United States District Court, W.D. Arkansas, El Dorado Division
REPORT AND RECOMMENDATION
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE.
the Court is the Motion to Order Refund (of attorney's
fees) (ECF No. 45), filed herein by the Defendant. This
Motion was referred to the undersigned by United States
District Judge Harry F. Barnes. ECF No. 77. Defendant's
prior counsel, Mr. Floyd Mattison Thomas, III, as filed a
response under seal as directed by the Court. ECF No. 80. For
the reasons stated below, the Motion to Order Refund (of
attorney's fees) (ECF No. 45) should be
was charged by indictment with possession with intent to
distribute cocaine base on January 27, 2016. ECF No. 1. His
initial appearance was held on February 11, 2016. Defendant
has been represented by several attorneys during the course
of this case. At issue in the pending Motion is
Defendant's representation by Mr. Thomas in this case.
Mr. Thomas was retained by Defendant and allowed to appear in
this case on September 29, 2016. ECF Nos. 37 and 39.
December 13, 2016, Mr. Thomas moved to withdraw as counsel of
record for Defendant. ECF No. 40. In the Motion to Withdraw,
Mr. Thomas made the following assertions to the Court: a) a
conflict had arisen between Defendant and counsel which had
become “irreparable;” b) there were no unused
portions of the retainer paid to Counsel to return to the
Defendant; and c) no prejudice would result to Defendant if
the Motion to Withdraw as granted. ECF No. 40. Defendant did
not object to this Motion; and on December 29, 2016, the
Court granted the Motion to Withdraw. ECF No. 41. New counsel
was appointed to represent Defendant on the same day. ECF No.
April 24, 2017, Defendant filed the instant pro se
Motion to Order Refund (of attorney's fees). ECF No. 45.
With this Motion, Defendant alleges Mr. Thomas refused to
investigate his case or prepare Defendant for trial. He
further alleges Mr. Thomas “attempted several times to
force the defendant to sign a plea of guilty.”
Defendant also alleges Mr. Thomas “conspired with the
U.S. Marshals service and U.S. District Attorney, and had the
defendant placed in 23 hour lock down” following
Defendant's refusal to sign a plea agreement. Following a
subsequent meeting between the Defendant and Mr. Thomas,
Defendant states he demanded a refund of the retainer he had
paid and that Mr. Thomas refused to give him a refund.
Defendant requests a refund of $2, 500.00 of the retainer he
says was paid to Mr. Thomas.
Thomas has filed his Response to the Motion under seal as
ordered by the Court. ECF No. 80. Mr. Thomas admits he
contracted to provide representation to the Defendant in this
matter. He denies any allegation of wrongful or unethical
conduct in that representation. ECF No. 80 ¶ 5.
than Defendant claiming entitlement to a $2, 500.00 refund,
no specifics of the contract between Defendant and Mr. Thomas
were given in either the Motion or the Response. The Court
ordered a hearing on this matter on February 27, 2018. ECF
No. 84. The United States waived appearance as this hearing
as it has no interest in the dispute. Mr. Thomas also waived
appearance and indicated to the Court he would rely on the
Response filed. Plaintiff appeared at the hearing and
indicated he had already filed a complaint regarding Mr.
Thomas's representation with the Arkansas Supreme
Court's Committee on Professional Conduct.
courts are courts of limited jurisdiction and, as such, must
have a statutory or constitutional basis to exercise
jurisdiction. A court lacking jurisdiction must dismiss the
case regardless of the stage of the proceeding when it
becomes apparent that jurisdiction is lacking. There is a
presumption against federal jurisdiction, and the party who
seeks to invoke federal jurisdiction bears the burden of
establishing that such jurisdiction is proper. As discussed
below, the relief sought by Defendant is not properly before
this Court in the current case.
instant case is one alleging violation of federal criminal
law. The claim made by Defendant for return of attorney's
fees is, necessarily, a contract claim. The Federal Courts
may hear a private claim for breach of contract only if it
has jurisdiction. In this instance, the only possible
jurisdiction for Defendant's claim is diversity of
citizenship. Here, both Defendant and Mr. Thomas are
residents of Arkansas. Further, the amount in controversy,
$2, 500.00, is not sufficient pursuant to 28 U.S.C. §
1332. This Court lacks jurisdiction over this contract claim.