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Industry Network System, Inc. v. Armstrong World Industries

filed: April 25, 1995; As Amended May 4, 1995.

THE INDUSTRY NETWORK SYSTEM, INC.
v.
ARMSTRONG WORLD INDUSTRIES, INC. STEVEN M. KRAMER, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Civil Action No. 84-03837).

Before: Hutchinson and Nygaard, Circuit Judges and Seitz, Senior Circuit Judge.

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge

Appellant Steven M. Kramer is an attorney who represented The Industry Network System, Inc. and Elliot Fineman in the underlying litigation, an antitrust case against Armstrong World Industries. After the first trial, in which his clients prevailed, Mr. Kramer ceased to represent both plaintiffs.*fn1 The issues that culminate in this appeal arise from the severance of that relationship. Kramer believes he is entitled to a lien to ensure that his fees will be paid and argues that the district court failed to recognize a lien. He appeals from three orders of the district court: the order dated January 21, 1994, compelling Kramer to turn over his files to the substituted counsel; the order dated February 8, 1994, denying reconsideration of its January 21st order; and the order dated February 25, 1994, denying Kramer's February 16, 1994 motion for an attorney's lien pursuant to New Jersey statutory law. These matters are now before us for review pursuant to the appellant's notice of appeal filed March 7, 1994.*fn2 Kramer represented himself in the district court and does so again before us. We will affirm.

Kramer sets forth three issues in his opening brief to this court: (1) whether the district court refused to recognize an attorney's lien, to which Kramer contends he is entitled for defending his client from counterclaims, and erred for holding him in contempt when he refused to surrender his files to substituted counsel; (2) whether the district court should have insisted that Kramer be paid before new counsel replaced him; and (3) whether the district Judge should be disqualified from hearing any matter concerning him.*fn3

I.

The underlying case was filed by Network and Elliot Fineman, Network's majority shareholder, against Armstrong, alleging antitrust, tortious interference and breach of contract claims. After a jury verdict in favor of plaintiffs, the district court granted Armstrong's motions for JNOV and for a new trial. Fineman v. Armstrong World Indus. Inc., 774 F. Supp. 225 (D.N.J. 1991). Fineman v. Armstrong World Indus., Inc., 980 F.2d 171 (3d Cir. 1992), cert. denied, 122 L. Ed. 2d 677, 113 S. Ct. 1285 (1993). In the second trial, the jury awarded no damages to Network. This verdict has been appealed and is now pending before another panel of this court.

Kramer ceased to represent Fineman and Network between the first and second trials. Kramer refused, however, to turn his files over to Network's new attorneys. After Network sought an order compelling Kramer to relinquish the files, Kramer moved to recuse the trial Judge, and, in a separate motion Kramer requested, inter alia, that, before he relinquish his files, Network be required to post a bond to guarantee payment for his services. The district court ordered Kramer to relinquish his files, allowed Network to substitute new counsel but did not require that Network post a bond or pay Kramer. Industry Network System, Inc. v. Armstrong World Indus., Inc., No. 84-3837 (D.N.J. Jan. 21, 1994) (unpublished order). Later, the district court denied Kramer's motion to recuse. Industry Network System, Inc. v. Armstrong World Indus., Inc., No. 84-3837 (D.N.J. Feb. 14, 1994) (unpublished opinion).

Kramer then filed a motion contending that he was entitled to a statutory attorney's lien for work done defending the plaintiffs from Armstrong's counterclaims. The district court also denied this motion. Industry Network System, Inc. v. Armstrong World Indus., Inc., No. 84-3837 (D.N.J. Feb. 25, 1994) (unpublished opinion). Following an order by the district court holding Kramer in contempt of its orders requiring him to relinquish his files, Kramer obeyed.

II.

A. Attorney's Lien

Kramer claims that defending Network against Armstrong's counterclaims entitles him to a fee and a lien to secure payment of it. He avers that all predicates to his claim are satisfied because his fee is not contingent upon Network's success in its antitrust case against Armstrong, and hence the jury's verdict for Network on the counterclaims, which was not contested on appeal, is for all purposes final. We conclude that the issue is ripe for review but is without factual or legal support. We will affirm.

The matters before us on appeal have been unduly complicated by appellant. His theory on why he is entitled to a fee and an attorney's lien, for example, has been evolving throughout the proceedings, from a quantum meruit request for $3.2 million in fees to compensate him for an alleged 8,000 hours of work; to a retaining lien for his defense to counterclaims;*fn4 to a charging lien based upon the New Jersey Statutes Annotated (upon which he based the motion that the district court denied on February 25, 1994, which is one of the orders Kramer specified in his notice of appeal); to a fee based upon a bankruptcy order authorizing him to represent Fineman in bankruptcy; and at oral argument he contended for the first time that he is entitled to a lien under unspecified bankruptcy laws. Throughout his arguments, Kramer seems to conflate the terms "fees" and ...


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