# Doe v. United States of America

> District Court, E.D. New York · April 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10311636

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 11, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------X

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.

--------------------------------------X

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311636. Public record. Not legal advice.