Assembled Electronic Optimized Solutions v. Manncorp, Inc.

Full title: ASSEMBLED ELECTRONIC OPTIMIZED SOLUTIONS, Plaintiff, v. MANNCORP, INC., et…

Court: United States District Court, D. New Mexico

Date published: Dec 5, 2003

No. CIV 99-834 BB/KBM (D.N.M. Dec. 5, 2003)

Opinion

No. CIV 99-834 BB/KBM

December 5, 2003

DENIAL OF SUMMARY JUDGMENT AND ORDER OF REFERRAL

BRUCE BLACK, District Judge

THIS MATTER having come before the Court on Intervener's Motion for Summary Judgment, and Enforcement and Foreclosure of Lien or Alternately Request for Hearing [#128], and the Court having reviewed the briefs of counsel and being otherwise fully advised, finds the summary judgment should be Denied and the matter referred to Magistrate Judge Karen B. Molzen.

Discussion

This Court previously ruled on Plaintiff's motion for summary judgment that" [w]hether the charging lien is asserted against a fund created by the efforts of the Michener firm presents a question of material fact." (Mem. Op. 11-3-03 p. 4). This motion presents the flip side of the coin but also depends on the reasonableness of Michener's efforts and what contribution, if any, they made to the outcome. Foreclosure of an attorney's lien is an equitable action. Cherpelis v. Cherpelis, 959 P.2d 973 (N.M.App. 1998). Therefore a client settlement of the claim may effect the equities underlying an attorney's lien. Lyman v. Campbell, 182 F.2d 700 (B.C. Cir. 1950). Therefore, the existence and amount of a lien as well as whether it is equitable are fact questions. Cherpelis, supra; Tobias v. Smith, 258 N.Y.S.2d 885 (N.Y.App.Div. 1965); cf. Albuquerque Technical Vocational Inst. v. General Motors Corp., 17 Fed. Appx. 870 (10th Cir. 2001) (under New Mexico law, court should inquire into the reasonableness of fees claimed under an attorney's lien). Summary judgment is therefore inappropriate.

In Plaintiff's response to Intervener's motion, Plaintiff's attorneys assert that because of her intense involvement in the settlement, "Judge Molzen is in a unique position to decide what and who contributed to settlement." Pls. Resp. p. 1. The Court agrees and will refer the matter to Judge Molzen for an evidentiary hearing and recommendations. See Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000).

ORDER

Defendant's motion for summary judgment is DENIED.

All pending motions are referred to Magistrate Judge Karen B. Molzen for all necessary hearings and recommendations.