Fisher, Byrialsen & Kreizer, PLLC v. Stevens, Hinds & White, P.C.

SUMMARY ORDER Following the settlement of a § 1983 case against New York City, appellee Stevens, Hinds & White, PC (“SHW”) petitioned the district court for a portion of the attorneys’ fees recovered by Fisher, Byrialsen & Kreizer, PLLC (“FBK”). SHW appeals from the district court’s attorney’s fees award of $237,997.50, the district court’s denial of its Rule 60(b) motion and its request for pre-judgment interest, and the district court’s denial of its post-judgment discovery request. Federal courts have jurisdiction over the parties’ attorneys’ fees dispute pursuant to 28 U.S.C. § 1367. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 445-46 (2d Cir. 1998). We assume the parties’ familiarity with the underlying facts, the procedural history, the arguments presented on appeal, and the district court’s rulings. The Court reviews de novo the district court’s interpretation of a retainer agreement. Rubens v. Mason, 387 F.3d 183, 188 (2d Cir. 2004). A district court’s award of attorney’s fees is reviewed for abuse of discretion. McDaniel v. Cty. of Schenectady, 595 F.3d 411, 416 (2d Cir. 2010). A district court exceeds the bounds of its discretion “ ‘when (1) [the court’s] decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.’” Id. (quoting Kickham Hanley P.C. v. Kodak Ret. Income Plan, 558 F.3d 204, 209 (2d Cir. 2009)). *48 “A client may discharge an attorney at any time, with or without cause.” Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658, 602 N.Y.S.2d 788, 622 N.E.2d 288, 289 (1993). New York Judiciary Law § 475 provides that “the attorney who appears for a party has a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination.” N.Y. Jud. Law § 475; Itar-Tass Russian News Agency, 140 F.3d at 449. In certain circumstances, an attorney discharged without cause “may elect to receive compensation immediately based on quantum meruit or on a contingent percentage fee based on his or her proportionate share of the work performed on the whole case.” Cohen, 81 N.Y.2d at 658, 602 N.Y.S.2d 788, 622 N.E.2d at 290 (emphasis added). There is no authority, however, that would permit a discharged attorney to elect to receive a contingent percentage fee where the original negotiated fee agreement with the client did not provide for a contingency fee arrangement. Cf. Cohen, 81 N.Y.2d at 658, 602 N.Y.S.2d 788, 622 N.E.2d at 290 (finding discharged attorney who had contingency fee arrangement with former client had elected to receive contingent percentage fee from incoming attorney); Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 458-59, 541 N.Y.S.2d 742, 539-N.E.2d 570, 572 (1989) (same). It is clear the retainer agreement here reflected an hourly fee arrangement. The retainer agreement unambiguously provided two payment plan options, hourly fee and contingency fee, and the client circled and initialed “Plan A,” the hourly option. First, we do not consider SHW’s strained arguments that the options “Plan A” and “Plan B” were alternative payment options, and that “Plan B” was triggered when the client did not pay SHW upon substitution, because those arguments were not raised before the district court. Sequa Corp. v. GBJ Corp., 156 F.3d 136, 148 (2d Cir. 1998). Additionally, any evidence that Wise never paid SHW the hourly fee, and that SHW and Wise had a silent contingency fee agreement, is not admissible to show that SHW and Wise negotiated a fee arrangement different than that expressly provided in the retainer. Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992) (“The language of a contract is not made ambiguous simply because the parties urge different interpretations. Nor does ambiguity exist where one party’s view ‘strain[sj the contract language beyond its reasonable and ordinary meaning. ’” (citation omitted)). In addition, because SHW was engaged not on a contingency fee but on an hourly basis, SHW cannot now claim that it is entitled to a percentage of the contingency fee based on its proportionate share of work performed on the entire case. All the cases that SHW cites for support are inap-posite because in each one the attorney who had exited the representation of the client had a contingency fee arrangement in place prior to her discharge. Cohen, 81 N.Y.2d at 658, 602 N.Y.S.2d 788, 622 N.E.2d at 290; Lai Ling Cheng, 73 N.Y.2d at 458-59, 541 N.Y.S.2d 742, 539 N.E.2d at 572; Young, Fenton, Kelsey & Brown v. Wein, 111 A.D.3d 1194, 1195, 976 N.Y.S.2d 584 (N.Y. App. Div. 3d Dep’t 2013); Nabi v. Sells, 70 A.D.3d 252, 253, 892 N.Y.S.2d 41 (N.Y. App. Div. 1st Dep’t 2009). Because SHW was retained by Wise under an hourly fee arrangement, and having been replaced by another law firm, SHW is entitled under New York law to seek “the ‘fair *49 and reasonable value’ of the services rendered” determined on the basis of quantum meruit. See Cohen, 81 N.Y.2d at 658, 602 N.Y.S.2d 788, 622 N.E.2d at 290. The district court reasonably determined the quantum meruit of SHW’s compensation by looking to SHW’s billing records attached to the February 2010 substitution letter and the original 2003 retainer agreement. McDaniel, 595 F.3d at 416. In addition, SHW is not entitled to prejudgment interest on its $231,212.50 quantum meruit award because it did not request interest until its post-judgment Rule 60 reply brief. Conn. Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010). We have considered SHW’s remaining arguments and find them to be without merit. Accordingly, the district court’s Opinion and Order dated March 31, 2015, Opinion and Order dated May 21, 2015, and June 8, 2015 Minute Entry Order are AFFIRMED.