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BENNETT v. MARTIN-TRIGONA

May 9, 1988

Joel P. Bennett, Plaintiff
v.
Helen Martin-Trigona, Defendant



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE

 The plaintiff, Joel P. Bennett (Bennett), filed this action on January 2, 1987 based on diversity of citizenship. The action was filed in the United States District Court for the Eastern District of Virginia, and was thereafter transferred to this court on the defendant's motion. The case is scheduled for a jury trial on May 10, 1988, *fn1" and is now before the Court on the Bennett's motion for summary judgment. *fn2"

 I

 The underlying facts are as follows: Bennett is an attorney who, on April 4, 1985, entered into a contract for legal services (hereinafter referred to as the "Contract") with the defendant, Dr. Helen Martin-Trigona (Martin-Trigona), to represent her in her discrimination claims against the University of the District of Columbia (University). Martin-Trigona is a professor of English at the University and complained that the school discriminated against her. The discrimination action was tried before this Court non-jury and the Court found for the University defendants (referring to all of the defendants named in the discrimination action). Martin-Trigona v. University of the District of Columbia, 668 F. Supp. 682 (D.D.C. 1987). After the trial, but prior to the decision in the discrimination action, Bennett moved to withdraw as the attorney for Martin-Trigona apparently due to the dispute over attorney's fees. The Court granted the motion to withdraw, but before the Court ruled on the motion, Bennett filed this action before the United States District Court for the Eastern District of Virginia. This Court thereafter granted the motion permitting Bennett to withdraw as Martin-Trigona's counsel in the discrimination action. Martin-Trigona moved to transfer this case to this district and the motion was granted.

 Bennett contends that Martin-Trigona presently owes him $ 25,735.04 for his services. Martin-Trigona filed an answer and counterclaim in which she admits that she retained Bennett to represent her in the discrimination action, that she entered into the Contract *fn3" (Plaintiff's Motion Exhibit B-1), and that Bennett represented her in the discrimination action. She contends that Bennett overcharged her, that he has not accounted for all payments made and for credits allowed, that he breached the Contract, that he never submitted the fee dispute to arbitration as provided for in the Contract, that Bennett originally filed this action in Virginia to harass and embarrass her while the discrimination claims were still pending, and that the Contract should not be enforced because it is unconscionable. *fn4" Martin-Trigona makes other arguments as to the reason Bennett originally filed this action in Virginia, but those arguments do not impact upon the present dispute between the parties.

 II

 Bennett filed his motion for summary judgment pursuant to Fed. R. Civ. P. 56. Rule 56 provides that "the judgment sought shall be rendered forthwith 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." Rule 56(c). The rule provides further that "when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Rule 56(e).

 Additionally, Local Rule 108(h) provides that each motion for summary judgment "shall be accompanied by a statement of material facts as to which the moving party contends there is genuine issue, which shall include references to the parts of the record relied on to support the statement." That rule provides further that an opposition to the motion "shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement." Finally, the rule provides that in determining a motion for summary judgment, the court "may assume that facts identified by the moving party in its statement of material facts are admitted, unless such fact is controverted in the statement of genuine issues filed in opposition to the motion."

 The standards to be applied in considering a motion for summary judgment are also set forth in two relatively recent decisions of the Supreme Court; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 The Court now applies the above standards to the facts involved in the present dispute.

 III

 First, the Court notes that Martin-Trigona, in responding to the motion for summary judgment, has failed to file the required statement of genuine issues as to which there is a genuine dispute of material facts; therefore, the facts as stated by Bennett must be deemed to be admitted. See Local Rule 108(h). Based upon Martin-Trigona's failure to comply with the local rule, and the resulting admission of facts caused thereby, Bennett is entitled to summary judgment without more. But, Martin-Trigona is not an attorney, and although it is clear that she has a greater knowledge of the law than the average pro se litigant, the motion and the opposition should be carefully considered. *fn5"

 Bennett has established that the parties entered into the Contract. See Plaintiff's Motion Exhibit B (Bennett Affidavit), par. 5; Plaintiff's Motion Exhibit B-1. Martin-Trigona does not dispute entering into the Contract. See Defendant's Opposition at 1; Plaintiff's Trial Exhibit 33 at 9-11 (Martin-Trigona Deposition)(defendant's deposition where she identifies the Contract, states that she signed it, read it and understood it). When Bennett's attorney asked Martin-Trigona whether the Contract was complicated, Martin-Trigona replied: "I am a professor and I know how to read. I happen to be an English professor, among other things, and there's nothing - -it's very plainly spelled out. There's nothing I don't understand." Martin-Trigona Deposition at 16.

 The above establishes beyond any doubt that there is no factual dispute relating to the Contract entered into between the parties, and that Martin-Trigona fully understood its terms.

 Bennett seeks, not only a determination that the Contract is valid; he also seeks a money judgment. In support of this part of his claim he has set forth a detailed statement of his claim fully supported by his billing records. See Bennett Affidavit, pars. 7-15, 25-31; Plaintiff's Motion Exhibits B-1 to B-24. These records support Bennett's claim that his hourly rate and the other rates charged are consistent with what is provided in the Contract, that the ...


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