United States District Court, M.D. Louisiana
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
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.
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.”).
seeks an order modifying an arbitration award pursuant to the
Federal Arbitration Act (“FAA”), 9 U.S.C. §
1 et seq.
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.
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.
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.
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).
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 ...