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6-1-2010 memorandum in opposition of

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Case 1:05-cv-01121-DDD-CMH Document 406 Filed 06/01/10 Page 1 of 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION THE CITY OF ALEXANDRIA VERSUS CLECO CORPORATION, ET AL. CIVIL ACTION NO. CV05-1121A JUDGE DEE D. DRELL MAG. JUDGE C. MICHAEL HILL ________________________________________________________________________ MEMORANDUM IN OPPOSITION OF MOTION TO SEGREGATE FUNDS NOW COMES, defendant-in-intervention, the City of Alexandria (“City”), which herein files i
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917847.1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION THE CITY OF ALEXANDRIA CIVIL ACTION NO. CV05-1121A VERSUS JUDGE DEE D. DRELL CLECO CORPORATION, ET AL. MAG. JUDGE C. MICHAEL HILL ________________________________________________________________________ MEMORANDUM IN OPPOSITION OF MOTION TO SEGREGATE FUNDS NOW COMES, defendant-in-intervention, the City of Alexandria (“City”), which herein files its memorandum in opposition to a motion styled as one to segregate funds filed by intervenor, Bridgett Brown, (“Brown”), in the referenced matter. In short, Brown’s motion to segregate funds is filed without so much as a modicum of basis in law or fact and should be denied. Brown’s motion which is comprised of a mere eight paragraphs fails to cite any jurisprudential or statutory support for the extraordinary relief she is seeking. Because Brown failed to file a memorandum in support of her motion to segregate funds, the City has no further indication of the basis of Brown’s claim and must presume that Brown relies solely on the loosely stated assertions in the motion. Brown’s motion to segregate funds is effectively a preemptive request for a writ of attachment and the seizure of City funds prior to success on the merits. Not only is Brown short of success on the merits, but she has not established a prima facie case that she is entitled to any recovery from the City and has made no indication of an ability to do so. She has wholly failed Case 1:05-cv-01121-DDD-CMH Document 406 Filed 06/01/10 Page 1 of 5917847.1 2 to suggest any security interest or other right to entitle her to this prejudgment relief. Thus, there is no viable basis, underany theory of law, for the premature motion to segregate funds, and Brown is not entitled to the relief sought.1 Brown’s motion, by which she seeks to encumber and restrain public funds, relies upon a series of unsupported and refuted facts which, under no circumstances, entitle her to the relief sought. First, Brown’s central basis for the motion to segregate funds is the percent (10%) she claims she is owed under her contingency fee contract with the City. Based on the contract, she claims to be entitled to a special lien and/or privilege. However, Brown’s contingency fee contract was terminated by the City. Magistrate Judge C. Michael Hill issued a report and recommendation on March 11, 2010 (the “Report”) recognizing the termination of Brown’s contract.2 Although, this Court has not yet ruled with regard to the Report, Brown’s overt reliance on the terminated contract without even mentioning the Report borders on bad faith and is indicative of the entire lack of support for Brown’s motion to segregate funds. Second, Brown avers that the City is negotiating payment of fees to consultants and attorneys fees during the Cleco litigation. Brown has no knowledge of the current litigation or the payment of any attorneys and/or consultants in this case because she has been terminated for more than two years. More importantly, the payments made to consultants and other counsel are immaterial to any amounts owed to Brown. Because Brown’s contingency fee contract was terminated, she is limited in recovery to quantum meruit. Third, Brown avers that the City is contemplating a cash rebate to rate payers out of settlement funds. Again, Brown has been uninvolved with this matter for more than two years and has no knowledge of what the City is contemplating. Even so, it is ironic Brown would be 1 Brown’s motion to segregate funds is not warranted by existing law and thus is a violation of Federal Rule of Civil Procedure 11(b)(2). 2 See Report and Recommendation of Judge C. Michael Hill at Record Doc. 382. Case 1:05-cv-01121-DDD-CMH Document 406 Filed 06/01/10 Page 2 of 5917847.1 3 fearful of a rebate to the citizens of the City -- a City she claimed she represented.3 Notwithstanding, any rebate would have no effect on the potential recovery Brown may be entitled to on aquantum meruit basis. Each and every factual allegation in Brown’s motion is either incorrect or factually irrelevant. However, even if Brown’s allegations were supportable, Brown is not entitled to the relief sought under any viable theory of Louisiana law. There is neither jurisprudence nor statute which permits a plaintiff-in-intervention to secure a writ of attachment for the full amount of the relief sought prior to judgment on the merits and without even showing of a likelihood of success. Brown’s motion to segregate funds is baseless, unsupportable, and should be denied. 3 At this time, there has been no consideration of a rebate by the City utility. Case 1:05-cv-01121-DDD-CMH Document 406 Filed 06/01/10 Page 3 of 5917847.1 4 WHEREFORE, the City of Alexandria prays that after all necessary considerations, Brown’s motion to segregate funds be denied. RESPECTFULLY SUBMITTED, Charles E. Johnson, Jr. (#22807) Alainna Reneé Mire (#29351) CITY OF ALEXANDRIA, LOUISIANA P.O. Box 71 Alexandria, LA 71309-0071 Telephone: 318-449-5015 Fax: 318-449-5019 GIST FIRM, A P.L.C. Howard B. Gist, III (#06277) P.O. Box 13705 Alexandria, LA 71315 Telephone: 318-448-1632 Fax: 318-442-5360 BREAZEALE, SACHSE & WILSON, L.L.P. 301 Main St., Suite 2300 P.O. Box 3197 Baton Rouge, LA 70821-3197 Telephone: 225-387-4000 Fax: 225-381-8029 s/ Claude F. Reynaud, Jr. Claude F. Reynaud, Jr. (#11197) Leo C. Hamilton (#1139) Carroll Devillier Jr. (#30477) Counsel for City of Alexandria Case 1:05-cv-01121-DDD-CMH Document 406 Filed 06/01/10 Page 4 of 5
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