HPEV, Inc. v. Spirit Bear Limited

• Court: District Court, D. Nevada
• Decided: July 29, 2019
• Docket: 2:13-cv-01548
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT

5 DISTRICT OF NEVADA

6 * * *

7 HPEV, INC., Case No. 2:13-cv-001548-JAD-GWF

8 Plaintiff, v. ORDER 9 SPIRIT BEAR LIMITED, et al., 10 Defendants. 11 12 This matter is before the Court on Marquis Aurbach Coffing’s Motion to Withdraw as 13 Counsel of Record, Adjudicate Attorney Lien, and Reduce Fees to Judgment (ECF No. 205), filed 14 on June 19, 2019. 15 BACKGROUND 16 This matter arises as a result of Plaintiff seeking declaratory relief as to a settlement 17 agreement and allegations of intentional interference with prospective economic advantage. See 18 Complaint (ECF No. 1). Spirit Bear Limited (“Spirit Bear”) filed a third-party complaint against 19 Plaintiff. See ECF No. 38. On May 2, 2016, the Court approved the derivative action settlement 20 agreement and dismissed the derivative action. ECF No. 203. Marquis Aurbach Coffing (“MAC”) 21 requests leave to withdraw as counsel for Defendant/Third Party Plaintiff Spirit Bear because 22 representation would result in an unreasonable financial burden to the movant. 23 Marquis Aurbach Coffing further requests that the Court adjudicate its attorney lien and 24 reduce its fees and costs to judgment. Spirit Bear engaged MAC to represent it in this matter. 25 Spirit Bear executed, and its president Jay Palmer signed, a fee agreement on May 18, 2015, which 26 provided for attorney’s fees in the amount of $375.00 per hour for Terry Coffing, Esq., $210 per 27 hour for Vincent Vitatoe, Esq., and $155 per hour for work performed by law clerks or paralegals. Either party may terminate this Agreement by giving written notice to the other. In 1 the event fees or costs are owing to MAC upon termination, Client agrees to pa MAC such fees upon termination and further agrees that MAC will have a lien on 2 any and all claims or causes of action on which MAC was working; on all funds or property which has been or is later recovered; and on all files and work papers 3 produced by MAC. 4 MAC requests the Court to adjudicate its attorney’s lien for unpaid fees in the amount of 5 $39,145.41 pursuant to Nevada Revised Statute (“NRS”) 18.015. 6 DISCUSSION 7 Nevada recognizes two kinds of attorney's liens: (1) a special “charging lien” and (2) a 8 “retaining lien.” See Nevada Revised Statute (“N.R.S.”) § 18.015; Argentena Consol. Min. Co. v. 9 Jolley Urga Wirth Woodbury & Standish, 216 P.3d 779, 784 (Nev.2009). A statutory “charging 10 lien” attaches to the judgment or settlement that the attorney obtained for the client. N.R.S. § 11 18.015; Figliuzzi v. Eight Judicial Dist. Court In and For County of Clark, 890 P.2d 798, 801 12 (Nev.1995). By contrast, a “retaining lien” arises under common law and allows a discharged 13 attorney to withhold the client's file and other property until the court, at the request or consent of 14 the client, adjudicates the client's rights and obligations with respect to the lien. Argentena Consol. 15 Min. Co., 216 P. 3d at 784. 16 Before the Court can adjudicate a charging lien, the moving party must demonstrate that it 17 has perfected its lien. N.R.S. 18.015(3); Cohen v. Gold, 2018 WL 1308945, at *3 (D. Nev. Mar. 18 12, 2018). N.R.S. 18.015(3) instructs that, to perfect a lien, an attorney must serve “notice in 19 writing, in person or by certified mail, return receipt requested, upon his or her client...claiming 20 the lien and stating the amount of the lien.” MAC submits that its lien has been perfected by 21 service of the notice of attorney lien on Plaintiffs. See Motion (ECF No. 205), 5. MAC, however, 22 has not shown that it has properly perfected its lien pursuant to NRS 18.015(3). MAC provides 23 no further information beyond a conclusory statement that its lien was “perfected by service of the 24 Notice of Attorney Lien on Plaintiffs.” The Court, therefore, denies MAC’s request to adjudicate 25 lien and reduce fees to judgment without prejudice. 26 I. Motion to Withdraw 27 MAC requests withdrawal as counsel of record for Spirit Bear Limited. The movants 1 IT IS HEREBY ORDERED that Marquis Aurbach Coffing’s Motion to Withdraw 2 |} Counsel of Record, Adjudicate Attorney Lien, and Reduce Fees to Judgment (ECF No. 205) is 3 || granted, in part, and denied, in part according to the provisions herein. 4 IT IS FURTHER ORDERED that MAC’s request to withdraw as counsel of record is 5 || granted. 6 IT IS FURTHER ORDERED that Spirit Bear Limited must retain new counsel if it 7 || intends to continue to litigate this matter. A corporation or limited liability company may appear 8 || in federal court only through licensed counsel. U.S. v. High Country Broad. Co., Inc., 3 F.3d 1244, 9 || 1245 (9th Cir. 1993). Spirit Bear shall have until August 29, 2019, to advise the Court if it will 10 || retain new counsel. 11 IT IS FURTHER ORDERED that the Clerk of the Court shall: 12 1. Add the last known address of Spirit Bear Limited to the civil docket: 1S Spirit Bear Limited 14 c/o Jay Palmer 1470 First Avenue, No. 4A 15 New York, NY 10075 16 2. Serve Spirit Bear Limited with a copy of this order at its last known address listed 7 above. 18 Dated this 29th day of July, 2019. 19

UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28