The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
REPORT AND RECOMMENDATION
TO: THE HONORABLE SUZANNE B. CONLON UNITED STATES DISTRICT JUDGE
This is a case about overtime compensation. Luis Trujillo sued Bob
Sauber and his company, Sauber Painting & Decorating, Inc.
(collectively referred to as "Sauber"), because of Sauber's failure to
pay Trujillo and other employees for overtime, in violation of the Fair
Labor Standards Act. These facts bear repeating at the outset because the
matter presently before the Court has absolutely nothing to do with
overtime compensation or the FLSA. Indeed, Trujillo's claim was resolved
last August, when Judge Conlon entered judgment in favor of Trujillo and
against Sauber. The case is here now on a Petition by Sauber's former
attorneys, Schoenberg, Fisher, Newman & Rosenberg, Ltd. ("SFNR"),
asking the Court to issue a Report and Recommendation on what the Court
believed to be a dead issue.
On December 12, 2002, Judge Conlon granted SFNR leave to withdraw as
counsel for Sauber, and ordered SFNR to turn over all files in the case
to new defense counsel. SFNR balked at the order Sauber had
apparently failed to pay SFNR's bills and Judge Conlon referred
the case to this Court "to determine what the retaining lien amount is
for this case only, and whether defendants should be required to post a
bond." Minute Order dated December 16, 2002. On March 20, 2003, the Court
issued a Report and Recommendation on those issues. The Court found that
a bond was appropriate, and recommended that the defendants be compelled
to post a bond in the amount of $13,012.20. That recommendation was
based, at least in part, on the fact that Sauber was continuing to press
SFNR to produce its file. Neither party filed objections to the Court's
recommendation, and Judge Conlon adopted it in a minute order dated May
15, 2003. Thereafter, the case proceeded to trial before Judge Conlon,
who ultimately entered judgment against Sauber in the amount of
$51,461.80. See Final Judgment Order entered June 9, 2003.
On August 5, 2003, SFNR presented before Judge Conlon a Petition for
Entry of a Rule to. Show Cause, seeking to hold Sauber in contempt for
failing, to post the $13,012.20 bond. Judge Conlon granted the petition
and referred the rule to show cause to this Court for a report and
recommendation. Unfortunately, and perhaps owing to the high number of
petitions for rule to show cause filed in this case in connection
with the plaintiffs' attempts to collect on the judgment, SFNR's petition
seemed to slip through the cracks until November 3, 2003 five
months after judgment was entered when SFNR petitioned the Court
to issue a report and recommendation on the August 5, 2003 Petition.
Throughout this time, the plaintiffs and the defendants were engaged in
an extraordinary amount of legal wrangling involving Trujillo's attempts
to collect on the judgment entered in his favor and Sauber's apparent
attempts to prevent Trujillo from being able to collect on that judgment.
By December 11, 2003, Sauber had finally satisfied the judgment.
Given the fact that Judge Conlon's order was never enforced against
SFNR, and given the fact that Sauber had long since stopped pressing SFNR
to surrender its file, the Court had assumed that SFNR's petition was
moot. Recently, however, SFNR indicated that it believes otherwise. The
purpose of this opinion is to resolve the matter once and for all.
An attorney's retaining lien, which is what SFNR has, "is a possessory
lien that merely gives the attorney a right to retain the client's
property and cannot be actively enforced by judicial proceeding."
Upgrade Corp. v. Michigan Carton Co., 87 Ill. App.3d 662,
664-65, 410 N.E.2d 159, 161 (Ill.App. Ct. 1980). Sometimes, as here, a
Court may order an attorney to turn over property subject to a retaining
lien because the production of
such property is perceived to be necessary to the resolution of the
lawsuit in which the attorney was previously involved. In such a case,
courts may require the former client to post a bond to secure the release
of that property. This procedure allows the lawsuit to move forward
without compromising the attorney's position concerning his right to be
paid. In this case, the Court believed that the production of SFNR's file
was necessary to the ultimate resolution of the overtime compensation
dispute between Trujillo and Sauber, so it ordered SFNR to produce the
file; at the same time, recognizing that SFNR likely had a valid dispute
with Sauber concerning attorneys' fees, the Court ordered Sauber to post
a bond to secure the release of the file. All of this made sense in the
context of the ongoing litigation. As it turned out, however, the FLSA
dispute was resolved without SFNR's file being produced. Judgment has
entered. SFNR is no longer being asked to turn over its file, and the
initial purpose behind the bond order no longer holds. Thus, the Court's
orders on these issues would seem to be moot.
As noted above, SFNR argues otherwise. And in doing so, it hangs its
hat on something the Court said in a prior minute order: responding to a
claim by Sauber that he should not be required to post a bond because he
no longer wanted the file, the Court noted that Sauber could not avoid
posting a bond because SFNR had already turned over some documents from
its file. But,
as set forth above, things were different when that order issued.
At the time, contrary to his representations, Sauber was still pushing
SFNR to produce its file, and, at the time, SFNR's production of its file
appeared to be necessary for the ultimate resolution of the case. Neither
of those things is true now.
It is true, of course, that the resolution of the overtime dispute does
not resolve the dispute SFNR has with Sauber concerning attorneys' fees.
And, based on the tactics Sauber employed in trying to prevent Trujillo
from collecting on his judgment, the Court has every reason to think that
Sauber is trying to dodge SFNR's collection efforts. But SFNR's fee
dispute has never been before this. Court. Moreover, given the posture of
this case, an order enforcing the Court's prior bond order would be
tantamount to judicial enforcement of SFNR's retaining lien, and that is
inappropriate. See Upgrade Corp., 87 Ill. App.3d at 664-65, 410
N.E.2d at 161. Accordingly, the Court recommends that the district court
decline to award SFNR the relief it seeks.
For the reasons set forth above, the Court hereby grants SFNR's
Petition for Issuance of Report and Recommendation and recommends that
the district court deny, as moot, SFNR's Petition for entry of a Rule to
Show Cause. Alternatively, the Court recommends that the district court
decline to hold Sauber in
contempt based upon his failure to post a bond to secure SFNR's
Counsel have ten days from the date of service to file objections to
this Report and Recommendation with the Honorable Suzanne B. Conlon.
See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Failure
to object constitutes a waiver of the right to appeal. Egert v.
Connecticut, General Life Ins. Co., 900 F.2d 1032, 1039 (7th Cir.
© 1992-2004 VersusLaw ...