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Hutton & Hutton Law Firm, LLC v. Girardi & Keese

United States District Court, Tenth Circuit

January 6, 2014

HUTTON & HUTTON LAW FIRM, L.L.C., Plaintiff,
v.
GIRARDI & KEESE; THOMAS V. GIRARDI Defendants.

MEMORANDUM AND ORDER

RICHARD D. ROGERS, District Judge.

In this case, a Kansas law firm, Hutton & Hutton Law Firm, L.L.C. (the Hutton firm), has sued a California law firm, Girardi & Keese (G & K), and one of its attorneys, Thomas V. Girardi, seeking attorneys' fees. This matter is presently before the court upon defendants' motion to dismiss for lack of personal jurisdiction. In the alternative, defendants have asked the court to transfer this case pursuant to 28 U.S.C. § 1404(a) and 28 U.S.C. § 1631 to the United States District Court for Central District of California. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.

This action was originally filed in Kansas state court. It was removed to this court based upon diversity jurisdiction on March 22, 2013. The complaint contains four counts. In the first two counts, the Hutton firm asserts claims of breach of contract and conversion against the defendants arising from the settlement of Celebrex/Bextra cases. In the next two counts, the Hutton firm asserts claims of breach of contract and conversion against the defendants arising from the settlement of Zimmer Durom Cup litigation. In each instance, the Hutton firm had clients with claims based upon the use of Celebrex/Bextra and the use of the Zimmer Durom Cup. The Hutton firm contends that it entered into an agreement with G & K to refer its cases to G & K for settlement.

I.

The complaint and the record before the court, when viewed in the light most favorable to the plaintiff, show the following facts. The Hutton firm is located in Wichita, Kansas. G & K is a California law firm that "represents clients in California and nationwide in cases involving personal injury, medical malpractice, wrongful death, product defects, employment law, aviation law and others." (G & K Website Homepage). Girardi is a founding and managing partner of G & K.

G & K has no offices or employees in Kansas. It owns no property in Kansas. It has no registered agent for service in Kansas. Girardi lives in Pasadena, California. He has never lived or owned property in Kansas. He has never traveled to Kansas for any reason that is related to the Celebrex/Bextra litigation or the Zimmer Durom Cup litigation.

The Hutton firm represented various individuals with product liability claims against Pfizer, Inc. arising out of the manufacture of the prescription drugs Celebrex and Bextra. These clients claimed they had suffered personal injuries from the ingestion of Celebrex and Bextra. The Hutton firm filed suit on behalf of the clients against Pfizer. Fifteen of those clients were Kansas residents. During the same time period, many claims and lawsuits were asserted against Pfizer across the nation, resulting in a multi-district litigation proceeding in the United States District Court for the Northern District of California known as In re Bextra and Celebrex Marketing Sales Practice and Product Liability Litigation, MDL No. 05-1699. Hutton's suits were either directly filed in, or transferred to, that court.

In 2008 and 2009, G & K directed and spearheaded an effort to unite the firms representing claimants in the Celebrex/Bextra litigation in order to negotiate an aggregate settlement for all claimants. Anne Andrews, an attorney with the California law firm of Andrews & Thornton, contacted the Hutton firm in Wichita and requested that the Hutton firm refer all of its Celebrex/Bextra cases to G & K and Andrews & Thornton. The purpose of the referral was to allow G & K to negotiate settlements for the Hutton firm's clients in the Bextra and Celebrex litigation. On May 29, 2009, Girardi sent a letter to Mark Hutton soliciting the Celebrex/Bextra cases. The letter stated:

Dear Mark:
Can you send me a list of your cases so I can get a first-cut look? More importantly, I look forward to a long and great relationship.

The Hutton firm agreed to refer its cases to G & K. The firms agreed to split the fees in the following manner if a settlement was reached: 80% to the Hutton firm, 10% to Andrews & Thornton, and 10% to G & K.

Thereafter, the Hutton firm prepared "voluminous information and records" for its clients' cases at its office in Kansas. In October 2009, G & K entered into a confidential settlement with Pfizer, which resolved all of the Hutton firm's clients' cases. In order to disburse the clients' share of the settlement proceeds, G & K, with one exception, made payment from its trust account and sent the clients' checks to the Hutton firm in Kansas, and the Hutton firm forwarded individual checks to the clients. Girardi sent Mark Hutton a letter on March 7, 2011 confirming the fee arrangement: "We will live up to the agreement." G & K has remitted four checks to the Hutton firm in Kansas as partial payment under the parties's fee-sharing agreement. The Hutton firm contends in this case that G & K has not paid the total amount due under the agreement.

Similar facts are present concerning the Zimmer Durom Cup litigation. In November 2008, Scott Cox, a Kansas resident, retained the Hutton firm to represent him in connection with a products liability claims arising from the implantation of the Zimmer Durom Cup, manufactured by Zimmer, Inc. In late spring or early summer 2009, Girardi informed Mark Hutton during several telephone conversations that his firm was representing several clients with claims against Zimmer and told him that his firm could procure larger settlements for the clients. Girardi solicited the Hutton firm to refer its case to G & K. Shortly thereafter, G & K and the Hutton firm agreed to refer the case to G & K in an attempt to obtain a settlement of Cox's case. They agreed that Hutton would receive two-thirds of the net attorneys' fees and G & K would receive one-third. The Hutton firm assembled information and records and sent them to G & K. In December 2011, Cox entered into a confidential settlement agreement with Zimmer. On or about March 19, 2012, Cox received a check from G & K as partial payment for his settlement. The Hutton firm asserts that it has not received any amount of the attorneys' fees owed to them by G & K for this litigation.

During the same period in late spring and early summer 2009, G & K also solicited products liability cases from the Hutton firm involving claims against the manufacturer Avandia. The Hutton firm agreed to refer its Avandia cases to G & K, of which 19 involved Kansas residents. Again, the Hutton firm performed substantial work on the Avandia cases by assembling information to be sent to G & K.

From 2009 to the present, the Hutton firm has received 77 letters, e-mails and faxes from Girardi and/or G & K regarding the Celebrex/Bextra, Zimmer and Avandia litigation. Sixty-five of these communications related to the Celebrex/Bextra and Zimmer litigation. The remaining 12 letters, e-mails and faxes related to the Avandia cases. Most of those communications originated from ...


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