United States District Court, W.D. Louisiana, Lafayette Division
For Huval Veazey Felder & Renegar L L C, Plaintiff: Thomas H Huval, LEAD ATTORNEY, Huval Veazey et al (COV), Covington, LA; Bradford H Felder, George Andrew Veazey, Huval Veazey et al (LAF), Lafayette, LA.
David A Schiller, Defendant, Pro se, Plano, TX.
Schiller Exline P L L C, Defendant, Pro se, Plano, TX.
REPORT AND RECOMMENDATION
PATRICK J. HANNA, UNITED STATES MAGISTRATE JUDGE.
Currently pending before the Court is the application for entry of default judgment (Rec. Doc. 50), which was filed by the plaintiff, seeking a default judgment against defendant Schiller Exline, PLLC. No opposition to the motion was filed. The motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. (Rec. Doc. 54). After careful consideration of the motion, the applicable authority, and for the following reasons, it is recommended that the motion be GRANTED.
This is a dispute over the enforcement of an agreement to share attorneys' fees. In August 2005, Bobby Harmon was allegedly injured while employed by FIBA Testing Gulf, Inc. Mr. Harmon hired defendant David A. Schiller and Mr. Schiller's law firm to represent him with regard to his injuries. Mr. Schiller is an attorney, and the plaintiff alleged that he is or was at certain relevant times a member of The Schiller Firm PLLC and that, after October 2010, he was a member of the law firm called Schiller Exline, PLLC. Mr. Schiller approached the plaintiff law firm, hereinafter referred to as " Huval Veazey, " to act as co-counsel for Mr. Harmon. It is alleged that an agreement, confirmed in writing on May 31, 2006, was reached between Huval Veazey, Mr. Schiller, and Mr. Schiller's firm by which a contingency fee that Mr. Harmon agreed to pay to Mr. Schiller and his firm would be shared with Huval Veazey.
In 2006, suit was filed on Mr. Harmon's behalf in the 15th Judicial District Court, Acadia Parish, Louisiana. Settlements were eventually reached with defendant Total Safety US, Inc. and with defendant FIBA Technologies, Inc. and its insurer. A settlement was also reached with the relevant workers' compensation carrier. During the course of the litigation, Huval Veazey incurred litigation expenses.
Huval Veazey alleges that, after the claim against FIBA was settled but before the settlement funds were disbursed, its agreement with Mr. Schiller and Schiller Exline PLLC was modified so that Huval Veazey would share only in the settlement with FIBA, that Huval Veazey would be reimbursed only a portion of its litigation costs, that FIBA would send the entirety of its settlement funds to Schiller Exline PLLC, and that Schiller Exline PLLC would then send the appropriate share of those funds to Huval Veazey immediately.
Huval Veazey further alleges that, although Schiller Exline PLLC received the funds on December 21, 2012, neither defendant has honored the agreement and no part of the settlement funds have been paid to Huval Veazey. Huval Veazey alleges that it has made demand upon the defendants to no avail.
In this lawsuit, Huval Veazey contends that Mr. Schiller and Schiller Exline PLLC breached their contract, entitling Huval Veazey to recover damages. Huval Veazey also contends that Mr. Schiller's representation (made on his own behalf and also on behalf of Schiller Exline PLLC) as to how the settlement funds would be shared was false, constituting fraud under Louisiana Civil Code Article 1953, and entitling Huval Veazey to rescind the modification of the agreement and to pursue recovery of the entire fee to which it was originally entitled and the entirety of its litigation costs, for a total amount of $192, 155.37 plus damages and attorneys' fees under Louisiana Civil Code Article 1958.
The complaint was filed on March 1, 2013. (Rec. Doc. 1). Schiller Exline, PLLC was served on March 7, 2013. (Rec. Doc. 4). Schiller Exline, PLLC responded to the plaintiff's original complaint by filing a motion to dismiss under Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6) and a motion for more definite statement. (Rec. Doc. 9). Ruling on the motion was deferred, and the plaintiff was ordered to file an amended complaint. (Rec. Doc. 20). Huval Veazey filed a supplemental, amending, and restated complaint. (Rec. Doc. 22). In August 2013, the motion to dismiss and for more definite statement was denied. (Rec. Doc. 30). To date, Schiller Exline, PLLC has not filed any pleadings responsive to the ...