Doe v. United States of America

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JANE DOE,

MEMORANDUM AND ORDER

Plaintiff,

19-CV-1239(KAM)(PK)

-against-

UNITED STATES OF AMERICA, FEDERAL

BUREAU OF PRISONS, HUGH J. HURWITZ,

EUGENIO PEREZ, E.L. TATUN, Jr., MICHAEL

CARVAJAL, CAPTAIN YOUNG, JOHN DOE #1,

JOHN DOE #2, JOHN DOE #3, JOHN DOE #4,

JOHN DOE #5, JOHN DOE #6,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

By joint stipulations approved by the Court on November 16,

2023, and January 16, 2024, the parties to this action discontinued

the litigation with prejudice subsequent to the execution of a

monetary settlement in the amount of $800,000. (See ECF Nos. 110,

113, and 114.) Plaintiff’s underlying claims in this action arose

out of her sexual assault while in custody at the Metropolitan

Detention Center (“MDC”) by former Bureau of Prisons (“BOP”)

Lieutenant Eugenio Perez. (See ECF No. 1, Complaint (“Compl.”),

at ¶2.) Plaintiff initiated the instant action on March 1, 2019,

asserting Bivens claims and Federal Tort Claims Act (“FTCA”) claims

against the United States, the BOP, and individual federal

defendants.1 (See generally Compl.)

Plaintiff initially retained the law firm of Raiser & Kenniff,

P.C., (“R&K”) on November 3, 2016, to represent her and bring her

claims of sexual abuse, before retaining the Law Office of Michael

S. Lamonsoff, PLLC, (“MSL”) as substitute counsel on December 19,

2019. (ECF No. 114, Letter Motion Seeking Order to Determine

Attorney’s Fees by the Law Offices of Michael S. Lamonsoff, PLLC

(“MSL Letter”), at 1; ECF No. 117, Letter Response in Opposition

by Raiser & Kenniff, P.C. (“R&K Letter”), at 1.) Plaintiff’s

current counsel, MSL, and former counsel, R&K, seek judicial

intervention to apportion attorneys’ fees, with MSL arguing that

a 95%/5% split in their favor is appropriate, and R&K arguing for

a 50%/50% split between the two firms. (MSL Letter at 3; R&K

Letter at 5.)

After reviewing the parties’ submissions as to the fee

dispute, and for the reasons given below, the Court determines

1 Plaintiff’s complaint also included claims arising under 42 U.S.C. § 1983,

but the Court notes that those claims likely did not provide the basis for the

settlement, given “Section 1983 does not provide a cause of action against the

federal government” or its officials. Guettlein v. United States Merch. Marine

Acad., 577 F. Supp. 3d 96, 102 (E.D.N.Y. 2021); see also Arar v. Ashcroft, 585

F.3d 559, 568 (2d Cir. 2009) (“since federal officials typically act under color

of federal law, they are rarely deemed to have acted under color of state law”)

(internal quotation marks and citation omitted); 42 U.S.C. § 1983 (“Every person

who, under color of any statute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws . . .”) (emphasis added).

that MSL is entitled to 80% of the attorneys’ fee in this matter,

and R&K is entitled to 20% as fair compensation for their work

performed on behalf of the Plaintiff in the underlying case.

BACKGROUND

The case underlying this fee disputes stems from the

Plaintiff’s sexual abuse while in the custody of the Federal Bureau

of Prisons by former Lieutenant Eugenio Perez. (See generally

Compl.) Perez was convicted on May 14, 2018, after a trial by a

jury on 23 criminal counts, including Deprivation of Civil Rights,

Aggravated Sexual Abuse, Sexual Abuse, and Sexual Abuse of a Ward

against five anonymous individuals who were in BOP custody. (Id.

at ¶38.) One of the anonymous individuals referenced in the

criminal case is the plaintiff in this matter. (Id. at ¶39.)

Perez was subsequently sentenced to a term of 25 years in prison

and 10 years of supervised release by this Court on June 17, 2020.

United States v. Perez, No. 20-1982-CR, 2022 WL 1421408, at *1 (2d

Cir. May 5, 2022).

Plaintiff brought civil claims against Perez, the United

States, and several other defendants in the case underlying this

fee dispute on March 1, 2019. (See Compl.) After several years

of discovery overseen by Magistrate Judge Kuo, Plaintiff

ultimately filed a joint stipulation of dismissal with prejudice

against all defendants with the exception of Perez and the John

Doe defendants on November 16, 2023. (ECF No. 108.) The

Stipulation was executed by the Court, and Plaintiff subsequently

filed a joint stipulation of dismissal against the remaining

defendants on January 16, 2024, which the Court also executed.

(ECF No. 113.)

Plaintiff’s current counsel, MSL, filed its letter seeking an

order from the Court to determine the attorney’s fees to be

allocated between MSL and R&K on January 17, 2024. Plaintiff’s

former counsel, R&K, filed their opposition to MSL’s requested

apportionment on January 24, 2024. (See generally MSL Letter; R&K

Letter.) The Court now summarizes the arguments by each firm

regarding their work on the underlying case.

I. Investigation & Drafting of the Complaint by R&K

In its letter opposing MSL’s motion, R&K represents that

Plaintiff retained R&K “to prosecute her claims of sexual abuse”

while still in the custody of BOP. (R&K Letter at 1.) R&K offers

a summary of its work on Plaintiff’s case, which included numerous

meetings with Plaintiff while she was at the Metropolitan

Correctional Center, Manhattan (the “MCC”), as well as substantive

investigative and legal work to advance her claims. According to

the letter, R&K drafted and filed an appeal with the Warden of the

MCC regarding appropriate medical care for Plaintiff, drafted and

filed grievance forms on Plaintiff’s behalf, and researched,

drafted, and filed Plaintiff’s claims and completed the

administrative appeal process. (Id. at 2.) An R&K associate also

attended the criminal trial of Perez in order to support Plaintiff

during testimony and gain a better understanding of Plaintiff’s

claims for future legal action. (Id.)

Importantly, R&K drafted and filed Plaintiff’s May 11, 2018,

Standard Form 95 (claim form) for submission to the United States

Department of Justice and the BOP. (Id.) As part of this process,

R&K “[o]btained and reviewed a voluminous amount of Plaintiff’s

documents for [the] administrative claim” and “[c]ompleted initial

disclosures” with the BOP regarding the administrative claim. (Id.

at 3.) Ultimately, R&K received a “right to sue” letter from the

Department of Justice and the BOP on November 29, 2018, enabling

the firm to prosecute Plaintiff’s civil claims in this Court.

(Id.)

R&K’s next major contribution to Plaintiff’s case was the

drafting of the complaint in the instant case. (Id.) R&K held

meetings to discuss the complaint, including with Plaintiff, and

researched the underlying claims, filed the complaint, obtained

summonses and ensured that process was properly served on all

defendants, including Perez, who was incarcerated at the time.

(Id.) After filing the complaint, R&K litigated the matter,

attending status conferences, filing discovery plans, drafting and

serving Plaintiff’s first set of interrogatories and document

requests, and preparing Plaintiff’s response to initial

disclosures required by Fed. R. Civ. P. 26(a)(1).

Beyond the case itself, R&K also asserts that it took several

steps to protect Plaintiff’s wellbeing while she was in custody,

including by filing appeals to ensure “Plaintiff received the

proper medical treatment, including mental health care, while at

MCC Manhattan, for the severe physical and psychological harm

Plaintiff endured while at MDC Brooklyn.” (R&K Letter at 1.)

Ultimately, R&K argues that had they not “spent a voluminous amount

of time and research exhausting all of Plaintiff’s administrative

remedies and procedures, Plaintiff would have been prohibited from

filing this action.” For this work, and their stewardship of the

action prior to its filing until their discharge in December 2019,

R&K argues they are entitled to “50% of the attorneys’ fees . . .

in this matter.” (Id. at 5.)

II. MSL’s Participation in Discovery and Settlement of the Case

Plaintiff’s current lawyers at MSL argue that they “performed

the bulk of the legal work” in the instant case, and they described

the work their firm conducted in their letter requesting an order

to determine attorney’s fees. (MSL Letter at 1.) MSL summarizes

their contribution as encompassing prosecution of the case “for

three years, taking significant steps to move the matter towards

resolution, having attended countless status conferences,

attend[ing] fourteen depositions, and ultimately settl[ing] the

case for $800,000.” (Id. at 2.) As discussed above, MSL was

retained by Plaintiff on December 19, 2019, at which point R&K was

discharged. (Id. at 1.)

At the time MSL was retained, discovery was underway in

Plaintiff’s action. (See, e.g., Minute Entry dated November 15,

2019.) Accordingly, MSL states in its letter that it “[r]ead and

digested thousands of pages of discovery exchanged by various

government defendants” and “[e]xchanged medical records with

defendants and authorizations for Plaintiff’s medical records.”

(MSL Letter at 2.) MSL also states that its attorneys “[a]ttended

numerous status conferences” and “[a]uthored or contributed to

numerous status letters to the Court.” (Id.) Furthermore, MSL

states that its attorneys “[p]repared and defended Plaintiff at

her depositions” and “[c]onducted depositions of Defendants Andy

Cruz, Eugenio Perez, and Carlos Martinez” as well as “depositions

of Officer Cox, Officer Veronica Metzger, Lt. D’Anello Smith,

Officer Thomas Rodriguez, Lt. Tomayo, Officer Timothy Geier.”

(Id.) Finally, MSL states that they “[n]egotiated and

significantly reduced Plaintiff’s liens (including funding and

medical) in order for Plaintiff to obtain substantial financial

recovery.” (Id. at 3.) MSL asserts that it is entitled to the

bulk of the attorney’s fees in the matter because “the work that

led to a favorable outcome/settlement was performed by [MSL]” and

not R&K. (Id.)

DISCUSSION

I. Jurisdiction

It is well-established law that the dismissal of an action

with prejudice does not divest a court of jurisdiction to determine

a pending fee dispute. Kaplan v. Reed Smith LLP, 919 F.3d 154,

157 (2d Cir. 2019) (“Where a district court has original

jurisdiction over a civil action, ‘it retains ancillary

jurisdiction after dismissal to adjudicate collateral matters such

as attorney's fees.’”) (quoting In re Austrian & German Bank

Holocaust Litig., 317 F.3d 91, 98 (2d Cir. 2003)). “This grant of

ancillary jurisdiction empowers the district court to ‘take

actions necessary to manage its proceedings, vindicate its

authority, and effectuate its decrees.’” Id. (quoting Hendrickson

v. United States, 791 F.3d 354, 358 (2d Cir. 2015)). “A court may

also rely on ancillary jurisdiction to resolve a dispute among

attorneys regarding the proper apportionment of fees earned during

a case within the court's jurisdiction, even if the dispute does

not directly involve a party to the dismissed action.” Borg v.

86th & 3rd Owner, LLC, No. 08-CV-05913 (RJH), 2012 WL 234383, at

*6 (S.D.N.Y. Jan. 24, 2012) (citing Wagner & Wagner, LLP v.

Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596

F.3d 84, 90 (2d Cir. 2010)).

The Second Circuit has “held that several non-exhaustive

factors can weigh in favor of exercising ancillary jurisdiction[,

including]: (1) familiarity with the subject matter of the suit,

especially with the amount and quality of work performed by the

attorneys; (2) a court's responsibility to protect officers of the

court in such matters as fee disputes; (3) the convenience of the

parties; and (4) judicial economy.” Levitt v. Brooks, 669 F.3d

100, 104 (2d Cir. 2012) (citing Cluett, Peabody & Co., Inc. v. CPC

Acquisition Co., Inc., 863 F.2d 251, 256 (2d Cir. 1988)). All of

the factors are present here and weigh in favor of the Court’s

exercise of ancillary jurisdiction. Having supervised proceedings

since 2019, this Court is “undoubtedly the most familiar with the

subject matter and the amount and quality of work performed by

[the attorneys].” Id. The Court’s responsibility to officers of

the court is also implicated, and neither party argues that this

Court’s exercise of jurisdiction would inconvenience them.

Accordingly, the Court will exercise ancillary jurisdiction over

the fee dispute in the instant case.

II. Governing Law

Neither party disputes that the Federal Tort Claims Act, 28

U.S.C. §§ 1346, 2671 et seq., limits an attorney’s recovery to

twenty-five percent of the stipulated judgment or settlement

amount. 28 U.S.C. § 2678. Nor do the parties dispute that New

York law applies to the instant fee dispute regarding

apportionment, and the Court agrees that New York state law should

control the analysis here. See, e.g., Foppiano v. City of New

York, No. 00-CV-7968 (FM), 2002 WL 31202716, at *4 (S.D.N.Y. Sept.

25, 2002) (applying New York law governing attorney’s fees to a

fee dispute in a Jones Act case); Malmberg v. United States, No.

06-CV-1042, 2022 WL 16630310, at *1 (N.D.N.Y. Mar. 29, 2022), aff'd

sub nom. Nichols v. Paul William Beltz, P.C., 2022 WL 16558728 (2d

Cir. Nov. 1, 2022) (applying New York law governing attorney’s

fees to a fee dispute in an FTCA action).

Under New York law, when a client discharges an attorney

without cause, “the attorney is entitled to recover compensation

from the client measured by the fair and reasonable value of the

services rendered[,] whether that be more or less than the amount

provided in the contract or retainer agreement.” Lai Ling Cheng

v. Modansky Leasing Co., 539 N.E.2d 570, 572 (1989). When a fee

dispute involves only the attorneys on a case, and not the client,

however, the rules are “somewhat different.” Id. “The outgoing

attorney may elect to take compensation on the basis of a presently

fixed dollar amount based upon quantum meruit for the reasonable

value of services or, in lieu thereof, the outgoing attorney has

the right to elect a contingent percentage fee based on the

proportionate share of the work performed on the whole case.” Id.

R&K is arguing for a contingent percentage fee, and neither party

argues that quantum meruit should apply. “The percentage may be

fixed at the time of substitution but, as several courts have

recognized, is better determined at the conclusion of the case

when such factors as the amount of time spent by each lawyer on

the case, the work performed and the amount of recovery can be

ascertained.” Id.

An outgoing attorney must be “an attorney of record entitled

to the protection of a lien granted by section 475 of the [New

York] Judiciary Law” as a prerequisite to the “right to elect a

contingent percentage fee.” Id. Neither party disputes that R&K

appeared as attorney of record for Plaintiff in the instant action,

and neither party alleges that R&K was discharged for cause. As

such, the Court finds that R&K may avail itself of the protection

of a charging lien under New York law and may accordingly elect a

contingent percentage fee. Given the instant case has settled for

$800,000 and has been dismissed with prejudice, the Court may now

determine the recovery appropriate to Plaintiff’s former and

current lawyers. The parties have not stated the total amount of

attorney’s fees in dispute, but the Court notes that the fees may

not be in excess of 25% of the stipulated settlement amount, or

$200,000.00, pursuant to 28 U.S.C. § 2678.

Courts applying New York law consider several factors in

determining the proper contingent percentage fee for each set of

lawyers, including: (1) “the time and labor spent by each” attorney

or firm, as well as “the actual work performed” by each; (2) “the

difficulty of the questions involved” and, related, “the skill

required to handle the matter”; (3) each “attorney's skills and

experience”; and (4) “the effectiveness of counsel in bringing the

matter to resolution.” Buchta v. Union Endicott Cent. Sch. Dist.,

745 N.Y.S.2d 143, 145 (3d Dep’t 2002); see also Foppiano, 2002 WL

31202716, at *4. In cases involving two sets of counsel, each

with “extensive experience” in the subject matter of the case,

courts have looked to a “key” issue: “how much work did each firm

perform and how effective was that work?” Foppiano, 2002 WL

31202716, at *4. The Court will turn to that analysis now.

III. Application

A. Each Firm’s Work and its Effectiveness

Each set of attorneys played an important role in the instant

case. But for R&K’s assistance in exhausting administrative

remedies on Plaintiff’s behalf, she might “have been prohibited

from filing [the] action” at all. (R&K Letter at 4.) R&K also

laid the groundwork for the case by researching Plaintiff’s claims,

meeting with her while she was still incarcerated, and ultimately

filing the complaint in federal court. (Id. at 3.) Finally, R&K

shepherded the case through the initial stages of discovery,

serving discovery demands and responses to required disclosures.

(Id. at 3-4.)

MSL, as previously described, saw the case through to

completion. MSL’s attorneys prepared and defended Plaintiff at

her depositions, and attended, by their own count, “fourteen

depositions.” (MSL Letter at 2.) MSL’s lawyers also reviewed

“voluminous amounts of discovery” and “attended numerous Status

Conferences” as the matter progressed. (Id.) Finally, and perhaps

most importantly, MSL’s attorneys saw Plaintiff’s case through to

settlement, and successfully negotiated a settlement on her

behalf, ensuring she would “obtain substantial financial

recovery.” (Id. at 3.)

Both firms allege that they represented Plaintiff for a

similar period of time – between three to four years – but the

Court notes that MSL’s period of representation was significantly

more eventful, given it encompassed the vast majority of discovery

in the case. Courts reviewing fee disputes have noted that, as

compared to the drafting and filing of a complaint, “[a] much

larger amount of preparation is required to properly defend a

plaintiff in depositions, take depositions from defense witnesses

. . . sift though discovery documents and make discovery requests.”

Borg, 2012 WL 234383, at *8. Furthermore, given that settlement

occurred after four years of active litigation by MSL, the Court

also notes that MSL’s efforts “were far more crucial to the

eventual settlement.” Id. at *9. Thus, at least two of the

factors this Court may consider weigh in favor of MSL.

B. Case Law Applying the Factors

Both firms argue that New York case law supports their

proposed distributions of the attorney’s fees at issue in the

instant case. The Court will discuss those cases now, while noting

that “the only clear lesson to be taken from them is that there is

no fixed pattern that decisions in this context must follow.”

Borg, 2012 WL 234383, at *10.

MSL cites three cases in support of its proposed distribution

of 95%/5% in its favor - Buszko v. City of New York, 987 N.Y.S.2d

371 (1st Dep’t 2014); Shabazz v. City of New York, 942 N.Y.S.2d 89

(1st Dep’t 2012); and Brown v. Governele, 815 N.Y.S.2d 651 (2d

Dep’t 2006), as amended (Aug. 16, 2006).

In Buszko, the outgoing law firm represented the plaintiff

for “four months” and “prepared and filed a bill of particulars,

prepared and filed discovery demands and responses to defendants'

discovery demands, obtained plaintiff's medical records, and

retained two experts.” 987 N.Y.S.2d at 372. The incoming

attorneys, by contrast, represented the plaintiff “over the course

of several years” and “performed the lion's share of the work,

including representing plaintiff in a General Municipal Law § 50–

h hearing, commencing the action by filing and serving a summons

and complaint, preparing a summary judgment motion, continuing

discovery, and successfully mediating a $3 million settlement in

this personal injury action.” Id. Accordingly, the Appellate

Division found at 95% for the incoming attorneys and 5% for the

outgoing attorneys to be appropriate. The Court finds the instant

case to be distinguishable as it did not proceed to mediation, no

summary judgment or other dispositive motion was filed, and R&K

represented Plaintiff during the investigation and filing of the

complaint, not MSL.

In Shabazz, the outgoing attorneys “served the notices of

claim on the municipal defendants, obtained plaintiff's medical

records, represented him in a municipal 50-h hearing, and commenced

the action by filing and serving a summons and complaint.” 942

N.Y.S.2d at 90. The incoming attorneys, by contrast, “conducted

all of the discovery and depositions in the case, retained all of

the experts, selected a jury, represented plaintiff throughout the

10–day jury trial, obtained a $4 million verdict in plaintiff's

favor, made and opposed post-verdict motions, and ultimately

negotiated a $2.2 million settlement on plaintiff's behalf in an

action that was complicated by plaintiff's credibility issues and

the lack of witnesses.” Id. Accordingly, the Appellate Division

found an allocation of 95% to the plaintiff’s incoming attorneys

and 5% to the plaintiff’s outgoing attorneys to be appropriate.

The Court finds the instant case to be distinguishable from Shabazz

as there was no trial, no post-verdict motions, and R&K conducted

at least some portion of discovery prior to their discharge.

When examining Brown v. Governele, the district court in Borg

summarized as follows:

Finally, where outgoing counsel makes serious errors or

performs nearly no substantive work in a matter, courts

severely limit recovery of attorneys' fees. In Brown v.

Governele, 29 A.D.3d 617, 815 N.Y.S.2d 651 (N.Y.2d Dep't

2006), the outgoing firm filed a deficient summons and

complaint—which named the wrong defendant—never served

the complaint, did no investigation, and obtained no

records related to the matter. Br. for Appellant, 2005

WL 4716133, at *1; see Brown, 29 A.D.3d at 618, 815

N.Y.S.2d 651. The incoming firm, however, “filed an

amended summons and complaint on behalf of the

plaintiff, conducted discovery, successfully opposed a

motion for summary judgment on the issue of the liability

of [one] defendant . . ., and represented the plaintiff

at mediation, which resulted in a settlement for the sum

of $300,000.” Brown, 29 A.D.3d at 618, 815 N.Y.S.2d 651.

The Appellate Division modified the lower court's

apportionment of fees to grant the outgoing firm 5%, and

the incoming firm 95%, of the resulting attorneys' fee.

Id. at 617–18, 815 N.Y.S.2d 651.

Borg, 2012 WL 234383, at *11. MSL points to no “serious errors”

on the part of R&K, and this Court is not aware of any, and

accordingly finds Brown v. Governele to be of limited use in

assessing fees in the instant case. Furthermore, as noted by R&K,

the pleadings initially filed in this action were the result of

extensive research and investigation and were never amended. (R&K

Letter at 5.)

R&K cites case law that establishes “that outgoing firms that

file complaints and participate in some amount of discovery

generally recover between 10% and 25% of an eventual attorneys'

fee” or, in some cases, as high as 35%, but offers no precedent

explicitly supporting its proposed 50%/50% distribution. (R&K

Letter at 4-5.) The Court finds two of the cases cited by R&K in

their discussion - Borg v. 86th & 3rd Owner, LLC, No. 08-CV-05913

(RJH), 2012 WL 234383 (S.D.N.Y. Jan. 24, 2012); and Foppiano v.

City of New York, No. 00-CV-7968 (FM), 2002 WL 31202716 (S.D.N.Y.

Sept. 25, 2002) – to be instructive, and will discuss them now.

Borg involved two law firms – an outgoing law firm that

prepared and filed a federal complaint, and an incoming law firm

that oversaw discovery, prepared a summary judgment motion, took

depositions, and conducted a mediation session that was “highly

successful.” 2012 WL 234383, at *8. Because the court concluded

that the incoming law firm “conducted the vast majority of the

substantive legal work in [the] case, including all discovery and

settlement discussions,” it ultimately awarded that firm 92% of

the attorney’s fees earned in the matter, and awarded 8% to the

outgoing law firm. Id. at *14. The district court reasoned that

the outgoing law firm “conducted no discovery and did not interact

at all with defense counsel, but did file a complaint that was

never amended and led, in part, to a successful settlement.” Id.

The Court finds the instant case to be somewhat distinguishable

because MSL engaged in no dispositive motion practice and did not

take the case to mediation, and R&K participated in at least some

amount of discovery. Nonetheless, Borg does offer some parallels

for the instant action.

As for Foppiano, the case was summarized in Borg as follows:

Case law establishes that outgoing firms that file

complaints and participate in some amount of discovery

generally recover between 10% and 25% of an eventual

attorneys' fee. First, in Foppiano v. City of New York,

a personal-injury plaintiff who suffered two separate

accidents hired the firm of Friedman & James (“F & J”)

on a contingent-fee basis shortly after the first

incident occurred. See 2002 WL 31202716, at *1. F & J

filed a complaint in the matter relating to the first

injury, and the plaintiff returned to work. Id. As the

parties conducted fact discovery, the second, more

serious, accident occurred, and the parties and the

court agreed that the first action would be discontinued

without prejudice to make way for the filing of a second

action encompassing both incidents. Id. The parties

agreed that the discovery taken to that point was to

constitute the “nonmedical fact-based discovery” in the

forthcoming second action. Id. Before the second action

was filed, however, the plaintiff discharged F & J and

hired Schneider, Kleinick, Weitz, Damashek & Shoot

(“SKW”) to represent him. Id. at *2. SKW filed an amended

complaint in the new action encompassing both accidents,

and the parties proceeded to take medical discovery as

well as limited additional fact discovery. Id.

Eventually, the parties settled the matter before trial

for the sum of $2 million. Id. The court awarded F & J

25% of the eventual attorneys' fee, and SKW 75%. Id. at

*5. F & J's award was based on the fact that it “spent

considerable time communicating with the City with

regard to the payment of Foppiano's medical expenses,”

referred the plaintiff to a medical specialist, and

filed the first complaint. Id. at *2.

Borg, 2012 WL 234383, at *10. Foppiano offers some parallels to

the instant case – although no amended complaint was filed, both

cases involve outgoing attorneys who oversaw at least some

discovery, and incoming attorneys who settled the matter short of

trial. 2002 WL 31202716, at *1-2. As such, the Court considers

the distribution adopted by the district court in Foppiano to

provide at least some guidance in the instant case.

After weighing the various factors and reviewing the

submissions and precedent both from New York state courts and

federal district courts applying New York law to fee allocation

disputes, the Court finds the following award to be appropriate:

R&K is awarded 20% of the contingency attorney’s fees in the

matter, and MSL is awarded 80%. In reaching this conclusion, the

Court considered the relative complexity and difficulty of the

work conducted by MSL, including taking and defending multiple

depositions, and overseeing three years of discovery, status

conferences, and participating in settlement negotiations that

resulted in the settlement. Though the work done by R&K was

certainly important, and neither party points to any defect in

R&K’s oversight of the case through December 2019, the Court

concludes that MSL’s efforts were more important in bringing the

case to a successful conclusion for the Plaintiff.

CONCLUSION

For the reasons set forth above, the Court determines that

R&K is entitled to 20% of the attorney’s fees earned in this

matter, consistent with 28 U.S.C. § 2678, and MSL is entitled to

80%. MSL and R&K are directed to file a joint status report

apprising the Court that the ordered distribution has been

effectuated no later than April 26, 2024.

SO ORDERED

meses Saye sew'vore

“Vy □□ oe Ltr

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

19