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NICKEL RIM MINES LTD. v. UNIVERSAL-CYCLOPS STEEL C

February 9, 1962

NICKEL RIM MINES LIMITED, Plaintiff,
v.
UNIVERSAL-CYCLOPS STEEL CORPORATION, Defendant. HILL, BETTS, YAMAOKA, FREEHILL & LONGCOPE, Petitioners, v. UNIVERSAL-CYCLOPS STEEL CORPORATION, Defendant



The opinion of the court was delivered by: AUGELLI

The sole remaining question to be decided in this case is whether or not an attorney from a foreign jurisdiction who, pursuant to Rule 2(c) of the General Rules of this court, has been permitted to appear and participate in said action, may assert a lien for services under N.J.S.A. 2A:13-5.

The New Jersey statute dealing with attorneys' liens provides:

 'After the filing of a complaint * * * the attorney * * *, who shall appear in the cause for the party instituting the action * * *, shall have a lien for compensation, upon his client's action, cause of action, claim * * * which shall contain and attach to a verdict, report, decision, award, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come. The lien shall not be affected by any settlement between the parties before or after judgment or final order, nor by the entry of satisfaction or cancellation of a judgment on the record. The court in which the action * * * is pending, upon the petition of the attorney * * *, may determine and enforce the lien.'

 Rule 2(c) of the General Rules of this court, dealing with pro hac vice admissions, provides that:

 'Any member in good standing of the bar of any court of the United States or of the highest court of any state, * * * may in the discretion of the court, on motion, be permitted to appear and participate in a particular case. Only an attorney at law of this court may receive payment on judgments. Except in criminal cases, only an attorney at law of this court may file papers, enter appearances for parties, or sign stipulations.'

 The New Jersey rule dealing with the same subject matter (R.R. 1:12-8) is practically the same and in its entirety reads as follows:

 'Any attorney or counsellor from any other jurisdiction, of good standing there, may at the discretion of the court in which any cause is pending, be admitted, pro hac vice, to speak in such cause in the same manner as an attorney or counsellor of this State; provided, however, that all pleadings, briefs and other papers filed with the court shall be signed by an attorney of record authorized to practice in this State, who shall be held responsible for them.'

 '(a) No fee to any attorney or counsellor shall be allowed and no allowance by way of such fee shall be made in any cause, matter or proceeding in any court in this State, except for or on account of actual service rendered by a member of the bar of this State engaged in the practice of law and maintaining an office in this State; except that in any cause, matter or proceeding requiring the services of an attorney, counsellor or other member of the bar of any foreign jurisdiction, the court, in allowing a fee or making an allowance by way of fee, as aforesaid, shall take cognizance thereof and shall make allowance therefor as though actually rendered by the member of the bar of this State by whom such services were engaged.'

 The right to a lien in this case is being asserted by James E. Freehill, a New York attorney, whose firm was retained by plaintiff, Nickel Rim Mines Limited, a Canadian corporation, hereinafter called 'Nickel Rim,' to institute legal proceedings for breach of contract against two Pennsylvania corporations, the defendant Universal-Cyclops Steel Corporation, hereinafter called 'Universal', and Washington Steel Corporation, hereinafter called 'Washington'.

 A petition and amended petition have been filed in behalf of the lien claimant and answers thereto, denying the right to such lien, have been filed by Universal. The matter is now before the court on Universal's motion for judgment on the pleadings or, in the alternative, for summary judgment.

 It is, of course, well established that a judgment will not be rendered on the pleadings unless the right thereto is clear. All well pleaded facts, and all proper inferences therefrom, that emerge from the pleadings of the party against whom the motion is made, must be taken as being admitted by the moving party. Geist v. Prudential Insurance Co. of America, 35 F.Supp. 790 (E.D.Pa.1940); John v. United States, 138 F.Supp. 89 (E.D.Wis.1956).

 And in dealing with Universal's summary judgment aspect of its motion, we observe that no such judgment may be given if there be an issue presented as to the existence of any material fact. All doubts in this regard must be resolved against the moving party. Sarnoff et al. v. Ciaglia, 165 F.2d 167 (3 Cir.1947).

 The facts are not in substantial dispute. Universal was sued in this District and in connection with such suit Freehill retained New Jersey counsel. In due course Freehill, on motion, was permitted by this court to appear and participate in the cause and did, in fact, together with local counsel, engage in such activity in the litigation as took place in this District.

 The other corporation, Washington, was sued in the United States District Court for the Southern District of New York, but on Washington's application, the case was transferred to the United States District Court for the Western District of Pennsylvania. A similar attempt by Universal in this court to have the case ...


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