withdrawal from the suit. There was very little in-court activity in this case prior to the withdrawal:
the plaintiff filed a complaint; service was made; defendants were granted additional time to respond
to the complaint; and plaintiff filed a first amended complaint. Moreover, what few court
proceedings took place in the case were conducted by the district judge then presiding in the case,
and occurred long before the parties first appeared before this Court. Thus, the Court would have
no greater familiarity with the work done by WMH&M than would a state court hearing this dispute

and as a result, neither convenience nor judicial economy (the third and fourth Cluett factors)
would be served by having this Court resolve the dispute.

The second C/uett consideration — protecting attorneys as officers of the court in matters such
as fee disputes — assumes that it is the attorney, and not the client, that needs protection. There is
no way for a court to know whether that is so in any given situation without delving into the merits
of the dispute. But, a court should not delve into the merits unless it first determines that it has the
jurisdiction to do so. Moreover, even viewing this consideration as a policy matter, the Court is not
persuaded that it should give special protection to attorneys (as opposed to other professionals who
serve clients in litigation in federal court) when disputes arise. That is particularly so when
attorneys, perhaps more than other professionals, have ample means to protect the fees charged for
the services that they render: such as, by clearly specifying the fee arrangement in a written
agreement; by demanding an adequate retainer or other security; and by requiring prompt payment
of bills before the client is hundreds of thousands of dollars in arrears. And, in the end, if disputes
arise, attorneys — like other professionals ~ have legal recourse: they may sue in state court, which

WMH&M is free to do here.

13


confers federal jurisdiction over cases or controversies rather than over claims... .” Brazinski v.
Amoco Petroleum Additives Co., 6 F.3d 1176, 1181-82 (7° Cir. 1993).
This supplemental jurisdiction doctrine, which originated in judicial decisions, was codified
in 1990 at 28 U.S.C. § 1367. That statute provides, in relevant part:
(a) ...in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within

such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. ...

Ok OK

(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if ~

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has
original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.

Although this statutory formulation of the supplemental jurisdiction doctrine does not use the
“eommon nucleus of operative fact” language found in Gibbs, the Seventh Circuit has made plain
that “the new statute is intended to codify rather than to alter the judge-made principles of pendent
and pendent party jurisdiction . . ” Brazinski, 6 F.3d at 1182; see also Baer v. First Options of
Chicago, Inc., 72 F.3d 1294, 1298 (7" Cir. 1995). Thus, the existence of a common nucleus of

operative fact remains the touchstone for the existence of supplemental jurisdiction.


have the Court define it. We do not believe that the doctrine of supplemental jurisdiction was
intended to create such a gaping hole in the principle of limited federal jurisdiction.

This conclusion is consistent with the case law within this circuit concerning the exercise of
jurisdiction over fee disputes. In Bounougis v. Peters, 369 F.2d 247, 249 (7" Cir. 1966), the Seventh
Circuit upheld a district court’s decision not to exercise jurisdiction over a fee dispute, reasoning that
the underlying litigation had been terminated long before the fee dispute was presented to the court;
there was no factual relationship between the litigation and the fee dispute; the court had no property
associated with the litigation within its custody or control; and the fee dispute had already been
pending in state court for several years before the district court was asked to exercise jurisdiction
over it. By contrast, in cases where courts within this circuit have exercised jurisdiction over fee
disputes, the cases have presented situation where the fee dispute was acknowledged in a settlement
agreement that was approved by the district court, and that provided for the district court to resolve
the dispute, Baer, 72 F.3d at 1302; where the fee dispute arose in the context of a federal statutory
claim that authorized an award of attorneys’ fees to a prevailing party, Baer, id.; where the attorney
had perfected a statutory lien that allowed recovery of attorneys’ fees out of the proceeds of the
litigation, Clarion Corp. v. The American Home Products Corp., 464 F.2d 444, 445 (7" Cir. 1972);
Acorn Bank Shares, Inc. v. Suburban Bank Corp., Inc., No. 85 C 329, 1987 WL 18950, * 3 (N.D.
Ill, Oct. 20, 1987); and where the district court, at the time an attorney withdrew from the case,
retained jurisdiction of any disputes concerning fees. Acorn Bankshares, Inc., 1987 WL 18950, at
*4,

While not a perfect fit, this case has more in common with Bounougis than with the cases

in which courts within this circuit have entertained fee disputes. As in Bounougis, there is no fund


underlying plaintiff's sexual harassment and retaliation claims — that is, the federal and state claims
were so unrelated that the federal claim “would be unaffected if the electrocution claims were
dismissed.”187 F. Supp. 2d at 1040. Thus, the district court found that the federal claim did not
“involve the same set of facts that animated the state claim,” and thus dismissed the state law claims
based on the alleged electrocution. Jd. at 1040. At the same time, the district court held that
supplemental jurisdiction existed over plaintiff's state law assault claims that were based on alleged
conduct that also was directly implicated in the sexual harassment claim. /d. See also Jackson v.
Local 705, Int'l Bhd. of Teamsters, 2002 U.S. Dist. LEXIS 4908 (N.D. Ill. 2002) (dismissing state
law defamation claims insofar as those claims were based on statements to persons who were not
in a position to have engaged in the discriminatory hiring practices alleged in the Title VII claims,
but exercising supplemental jurisdiction over those state law defamation claims that were based on
statements made by defendants that a jury could reasonably conclude could have led to the alleged
Title VII discrimination).
Il.

With these principles of supplemental jurisdiction in mind, we turn to the question of whether
WMH&M’s fee dispute with Riva is part of the “common nucleus of operative fact” that underlies
the parties’ claims that are within the diversity jurisdiction of the Court. For the reasons that follow,
the Court concludes that this case does not fall within the scope of supplemental jurisdiction.

A

We begin with a consideration of the factual allegations that give rise to the underlying

dispute between the parties. Riva asserts that the defendants have failed to perform certain aspects

of the asset purchase agreement and have breached other aspects of the agreement and various side


The Seventh Circuit has explained that a “loose factual connection between the claims is
generally sufficient” to meet the common nucleus of operative fact standard. Ammerman v. Sween,
54 F.3d 423, 424 (7" Cir. 1995). However, the Seventh Circuit also has made clear that this does
not reflect the broadening of supplemental jurisdiction: both Gibbs and Section 1367 authorize
federal courts to exercise jurisdiction to the full extent permitted by the case or controversy
requirement of Article III. Baer, 72 F.3d at 1299; Brazinski, 6 F.3d at 1181-82.

Case law within this jurisdiction has fleshed out when the connection between the claims is
sufficient to bring the supplemental claim within Article III jurisdiction, or is too tenuous to satisfy
that standard. For example, in Ammerman, the Seventh Circuit held that the district court had
properly recognized and exercised supplemental jurisdiction over state law assault and battery claims
because they were sufficiently connected to the plaintiff's Title VII claim against her employer for
sexual harassment. The appeals court reasoned that since the basis of the Title VII claims was the
inadequate response of the defendant to the alleged assault and battery, the facts underlying those
tort claims were “highly relevant to the determination of whether appropriate remedial action had
been taken by the [employer].” 54 F.3d at 425. Put another way, the “loose factual connection”
standard was met because “without reference to facts surrounding the assault, there would have been
no sexual harassment claim against the employer.” Jd. at 424.

By contrast, in Eager v. Commonwealth Edison Co., 187 F. Supp. 2d 1033 (N.D. Ill. 2002),
the district court held that supplemental jurisdiction did not exist over the plaintiff's state claims
stemming from the employer allegedly forcing the plaintiff to work when exhausted, which the
plaintiff claimed resulted in her suffering an electrocution. The district court reasoned that unlike

the case in Ammerman, the facts involving the electrocution had nothing to do with the facts


As was true with the supplemental claims dismissed by the district court in Zager, the diversity
claims asserted by the parties in this case do not “involve the same set of facts that animate[d]” the
attorneys’ fee dispute. 187 F. Supp. 2d at 1040. There is no factual connection between those claims
at all, much less a “loose factual connection.”

WMHE&M tacitly acknowledges this point. Thus, the firm argues that proper inquiry is “not
whether the entitlement to fees arose out of the same body of facts being litigated,” which is the
touchstone of the common nucleus of operative fact test, but “rather whether the litigation that the
lawyer worked upon arose out of the same body of facts” (WMH&M Reply Mem. at 3). However,
that position disregards the language of Section 1367, and thus must be rejected if we are to respect
the well-settled rule that “[f]ederal courts are courts of limited jurisdiction,” and thus “possess only
that power authorized by Constitution and statute, ..., which is not to be expanded by judicial
decree.” Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 377 (1994).

Indeed, to accept WMH&M_’s argument would open the door to federal jurisdiction over a
myriad of collateral state law disputes that parties may have with various professionals or vendors
retained to assist them in federal court litigation. It is not uncommon for a party to retain a variety
of personnel to support the litigation effort, such as consulting and testifying experts; outside
photocopying services; translators in a case involving foreign language documents; and graphics
companies to prepare trial exhibits. A party, or its lawyer, may enter into contractual arrangements
with these types of experts and vendors, which will be governed by state law. Ifall that is necessary
for a fee dispute to fall within the purview ofa federal court is for it to relate to services arising out
of the litigation, then we see no principled reason why contractual disputes with these other experts

or vendors likewise would not fall within the sweep of supplemental jurisdiction as WMH&M would


Minute Order Fort o6197)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sidney I. Schenkier

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01 C 1390 DATE 7/12/2002

CASE Riva Technologies, Inc. vs. Zack Electronics, Inc. and Dennis Awad

TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Qo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due.
(4) o Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a) Pretrial conference[held/continued to] [set for/re-set for] on set for at .
7”) Oo Trial[set for/re-set for] on at
(8) QO {Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OlGeneral Rule 21 CIFRCP4I(a)(1) CJ FRCP41(a)(2),
ao) [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER. Wolf, Moskowitz,
Holland & Matern’s motion for a determination of its claim of attorneys’ fees [doc. # 45] is denied.

(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
s required. umber of notices

JUL 15 2002

date docketed

o | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

docketing deputy initials

LUN09 J

Copy to judge/magistrate judge. My

n22002

courtroom Help ey 21a z0 date mailed notice
a _Seputy’s men
‘ initials
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centrat Clerk’s Office ‘mailing deputy initials



that the state law fee dispute between Riva and WMH&M is within the Court’s supplemental
jurisdiction.”
B.

WMH&M also relies on a number of cases outside the Seventh Circuit to support its request
that the Court exercise jurisdiction to decide the fee dispute. To the extent that those decisions differ
from the approach employed by the Seventh Circuit, this Court would not be at liberty to follow
them, even if the Court found those decisions persuasive. But, in any event, we do not find the
analysis employed by courts in other circuits to be persuasive.

As one example, we consider the decision in Cluett, Peabody & Co. v. CPC Acquisition, 863
F.2d 251, 256 (2d Cir. 1988). In that case, the appeals court affirmed the exercise of jurisdiction

over a fee dispute. In so doing, the court did not discuss the common nucleus of operative fact

*WMH&M asks the Court to disregard the Bounougis decision on the ground that it predates the passage of
Section 1367, and “represents a minority view to which the Seventh Circuit no longer adheres” (WMH&M’s Reply at
3n. 2). The Court finds neither argument persuasive. First, the fact that Bounougis predates the codification of Section
1367 is irrelevant, inasmuch as the Seventh Circuit has squarely held that Section 1367 was “intended to codify rather
than to alter the judge-made principles of pendent and pendent party jurisdiction.” Brazinski, 6 F.3d at 1182. Second,
WMH&M offers no Seventh Circuit authority for the proposition that Bounougis is no longer good law. To the contrary,
we note that in Buer the Seventh Circuit cited Bounougis as an example of a case holding that there was no jurisdiction
to hear a fee dispute between the client and an attorney, without suggesting ~ much less holding ~ that that decision was
incorrect or no longer binding precedent. Baer, 72 F.3d 1300 at n.5.

WMH&M also has cited two recent Seventh Circuit decisions which the Court finds add nothing to the
discussion of supplemental jurisdiction here. Dale M. v. Board of Education, 282 F.3d 984 (7" Cir. 2002) (WMH&M
Reply Mem. at 4) involved an order that an attorney return fees that had been allowed under a federal statute that
authorized the award of attorneys’ fees — this case, of course, involves no such statutory scheme. WMH&M also cites
Abbott Laboratories v. CVS Pharmacy, Inc.,290 F.3d 854 (7" Cir. 2002), for the proposition that “‘[cJontroversies about
attorneys’ fees for work in the underlying suit are prime examples’ of circumstances where ‘supplemental jurisdiction
allows resolution of disputes that are closely related to the original litigation” (WMH&M Reply Mem. at 3). Asa
preliminary matter, WMH&M’s quotation of Abbott Laboratories omits a key word: the Seventh Circuit said that
supplemental jurisdiction “sometimes” allows the resolution of disputes that are closely related to the original litigation.
290 F.3d at 858. That general proposition is, of course, unremarkable. But, in stating that general proposition, the
Seventh Circuit did not provide guidance as to when fee disputes are within federal jurisdiction and when they are not.
Nor could the Seventh Circuit have done so, since the Abbott Laboratories case did not present a question of jurisdiction
overa fee dispute. Thus, any comments about federal jurisdiction over fee disputes in the Abbott Laboratories case were
dicta, and the Supreme Court has instructed that “[i]t is to the holdings of . . . cases rather than their dicta, that we must
attend, .. .” Kokkonen, 511 U.S. at 379,

11


associated with the litigation that is within the Court’s custody or control — the escrow created is in
the hands of plaintiff's (now former) counsel, Freeborn & Peters. Most important, as in Bounougis,
there is no connection — loose or otherwise — between WMH&M’s fee dispute with Riva and the
multitude of claims between the parties to this lawsuit.

Moreover, this case is dissimilar from the cases in which jurisdiction has been exercised in
critical respects. This case does not involve a federal statute that authorizes the Court to award
attorneys’ fees, as was the case in Baer. Moreover, this case does not involve the assertion of a
statutory lien against proceeds with the custody of the Court or that have been produced by the
litigation, as was the case in Clarion and Acorn Bankshares. The escrow fund created by the
agreement between Riva and WMH&M provides a source of payment of any fees to which
WMH&M may ultimately be entitled to recover, separate and apart from any recovery Riva may
obtain in this case. Finally, the Court has taken no affirmative action to exercise jurisdiction over
the fee dispute, such as by approving a settlement agreement that authorized the Court to resolve fee
disputes, as in Baer, or by allowing an attorney to withdraw from a case but retaining jurisdiction
to resolve the fee dispute, as in Acorn Bankshares. There is no settlement agreement here, and
WMHA&M sought and was granted withdrawal from the case without the condition that the Court
would retain jurisdiction over the fee dispute. And, when presented with a dispute concerning
WMH&M’s retention of attorney papers pursuant to a common law (not statutory) lien, the Court
specifically disavowed any exercise of jurisdiction over the underlying fee dispute, and instead
resolved only the question of WMH&M’s right to retain the papers in the absence of some other

suitable security. Thus, we find no convincing basis in the case law within this jurisdiction to find


agreements signed in December 2000 and January 2001 (First Am. Compl., Count 1). Riva further
alleges that defendants’ conduct was fraudulent (/d., Count II), and that by alleged malfeasance and
nonfeasance in December 2000 and thereafter, defendants tortiously interfered with Riva’s
contractual and business expectations (/d., Count III). In addition, Riva alleges that defendants made
various defamatory comments about Riva, which caused Riva to suffer damage (/d., Count IV).
Defendants deny the material allegations of the complaint, and assert various affirmative defenses.
In addition, the defendants have counterclaimed against Riva for breach of contract (Counterclaim,
Count I), based on alleged breached by Riva of the sales contracts, and have claimed that Riva
tortiously interfered with defendants’ legitimate business expectations (/d., Count I). Defendants
also have asserted a third-party complaint against Messrs. Annella and Hahamy, the principle
officers of Riva, for breach of fiduciary duty stemming from their alleged conduct that was to the
detriment of Zack while they were employed by Zack prior to the asset sale to Riva (Third Party
Complaint, Count I); tortious interference with contractual relationships and expectancies (/d., Count
J); false designation of origin, based on conduct that allegedly occurred between 1998 and 2000 (/d.,
Count III); and two counts of fraud, based on conduct that occurred either shortly before or after the
closing of the asset sale agreement in January 2001 (/d., Counts IV and V).

By contrast, the fee dispute involves questions of interpreting the fee agreement between
Riva and WMH&M; determining what work related to post-closing disputes and what work related
to this lawsuit; assessing the value of services provided by WMH&M and the reasonableness of the
time spent and the amounts charged; and (if Riva really is serious about this), considering claims of
malpractice. Plainly, the facts involved in the fee dispute between Riva and WMH&M are entirely

separate from the facts that underlie the claims, counterclaims, and third-party claims in this case.


exercise supplemental jurisdiction over the fee dispute. Riva argues that WMH&M’s claim for fees
does not fall within the Court’s supplemental jurisdiction. Riva further argues that even if the fee
dispute does fall under the Court’s supplemental jurisdiction, the Court should exercise its discretion
to decline supplemental jurisdiction because adjudication of the fee dispute, among other things,
would require the Court to segregate those fees appropriately related to the present action from those
for unrelated work; would create unfairness and inefficiency stemming from WMH&M and Riva
being able to litigate only some of their claims in federal court (and having to litigate fees claimed
for unrelated work in state court); and would embroil the Court in issues concerning alleged
malpractice.

Pursuant to consent of the parties, as authorized by 28 U.S.C. § 636(c), the case has been
reassigned to this Court for all proceedings, including the entry of final judgement (doc. #34). For
the reasons that follow, the Court finds that the state law fee dispute between WMH&M and Riva
does not fall within the Court’s supplemental jurisdiction, and thus denies WMH&M’s motion.

I.

Broadly stated, supplemental jurisdiction is a doctrine that allows a federal court to exercise
jurisdiction over a matter which would otherwise only be within the broader, general ambit of state
court. The essential condition for a federal court’s exercise of supplemental jurisdiction is that the
state law matter be so related to a case or controversy properly within the court’s jurisdiction that
the claims all “derive from a common nucleus of operative fact.” United Mine Workers of America
v. Gibbs, 383 U.S. 715, 725-26 (1966). If that condition is met, then the “claim is close enough to
the federal (or other) claim that confers federal jurisdiction to be part of the same case, [and] there

is no constitutional bar to the assumption of federal jurisdiction over the claim, because Article II


CONCLUSION
For the foregoing reasons, the Court concludes that the fee dispute between WMH&M and
Riva is not within the supplemental jurisdiction of this Court. Accordingly, WMH&M’s motion for

a determination of its claim of attorneys’ fees (doc. # 45) is denied.

SIDNEY I. SGHENKIER
United States Magistrate Judge

Dated: July 12, 2002


And, indeed, there are significant disputes about the fees claimed by WMH&M:
approximately $230,000 for services rendered during a period of some seven months. When Riva
first refused to accede to WMH&M’s demands for payment, WMH&M refused Riva’s demand to
turn over non-work product documents from WMH&M’s client file, claiming an attorney’s retaining
lien under Illinois common law. The dispute over WMH&M’s retention of documents resulted in
Riva filing a motion to compel their production. The Court denied the motion to compel, but — so
as not to frustrate the progress of this litigation ~ ordered the parties to come to an agreement by
which Riva could have access to its client file in exchange for its posting of security as against
obligations allegedly outstanding to WMH&M. Riva Technologies, Inc. v. Zack Electronics, Inc.,
No. 01C 1390, 2002 WL 368520 (N.D. Ill., Mar. 7, 2002). Therefore, on March 19, 2002, the parties
agreed that in lieu of withholding the documents, WMH&M would accept in the form of $60,000
in cash to be held in an escrow account maintained by Freeborn & Peters, and a $55,000 personal
guaranty signed by the principals of Riva and their spouses (doc. #40). Pursuant to this agreement,
the security was posted, and WMH&M, in turn, surrendered Riva’s client file.

In ruling on the motion to compel, the Court, citing Lucky-Goldstar International, Inc. v.
International Manufacturing Sale Co., Inc., 636 F. Supp. 1059 (N.D. Ill. 1986), expressly held that
the Court “does not have jurisdiction to decide the underlying fee dispute, which must be reserved
for resolution in state court.” Riva Technologies, Inc., 2002 WL 368520, * 3. Nonetheless,
WMH&M now has filed a motion for determination of its claim for attorneys’ fees (doc. # 45).
WMHE&M argues that even though its quantum meruit claim for attorneys’ fees is a state law claim
over which this Court would not ordinarily have subject matter jurisdiction (since it falls under

neither the Court’s diversity jurisdiction nor its federal question jurisdiction), the Court should


DOCKETED

IN THE UNITED STATES DISTRICT COURT JUL 152
NORTHERN DISTRICT OF ILLINOIS 5 2002

EASTERN DIVISION

RIVA TECHNOLOGIES, INC., an Illinois
corporation, d/b/a “Joseph Electronics”

Plaintiff,
No. 01 1390

Vv.

ZACK ELECTRONICS, INC., a California
corporation, and DENNIS AWAD,

Magistrate Judge Schenkier

Defendants.

MEMORANDUM OPINION AND ORDER

This lawsuit, which invokes the diversity jurisdiction of the Court, arises out of various
disputes among the parties in connection with the purchase by plaintiff, Riva Technologies, Inc., of
a significant potion of the electronics business in Illinois that was being operated by Zack
Electronics, Inc. Riva was represented by the law firm of Wolf, Moskowitz, Holland & Matern
(WMH&TMM), in the negotiation and closing of the asset purchase agreement and related agreements,
in connection with disputes that arose subsequent to the closing on the transaction, and in the
commencement of this lawsuit in February 2001.

On or about August 31, 2001, Riva discharged WMH&M. Thereafter, on September 6, 2001,
WMH&M was given leave to withdraw as counsel for plaintiff, and the law firm of Freeborn &
Peters was granted leave to appear as replacement counsel on behalf of the plaintiff (doc. # 16).! In
that order, the district court did not retain jurisdiction over any fee disputes that might exist between

Riva and WMH&M.

‘Riva recently has replaced the replacement firm: on July 8, 2002, the law firm of Kelley Drye & Warren LLP
was given leave to appear on behalf of Riva, and the Freeborn & Peters firm was given leave to withdraw (doc. # 52).

KA


standard, but instead characterized the exercise of discretion as being based entirely on “discretionary
factors.” 863 F.2d at 256. The appeals court identified four such factors: (1) the trial court’s
familiarity with the subject matter of the suit, and the work performed by the law firm in connection
with the lawsuit; (2) the Court’s responsibility to “protect its own officers in such matters as fee
disputes”; (3) the convenience of litigating in federal court as opposed to state court; and (4)
considerations of judicial economy. /d. The appeals court agreed with the trial court’s determination
that, on balance, these factors weighed in favor of exercising jurisdiction, “as a matter of discretion.”
Id.

At the threshold, we find this analysis unpersuasive because it focuses solely on the question
of whether a federal court should exercise jurisdiction over the fee dispute as a discretionary matter,
without ever squarely addressing the antecedent question of whether the fee dispute comes within
the case or controversy standard necessary for the case to be in federal court in the first place. To
be sure, Section 1367 (and before that, Gibbs) makes clear that even if a trial court possesses
supplemental jurisdiction over a state law claim, it is within the discretion of that court to decline
to hear the claim, based on a consideration of various factors. However, in order to decline the
exercise of jurisdiction, there must be supplemental jurisdiction that can be exercised in the first
place. And the Cluett decision ~ and many cases like it that WMH&M relies upon — never comes
to grips with the fundamental question of why a fee dispute is part of the constitutional case or
controversy.

Moreover, even accepting Cluett on its own terms, the Court finds that the considerations
used in that case either do not apply here or are unpersuasive. As to the first consideration, the Court

has no familiarity with the amount and quality of work performed by WMH&M prior to its

12