Lehr v. Visconti & Assoc. CV-95-488-JD 09/19/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steven R. Lehr

v. Civil No. 95-488-JD

Visconti & Associates, Ltd., et al.

O R D E R

This case arises out of a dispute between Attorney Mark

Hagopian ("Hagopian") and the law firm of Visconti & Associates,

Ltd. ("Visconti")a formerly Visconti & Petrocelli ("V & P"), over

entitlement to a fee for representing the interests of Alfred and

Carl Nordin ("Nordins") in a contest concerning the will of their

aunt, Helen H. Cotter. The Nordins had retained V & P on a

contingency fee basis (33 1/3 percent of the amount recovered

over and above any beguests) to contest their aunt's will.

Hagopian, who at the time was employed by V & P, negotiated the

fee agreement and represented the Nordins successfully through a

trial and eventual settlement of the contest which occurred prior

to any decision being rendered by the probate judge. During the

trial, Hagopian decided to leave V & P. The Nordins, after

deciding to have Hagopian continue as their attorney, terminated

their contract with V & P and entered into a contingent fee

arrangement with Hagopian (30 percent of the amount recovered

over and above any beguests). Following the successful conclusion of the will contest,

Hagopian and V & P were unable to agree on their respective fees.

In August of 1994, V & P filed a notice of attorney's lien in

probate court, in the estate of Helen Cotter, against all

creditors and parties, for the guantum meruit value of legal

services provided to Carl Nordin. In June of 1995, after

Attorney Girard Visconti had urged Hagopian to place the amount

of the disputed fee in escrow, Hagopian placed an amount egual to

the 33 1/3 percent contingent fee ($197,980.20) under the

"Hagopian, Visconti & Nordin Trust Agreement" with Attorney

Steven R. Lehr serving as trustee ("trustee"). In August of

1995, Visconti, formerly V & P, filed suit in superior court

against Hagopian and Archibald Kenyon, co-administrators of the

estate of Helen Cotter, claiming the guantum meruit value of the

services Hagopian performed while he was employed by V & P.

In September of 1995, the trustee filed the complaint in

this action invoking jurisdiction of the court under

and § 1335. Visconti has moved to dismiss the complaint

(document no. 17) pursuant to Fed. R. Civ. P. 12(b)(1) on the

grounds that Hagopian colluded to create diversity and adversity.

"In the case of . . . bills of interpleader . . . the gist

of the relief sought is the avoidance of the burden of

unnecessary litigation or the risk of loss by the establishment

2 of multiple liability when only a single obligation is owing.

These risks are avoided by adjudication in a single litigation

binding on the parties." Texas v. Florida,

(1938). In this direct and straightforward statement, the United

States Supreme Court has set forth the basic rationale underlying

the procedural device referred to as interpleader. A more

comprehensive statement concerning the purposes underlying

interpleader is set forth in 3A James W. Moore, et al., Moore's

Federal Practice, § 2202[1] (2d ed. 1995):

Interpleader is a procedural device which enables a person holding money or property, in the typical case conceded to belong in whole or in part to another, to join in a single suit two or more persons asserting mutually exclusive claims to the fund. The advantages of such a device are both manifest and manifold. A many-sided dispute is settled economically and expeditiously within a single proceeding; the stake­ holder is not obliged to determine at his peril which claimant has the rightful claim, and is shielded against the possible multiple liability flowing from inconsistent and adverse determinations of his liability to different claimants in separate suits. Even in those cases where there is little threat of multiple liability, the stake-holder is freed from the vexation of multiple lawsuits and may be discharged from the proceeding so that the true dispute will be settled between the true disputants, the claimants. The claimants are benefited as well, since search for and execution upon the debtor's assets are obviated, the spoils of the contest being awarded directly out of the fund deposited with the court. Interpleader provisions, being remedial in nature, are to be liberally construed so as to best effectuate their purposes. It is therefore well settled that the right to interpleader depends merely upon the stake-holder's good faith fear of adverse claims, regardless of the

3 merits of those claims or what he believes the merits to b e .

The court will first consider whether or not it has

jurisdiction under

(a). Briefly stated, there

are four factors which are necessary for jurisdiction to lie

under this statute: (1) the stakeholder must have possession or

custody of money or property worth $500 or more; (2) two or more

persons or entities must have adverse claims to the stake; (3)

two or more of the claimants must be of diverse citizenship; and

(4) the stakeholder must deposit the stake into the court

registry or provide a suitable bond in lieu thereof. The

citizenship of the plaintiff is immaterial to the determination

of diversity. See 3A Moore, supra, § 22.9 [2] .

Defendants Visconti and Hagopian are residents of Rhode

Island and the defendants Nordin are residents of Massachusetts.

The amount in controversy exceeds $500. Therefore, factors one

and three are satisfied.

In determining whether the defendants are adverse claimants,

the court has considered all of the circumstances surrounding the

relationship of the defendants up to the time this complaint was

filed, and in particular has considered the following facts: (1)

the action taken by V & P in filing an attorney's lien against

the estate of Helen Cotter in support of a guantum meruit claim

4 for legal services and disbursements rendered to Carl Nordin; (2)

the action taken by Visconti in filing a civil action against the

co-administrators of the estate seeking guantum meruit value for

the legal services of V & P; (3) Hagopian's claim for legal fees

based on a contingency fee agreement with the Nordins; (4)

Visconti's claim for legal fees based on V & P's contingent fee

agreement with the Nordins; (5) the Nordins decision to change

attorneys during the course of the litigation and the two

contingent fee agreements which they entered into; (6) the claims

which Hagopian, Visconti and the Nordins have to the trust res

currently held by the plaintiff trustee. The amoebic nature of

Visconti's claims cannot deprive the court of jurisdiction which

clearly existed when the complaint was filed and continues to

exist. Indeed, the fact that those claims have been made by

Visconti is an important factor justifying the plaintiff's resort

to interpleader. Until all of the claims made by the defendants

are adjudicated, they remain adverse to each other. Therefore,

the court rules that the defendants are adverse claimants to the

trust res being held by the plaintiff trustee. Factor two is

satisfied.

Visconti alleges that Hagopian colluded to create diversity

and adversity. However, the court finds these allegations to be

without merit in its analysis of § 1335 jurisdiction. As the

5 court has already ruled, the defendants are adverse claimants, a

status in which they have inevitably found themselves given the

history of the relationships between them which have been

outlined above. There was no need for Hagopian to manufacture

adversity among the defendants since adversity between them arose

once the attorneys began to dispute what their share of the legal

fees should be. Under

(a), the citizenship of

the plaintiff is irrelevant in determining whether or not the

court has subject matter jurisdiction over this action and

therefore whether or not Hagopian colluded to manufacture

diversity jurisdiction with respect to the plaintiff is

irrelevant to a determination of jurisdiction under § 1335.

Visconti also contends that the trust bond ("bond") posted

by the plaintiff is inadeguate to protect the interests of the

adverse claimants. According to the docket notations maintained

by the clerk's office in the District of Rhode Island,1 a bond

was filed on September 20, 1995, by the trustee in the amount of

$197,980.20 (document no. 2) "subject to court approval." The

court has not yet approved the bond. The bond runs from the

trustee to the defendants for the sum of the trust res, less

expenses of administration. The court finds that the trust

1This case was assigned to a judge in the District of New Hampshire after the judges in the District of Rhode Island recused themselves.

6 agreement gives the trustee powers over the trust res which are

far broader than those necessary to protect the interests of all

of the defendants in having any judgment one or more of them may

receive in this action satisfied. Therefore, the court will not

approve the bond that has been filed but in lieu thereof will

reguire the plaintiff to deposit the trust res into the court

registry. The jurisdiction of the court over this case is not

divested as a result of the court's disapproval of the bond since

the plaintiff is entitled to a reasonable opportunity to comply

with the court's order.

Therefore, the plaintiff Steven R. Lehr, as trustee under

the Hagopian, Visconti and Nordin Trust Agreement, is hereby

ordered to deposit into the registry of the court the sum of

$197,980.20, together with any interest and income earned thereon

from the date the trust agreement was executed, said sum to

remain in the registry until the court orders disbursement of all

or any part thereof to any adverse claimant or claimants

determined to be entitled thereto. The plaintiff shall make said

deposit within twenty days of the date of this order.

Since the court has determined that it has jurisdiction over

the subject matter of this case under

, provided

the plaintiff makes the deposit as herein ordered, there is no

need to consider Visconti's claims under

.

7 Visconti's motion to dismiss (document no. 17) is denied

without prejudice to review if the plaintiff fails to make the

deposit as herein ordered.

Following the deposit of the funds into the registry as

herein ordered, the court will entertain an appropriate motion

from the plaintiff that he be discharged from the proceeding and

from further liability with regard to the interpleaded funds.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge September 19, 1996

cc: Paul A. Lancia, Esguire Max Wistow, Esguire Michael G. Sarli, Esguire Joseph J. Nicholson Jr., Esguire Raymond F. Burghardt, RI District Court