In Re: NFL Players' Concussion v.

Case: 18-2361 Document: 003113392747 Page: 1 Date Filed: 10/31/2019
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2361
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In Re: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION INJURY
LITIGATION
JOHN LORENTZ
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 2:12-md-02323)
District Judge: Honorable Anita B. Brody
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 24, 2019
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Before: GREENAWAY, JR., PORTER, and GREENBERG, Circuit Judges.
(Filed: October 31, 2019)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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GREENAWAY, JR., Circuit Judge.
In the words of Intervenor-Appellant John Lorentz, this case stems from “a simple
contract dispute[.]” Appellant’s Br. 1. And for that reason, and as discussed below, we
will affirm the District Court’s Order. In doing so, however, we also clarify that the
denial of Lorentz’s request for a portion of common benefit fees is without prejudice for
lack of jurisdiction.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual background
This case boils down to an alleged breach of an oral contract regarding an attorney
referral fee agreement. Intervenor-Appellant John Lorentz claims that, in 2011, he was
contacted by a partner from Anapol Weiss, LLP, a law firm that was seeking class
representatives for a then-upcoming class action against the National Football League
(“NFL”). Lorentz, a lawyer who represents retired NFL players, alleges that Anapol
Weiss promised him “a referral fee equal to one-third of any fee that Anapol [Weiss]
earned in consideration for the referral of former NFL players who would serve as class
representatives.” Appellant’s Br. 1. This initial, alleged oral promise was never reduced
to writing, and Anapol Weiss denies that such an agreement ever existed.1
It is undisputed that Lorentz referred certain retired NFL players to Anapol Weiss.
It is also clear that Anapol Weiss was a law firm that represented plaintiffs in the class
1
In addition to this alleged oral agreement, there were written contingent fee
agreements entered into by Anapol Weiss and several players Lorentz referred to Anapol
Weiss for the litigation. These written contingent fee agreements are not at issue in this
appeal.
2
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action, MDL No. 2323, In Re: National Football League Players’ Concussion Injury
Litigation (“In re: NFL”), and that an Anapol Weiss partner, Sol Weiss, served as Co-
Lead Class Counsel. Lorentz, however, was never class counsel, and his tangential role
in the litigation was limited to the referral of certain retired NFL players to Anapol
Weiss. Yet, due to the alleged oral agreement, when In re: NFL settled, Lorentz
contacted Anapol Weiss to collect his “one-third share of the common benefit fees
Anapol [Weiss] received.”2 Appellant’s Br. 13. When Anapol Weiss denied Lorentz’s
request, this suit followed.
B. Procedural history
On January 31, 2012, the United States Judicial Panel on Multidistrict Litigation
created MDL No. 2323, which aggregated and centralized lawsuits brought by former
NFL players for head injuries sustained while playing NFL football. On April 22, 2015,
the District Court certified a class and approved a Settlement Agreement between the
parties in In re: NFL. On April 18, 2016, we affirmed the District Court’s approval. See
In re Nat’l Football League Players Concussion Injury Litig., 821 F.3d 410 (3d Cir.
2
On April 5, 2018, the District Court ordered that class counsel in In re: NFL
would be awarded $106,817,220.62 in attorneys’ fees and $5,682,779.38 in costs
(totaling $112.5 million). The District Court’s Order was in accordance with the
common benefit fund Memorandum issued that same day. The Memorandum focused on
attorneys’ fees, and in part, “the total amount for the common benefit fund[,]” and “the
allocation of the common benefit fund among Class Counsel.” Docket 9860, at 1. The
fees that were ultimately awarded to Anapol Weiss was an apportionment from the
common benefit fund. As his briefing makes clear, Lorentz “did not ask the court to
award him a portion of the common benefit fees the court awarded to class counsel.
Lorentz was seeking a determination whether Anapol [Weiss] breached its agreement to
share with him one-third of the common benefit fee award[.]” Appellant’s Br. 10.
3
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2016). On January 7, 2017, the Settlement Agreement became effective, and Anapol
Weis was ultimately awarded $4,643,590.00 in attorneys’ fees from the common benefit
fund. Lorentz received no part of the fee Anapol Weiss obtained based on the Settlement
Agreement.
After attempting to resolve his dispute with Anapol Weiss informally—regarding
the allegedly breached oral promise—on March 9, 2017, Lorentz filed a Motion to
Intervene to Resolve Fee Disputes with Anapol Weiss in In re: NFL. Subsequently,
Lorentz filed a Motion to Supplement Motion to Intervene, appended with a Petition to
Adjudicate Fee Disputes with Anapol Weiss.
In his Petition, Lorentz requested that the District Court enter an Order:
a. Finding that Lorentz is entitled to a one third share of all
common benefit fees to be awarded to the Anapol firm in this
case;
b. Finding that Lorentz is entitled to 50% of any fees received
by the Anapol firm from settlements of claims on behalf of
the individuals Lorentz referred to the firm;
c. Awarding Lorentz damages for the loses he has sustained
as a result [of] the Anapol’s firm failure to actively pursue the
claims of individuals Lorentz referred to the firm; and
d. Granting such other or further relief as the Court deem[s]
just.
App. 38-39.
The District Court granted Lorentz’s Motion to Intervene, denied his request for a portion
of the common benefit fees, and ordered that “[a]ny remaining requests regarding the
portion of individual attorney’s fees payable to” Lorentz were denied “without prejudice
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and must be raised as attorney’s liens (see ECF No. 9760).” App. 3.3 Lorentz filed a
timely Notice of Appeal.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review a district court’s exercise of jurisdiction pursuant to
28 U.S.C. § 1291. In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig., 911 F.3d
666, 670 (3d Cir. 2018). We review a district court’s decision regarding its exercise of
jurisdiction de novo. Id. Here, the issue we must resolve is whether the District Court
properly declined to exercise ancillary jurisdiction over Lorentz’s breach of contract
claim.4
III. ANALYSIS
We need not reach the merits of Lorentz’s appeal—whether he “pled a credible,
cognizable claim for a share of [Anapol Weiss’s] fees” (Appellant’s Br. 10)—because the
District Court did not have ancillary jurisdiction to decide his breach of contract claim,
and it was thus proper for the District Court to dismiss Lorentz’s fee dispute petition.
“Federal courts are courts of limited jurisdiction.” In re Cmty. Bank, 911 F.3d at
670 (internal citation and quotation marks omitted). Typically, federal courts’
jurisdiction arises from either federal question or diversity jurisdiction; though, federal
courts may also assert ancillary jurisdiction “‘(1) to permit disposition by a single court
3
On October 10, 2018, Lorentz filed a Notice of Attorney’s Lien, which remains
pending. Docket 10293.
4
This Court uses the terms ancillary jurisdiction and supplemental jurisdiction
interchangeably. IFC Interconsult, AG v. Safeguard Int'l Partners, LLC., 438 F.3d 298,
309 (3d Cir. 2006).
4
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of claims that are, in varying respects and degrees, factually interdependent and (2) to
enable a court to function successfully, that is, to manage its proceedings, vindicate its
authority, and effectuate its decrees.’” Id. at 671 (quoting Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, the practical basis for ancillary
jurisdiction is “to protect legal rights or effectively to resolve an entire, logically
entwined lawsuit.” Peacock v. Thomas, 516 U.S. 349, 355 (1996) (internal citation and
quotation marks omitted).
Here, as a practical matter, Lorentz’s breach of contract claim was not factually
interdependent with the underlying claims in In re: NFL: The District Court did not need
to resolve Lorentz’s claim to function successfully, and Lorentz’s claim was not logically
entwined with In re: NFL. Indeed, Lorentz notes that he “was not class counsel [in In re:
NFL] nor was he seeking an award of common benefit fees from the district court[,]”
rather, he was seeking a separate “determination whether Anapol [Weiss] breached its
[alleged oral] agreement to share with him one-third of the common benefit fee award
Anapol [Weiss] received.” Appellant’s Br. 3, 10. Lorentz’s breach of contract claim was
thus wholly independent from In re: NFL.
Additionally, we have found that ancillary jurisdiction does not extend to the
resolution of post-settlement fee disputes between attorneys when only one party was an
attorney of record, In re Cmty. Bank, 911 F.3d at 672–73, and as such, the District Court
did not have ancillary jurisdiction over Lorentz’s breach of contract claim as he was not
an attorney of record. While the District Court arguably retained ancillary jurisdiction to
enforce the In re: NFL settlement agreement—between attorneys of record—it arguably
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could not retain ancillary jurisdiction to hear a separate breach of contract claim relating
to a non-settlement agreement issue, an alleged oral promise.5 See also Raab v. City of
Ocean City, 833 F.3d 286, 294 (3d Cir. 2016) (explaining that a federal district court may
retain ancillary jurisdiction over a settlement agreement, if the terms of the settlement
agreement are part of a dismissal order, for purposes of enforcing the agreement).
Further, Lorentz is not, nor could he be deemed to be, a “settling plaintiff.” Raab,
833 F.3d at 294. As he notes, he “was seeking a determination of whether Anapol
[Weiss] breached its agreement to share with him one-third of the common benefit fee
award Anapol [Weiss] received.” Appellant’s Br. 10. He was not seeking enforcement
of the settlement agreement, nor was he “seek[ing] a part of that fund, [because he] could
not possibly be entitled a direct share of the common benefit fee (he was not class
counsel, for one)[.]” Appellant’s Br. 14 (emphasis added). “All that was at issue was
the [alleged] agreement between the parties.” Appellant’s Br. 14. Accordingly, although
district courts can have ancillary jurisdiction over attorney fee disputes, because this was
a “simple” and separate contract dispute, such jurisdiction does not exist here.
5
The Class Action Complaint was “dismissed with prejudice . . . except that
motions for an award of attorneys’ fees and reasonable incurred costs, as contemplated by
the Parties in Section 21.1 of the Settlement Agreement, may be filed at an appropriate
time to be determined by the Court, after the Effective Date of the Settlement
Agreement.” Docket 6534, ¶ 15. As such, the District Court retained “continuing and
exclusive jurisdiction to interpret, implement, administer and enforce the Settlement
Agreement, and to implement and complete the claims administration and distribution
process.” Docket 6534, ¶ 17. The District Court also retained continuing jurisdiction
over “qualified settlement funds” that were established under the settlement agreement.
Docket 6534, ¶ 17.
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Appellant’s Br. 1. Compare Novinger v. E.I. DuPont de Nemours & Co., 809 F.2d 212,
217 (3d Cir. 1987) (finding ancillary jurisdiction existed over a fee dispute between
clients and former counsel, as the resolution of the fee dispute bore “directly upon the
ability of the court to dispose of [the] case[] before it in a fair manner”), with In re Cmty.
Bank, 911 F.3d at 672–73 (declining to extend ancillary jurisdiction to a post-settlement
fee dispute between two attorneys, only one of whom was an attorney of record, and
when the fee dispute would not enable the court to resolve the underlying action over
which it had proper jurisdiction) (citing Taylor v. Kelsey, 666 F.2d 53, 54 (4th Cir.
1981)).
The District Court’s denial of Lorentz’s request for a portion of common benefit
fees was clearly based on a lack of jurisdiction. Indeed, the District Court’s admonition
in its Order that “[a]ny remaining requests regarding the portion of individual attorney’s
fees” must be raised as attorney’s liens implies that the District Court was noting that
avenue as the appropriate method for raising individual attorney’s fees disputes. App. 3.
The District Court’s Order thus did not reach the merits of Lorentz’s claim; therefore, the
denial of the common benefit fee request was without prejudice for lack of jurisdiction.
IV. CONCLUSION
For the reasons set forth above, we will affirm the District Court’s May 21, 2018
Order, noting that the denial of the request for a portion of common benefit fees was
without prejudice to the filing of a plenary action in a court with jurisdiction.
7