stated that the attachment of the funds "brought those funds within control of the Court" and that "the Court having possession of the res or its equivalent ought to be clothed with jurisdiction upon proper application to establish the lien and disburse the funds." Id. at 844. The Court specifically rejected appellant's argument that intervention in the original suit was improper and that appellees can assert their lien only in an equity proceeding. Id. at 843.
Our Circuit's recognition of a continuing jurisdictional basis premised upon this Court's inherent power to affect the distribution of judgment proceeds has found support in other jurisdictions.
In United States v. Transocean Lines, Inc., 356 F.2d 702 (5th Cir. 1966), the parties filed a stipulated dismissal under Rule 41(a) while the issue of an attorneys' lien remained unresolved. The Court stated that "while the parties have the right to settle controversies out of court, any such settlement without knowledge of or notice to counsel and the payment of their fees is fraud on them, whether so intended or not." Id. at 705.
In a subsequent decision in the same litigation the Fifth Circuit reiterated its view that Rule 41(a) is not to be used as an escape hatch by parties seeking to deny an attorney the opportunity to litigate his lien in the original action. The Court stated that the affirmance in the earlier case was based in part on the view that "an attorneys' charging lien cannot be defeated even by a stipulated dismissal by the parties, where the attorney is not given notice." United States v. Transocean Lines, Inc., 386 F.2d 79, 81 (5th Cir. 1968).
In Ingold v. Ingold, 30 F. Supp. 347 (S.D. N.Y. 1939), the court overturned an attempted stipulated dismissal without the knowledge or consent of plaintiff's attorney. The Court stated: "Rule 41(a) was never intended as a cloak whereby a client might settle or discontinue a lawsuit, and disregard entirely the interest of the attorney in the lawsuit." See also Katopodis v. Liberian S/T Olympic Sun, 282 F. Supp. 369 (E.D. Va. 1968) (under Virginia Code attorney has lien upon a cause of action as security for his fee, where notice effectively given to defendants any settlement shall be void against lien created); Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, 517 So. 2d 88 (Fla. App. 3 Dist. 1987) (where funds sought to be impressed by lien are part of a recovery by judgment, the court retains jurisdiction to hear a motion affecting the judgment until it is fully executed and the attorney may proceed in that suit to have his lien established); Dowda and Fields, P.A. v. Donald R. Cobb, 452 So. 2d 1140 (Fla. App. 5 Dist. 1984) (enforcement of attorneys' charging lien is commonly enforced against the judgment by summary proceedings in the original action).
In conclusion, this Court finds that Camenisch has established a perfected charging lien which cannot be defeated by a dismissal by stipulation under Rule 41(a)(1)(ii); that the judgment ripened the charging lien creating an equitable assignment confering upon Camenisch the right to participate in the recovery; that the lien is annexed to the judgment and is enforceable in this Court where the judgment was entered; and, that this Court retains jurisdiction to hear the issue of the attorneys' lien.
An appropriate order accompanies this Memorandum Opinion.
ORDER - May 25, 1990, Filed
ORDERED, that the parties to the above captioned case shall appear for Status Call on the 20th day of June, 1990 at 10:00 o'clock A.M. in Courtroom Number 8 of the United States Courthouse; and it is
FURTHER ORDERED, that the parties shall advise the Court of following:
1) possibility of referring the proceeding to mediation;
2) the prospects of settlement;
3) pretrial and trial requirements; and
4) any other relevant matters.