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Joseph E. Hudak v. Regis W. Bobitski and Lisa A. Bobitski

December 28, 2010

JOSEPH E. HUDAK, PLAINTIFF,
v.
REGIS W. BOBITSKI AND LISA A. BOBITSKI,
DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Senior District Judge

OPINION and ORDER OF COURT

This is a diversity case in which pro se Plaintiff Joseph E. Hudak ("Plaintiff" or "Hudak") has brought state law claims against pro se Defendants Regis W. Bobitski and Lisa A. Bobitski (collectively ADefendants@) alleging breach of contract, unjust enrichment, and failure to pay account stated related to Defendants‟ alleged failure to pay Plaintiff attorneys‟ fees owed for legal services rendered. Pending before the Court is Plaintiff‟s Second Supplemental Motion for Summary Judgment requesting that I enter judgment in favor of Plaintiff and against Defendant Regis Bobitski*fn1 in the amount of $142,125. (Docket No. 20). Regis Bobitski opposes Plaintiff‟s Motion. (Docket No. 27). After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, Plaintiff‟s Motion is denied.

I. PROCEDURAL BACKGROUND

On or about August 29, 2009, Plaintiff filed a Complaint against Defendants. (Docket No. 1). On or about September 17, 2010, Defendants filed an Answer (Docket No. 5) and a Motion to Dismiss Under Rule 12(b) (Docket No. 6). The Motion to Dismiss alleged lack of subject-matter and personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. See Docket No. 6. Defendants failed to file a brief in support of their motion despite repeated court orders to do so and, on January 8, 2010, I entered an Order denying the motion to dismiss. (Docket No. 7).

On September 13, 2010, Plaintiff filed a Motion for Summary Judgment seeking a judgment against Defendants for alleged contract damages under the attorneys‟ fee agreement at issue.*fn2 (Docket No. 13). Plaintiff filed a Brief in Support of the motion on September 20, 2010. (Docket No. 18). Defendants failed to respond to the motion and, on October 18, 2010, Plaintiff filed a Supplemental Motion for Summary Judgment, arguing that I should grant his initial summary judgment motion based on this failure to respond. (Docket No. 19). On October 24, 2010, Plaintiff filed the instant Second Supplemental Motion for Summary Judgment. (Docket No. 20). In this motion, Plaintiff states that he no longer seeks the judgment sought in his first motion; rather, he wishes to recover a fixed sum of $142,125 under an unjust enrichment theory. Plaintiff claims that this amount represents the fees owed using his purported standard billing and travel rates. See id. In light of this second supplemental motion, I denied Plaintiff‟s initial and first supplemental motions for summary judgment as moot. (Docket No. 21).*fn3 Plaintiff filed a court-ordered Brief in Support of the instant motion and Affidavit on November 15, 2010. (Docket Nos. 25, 26). Defendant Regis Bobitski filed a Response in opposition on December 9, 2010. (Docket No. 27).*fn4 The motion is now ripe for my review.

II. LEGAL ANALYSIS

A. Standard of Review

Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party=s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. Int=l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant=s burden of proof at trial.Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. Summary judgment must therefore be granted Aagainst a party who fails to make a showing sufficient to establish the existence of an element essential to that party=s case, and on which that party will bear the burden of proof at trial.@ White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988) (quoting Celotex, 477 U.S. at 322). With this standard in mind, I turn now to the issues of this case.

B. Relevant Contractual Provisions

In or around the Fall of 2007, the parties entered into a written "Power of Attorney and Fee Agreement" (hereinafter "Agreement") for certain legal services that Plaintiff agreed to perform for Defendants. Among other things, the Agreement provided in relevant part as follows:

We, Regis Bobitski and Lisa Bobitski, hereinafter "clients," hereby authorize Joseph E. Hudak, Esquire, and attorneys and staff associated with Joseph E. Hudak, Esquire, to represent us in the following legal matters:

Any and all matters related to recovery of monies from Richard and Cindy Lelly, Chris Marsala, Anthony Marino, and persons or entities, or insurance carriers related thereto, and from entities known as "RL" and "MLB" and persons or entities or insurance carriers related thereto or related to any successors thereof.

For this representation, clients agree to pay an initial legal fee of seventeen-thousand-five-hundred dollars ($17,500) to be paid as follows: $5,000.00 on October 30, 2007; $5,000.00 by December 1, 2007; balance by January 1, 2008. In addition, clients agree to pay fifteen percent (15%) of amounts recovered, through settlement, court award, or otherwise, from any source listed above up to a recovery of 1 million dollars; then ...


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