United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
the court is Plaintiffs' McDonald's USA, LLC, and
McDonald's Real Estate Company Motion for Attorney's
Fees and Costs. See Pls.' Mot. for
Att'y's Fees & Costs, ECF No. 47 [hereinafter
Pls.' Mot.]. Plaintiffs request an order awarding them
“all ‘fees and costs “caused by”
Defendant[']s violation of court orders or discovery
misconduct' in the amount of $29, 053.48.”
Id. at 1. Plaintiffs identify four categories of
disobedience and other discovery misconduct for which they
seek to recover fees and costs: (1) motions practice related
to Defendant Willie Craft's discovery misconduct,
including the drafting of Plaintiffs' Motion for
Sanctions; (2) efforts to obtain discovery from Defendant
before engaging in motions practice; (3) preparation for and
attendance at mediation sessions that were fruitless; and (4)
preparation of status reports due to Defendant's failure
to participate in litigation. See Id. at 12.
Defendant opposes Plaintiffs' demand in full.
See Def.'s Opp'n to Pls.' Mot. for
Att'y's Fees & Costs, ECF No. 66, Def.'s Mem.
of Points & Authorities, ECF No. 66-1 [hereinafter
reasons set forth below, Plaintiffs' Motion for
Attorneys' Fees and Costs is denied.
case presents the unique factual situation of a defendant who
began this case represented by counsel, but then proceeded
pro se for a period of time because bar disciplinary issues
forced his counsel to withdraw. The case began on January 18,
2017, with the filing of a complaint and an emergency request
for a temporary restraining order, which the court granted.
See Compl., ECF No. 1; Mot. for TRO, ECF No. 2;
Order, ECF No. 4. Defense counsel first entered an appearance
on February 10, 2017, filing both a motion to dismiss and an
answer. See Def.'s Mot. to Dismiss, ECF No. 9;
Answer and Counterclaim, ECF No. 10. Soon thereafter, the
court granted Plaintiffs' motion for preliminary
injunction, see Order, ECF No. 14, and denied
Defendant's motion to dismiss, see Mem. Op.
& Order, ECF No. 16. The court then entered a scheduling
order on April 5, 2017, which required the parties to make
Rule 26(a) initial disclosures on or before May 5, 2017.
See Order, ECF No. 25.
to all, including Defendant, during the early stages of this
case, defense counsel was laboring under a cloud of
disciplinary action. The first hint of this came on June 1,
2017, when counsel filed a motion to withdraw and obliquely
referenced a “suspension of license proceedings at the
D.C. Bar, ” which he claimed required him to withdraw
from this matter. See Def.'s Mot. to Withdraw as
Att'y, ECF No. 30. The court denied counsel's motion
the following day because he had failed to comply with Rule
83.6 of the Local Civil Rules. See Minute Order,
June 2, 2017. The court then heard nothing from defense
counsel. Over a month later, on July 5, 2017, Plaintiffs
filed a Status Report that attached a letter from defense
counsel, dated May 27, 2017. See Pls.' Status
Report, ECF No. 34, Attach. 1, ECF No. 34-1. The letter
stated that “this Court” had suspended defense
counsel on April 27, 2017, thereby requiring him to withdraw.
Id. The court, through its own research, learned
that the District Court for the District of Maryland
disbarred counsel on February 1, 2017, and the District of
Columbia Court of Appeals suspended counsel from the practice
of law on April 26, 2017, pending further proceedings.
See Order, ECF No. 35, at 1-2. In light of these
findings, on July 6, 2017, the court granted counsel's
motion to withdraw and advised Defendant that he “may
retain new counsel or he may proceed pro se.”
Id. at 2.
at the time of the court's order granting counsel's
motion to withdraw, Plaintiffs had not received any initial
disclosures from Defendant, even though the deadline to
exchange such disclosures had passed on May 5, 2017. Because
of his counsel's withdrawal, the court also extended the
deadline for Defendant to make initial disclosures to July
27, 2017. Id. The court warned Defendant that, if he
failed to comply, the court would consider sanctions under
Rule 37, including possible entry of default. Id.
August 3, 2017, the court received from Defendant, proceeding
pro se, a document titled “Defendant's Response to
Plaintiff's Request for Rule 26 Initial
Disclosures.” See ECF No. 38. In the Response,
Defendant explained that he had not yet retained new counsel,
requested additional time to do so, and stated that he did
not “have the information necessary to provide the
initial disclosures.” Id. at 2. Defendant,
however, did provide some of the information required by Rule
26(a), as he listed seven people “who may have
discoverable information”: four named individuals and
three identified generically as representatives of
“D.C. WASA.” Id. Defendant asked for an
additional 30 days to obtain counsel. See id.
days came and went and no defense counsel entered an
appearance on Defendant's behalf. Consequently, on
September 6, 2017, after receiving no more initial
disclosures from Defendant, Plaintiffs filed a “Motion
for Rule 37 Sanctions or in the Alternative for Judgment on
the Pleadings.” See ECF No. 39. Defendant
never responded to the motion. On November 29, 2017, the
court granted Plaintiffs' request to enter judgment for
Plaintiffs on the pleadings. See Mem. Op., ECF No.
45; Order, ECF No. 46.
in parallel with the foregoing, the parties attempted to
resolve their dispute through court-facilitated mediation. On
April 5, 2017, at the parties' request-defense counsel at
the time remained in the case-the court referred the matter
to a Magistrate Judge for mediation. See Minute
Order, Apr. 5, 2017. Efforts to mediate sputtered at first,
largely because defense counsel would not confer with
Plaintiffs' counsel about scheduling. See Status
Reports, ECF Nos. 27, 29, 33. Eventually, the parties
appeared in front of Magistrate Judge Robinson on November 7,
2017. See Status Report, ECF No. 44, at 1. But that
session went nowhere, as Defendant appeared with a new
lawyer-Bruce Lamb-who had not yet entered an appearance in
this matter, claimed to have been retained only the prior
week, and asserted that he was not prepared for the
mediation. See Id. at 2. Additionally, at the
mediation, Defendant took the position that he did not yet
know what it would take to resolve the case. Id. No
further mediation efforts took place after November 7, 2017.
demand for fees and costs arises solely under Federal Rule of
Civil Procedure 37(b)(2)(C). See Pls. Mot.' at
11-12. That rule provides that, in the event of a
failure to obey a discovery order, “the court must
order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances
make an award of expenses unjust.” Fed.R.Civ.P.
37(b)(2)(C). As is evident from its text, Rule 37(b)(2)(C)
draws a distinction between the client and the attorney.
See Weisberg v. Webster, 749 F.2d 864, 873-74 (D.C.
Cir. 1984). The rule “places the responsibility of
apportioning awards of expenses between client and counsel
with the trial court.” Id. at 874. The trial
court must determine “how much responsibility is due to
the client's recalcitrance and how much to the
lawyer's condonance or participation in the client's
disobedience.” Id. If the court awards fees,
it must make findings that justify the apportionment of the
award, if any, as between the lawyer and client. See
Confederate Mem'l Ass'n v. Hines, 995 F.2d 295,
301 (D.C. Cir. 1993).
identify four categories of work as to which they seek to
recover attorney's fees and costs: (1) motions practice
related to Defendant's discovery misconduct, including
the drafting of Plaintiffs' Rule 37 motion seeking
sanctions; (2) efforts short of motions practice to obtain
discovery from Defendant; (3) preparation for and attendance
at the failed mediation; and (4) drafting of multiple status
reports concerning Defendant's failure to participate in
litigation. See Pls.' Mot. at 12. As to each
category, Plaintiffs' ...