LOUISVILLE, Ky. (Legal Newsline) - A personal injury law firm that is being sued for a second time by a former partner over its diversion of fees wants the lawsuit -- originally filed in a Kentucky state court -- to be moved to a federal court and dismissed.
Schiller Kessler & Gomez PLLC argues in a motion filed in the U.S. District Court for the Western District of Kentucky, Louisville Division, that the plaintiff, Alan Lani, a former managing partner at the firm’s Kentucky office, has brought nearly identical claims in his newest lawsuit, filed in Jefferson Circuit Court in November.
Lani tendered his resignation Nov. 18, 2015 to be effective Nov. 30, 2015.
The firm, which has offices in Louisville and Fort Lauderdale, Fla., mostly handles personal injury and wrongful death cases, including car, truck and motorcycle accidents, slip and fall, medical malpractice and animal attacks.
Schiller Kessler & Gomez filed its removal notice with the Kentucky federal court Dec. 22.
Lani’s newest lawsuit was filed in the state court Nov. 29. The named defendants include Schiller Kessler & Gomez PLLC in Louisville, Schiller Kessler Gomez PLC in Fort Lauderdale and partners Marc Schiller, Andrew Kessler and Marcelo Gomez.
“After the Derivative Action was dismissed and briefing on the Derivative Defendants’ motion for attorney fees was completed, Lani filed this action in the Jefferson Circuit Court,” attorneys for the law firm wrote in a motion to reassign, filed Monday.
“Virtually identical to the claims in the Derivative Action, the Complaint here alleges that fees from matters referred to other litigation counsel were diverted to SKG Florida rather than being paid into SKG Kentucky’s general fund. Indeed, Lani even alleges the exact same amount of diverted fees here as in the Derivative Action -- $400,000.”
Lani filed his first, a shareholder derivative, lawsuit in Jefferson Circuit Court Dec. 1, 2015 -- days after his resignation was effective.
In his newest lawsuit, similar to his first, Lani alleges the fees from matters referred to other litigation counsel were diverted to SKG’s Florida offices rather than being paid into SKG Kentucky’s general fund.
And like his previous suit, Lani contends the diversion of fees deprived him of a percentage of the profits.
However, in this case, he alleges he was forced to loan personal money to the firm’s Kentucky office to cover its overhead, as a result of the diversion of fees.
Also, as a result of the continued diversion of gross profits, Lani alleges he did not receive any compensation for a period of about four months.
The defendants filed a motion to dismiss for failure to state a claim and lack of jurisdiction Dec. 29.
On Monday, they also filed a motion to reassign, arguing Judge Charles R. Simpson III would be better suited to hear the case, given his handling of Lani’s derivative lawsuit.
Currently, Judge Greg Stivers is assigned to the case.
“Ultimately, Judge Simpson ordered that removal was proper, that SKG Kentucky should be considered a defendant based on the derivative nature of the claims, and that dismissal was necessary because Lani lacked standing to pursue claims on behalf of SKG Kentucky in light of his withdrawal from membership in SKG Kentucky,” the firm said of Lani’s previous lawsuit.
“There can be no doubt that the claims alleged here arise out of the same set of operative facts, and in many cases are identical to, the claims asserted in the Derivative Action.”
The firm said it simply makes sense for Simpson to hear the newest action.
“Judicial economy and the interests of justice will be served by the Derivative Action and
this action being handled by the same judge,” it wrote. “Judge Simpson is already familiar with the parties and the facts alleged in this case.
“Moreover, the dismissal of the Derivative Action, as decided by Judge Simpson, directly affects the viability of the claims presented here.”
Kentucky law firm Stoll Keenon Ogden PLLC is representing the defendants in the action.
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.