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McManus v. Dist. of Columbia

April 22, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiffs, sixteen current and former employees of various District of Columbia government agencies, brought this action involving an amalgam of claims against fourteen Defendants: the District of Columbia, five labor unions, five health care management companies, two insurance companies, and one physician. On December 31, 2007, this Court issued a Memorandum Opinion and accompanying Order dismissing Plaintiffs' action in its entirety on a variety of grounds. In particular, the Court dismissed Plaintiffs' claims against Defendant Concentra, Inc. ("Concentra") pursuant to Federal Rule of Civil Procedure 12(b)(5) because Plaintiffs had only attempted to serve Concentra by delivering a copy of the Summons and Complaint to a company not authorized to accept service for Concentra. See McManus v. District of Columba, Civil Action No. 07-252, Mem. Op. (D.D.C. Dec. 31, 2007), Docket No. [85] ("Mem. Op.") at 26-27. The Court also dismissed Plaintiffs' claims against all Defendants, for various reasons, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(5). Finally, the Court considered and granted Concentra's Motion for Sanctions, finding that Plaintiffs' counsel was on notice that Concentra was not validly served with process in this action, but nevertheless knowingly filed--and failed to correct--a false Return of Service with the Court indicating that Concentra had been individually served in this action. Id. at 54-56.*fn1

The Order accompanying the Court's December 31, 2007 Memorandum Opinion directed counsel for Concentra to file with the Court, on or before January 16, 2008, an affidavit setting forth their request for reasonable attorneys' fees and expenses, supported by appropriate documentation. See Docket No. [84]. The Order further provided that Plaintiffs' counsel could respond to Concentra's request for fees and costs on or before January 30, 2008. Id. Concentra filed its affidavit of fees and costs, as ordered, on January 16, 2008. See Docket No. [86]. On January 30, 2008, Plaintiffs filed a Notice of Appeal of this Court's grant of sanctions. See Docket No. [87].*fn2 Also on January 30, 2008, Plaintiffs filed a response to Concentra's affidavit, labeled as a motion to strike Concentra's motion for sanctions and a motion for oral hearing. Concentra filed an Opposition to that filing on February 13, 2008, arguing that this Court lacks jurisdiction to entertain Plaintiffs' motion because it was filed after Plaintiffs filed their Notice of Appeal of the Court's sanctions award, and that if the Court considers Plaintiffs' motion it should be denied on the merits. Plaintiffs have not filed a reply in support of their motion.

The Court has thoroughly considered Concentra's affidavit, Plaintiffs' so-called motion to strike, and Concentra's Opposition, as well as the relevant legal authority. The Court concludes that Plaintiffs' motion to strike is properly considered as a motion for reconsideration--pursuant to Federal Rule of Civil Procedure 60(b)--of the Court's December 31, 2007 Order granting Concentra sanctions and shall DENY-IN-PART Plaintiffs' motion to the extent it seeks reconsideration. The Court also rejects Plaintiffs' arguments that Concentra should not be able to recover for time expended by Attorney Katherine Hoekman or for fees incurred in connection with Concentra's motion for dismissal on grounds other than Rule 12(b)(5). Nevertheless, the Court agrees that Concentra's request should be reviewed for reasonableness and necessity, and shall therefore refer Plaintiffs' request for an oral hearing and general arguments in that vein to Magistrate Judge John M. Facciola for a determination of the proper sanctions award, pursuant to Local Civil Rule 72.2(a).


At the outset, the Court addresses Concentra's argument that Plaintiffs' filing of a Notice of Appeal deprives this Court of jurisdiction to entertain Plaintiffs' motion to strike Concentra's motion for sanctions and for an oral hearing. First, although Plaintiffs have purported to file a motion to strike Concentra's motion for sanctions, that effort is clearly misplaced because the Court's December 31, 2007 Memorandum Opinion and Order resolved Concentra's motion for sanctions, such that it can no longer be stricken. In reality, then, Plaintiffs' motion contains two separate aspects: a motion for reconsideration of the Court's grant of sanctions, and a challenge to Concentra's request for fees and costs.

Concentra is correct that the filing of a notice of appeal generally "confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam). The district court does not regain jurisdiction over the aspects of the case involved in the appeal until the court of appeals issues its mandate. Johnson v. Bechtel Assocs Prof. Corp., 801 F.2d 412, 415 (D.C. Cir. 1986) (per curiam). However, that general rule does not preclude the Court from addressing Concentra's request for fees and costs, for two reasons.

First, to the extent that Plaintiffs' motion challenges Concentra's request for fees and costs, that is not an issue or aspect of the case directly involved in Plaintiffs' appeal, nor could it be because this Court has not yet entered a specific judgment of sanctions. The Court's December 31, 2007 Memorandum Opinion and Order only addressed Concentra's motion for sanctions as a legal issue and did not make a factual finding as to the precise sanctions award to which Concentra is entitled. As such, it is premature for Plaintiffs to attempt to appeal Concentra's specific request; once the Court enters a judgment of a specific sanctions award, the issue will be fully ripe for appeal. The Court therefore continues to have jurisdiction to consider Concentra's request for fees and costs.

Second, to the extent that Plaintiffs move for reconsideration of the Court's December 31, 2007 Memorandum Opinion and Order, their motion must be addressed pursuant to Rule 60(b) because it was filed more than ten days after the Memorandum Opinion and Order issued. See United States v. Pollard, 290 F. Supp. 2d 153, 156 (D.D.C. 2003)(generally, a motion for reconsideration is treated as a "[Fed. R. Civ. P.] 59(e) motion if filed within 10 days of entry of the challenged order and as a Rule 60(b) motion if filed thereafter.") (quoting United States v. Clark, 984 F.2d 31, 32 (2d Cir. 1993)). While the district court does not have jurisdiction to grant relief from a judgment pursuant to Rule 60(b) while a case is pending on appeal, a district court may considera motion for such relief and deny such relief without remand from the appellate court. See Hoai v. Vo, 935 F. 2d 308, 312 (D.C. Cir. 1991) ("[W]hen both a Rule 60(b) motion and an appeal are pending simultaneously, appellate review may continue uninterrupted. At the same time, the District Court may consider the 60(b) motion and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted."); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 280 n.22 (D.C. Cir. 1971) (same)); Piper v. United States Department of Justice, 374 F. Supp. 2d 73, 77 (D.D.C. 2005) ("[W]hen, as in this case, the order or judgment from which a party seeks relief is also the subject of a pending appeal . . . the district court may outright deny, but cannot outright grant, a Rule 60(b) motion."). Plaintiffs' Notice of Appeal therefore does not preclude the Court from considering their motion for reconsideration.

Under Rule 60(b), "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . any [] reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b). The Rule

was intended to preserve "the delicate balance between the sanctity of final judgments . . . and the incessant command of the court's conscience that justice be done in light of all the facts." Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927 [](1970) (emphasis in original); accord, Compton v. Alton Steamship Co., 608 F.2d 96, 102 (4th Cir. 1979); Boughner v. Secretary of HEW, 572 F.2d 976, 977 (3d Cir. 1978); Clarke v. Burkle, 570 F.2d 824, 830 (8th Cir. 1978). But as the Supreme Court has said, "There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from." Ackermann v. United States, 340 U.S. 193, 198 [] (1950). Rule 60(b) cannot, therefore, be employed simply to rescue a litigant from strategic choices that later turn out to be improvident. See Marshall v. Board of Educ., 575 F.2d 417, 424 (3d Cir. 1978); Federal's, Inc. v. Edmonton Investment Co., 555 F.2d 577, 583 (6th Cir. 1977); Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 651-52 (1st Cir. 1972).

Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980). Rule 60(b) "gives the district judge broad latitude to relieve a party from a judgment," Richardson v. Nat'l R.R. Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995), but "should be only sparingly used," Good Luck Nursing Home, 636 F.2d at 577, and relief under Rule 60(b)(6) is granted in only "extraordinary circumstances," Ackerman, 340 U.S. at 199. Such extraordinary circumstances may be present "[w]hen a party presents a previously undisclosed fact so central to the litigation that it shows the initial judgment to have been manifestly unjust . . . even though the original failure to present the information was inexcusable." Good Luck Nursing Home, 636 F.2d at 577. However, a party that "has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has been handed down." Id.


Plaintiffs' motion attempts to raise issues regarding Concentra's motion for sanctions that Plaintiffs did not raise in their opposition to that motion. As the Court's December 31, 2007 Memorandum Opinion noted, "Plaintiffs' Opposition d[id] not argue that Concentra was validly served, and thus implicitly concede[d] that the Return of Service filed with the Court [was] inaccurate. Moreover, Plaintiffs' Opposition to Concentra's motion for sanctions d[id] not challenge Concentra's argument regarding the accuracy of the Return of Service filed with the Court." Mem. Op. at 55. Plaintiffs now attempt to argue that the Court's dismissal of their action was the only available sanction for their failure to properly serve Concentra and their counsel's filing of a false Return of Service. Although they might have, Plaintiffs did not make this argument in response to Concentra's motion for sanctions, and ...

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