RICHARD WARE LEVITT, ESQ. V. DAVID H. BROOKS 1

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11-1233-cv
RICHARD WARE LEVITT, ESQ. V. DAVID H. BROOKS
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UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2011 8
9
(Submitted: February 7, 2012 Decided: February 14, 2012) 10
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Docket No. 11-1233 12
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R ICHARD W ARE L EVITT , E SQ ., 15
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Plaintiff-Appellee, 17
18
–v.– 19
20
D AVID H. B ROOKS , 21
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Defendant-Appellant. 23
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26
Before: 27
P ARKER , W ESLEY , L OHIER , Circuit Judges. 28
29
Appeal from a judgment of the United States District 30
Court for the Eastern District of New York (Seybert, J.), 31
entered on March 15, 2011, granting Plaintiff-Appellee’s 32
motion to compel Defendant-Appellant’s payment of 33
outstanding legal fees owed to Plaintiff-Appellee for 34
representation he provided to Defendant-Appellant in a 35
federal criminal proceeding. 36
37
A FFIRMED . 38
39
40
41
42

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ANDREW J. GOODMAN, Garvey Schubert Barer, New 1
York, NY, for Plaintiff-Appellant 2
3
DEAN M. SOLOMON (Richard Ware Levitt, on the 4
brief), Levitt & Kaizer, New York, NY., for 5
Defendant-Appellant. 6
7
8
9
P ER C URIAM : 10
Appellant David H. Brooks appeals from a judgment of 11
the district court granting Richard Ware Levitt’s motion to 12
compel outstanding attorneys’ fees owed to Levitt by Brooks 13
in connection with Levitt’s representation of Brooks in a 14
federal criminal proceeding. We hold that ancillary 15
jurisdiction existed over the fee dispute and that the 16
district court did not abuse its discretion in exercising 17
that jurisdiction. We also hold that Brooks forfeited many 18
of the issues he raises on appeal by not raising them below, 19
and we find no merit in his arguments based on the 20
Constitution. We therefore affirm the district court’s 21
March 15, 2011 judgment. 22
Background 23
This appeal arises out of Brooks’s retention of Levitt 24
to represent him in connection with charges of securities 25
fraud, insider trading, and other criminal offenses. These 26
charges resulted in an eight-month jury trial, after which 27

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Brooks was found guilty. According to Levitt, at some point 1
prior to the close of trial, Brooks stopped paying Levitt’s 2
bills. Eventually, Brooks owed Levitt $224,956.16. 3
In September 2010, subsequent to the jury verdict, 4
Brooks moved for the release of certain restrained assets 5
that the government contended were subject to forfeiture. 6
In support of that motion, Brooks asserted that he had 7
“depleted all funds available to pay for his ongoing 8
defense,” that given the unexpected length of his trial, he 9
had “outstanding bills of approximately $1.5 million,” and 10
that he anticipated significant costs for the post-trial 11
forfeiture hearing and other proceedings. In an attached 12
schedule of outstanding invoices, Brooks acknowledged that 13
he owed Levitt $265,000. Levitt submitted an affidavit 14
alleging that when he informed Brooks that he would move to 15
withdraw if Brooks did not pay the outstanding fee, Brooks 16
became “belligerent,” and “hissed or spit at [Levitt] and 17
screamed” a vulgar remark. The district court denied 18
Brooks’s motion. 19
Brooks failed to pay Levitt the money and hired two 20
attorneys to assist in his post-trial defense. As a result, 21
Levitt moved: (1) to withdraw as counsel, and (2) for a 22

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court order remitting to Levitt, from forfeited bail funds, 1
$224,956.16 to satisfy the unpaid fees. Levitt also asked 2
for an accounting of how the bail funds previously released 3
to Brooks for litigation expenses were expended; or, 4
alternatively, that funds seized by the government for 5
forfeiture be released to him to satisfy his unpaid fees. 6
As a final alternative, Levitt asked that the district court 7
exercise its ancillary jurisdiction and enter an order 8
compelling Brooks to pay Levitt. 9
Brooks opposed Levitt’s motion. He did not, however, 10
contest the amount he owed Levitt. Instead, he argued that 11
Levitt’s motion to compel payment was premature and 12
prejudicial to his interests. He asserted the following 13
arguments as defenses: (1) Brooks was not attempting to 14
evade his obligation to Levitt and had “acknowledged his 15
debt to Levitt before th[e district c]ourt, and made every 16
attempt to satisfy it;” (2) Levitt should not be permitted 17
to “jump the line” over Brooks’s other legal creditors who 18
provided services in connection with his case, or those 19
attorneys and staff who were currently working in 20
anticipation of (or would work on) Brooks’s upcoming 21
forfeiture proceedings, sentencing, and appeal; and (3) 22

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Levitt’s conduct, in revealing the vulgar remark, violated 1
Rule 1.6 of the New York Rules of Professional Conduct 2
concerning the confidentiality of information. In March 3
2011, the district court directed the district clerk to open 4
a new civil docket number concerning the fee dispute. 5
Shortly thereafter, pursuant to its ancillary jurisdiction, 6
the district court granted Levitt’s motion to compel 7
payment. 8
Discussion 9
On appeal, Brooks argues that: (1) the district court 10
erred by exercising ancillary jurisdiction over the fee 11
dispute; (2) the district court failed to abide by the 12
Federal Rules of Civil Procedure; (3) the lack of any 13
evidentiary hearing or trial violated his due process 14
rights; and (4) he was deprived of his right to a jury 15
trial. We find that the district court’s exercise of 16
ancillary jurisdiction was proper, that Brooks waived his 17
claims regarding the Federal Rules of Civil Procedure by not 18
raising those issues below, and that his Due Process and 19
jury trial claims are without merit. 20
21
22

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1We review questions of a court’s subject-matter jurisdiction de novo. See Bank Of India
v. Trendi Sportswear, Inc., 239 F.3d 428, 436 (2d Cir. 2000). Once we determine that ancillary
jurisdiction exists, we review a district court’s exercise of that jurisdiction for abuse of
discretion. See Joseph Brenner Assocs., Inc. v. Starmaker Entm’t, Inc., 82 F.3d 55, 58 (2d Cir.
1996).
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I. The District Court’s Exercise of Ancillary 1
Jurisdiction1
2
In this case, ancillary jurisdiction existed and the 3
district court did not abuse its discretion in exercising 4
that jurisdiction to resolve the fee dispute between Brooks 5
and Levitt. “It is well settled that a federal court may, 6
in its discretion, exercise ancillary jurisdiction to hear 7
fee disputes . . . between litigants and their attorneys 8
when the dispute relates to the main action.” Chesley v. 9
Union Carbide Corp., 927 F.2d 60, 64 (2d Cir. 1991) 10
(internal quotation marks and alteration omitted). 11
Ancillary jurisdiction over fee disputes is equally 12
available in criminal and civil cases. Garcia v. Teitler, 13
443 F.3d 202, 207 (2d Cir. 2006). 14
In Garcia, we explained that “[a]t its heart, ancillary 15
jurisdiction is aimed at enabling a court to administer 16
justice within the scope of its jurisdiction” and that 17
“[w]ithout the power to deal with issues ancillary or 18
incidental to the main action, courts would be unable to 19

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effectively dispose of the principal case nor do complete 1
justice in the premises.” Id. at 208 (internal quotation 2
marks omitted). Although Garcia dealt with a fee dispute 3
following an attorney’s withdrawal after a Curcio hearing, 4
Garcia should not be viewed as limited to just that 5
situation. Rather, we held that “[i]n order to guarantee a 6
defendant’s right to choose his own counsel where, as here, 7
his criminal case is ongoing, and to avoid the possibility 8
of defendants becoming indigent and requiring the 9
appointment of counsel, a district court must be able to 10
exercise ancillary jurisdiction to resolve a fee dispute.” 11
Id. at 209; see also Novinger v. E.I. DuPont de Nemours & 12
Co., Inc., 809 F.2d 212, 217 (3d Cir. 1987). In Novinger, 13
the Third Circuit explained that even though attorneys’ fees 14
arrangements are primarily a matter of state law, “the 15
federal forum has a vital interest in those arrangements 16
because they bear directly upon the ability of the court to 17
dispose of cases before it in a fair manner.” Novinger, 802 18
F.2d at 217. 19
Under Garcia, ancillary jurisdiction existed over the 20
fee dispute between Levitt and Brooks. Stein v. KPMG, LLP, 21
486 F.3d 753 (2d Cir. 2007), on which Appellant relies, is 22

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not to the contrary. Stein distinguished Garcia on the 1
basis that Stein involved a contract dispute between 2
defendants and their non-party former employer. Id. at 760- 3
61. In Stein, we emphasized the fact that the fee dispute 4
involved a non-party and explained that: 5
While we do not exclude the possibility of a 6
legitimate ancillary proceeding involving a nonparty 7
to the primary litigation, we believe that the 8
requisite compelling circumstances will be rare, as 9
the need for such a proceeding generally will be far 10
less pressing than in cases involving parties 11
already before the court. 12
13
Id. at 761. Here, the parties to the fee dispute are both 14
involved in the underlying action. This case, therefore, 15
differs from Stein and is closer to Garcia. Specifically, 16
Brooks put his legal fees in controversy by moving for 17
release of restrained assets for the purpose of paying his 18
legal bills. And the underlying proceedings remained 19
ongoing (albeit post-trial), making defendant’s legal fees 20
relevant to the district court’s management of its case, 21
specifically its responsibility to ensure defendant does not 22
become indigent and that he has representation throughout 23
the proceedings. Like Garcia, ancillary jurisdiction was 24
appropriate because it “enable[d the] court to function 25
successfully, that is, to manage its proceedings, vindicate 26

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2Brooks’s assertion that judicial economy weighed against exercising ancillary
jurisdiction because Levitt had commenced a proceeding in state court against Brooks's brother
as a guarantor of legal fees is unpersuasive. The district court's resolution of the dispute between
Levitt and Brooks did not resolve any issues of liability relating to Brooks's brother, and no
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its authority, and effectuate its decrees.” Id. at 760 1
(internal quotation marks omitted). 2
Brooks claims that even if ancillary jurisdiction was 3
available, the district court abused its discretion in 4
deciding the fee dispute. We disagree. We have held that 5
several non-exhaustive factors can weigh in favor of 6
exercising ancillary jurisdiction. These include: (1) 7
familiarity with the subject matter of the suit, especially 8
with the amount and quality of work performed by the 9
attorneys; (2) a court’s responsibility to protect officers 10
of the court in such matters as fee disputes; (3) the 11
convenience of the parties; and (4) judicial economy. 12
Cluett, Peabody & Co., Inc. v. CPC Acquisition Co., Inc., 13
863 F.2d 251, 256 (2d Cir. 1988). All of these factors were 14
present here and weighed in favor of the court’s exercise of 15
ancillary jurisdiction. Having presided over the criminal 16
proceedings, the district court was undoubtedly the most 17
familiar with the subject matter and the amount and quality 18
of work performed by Levitt. Thus, the court’s deciding the 19
fee dispute promoted judicial economy. 2 The court’s 20

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judicial economy would have been gained by the court refusing to resolve the fee dispute before
it.
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responsibility to officers of the court was also implicated. 1
Moreover, before the court, Brooks acknowledged his debt to 2
Levitt while contesting that it should be paid from funds 3
held by the government. 4
Brooks asserts that Levitt’s alleged violation of New 5
York’s Rules of Professional Conduct made the district 6
court’s exercise of ancillary jurisdiction an abuse of 7
discretion. We see no basis for such an argument. 8
Furthermore, we disagree with Brooks’s contention that 9
Levitt violated the Rules of Professional conduct. See 10
Matter of Priest v. Hennessy, 51 N.Y.2d 62, 69 (1980). In 11
Priest the New York Court of Appeals held that “[a] 12
communication concerning the fee to be paid has no direct 13
relevance to the legal advice to be given. It is a 14
collateral matter which, unlike communications which relate 15
to the subject matter of the attorney’s professional 16
employment, is not privileged.” Id. Although Rule 6.1 of 17
the Rules of Professional Conduct protects information 18
broader than the attorney-client privilege, it only goes so 19
far as to protect “information gained during or relating to 20
the representation of a client,” N.Y. Rules of Prof’l 21

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Conduct R. 1.6(a), and Brooks’s remark contained no material 1
information beyond the use of profanity directed at counsel. 2
We find no merit in Brooks’s claim that ancillary 3
jurisdiction was improper, and we therefore affirm. 4
II. Application of the Federal Rules of Civil Procedure 5
Brooks contends that the district court failed to 6
comply with the Federal Rules of Civil Procedure in the 7
civil action because: (1) the court did not require the 8
filing of a complaint and service of process, (2) the 9
absence of any pleadings deprived Brooks of his ability to 10
assert affirmative defenses and counterclaims, and (3) the 11
court did not permit discovery. Brooks failed to raise any 12
of these arguments in opposition to Levitt’s motion (which 13
expressly invoked the district court’s ancillary 14
jurisdiction) or alert the district court to any potential 15
issues that warranted the need for discovery. Thus, they 16
are forfeited. See Bogle–Assegai v. Connecticut, 470 F.3d 17
498, 504 (2d Cir. 2006). 18
To the extent Brooks asserts that the district court 19
“never had jurisdiction” over the fee dispute because there 20
was no filing and service of a complaint, this argument is 21
also forfeited because it relates to personal jurisdiction, 22

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a waiveable defect, and Brooks failed to raise the issue 1
below. See Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 2
183 F.3d 151, 154 (2d Cir. 1999); see also Miss. Pub. Corp. 3
v. Murphree, 326 U.S. 438, 444–45 (1946); In re DES Litig., 4
7 F.3d 20, 24 (2d Cir. 1993). 5
III. Constitutional Arguments 6
Brooks’s argument that the district court violated his 7
due process rights is also without merit. He was not denied 8
a sufficient opportunity to be heard, and in fact filed 9
three responsive memoranda to Levitt’s motion, none of which 10
requested (let alone established any need for) a hearing or 11
trial. See United States v. Santiago, 495 F.3d 27, 29–30 12
(2d Cir. 2007); cf. Rein v. Socialist People’s Libyan Arab 13
Jamahiriya, 568 F.3d 345, 354 (2d Cir. 2009); In re Thirteen 14
Appeals Arising Out of San Juan Dupont Plaza Hotel Fire 15
Litig., 56 F.3d 295, 303 (1st Cir. 1995). Furthermore, 16
Brooks failed to contest the amount owed to Levitt or raise 17
any contested factual issues below. Thus, there were no 18
facts to be tried; his asserted right to a jury trial was 19
not implicated. 20
21
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Conclusion 1
The district court’s judgment of March 15, 2011, 2
granting Plaintiff-Appellee’s motion to compel Defendant- 3
Appellant payment of outstanding legal fees owed to 4
Plaintiff-Appellee is hereby A FFIRMED . 5

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