United States District Court, M.D. Florida, Tampa Division
ELIZABETH A. KOVACHEVICH JUDGE
CAUSE is before the Court on the following: (1)
Attorney Dineen Pashoukos Wasylik's Motion to Reopen Case
and Set Status Conference to Set Procedures for Enforcement
of Charging Lien and for Reconsideration
("Motion to Reopen"), (Doc. 81);
and (2) Plaintiff Pharmacy Value Management Solutions,
Inc.'s ("PVM") Motion to Dissolve
Attorneys' Lien ("Motion to
Dissolve"), (Doc. 102). By the motions, the
parties request the Court exercise its supplementary
jurisdiction over their current dispute over certain funds
purportedly due to Attorney Wasylik (PVM's former
counsel) for services rendered in litigating the instant
action. More specifically, Attorney Wasylik requests the
Court determine the validity of her pending charging lien
against PVM's settlement fund, while PVM requests the
Court dissolve it. For the reasons set forth herein, the
Court will decline to do either.
January 19, 2017, PVM filed a civil complaint in this Court
for declaratory and injunctive relief and money damages
against Defendants John Hartman, Nicole Flora, SleepMaster
Solutions, Inc. ("SleepMaster")
and Dicentra (F/K/A SleepMaster). (Doc. 1). PVM alleged
violations of the federal Lanham Act and Florida statutory
and common law. JdL PVM was represented by attorney Angelina
M. Whittington, Esq. of South Law Group, P.A. and Timothy O.
Coyle, Esq. of Brush and Coyle, P.A. (Docs. 1, 5). The case
was randomly assigned to United States District Judge Mary S.
1, 2017, PVM retained the services of attorney Dineen
Pashoukos Wasylik, Esq. of DWP Legal. (Doc. 75). Attorney
Wasylik filed a notice of appearance on May 10, 2017. (Doc.
15). With written leave of Court, Attorneys Coyle and
Whittington withdrew their representation of PVM on May 12,
2017, and July 7, 2017, respectively. (Docs. 18, 31). As a
result, Attorney Wasylik became sole lead counsel for PVM.
March 19, 2018, the parties fully settled the action at a
mediation conference before Peter J. Grilli, Esq. (Doc. 73).
March 21, 2018, Attorney Wasylik moved to withdraw her
representation of PVM. (Doc. 75). By the motion, Attorney
Wasylik represented that a dispute had arisen between herself
and PVM, and PVM had fired her the previous day. IcL
Contemporaneous with her motion, Attorney Wasylik filed a
Notice of Charging Lien, asserting "a charging lien
against the proceeds of settlement in this matter, based upon
the written contract between [Attorney Wasylik] and [PVM]
entered into on May 1, 2017." (Doc. 74 at 1).
March 22, 2018, PVM retained new counsel in current lead
attorney of record Russel S. Koss, Esq. of The Koss Law Firm.
March 23, 2018, pursuant to the mediation report indicating
that the action had fully settled, Judge Scriven dismissed
the action. (Doc. 77). All pending motions, including
Attorney Wasylik's motion to withdraw, were denied as
moot and the case was closed. Id. On April 16, 2018,
Defendants moved for entry of an order reopening the case and
permitting Defendants to deposit forty thousand one hundred
forty-one dollars and eighty-five cents ($40, 141.85) of
disputed settlement funds (the ''Disputed
Funds") with the Court. (Doc. 78). The purpose
of the request was to permit Defendants to meet the
settlement agreement's deadline for remitting payment to
PVM, while, at the same time, protecting Attorney
Wasylik's purported interest in (and Defendants'
liability for) the Disputed Funds. Id. Attorney
Wasylik agreed with the relief sought by the motion but
requested the Court also "retain jurisdiction to
determine the amount of the charging lien and/or disburse the
funds upon the resolution of the lien by settlement, Florida
Bar Fee Arbitration, or an Order of this Court." (Doe.
79 at 1). PVM opposed the motion. (Doc. 78).
22, 2018, Judge Scriven denied the motion. (Doc. 80). As
grounds, Judge Scriven relied on Rule 5-1.1 of the Rules
Regulating the Florida Bar, which requires a lawyer in
possession of disputed funds to keep those funds in a
separate trust account until the dispute is resolved.
Id. Additionally, Judge Scriven found that no party
requested that the Court retain jurisdiction over the action
when it was resolved and dismissed, and that the Court
otherwise lacked an independent basis to exercise subject
matter jurisdiction over the parties' fee dispute.
Id. On May 23, 2018, Attorney Wasylik filed the
Motion to Reopen, which requested an order reopening the case
"for the limited purpose of resolving [her] pending
charging lien." (Doc. 81 at 1). Attorney Wasylik invoked
the Court's supplemental jurisdiction under 28 U.S.C.
§ 1367. Id. The Motion to Reopen also requested
the Court reconsider its prior order denying Defendants'
motion to deposit the Disputed Funds with the
agreed with the relief sought by the Motion to Reopen,
"so long as the case is reopened solely for the purposes
[of resolving the charging lien]." Id. PVM
opposed the Motion to Reopen. (Doc. 84). PVM represented that
the Disputed Funds were already being held by Defendants'
attorneys in separate trust account, and so, according to
PVM, there was no need to deposit the same with the Court.
14. at ¶2. Additionally, while PVM conceded a district
court's supplemental jurisdiction to determine the
validity of a charging lien asserted against a party by the
lawyer who'd represented that party in the underlying
action, PVM argued that the Court should decline to exercise
such jurisdiction because "the underlying circumstances
giving rise to the fee dispute [were] already the subject
matter of a complaint filed with the Florida Bar [against
Attorney Wasylik]" for malpractice in her litigation of
the underlying action. Id. at ¶l. Thus, PVM
argued, any determination by the Court regarding the validity
of the charging lien" would result in duplicitous effort
and waste of judicial time and resources" and would
create an issue of reconciliation of potentially conflicting
decisions by the Florida Bar and this Court. Id. at
¶3. Alternatively, PVM requested the Court defer
reopening the case and ruling on the validity of the charging
lien until the Florida Bar concluded its review of the
complaint, as its findings "would have evidentiary
value" in determining the validity of the charging lien.
Id. at ¶¶4, 9.
28, 2018, Judge Scriven entered an order of recusal. (Doc.
82). The case was randomly reassigned to the undersigned the
following day. (Doc. 83).
August 16, 2018, the Court deferred ruling on the Motion to
Reopen pending the outcome of the proceedings before the
Florida Bar. (Doc. 89). The Court ordered the parties to
inform the Court of the Florida Bar's decision upon the
conclusion of the proceedings. Id., Additionally,
the Court ordered that the Disputed Funds should remain in
trust. Id. On April 15, 2019, the Florida Bar's
Grievance Committee completed its inquiry into PVM's
complaint and issued a Recommendation of Diversion. (Doc. 100
at 5-9). Specifically, the Committee recommended Attorney
Wasylik participate in a Practice and Professionalism
Enhancement ("PPE") program, which includes
Diversion/Discipline Consultation Service, Ethics School, and
Fee Arbitration. Id. Attorney Wasylik agreed to
participate in all facets of the PPE program. (Doc. 99). Fee
Arbitration, however, requires the consent of both parties.
Id. PVM declined to participate in any voluntary fee
arbitration proceeding before the Florida Bar. Id.
So, the parties never arbitrated their fee dispute, and the
Florida Bar closed its fee arbitration file. Id. On
July 29, 2019, in lieu of reopening the action, the Court
ordered the parties to confer for the purpose of discussing
whether their dispute over the Disputed Funds may be resolved
through mediation or otherwise resolved without further Court
intervention, and to file a joint status report with the
Court detailing the outcome of the conference. The parties
responded on August 9, 2019. (Doc. 103). Attorney Wasylik
represents that she "remains open to mediation and/or
Florida Bar Fee Arbitration." Id. at 1. PVM
represents that it "does not wish to participate in any
alternative dispute resolution at this time," and
"will be seeking to file a professional malpractice suit
in state court." Id. Two days prior to filing
their joint status report, on August 7, 2019, PVM filed the
Motion to Dissolve. (Doc. 102). PVM moves to dissolve the
charging lien because Attorney Wasylik "negligently
failed to provide effective and competent legal services to
[PVM] through this litigation," was sanctioned by this
Court and the Florida Bar "for oppressive
conduct showing a great deal of indifference to PVM and [its]
property," and was already paid a $15, 000 retainer and
"additional monies totaling $23, 495 ... for services
that were worthless." Id. at ¶¶l-3.
PVM represents that it intends to "file suit for
professional negligence in state court against [Attorney
Wasylik] ... to recover damages arising from [her] negligent
representation." Id. at ¶8. PVM requests
the Court (i) dissolve the charging lien so that entitlement
to the Disputed Funds can "be fully litigated in [the
impending state court action]" and (ii) "order
disbursement of all remaining settlement funds held in trust
by Defendants' counsel." Id. at 3.
Wasylik opposes the Motion to Dissolve. (Doc. 104). She
argues that the Motion to Dissolve (i) fails to comply with
the Court's Local Rules, (ii) fails to provide any legal
basis to dissolve the lien, and ...