JUDGES: HAUK
OPINION BY: A. ANDREW HAUK
OPINION: [*272] ORDER RE: DEFENDANT'S MOTION TO STRIKE AND MOTION TO
DISMISS
Plaintiff James Darby Jr. has brought suit against the city of Torrance, the Torrance Company. and two City of Torrance Police Officers. John Senger and Thomas Aldrich. alleging that the defendants individually and as a group deprived him of his federal civil rights in violation of 42 U.S.C. Section 1983. Plaintiff has also brought several related state claims which the court may hear under it's supplemental jurisdiction. Defendant's the City of Torrance. John Senger. and Thomas Aldrich have moved the Court to Strike portions of the plaintiff's complaint. and to dismiss plaintiff's fourth, fifth, sixth, ninth, and tenth causes of action.
In his Fourth Cause of Action "Cross-claimant" Michael Mitchell seeks to have the court give it's blessing to the purported transfer of the right to collect attorney's fees under 42 U.S.C. 1988 [**4] from his client, the plaintiff James Darby Jr., to himself. The "Cross-claimant" also seeks to have the Court issue an injunction "Prohibiting defendant's from offering, threatening to offer, or entering into any settlement of this case or any federal civil rights case which settlement (a) purports to be a 'lump sum' settlement, including all attorney's fees, or (b) purports to waive any of cross-claimant's rights to apply for, obtain and receive statutory attorney's fees." (Plaintiff's Complaint pages 10-11). Leaving aside the issue of whether this "Cross-complaint" has been properly brought pursuant to F.R.C.P. 13(g), in that the "Cross-complaint" appears to have been brought against both the plaintiff and the defendant and is not truly a cross-complaint at all, this Cause of Action will be dismissed for failing to state a claim upon which relief can be granted.
As the "Cross-claimant" admits in his opposition, Federal Courts have time and again ruled that the right to collect attorney's fees under 42 U.S.C. 1988 belongs to the client, not the attorney. Evans v. Jeff D, 475 U.S. 717, 89 L. Ed. 2d 747, 106 S. Ct. 1531 (1986). Willard v. City of Los Angeles, 803 F.2d 526 (9th Cir. 1986). [**51 These rulings have created a problem for civil rights attorney's such as "cross-claimant" Mitchell, in that they allow plaintiffs bringing civil rights claims to settle cases with defendants that include a waiver of the right to collect attorney's fees. In order to avoid this situation and guarantee the collection of his fees. "Cross-claimant" has begun to have his clients sign contingency fee agreements, insuring that he would share in any award made to these clients. This procedure was approved of by the Supreme Court in Venegas v. Mitchell. 495 U.S. 82, 109 L. Ed. 2d 74. 110 S. Ct. 1679 (1990).
"Cross-claimant" Mitchell does not appear to be satisfied with these contingency fee agreements, however. and needs to be made a party to all 42 U.S.C. 1983 actions which he files. "Cross-claimant" cites no authority which would allow him to become a party to these actions based upon the assignment of right to collect attorney's fees, but merely states that he can find no authority to the contrary. "Cross-claimant" states that under this purported assignment from his client to himself, he now has a property right to be compensated under Section 1988. (Plaintiff's [**61] Complaint page 4). This contention clearly goes beyond the scope of the Venegas decision. Venegas states that civil rights clients are free to contract as they wish with their attorneys regarding fees. It does not, however, state that Section 1983 plaintiffs may freely transfer the rights given to them by Congress under Section 1988 to their attorneys.
[*274] Because this issue appears to be one of first impression. this Court must consider what the effect of allowing this Cause of Action to continue would be. The effect of allowing Section 1983 plaintiffs to assign their statutory rights to attorney's fees to their counsel would be to hinder the settlement of these cases. If these types of assignments are allowed, attorneys would have a clear interest in refusing to settle these cases until well into the litigation process. The longer the attorney forestalls settlement, the higher his fees. These types of arrangements create a clear conflict of interest between attorney and client, since the attorney may be tempted to ignore his client's desire for a quick settlement in order to increase his own profit. Finally, the plaintiff would be unable to settle his own case without his attorney's [**7] permission, because the attorney would also be a party to the litigation. Clearly. the result of allowing this "Cross complaint" would be to contravene the Federal Court's policy of encouraging the settlement of litigation. Ahern v. Central Pacific Freight Lines, 846 F.2d. 47, 48 (9th Cir. 1988), United States v. Mclnnes, 556 F.2d. 436, 441 (9th Cir. 1977).
In addition to seeking to become a party to this litigation, "Cross-claimant" also seeks an injunction prohibiting his client from settling this case in any manner inconsistent with the claimed assignment of the right to collect attorney's fees. Again, "Cross claimant" fails to cite any authority which would support the issuance of such an injunction. Clearly, the issuance of the requested injunction would violate the Court's policy of encouraging settlement. For this reason, as well as those discussed above, the Motion to Dismiss is GRANTED as to the Fourth Cause of Action.
Therefore, based on the forgoing, IT IS ORDERED:
The Clerk of the Court will serve copies of this Order to counsel of record.
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DATED: 9/14/92
A. ANDREW HAUK
SENIOR UNITED STATES DISTRICT JUDGE
URL:http://www.oocities.org/WallStreet/Floor/5871