees and requested payment upon
settlement of the case. Dkt. #144-1, ¶¶ 5-6 &
Dkt. #144-2, pp.14-15.
letter dated February 21, 2017, plaintiff informs the Court
that he is unaware of the contents of the motions and
requests time to respond. Dkt. #145. The return address on
the letter is the same as the address on record with this
a District Court has federal jurisdiction over a case, it
retains ancillary jurisdiction after dismissal to adjudicate
collateral matters such as attorneys' fees.”
Tancredi v. Metro Life Ins. Co., 378 F.3d 220, 225
(2d Cir. 2004), quoting in re Austrian & German
Holocaust Litigation, 317 F.3d 91, 98 (2d Cir. 2003).
for Webster Szanyi LLP compromised his fee to facilitate the
settlement of this action. In return, plaintiff refused to
cooperate with counsel and required counsel to incur
additional charges attempting to resolve this matter.
Accordingly, the Court awards counsel an additional $3, 000
for legal services rendered to plaintiff subsequent to the
settlement of this action.
retainer between plaintiff and Mr. Sanders establishes an
agreement by plaintiff to pay his attorney $75.00 per hour.
Dkt. #144-2. Mr. Sanders provided the Court with invoices
demonstrating that he provided 5.95 hours of attorney time,
plus $30.00 for clerical time and $6.00 in disbursements.
Dkt. #144-2, pp.6-12. Although the retainer agreement
provides for accrual of interest on unpaid invoices at the
rate of 12% per year, the Court ...