United States District Court, E.D. Louisiana
IN RE OIL SPILL BY THE OIL RIG “DEEPWATER HORIZON” IN THE GULF OF MEXICO ON APRIL 20, 2010 THIS DOCUMENTS RELATES TO NO. 11-916
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Bickford & Centola, APC; David Landry, Esq.; and King,
Krebs & Jurgens, P.L.L.C. (collectively
“Intervenors” or “Special Counsel”),
received leave to file a complaint in intervention against
their former client, plaintiff Plaquemines Parish Government
(the “Parish”). Record Doc. Nos. 23576, 23577.
Intervenors allege that the Parish breached its contingency
fee contract with them (the “Fee Agreement”) by
failing to pay any attorney's fees or costs in connection
with their representation of the Parish in its claims against
BP, p.l.c. (“BP”) arising from the Deepwater
Horizon oil spill.
filed “Plaquemines Parish Special Counsel's Motion
for Fees and Costs Pursuant to Contingency Fee Agreement,
” Record Doc. No. 23266, in which they seek to recover
from plaintiff's recent settlement with BP the
attorney's fees and costs that plaintiff allegedly owes
them under the Fee Agreement. Because no submission date has
been set regarding Intervenors' motion for fees and
costs, no opposition memorandum is due or has been filed.
See Record Doc. No. 23446 (providing that the court
would set a briefing schedule for Intervenors' motion for
attorney's fees and costs and their anticipated filing of
a motion for summary judgment, if necessary, after
determining the then-pending motion to intervene and the
Parish's motion for dismissal).
response to Intervenors' motion, the Parish filed a
Motion for Dismissal of Motion for Fees and Costs or in the
Alternative, Removal to Forum Conventionally Agreed to by the
Parties and for Stay on Hearing of Motion for Fees and Costs
Pursuant to Contingency Fee Agreement. Record Doc. No. 23280.
The Parish argues that Intervenors' motion for fees and
costs should be dismissed because the Fee Agreement contains
a forum selection clause that requires any dispute arising
from the contract to be adjudicated in the 25th Judicial
District Court in Plaquemines Parish. As discussed below,
plaintiff's motion for dismissal disingenuously tries to
avoid, but necessarily implicates, the arguments it made in
opposition to other motions that the Fee Agreement is
invalid, which directly conflict with its argument that the
court should enforce the forum selection clause and dismiss
Intervenors' motion for attorney's fees and costs.
filed a timely memorandum in opposition to the Parish's
motion. Record Doc. No. 23501. The Parish received leave to
file a reply memorandum, Record Doc. Nos. 23568, 23572,
23573, and a supplemental reply memorandum to correct an
error in its original reply. Record Doc. Nos. 23571, 23583,
23584. Intervenors' Motion for Fees and Costs and the
Parish's Motion for Dismissal are pending before me
pursuant to the consent of the parties under 28 U.S.C. §
636(c). Record Doc. No. 23495.
following reasons, IT IS ORDERED that the Parish's motion
for dismissal is GRANTED. IT IS FURTHER ORDERED that
Intervenors' motion for fees and costs is DISMISSED
WITHOUT PREJUDICE so that Intervenors may seek relief in the
25th Judicial District Court in Plaquemines Parish pursuant
to the valid forum selection clause in their contract with
FACTUAL BACKGROUND AND ARGUMENTS OF THE PARTIES
allege in their complaint in intervention, their motion for
fees and costs and their opposition to plaintiff's motion
to dismiss that they entered into a Fee Agreement with the
Parish effective April 15, 2011. Agreement for Professional
Legal Services, Exh. D to Special Counsel's Motion for
Fees and Costs, Record Doc. No. 23266-4 at pp. 5-17. The Fee
Agreement states that the Parish executed it pursuant to two
ordinances adopted by the Parish Council on April 14 and
August 11, 2011. Id. at p. 5, preamble. The
ordinances are attached to the contract. Id. at pp.
15-17. The two ordinances authorized the Parish President to
negotiate and execute a professional legal services contract
with, initially, David Landry and the firm of Martzell and
Bickford, and then with the addition of King, Krebs &
Jurgens, for the development of claims and filing of
litigation against BP and other entities involved in the oil
well blowout and spill.
the ordinances do not state the contract's payment
method, a video recording of the Parish Council meeting on
April 14, 2011 establishes, and plaintiff does not dispute,
that a member of the Parish government read aloud at the
meeting from the proposed contract the contingency fee
percentages to be paid from any gross recovery and the
provision that the attorneys would advance all costs, to be
reimbursed by the Parish from the net recovery. Notice of
Manual Attachment, Record Doc. No. 23266-3; video recording,
filed as Record Doc. No. 23259. The Council voted to
authorize execution of the contract on that date and approved
the addition of the King, Krebs firm on August 11, 2011. The
Parish President and Intervenors signed the Fee Agreement on
August 24, 2011, effective on April 15, 2011. Record Doc. No.
23266-4 at pp. 5, 14.
Agreement, which was drafted by the Parish Attorney, provides
for contingent attorney's fees of 15 percent of the first
$25, 000, 000 of gross recovery from BP and related entities
and 10 percent of gross recovery in excess of $25, 000, 000.
Intervenors agreed to advance all litigation costs, which the
Parish would reimburse from its net recovery. Id. at
pp. 6-7, § 5. The Fee Agreement “shall
automatically terminate upon satisfactory completion . . . or
two (2) years from the date of its execution, . . . subject
to the right of either party to extend this agreement for
three two (2)-year terms where the services are still
required.” Id. at p. 8, ¶ 7.2.
exercised their option to extend the contract for two-year
terms by letters to the Parish President, Parish Attorney and
Chairman of the Parish Council on July 16, 2013 and August
13, 2015, Record Doc. No. 23344-2 at pp. 34-37, and to the
Parish Attorney on June 12, 2017. Id. at pp. 38-39.
There is no evidence that the Parish ever objected to those
extensions, until after the Interim Parish President
attempted on June 30, 2016 to terminate the Fee Agreement
with King, Krebs only. Plaintiff's Exh. 14 to its
opposition to Intervenors' motion to intervene, Record
Doc. No. 23502-14. When King, Krebs denied that the contract
could be terminated without Parish Council approval,
Plaintiff's Exh. 15, Record Doc. No. 23502-15, the Parish
Attorney responded by arguing, apparently for the first time
in the five-year history of the Fee Agreement, that it was
void because section 7.06(B) of the Parish's Home Rule
Charter required that such contracts not exceed two years.
Plaintiff's Exh. 16, Record Doc. No. 23502-16. The Parish
discharged all three Intervenors, allegedly for cause, on
August 18, 2017, after they filed their motion for
attorney's fees and costs in this court. Intervenors'
Exh. A to Motion for Leave to Intervene, Record Doc. No.
23344-2 at p. 1.
assert that they represented the Parish in this litigation
for six years and obtained a $45, 000, 000 settlement with BP
in June 2017, payable to the Parish over five years, with the
first $15, 000, 000 installment due on August 1,
2017. In anticipation of that payment,
Intervenors provided the Parish with a “Fee
Disbursement Schedule” detailing their claimed
contingent fee of $5, 750, 000 and litigation expenses of
$685, 056.62. Special Counsel's Exh. F, Record Doc. No.
23266-4 at p. 24. The Parish refused to pay any fees or costs
and discharged Intervenors after the Settlement Agreement was
signed. The disputed portions of the first two installments
paid by BP have been deposited into this court's
registry, Record Doc. Nos. 23450, 23482, pending resolution
of Intervenors' motion for attorney's fees and costs
and plaintiff's motion for dismissal of the motion for
fees and costs. Intervenors ask the court to enforce the Fee
Agreement by awarding them contingent attorney's fees and
litigation costs pursuant to the contract or, if the contract
is invalid, a quantum meruit award of their fees and costs.
Parish moved for dismissal with prejudice of Intervenors'
motion for fees and costs or “removal” of the
motion to the 25th Judicial District Court in Plaquemines
Parish, based on the choice of forum clause in the Fee
Agreement. Section 9 of the Fee Agreement provides in
If there is any dispute concerning this agreement, the laws
of the State of Louisiana shall apply, its conflict of laws
rules excepted if the interpretation of such would require
the application of laws other than those of Louisiana.
Proper venue and jurisdiction for all lawsuits,
arbitration, claims, disputes, and other matters in
questions [sic] between the parties to this agreement or any
breach thereof, shall be in the 25th Judicial District
Court for the Parish of Plaquemines, State of Louisiana.
Doc. No. 23266-4 at p. 12, § 9 (emphasis added).
Plaintiff argues that this provision is mandatory and
enforceable, precludes Intervenors from pursuing their claims
in this court and requires that Intervenors' motion for
fees and costs be dismissed under the doctrine of forum non
the Parish asks the court to enforce the forum
selection clause, plaintiff avoids arguing in its motion that
the Fee Agreement as a whole is invalid. However, the Parish
argued briefly in its opposition to BP's motion for leave
to deposit settlement funds in the court's registry that
“the legality and enforceability” of the Fee
Agreement are at issue. Record Doc. No. 23468 at p. 2. In
that separate memorandum, the Parish “questioned . . .
whether the Contingency Fee Agreement was even valid, due to
the flawed Ordinances, ” and stated that “the
Plaquemines Parish Council never approved of a contingency
fee contract at all.” Id. at pp. 3, 4.
Further, in its opposition to the motion to intervene, the
Parish argued ...