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LLC v. Craft

United States District Court, District of Columbia

June 25, 2018

MCDONALD'S USA, LLC et al., Plaintiffs,
WILLIE T. CRAFT, Defendant.


          Amit P. Mehta United States District Judge

         Before 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 Def.'s Mem.].

         For the reasons set forth below, Plaintiffs' Motion for Attorneys' Fees and Costs is denied.


         This 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.

         Unbeknownst 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.

         Moreover, 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.

         On 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.

         Thirty 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.

         Meanwhile, 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.


         Plaintiffs' demand for fees and costs arises solely under Federal Rule of Civil Procedure 37(b)(2)(C). See Pls. Mot.' at 11-12.[1] 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).


         Plaintiffs 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' ...

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