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Moreno-Godoy v. Gallet Dreyer & Berkey, LLP

United States District Court, S.D. New York

June 29, 2017

LUIS FELIPE MORENO-GODOY, Plaintiff,
v.
GALLET DREYER & BERKEY, LLP, ROGER L. STAVIS, ESQ., and STEVEN R. KARTAGENER, ESQ., Defendants.

          OPINION & ORDER

          Paul A. Engelmayer United States District Judge.

         This case, now before the Court on a motion for summary judgment, involves claims by a convicted defendant asserting that his appellate counsel in his criminal appeal misapplied $100, 000 of a retainer fee.

         On August 4, 2014, plaintiff Luis Felipe Moreno-Godoy, proceeding pro se, filed a civil complaint, Dkt. 1 (the "Complaint" or "Compl."), bringing claims against both the counsel that represented him, and a lawyer who attempted unsuccessfully to represent him, in his criminal appeals. His core claim is that he paid a $100, 000 retainer to Steven R. Kartagener, Esq., (the "Kartagener retainer") to join his existing appellate team, but that, when Kartagener determined that he could not represent Moreno-Godoy, due to a failure to obtain a security clearance, Kartagener did not return the retainer. Rather, Moreno-Godoy alleges that, without his consent, Kartagener paid the $100, 000 to another of Godoy's appellate attorneys, Roger L. Stavis, Esq., of the law firm Gallet Dreyer & Berkey, LLP ("GDB"), which kept the money despite Moreno-Godoy's repeated written demands for its return. In its ruling on motions to dismiss by GDB and Stavis, the Court left standing Moreno-Godoy's claims for breach of contract against Stavis, GDB, and Kartagener, and his quasi-contractual claims for unjust enrichment, money had and received, and constructive trust against Stavis and GDB.

         There are three pending summary judgment motions: (1) defendants' motions as to all of Moreno-Godoy's contractual and quasi-contractual claims; (2) Moreno-Godoy's motion as to all of his remaining claims; and (3) Kartagener's claim for summary judgment on his cross-claim against GDB.

         For the reasons below, the Court: (1) denies GDB and Kartagener's motions for summary judgment on Moreno-Godoy's claims; (2) grants Stavis's motion for summary judgment on such claims; (3) denies Moreno-Godoy's motion for summary judgment on his claims; and (4) denies Kartagener's motion for summary judgment on his cross-claim against GDB.

         I. Background A. Facts[1]

         In 2008, Moreno-Godoy and co-defendant Monzer Al Kassar were convicted in this District of weapons trafficking charges. JSUF ¶ 1. The convictions were "for conspiring to kill U.S. officers, to acquire and export anti-aircraft missiles ... to knowingly provide material support to a terrorist organization . . . [and] to kill U.S. citizens, " and for money laundering. Al Kassar v. United States, 660 F.3d 108, 115 (2d Cir. 2011). Moreno-Godoy and Al Kassar, and a third defendant, were apprehended after they attempted to sell weapons, including anti-aircraft missiles, to "two undercover [Drug Enforcement Administration ('DEA')] agents posing as members of the FARC (a left-wing Colombian terrorist organization)." Id.; see Id. at 115-17. Moreno-Godoy was sentenced to, inter alia, a term of 25 years' imprisonment. Id. at 117.

         Moreno-Godoy and Al Kassar were represented during pretrial proceedings and at the 11-day trial by, respectively, Stavis, and Ira Lee Sorkin of the law firm Dickstein Shapiro, LLP ("Dickstein Shapiro"). JSUF ¶¶ 4, 14. Sorkin and Dickstein Shapiro are not parties to this case.

         After their convictions, Moreno-Godoy and Al Kassar hired Stavis and Sorkin as their respective appellate counsel. Id. ¶¶ 8-15. Relevant here, Moreno-Godoy and Al Kassar signed a "letter of agreement, " dated December 9, 2008, on GDB letterhead ("12/9/08 GDB Letter Agreement"), stating that GDB would represent them for a "flat fee of $125, 000, " which "will cover all post-verdict legal services provided in connection with this matter, including, but not limited to: sentencing, appeal of the conviction and sentence to the United States Court of Appeals for the Second Circuit, and petition for writ of certiorari to the United States Supreme Court." Complaint at 5; id., Ex. A, at 1; JSUF ¶¶ 9-12. The agreement was signed by Stavis, Moreno-Godoy, and Al Kassar. Id. Moreno-Godoy and Al Kassar entered into a similar agreement with Sorkin and Dickstein Shapiro for a separate "flat fee" of $100, 000. Id. ¶ 14.

         Shortly thereafter, Moreno-Godoy sought out a third attorney to join his appellate team. He intended this counsel to provide a fresh set of eyes to work on the appeal; at Stavis's recommendation, Moreno-Godoy and Al Kassar retained Kartagener. Id. ¶ 16. Moreno-Godoy, Al Kassar, and Kartagener signed a "letter of agreement, " dated February 11, 2009 ("2/11/09 Kartagener Letter Agreement"), stating that Kartagener would be paid a flat fee of $100, 000 to "represent both Plaintiff and Al Kassar in all post-verdict legal proceedings." JSUF ¶ 18; see also Complaint, Ex. B, at 1. On February 18, 2009, in accordance with the terms of that agreement, Al Kassar's wife, Raghdaa Habbal, transferred $100, 000 from Bank Audi, located in Beirut, Lebanon, to Kartagener. JSUF ¶¶ 18-20.

         About one year later, in January 2010, Moreno-Godoy learned that Kartagener would be unable to participate in the appeal because he had failed to obtain a security clearance to review classified materials relevant to the case. Id. ¶ 29. This touched off extended correspondence among Moreno-Godoy, Al Kassar, Kartagener, and Stavis, regarding the appellate representation and the fate of the $100, 000 retainer. Id. ¶¶ 30-13.

         On January 29, 2010, Stavis wrote a letter to Moreno-Godoy, stating, "I thought it preferable for me to be your lawyer because I know the case; already have a security clearance; and can file the brief quickly so you don't lose any more time. Of course, if you wish we can find you another appellate attorney, or you can apply to the court for one to be appointed. This is entirely your choice. When we first started talking about the appeal we were talking about having me represent the both of you and then you decided you wanted someone new." Id. ¶ 30. Stavis also wrote that "If you and Monzer are agreeable I will represent both of you on the appeal." Id. ¶ 31. Stavis urged Moreno-Godoy to "write quickly to let me know if you want me to represent you." Id.

         On February 4, 2010, Stavis again wrote to Moreno-Godoy stating, "I spoke to Monzer this morning and he is pleased that I am willing to represent you." Id. ¶ 35.

         On February 7, 2010, Moreno-Godoy wrote to Kartagener, cc'ing Stavis and Al Kassar. He stated that, under the terms of the February 11, 2009 retainer letter, Kartagener had already agreed to represent him in the Second Circuit and, if necessary, in the United States Supreme Court and that, in exchange, Moreno-Godoy asserted that, "I agreed to have a $100[, ]000 retainer deposited with your firm by a third party which I did." Id. ¶ 36. Moreno-Godoy further stated that, because Kartagener had not been able to obtain the necessary security clearance, "I respectfully request that you return my retainer, in full to the third party who sent it to you.... If for any reason(s) you disagree with my request, I ask that you state your reason(s) in writing." Id.

         On February 13, 2010, Moreno-Godoy replied in writing to Stavis's January 29, 2010 letter. In that letter, he quoted Stavis's earlier statement that "[w]hen we first started talking about the appeal we were talking about having me represent the both of you and then you decided you wanted someone new." Id. ¶ 38. He also stated that "I would like to correct you in this" and that, "I believe[] that there is an error, because we signed a contract of agreement on December 9, 2008, where you were to represent us as primary counsel on our defense. On the subsequent month, I decided to have additional help and a different opinion of someone that would provide with new ideas. I gave you names of different attorneys to hire, but ultimately, I accepted your suggestion to hire your friend Mr. Steven Kartagener on basis you continue to be primary counsel in the defense." Id. Moreno-Godoy's letter also stated that "I am confused and saddened, that you state in your letter, 'if you wish, we can find another appellate attorney or you can apply in the court so that one may be appointed'; when I have always considered you my attorney of record and the others were just for opinion purposes, that could have helped, " id. ¶ 39. The letter asked for Stavis's help in getting Kartagener to return the retainer to the third party who had sent it, because Kartagener was not responding to Moreno-Godoy himself. Id. ¶ 40.

         On February 23, 2017, Stavis wrote to Moreno-Godoy, referencing Moreno-Godoy's concern that the retainer be returned to "the 'person who provided it'" and stating, "I have consulted with that person and he is very happy and satisfied that I am representing you. He already knows that Mr. Kartagener has refunded the retainer to me and I am using it to represent you on this appeal." Id. ¶ 41. In that letter, Stavis added that he was "committed to moving quickly so that no more time is lost, " id. ¶ 42, and that he "always considered you my 'client' even if Steven Kartagener was coming in to work with me on your case, " id. ¶ 43.

         On February 25, 2010, Stavis filed a Notice of Appearance as "substitute counsel" for Moreno-Godoy. Id. ¶ 44.

         On September 21, 2011, after argument, the Second Circuit affirmed Moreno-Godoy's and Al Kassar's convictions. See generally, Al Kassar, 660 F.3d 108. The Circuit rejected the defendants' arguments that their conduct had been wholly extraterritorial, that the defendants' due process rights had been violated, and that there was insufficient evidence. See Id. at 117.

         On December 21, 2011, Stavis filed a petition for certiorari. Appeal Docket. On May 14, 2012, the Supreme Court denied the petition. Id; see 132 S.Ct. 2374 (2012).

         Moreno-Godoy later petitioned for habeas corpus relief under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. JSUF ¶¶ 73-74. During litigation on the § 2255 petition, Stavis exchanged emails with Al Kassar regarding the dispute over the Kartagener retainer. Id. ¶¶ 75-76.

         On or about June 17, 2014, Stavis emailed Al Kassar, notifying Al Kassar about Moreno-Godoy's commencement of this lawsuit, and asking Al Kassar to clarify whether the money for Kartagener's retainer had come from Al Kassar's family or Moreno-Godoy's family. Id. ΒΆ 77. On or about that same day, Al Kassar replied to Stavis's email, informing Stavis that the Bureau of Prisons had cut off contact between himself and Moreno-Godoy, and stating that "[i]n reply to your question, to be very honest and clear, when Felipe left Marbella to go to Romania prior to his arrest, he had some valuable personal properties, car and some ...


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