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Winn v. Cucci

United States District Court, M.D. Louisiana

April 30, 2018

JEFFERY WINN (#181260)
v.
JOHN CUCCI

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant's Motion to Dismiss (R. Doc. 10) filed on September 25, 2017. The deadline to file an opposition has expired. LR 7(f). Accordingly, the instant Motion is deemed to be unopposed.

         I. Background

         Jeffery Winn (“Plaintiff”), proceeding pro se and in forma pauperis, commenced this action on January 20, 2016, naming as the sole defendant John Cucci (“Defendant”), who is also proceeding pro se. (R. Doc. 1). Plaintiff subsequently amended his Complaint. (R. Doc. 4, “Am Compl.”).

         Plaintiff seeks an order modifying an arbitration award pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.

         Plaintiff asserts that this Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332 on the basis that he is a citizen of Louisiana, Defendant is a citizen of New York, and the amount in controversy exceeds $75, 000.

         On December 5, 2005, Plaintiff entered into a written contract with Defendant for legal services, which included a $30, 000 fixed fee to defend Plaintiff against the charge of 2nd degree murder in Caddo Parish, Louisiana, and paid $36, 270 to Defendant. (Am. Compl. ¶ 2). Plaintiff also hired Defendant to handle a separate Texas civil forfeiture matter and agreed to pay one third of the $8, 041 recovered (or $2, 680) to Defendant, but Defendant retained the remaining $5, 361 for his own use. (Am. Compl. ¶ 3). In total, Defendant received $44, 311 from Plaintiff. (Am. Compl. ¶ 4).

         On March 13, 2012, the Louisiana Supreme Court suspended Defendant from the practice of law for a period of three years, and placed reinstatement in the practice of law in Louisiana contingent on full restitution to six clients, including Plaintiff. In re Cucci, 85 So.3d 62 (La. 2012).

         At some point, the parties entered into an arbitration under the auspices of the Louisiana State Bar Association, with E. Phelps Gay serving as the sole Arbitrator. (R. Doc. 1-1). On February 23, 2015, having heard evidence regarding the fees received and/or retained for services regarding the Caddo Parish criminal proceeding and the Texas civil forfeiture matter, the Arbitrator concluded that “[Defendant] should refund to [Plaintiff] the sum of $10, 000.00, representing attorney's fees and expenses excessively or improperly charged to [Plaintiff].” (R. Doc. 1-1 at 6).

         On January 20, 2016, Plaintiff commenced the instant action by filing a “Petition to Modify and Confirm Arbitration Award with Damages and Interest.” (R. Doc. 1). Plaintiff “seeks to increase the arbitration award from $10, 000.00 to $44, 311.00, the amount of funds [Defendant] actually received prior to the dispute.” (Am. Compl. ¶ 14). In additional to legal interest, Plaintiff seeks to recover an additional $31, 760.00 for the purposes of hiring a post-conviction attorney ($30, 000) and to purchase trial, pre-trial, and post-trial criminal transcripts ($1, 760). (Am. Compl. ¶¶ 15-16). Finally, Plaintiff also seeks recovery of a “complete and unredacted copy of the attorney file Defendant made in connection with ...


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