Givens v. Oenga Jr.

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RAYMOND C. GIVENS, )
)
Plaintiff, )
)
vs. )
)
LEROY OENGA, JR., )
) No. 3:21-cv -0008-HRH
Defendant. )
_______________________________________)
AMENDED ORDER
Motion to Dismiss1
Defendant Leroy Oenga, Jr., moved to dismiss this case. The motion was opposed
by plaintiff Raymond C. Givens.2 By order of June 9, 2021,3 the court denied defendant’s
motion to dismiss. Defendant sought reconsideration of the latter order.4 After full
briefing of the motion for reconsideration, the court entered its order of July 13, 2021, in
which the motion for reconsideration was granted and defendant’s motion to dismiss was
reinstated.5
1Docket No. 17.
2Docket No. 20.
3Docket No. 30.
4Docket No. 32.
5Docket No. 41 at 3-4.
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Background for June 9, 2021, Order
Plaintiff alleges that in 2003, he, as “an attorney doing business as Givens Law
Firm, entered into a Contingency Fee Contract with the heirs of Andrew Oenga[,]” one of
whom was defendant’s father.6 Plaintiff avers that at that time, he “was admitted to
practice law in Washington State and Idaho....”7
Plaintiff alleges that “[t]he Contingency Fee Contract concerned the claims of the
Oenga heirs against the U.S. Department of Interior, Bureau of Indian Affairs (‘BIA’), for
breach of its fiduciary duties to them in approving a lease of a restricted Native
Allotment, located at Point Heald, east of Prudhoe Bay, Alaska....”8 Plaintiff alleges that
“[t]he Oenga heirs believed the rental payments approved by the BIA were too low.
Under the Contingency Fee Contract, [p]laintiff was to be paid a percentage, on a sliding
scale, of any increases in past and future rents he was to obtain from the Allotment.”9
Plaintiff alleges that in 2006, he “filed suit on behalf of the Oenga heirs in the Court of
Federal Claims (‘CFC’) against the United States.”10
Plaintiff alleges that “[a]fter years of intensive litigation, on February 8, 2011, the
CFC issued its Final Decision and Judgment in favor of the Oenga heirs, awarding them
substantial damages for the failure to collect proper past rents, and a substantial increase
6Complaint for Declaratory Judgment, Damages, and Specific Performance at 2,
¶ 6, Docket No. 1.
7Declaration of Raymond C. Givens at 1, ¶ 2, Docket No. 21.
8Complaint for Declaratory Judgment, Damages, and Specific Performance at 2,
¶ 6, Docket No. 1.
9Id.
10Id. at 3, ¶ 7.
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in past and future rents from the Allotment.”11 Plaintiff alleges that an appeal was taken,
but the parties ultimately entered into mediation and reached a comprehensive
settlement.12
Plaintiff alleges that in 2011 and 2012, the Contingency Fee Contract was
amended, but that it continued to provide that “the contingency fee due on future rents ...
remains due each year as a 25% fee of the total rent received each year due as
compensation for the attorney’s work in securing the increased rent amount.”13
Plaintiff alleges that defendant’s father passed away in March 2012 and “[h]is
interest in the Allotment was probated by Administrative Law Judge (‘ALJ’) James Lee
Yellowtail....”14 Plaintiff alleges that “[d]efendant was a party to the Probate Action, and
there he signed and filed an affidavit, dated June 5, 2012, acknowledging that his
inherited interest in the Allotment was subject to [p]laintiff’s right, pursuant to the
Contingency Fee Contract, as amended, to be paid 25% of [d]efendant’s share of annual
rents from the Allotment.”15 Plaintiff alleges that in a 2013 decision, ALJ Yellowtail
“held that [d]efendant’s inherited interest in the Allotment is subject to [d]efendant’s
obligation to pay [p]laintiff’s claim for attorney’s fees[.]”16
11Id. at 3, ¶ 9.
12Id. at 3-4, ¶ 10.
13Id. at 4-5, ¶¶ 11-12.
14Id. at 6, ¶ 14.
15Id. at 6, ¶ 15.
16Id. at 7, ¶ 16.
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Plaintiff alleges that defendant initially complied with his obligations under the
amended Contingency Fee Contract, but plaintiff alleges that he “did not receive, and has
not received, payment from [d]efendant from his share of rent from the Allotment for
calendar year 2020” or calendar year 2021.17
On January 19, 2021, plaintiff commenced this action, in which he asserts a breach
of contract claim and claims for declaratory relief and specific performance for past and
future payments due.18
Defendant’s motion to dismiss based upon Alaska Bar Rule 39 is again before the
court.
Further Background
The mediation which followed the appeal of the Oenga heirs’ successful CFC
litigation took place on June 23, 2011. The mediation took place in Fairbanks, Alaska,
and resulted in the execution of a confidential term sheet. Counsel from out of Alaska
were present, representing the United States and oil company intervener. Also present, on
behalf of the Oenga heirs, was plaintiff.19
On August 5, 2011, plaintiff and the Oenga heirs executed a Contingent Fee
Contract First Amendment. The amended fee agreement was executed in Fairbanks,
17Id. at 7-9, ¶¶ 17-18, 20, 21.
18Docket No. 1.
19Exhibit A, Declaration of Counsel (Rachel B. Laussen), which is appended to
Motion for Reconsideration of Order on Motion to Dismiss, Docket No. 32.
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Alaska. Plaintiff was present in Fairbanks for the execution of the amended fee
agreement.20
A final settlement agreement and a fee/cost reduction agreement were executed by
the parties to the litigation and by the Oenga heirs and plaintiff on May 24, 2012.
Plaintiff was present in Fairbanks for the signing of these agreements.21
Discussion
Alaska Bar Rule 39 provides:
At the time of service of a summons in a civil action against
his or her client for the recovery of fees for professional ser-
vices rendered, an attorney will serve upon the client a written
“notice of client’s right to arbitrate or mediate,” which will
state:
You are notified that you have a right to file a Petition for
Arbitration of Fee Dispute or a Request for Mediation and
stay this civil action. Forms and instructions for filing a Peti-
tion for Arbitration of Fee Dispute or a Request for Mediation
and a motion for stay are available from the Alaska Bar Asso-
ciation, P.O. Box 100279, Anchorage, AK 99510-0279, or
contact (907) 272-7469 for the Alaska Bar Association’s
street address. If you do not file the Petition for Arbitration of
Fee Dispute or a Request for Mediation within twenty (20)
days after your receipt of this notice, you will waive your
right to arbitration or mediation.
Failure to give this notice will be grounds for dismissal of
the civil action.
Defendant argues that the Alaska Bar has jurisdiction over any attorney who
appears, participates, or otherwise engages in the practice of law in Alaska. Defendant
relies upon Alaska Bar Rule 34(c)(1), which provides:
20Exhibit B, Laussen Declaration, which is appended to Motion for
Reconsideration of Order on Motion to Dismiss, Docket No. 32.
21Exhibit C, Laussen Declaration, which is appended to Motion for
Reconsideration of Order on Motion to Dismiss, Docket No. 32.
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[a]ll disputes concerning fees charged for professional ser-
vices or costs incurred by an attorney are subject to arbitration
under these rules except for:
(1) disputes where the attorney is also admitted to practice
in another state or jurisdiction and (s)he maintains no office in
the state of Alaska and no material portion of the legal
services were rendered in the state of Alaska, unless (s)he
appeared under Alaska Civil Rule 81[.]
There is no dispute that plaintiff was not and is not a member of the Alaska Bar
Association. It is also undisputed that plaintiff never had an office in the State of Alaska
and that he did not appear under Alaska Civil Rule 81. The dispute here is over whether a
“material portion of the legal services [plaintiff provided to the Oenga heirs] were
rendered in the state of Alaska.” Alaska Bar Rule 34(c)(1).
The parties have not cited, nor did the court’s independent research reveal, any
authority providing guidance as to how to determine where legal services are rendered.
Defendant argues that the court should find that the mediation, the signing of the
confidential term sheet, settlements, and fee agreements, which underlie plaintiff’s
complaint in this court, constitute a material portion of the legal services rendered by
plaintiff for purposes of Alaska Bar Rule 34(c)(1). The court would formulate the issue
before it somewhat differently: “Was ‘no material portion’ of plaintiff’s legal work for
the Oenga heirs rendered in Alaska?”22
Plaintiff argues that defendant has failed to show that a material portion of his
legal work was rendered in Alaska. Plaintiff points out that the mediator was from
California and that counsel for the United States and for the oil companies were all from
outside Alaska. Plaintiff argues that the mediation could have taken place in various
22Order re Motion for Reconsideration at 4 (quoting Alaska Bar Rule 34(c)(1)),
Docket No. 41.
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cities outside Alaska. Plaintiff points out that Alaska cases are often mediated in Seattle
or elsewhere. The foregoing does not answer the question before the court. That the
mediator and counsel for other parties came to Fairbanks from elsewhere is irrelevant for
purposes of evaluating whether plaintiff’s representation of the Oenga heirs at the
mediation and for the execution of the settlement agreement constituted a material portion
of plaintiff’s legal services for the Oenga heirs. Certainly the mediation and execution of
settlement documents and fee agreements might have taken place outside of Alaska, but
that is not what happened.
The word “material” means: “[h]aving some logical connection with the
consequential facts[.]” Black’s Law Dictionary (11th ed. 2019). The facts of
consequence here are that a mediation conducted in Fairbanks, Alaska, led to a settlement
agreement executed in Fairbanks, Alaska, which preserved for the Oenga heirs a
substantial monetary recovery that might have been lost through an appeal. Plaintiff’s
presence in Fairbanks and negotiations on behalf of the Oenga heirs, through and
including the execution of settlement and a fee agreement, have an obvious, logical
connection to the consequential facts.
With an appeal pending as to the CFC judgment, the substantial recovery which
the Oenga heirs hoped to receive was in jeopardy. The mediation resulted in the recovery
of substantial sums of past and future annual rent payments. The mediation and
settlement agreement assured the Oenga heirs of a favorable resolution of the litigation
and were a material portion of the legal services rendered by plaintiff. Those services
were rendered in Alaska.
As set out above, Alaska Bar Rule 34(c)(1) provides that “[a]ll disputes concerning
fees” are subject to arbitration unless “no material portion of the legal services were
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rendered in the state of Alaska.” Alaska Bar Rule 39 provides that an attorney suing a
client for fees for professional services must provide his client with notice of the client’s
right to arbitrate or mediate. Because a material portion of plaintiff’s legal services were
rendered in the state of Alaska, plaintiff should have complied with the notice
requirements of Alaska Bar Rule 39. It is undisputed that no such notice was given in this
case. Thus, this case is subject to dismissal.
However, Alaska Bar Rule 39 does not expressly require dismissal. The rule states
that “[f]ailure to give” the arbitration and mediation “notice will be grounds for
dismissal.” The rule does not provide that the court must dismiss an action for failure to
give notice. Here, there is little to be gained by dismissal. Were the court to dismiss this
case, it would do so without prejudice, which would mean that plaintiff could, and most
certainly would, file another lawsuit and give defendant the appropriate notice regarding
his right to arbitrate or mediate the fee dispute. In this case, a more practical solution will
be to give defendant an opportunity to pursue arbitration or mediation as contemplated by
Alaska Bar Rule 39, rather than dismissing the case without prejudice.
Conclusion
On reconsideration, defendant’s motion to dismiss is again denied. However, as
provided for in Alaska Bar Rule 39, defendant has twenty days from the date of this order
in which “to file a Petition for Arbitration or a Request for Mediation” and to file a
motion for a stay of proceedings in this court pending resolution of a Petition for
Arbitration or a Request for Mediation.
DATED at Anchorage, Alaska, this 21st day of July, 2021.
/s/ H. Russel Holland
United States District Judge
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