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French v. Haggard

United States District Court, Eastern District of Missouri, Eastern Division

May 13, 2015

RANDY D. FRENCH, and CINDY LOU FRENCH, Plaintiffs,
v.
JAMES E. HAGGARD, Defendant.

MEMORANDUM AND ORDER

DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE

This action is before the court on the unresponded to motion of plaintiffs to determine the validity of an attorney’s lien placed on plaintiffs by their former legal counsel. (Doc. 53.)

BACKGROUND[1]

First Case

Plaintiffs Randy D. French and Cindy Lou French, citizens of Colorado, were injured in a motor vehicle accident with defendant James E. Haggard, a citizen of Nebraska, on December 27, 2007, in Warren County, Missouri. On May 4, 2009, plaintiffs filed the first of two lawsuits in this court under 28 U.S.C. § 1332. (French v. Haggard, 4:09 CV 682 DDN, doc. 1.). They made six claims against defendant: two for negligence, two for per se negligence, and two for subrogation. (Id.) Their attorneys at the time of filing were William G. Fischer, Esq., and Rosemary B. Rizk, Esq. of the law firm of McKinney & Associates (McKinney law firm), both located in Colorado Springs, Colorado, at different addresses.

In their motion before the court, plaintiffs allege the following regarding Mr. Fischer’s representation of them. On June 5, 2009, Mr. Fischer sent plaintiffs an e-mail regarding interrogatories and a document request. (Doc. 53-7.) Mr. Fischer also confirmed a meeting with plaintiffs to discuss the interrogatories and document request on June 18, 2009 at 1:30 p.m. (Id.) On June 8, 2009 attorney Rizk withdrew as counsel. (French v. Haggard, 4:09 CV 682 DDN, docs. 12, 13.) No attorney from the McKinney law firm ever entered to replace her.

On June 16, 2009 at 10:34 a.m., attorney Fischer, plaintiffs' sole counsel, sent plaintiffs a two-sentence email, which stated, “I understand that you are unhappy with my representation of you. Please find a replacement attorney at your earliest convenience and advise me of his/her name.” (Doc. 53-8.) Mr. Fischer sent another email to plaintiffs a few hours later at 1:49 p.m., stating,

As indicated in my previous email to you today, you continue to express dissatisfaction with my representation of you, hence I no longer wish to remain as your attorney. It is important that you find replacement counsel as quickly as possible. There is a telephone Conference with the U.S. Magistrate Judge, on June 25, 2009 @ 1:30 p.m., at which I will appear to protect your interest, unless you have replacement counsel by that date. Again, it is important that you seek another attorney to represent your interest as quickly as possible.

(Doc. 53-9.) According to plaintiffs, they did not know what "dissatisfaction" attorney Fischer referred to, and neither they nor Mr. Fischer had brought up any concerns regarding his representation of them before these emails. (Docs. 53-8, 53-9.)

On June 17, 2009, attorney Fischer filed a motion captioned, "Unopposed Motion To Vacate Rule 16 Conference and Extend Time To Answer Interrogatories." The motion stated that "irreconcilable differences" had arisen between plaintiffs and attorney Fischer and that plaintiffs were in the process of retaining replacement counsel. (French v. Haggard, 4:09 CV 682 DDN, doc. 16.)

On July 15, 2009, plaintiffs filed a pro se motion for enlargement of time to locate acceptable replacement counsel. (Id., doc. 19.) The court granted this motion. (Id., doc. 20.)

On November 21, 2009, attorneys John J. Pawloski, Esq., and John Rooney, Esq. entered their appearances on behalf of plaintiffs. (Id., doc. 21.)

On November 23, 2009, attorney Fischer moved for leave to withdraw as plaintiffs' attorney. Other than plaintiffs' retaining new counsel, Mr. Fischer gave no reason for withdrawing from representing plaintiffs. (Id., doc. 22.) The court sustained this motion on November 24, 2009. (Id., doc. 23.)

Thereafter, a Rule 16 scheduling conference was set for February 11, 2010. (Id., doc. 24.) The Rule 16 Scheduling Conference was held as set and a Case Management Order was issued. (Id., docs. 27, 28.) Further proceedings in the case occurred. ...


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