United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DEFERRING
RULING IN PART ON DEFENDANTS' MOTION FOR ENTRY OF AN
ORDER OF RESTITUTION; DENYING DEFENDANTS' MOTION FOR
ENTRY OF AN ORDER FOR PAYMENT OF COURT-ORDERED COSTS
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
case comes to this Court on remand from the U.S. Supreme
Court, which reversed the entry of partial summary judgment
to Plaintiffs against Defendants the District of Columbia and
Metropolitan Police Department officers. Having satisfied the
judgment by paying $680, 000 to Plaintiffs after the D.C.
Circuit affirmed the district court, Defendants now seek
repayment of those funds as well as payment by Plaintiffs of
Defendants' court-ordered Supreme Court litigation costs.
For the reasons explained below, the Court grants in part and
defers ruling in part on Defendants' motion for
restitution. The Court orders restitution by The Law Offices
of Gregory Lattimer, LLC (“Lattimer Law”), the
law firm of Plaintiffs' then-counsel Gregory Lattimer,
for the portion of the payment allocated to Lattimer Law as
part of its contingency fee agreement with Plaintiffs. The
Court defers ruling on the motion for an order of restitution
by Plaintiffs of the remainder of Defendants' payment,
and directs Plaintiffs, Lattimer, and Defendants to mediation
on the issue. And because Defendants have not established
that any further action by this Court is necessary on the
issue, the Court denies the motion for entry of an order for
payment of Defendants' Supreme Court litigation costs.
Court presumes familiarity with the prior opinions related to
this case, both at the district court level and on appeal,
and confines its discussion to the facts most relevant to the
present motion. See Wesby v. District of Columbia
(“Wesby I”), 841 F.Supp.2d 20 (D.D.C.
2012); Wesby v. District of Columbia
(“Wesby II”), 765 F.3d 13 (D.C. Cir.
2014); District of Columbia v. Wesby
(“Wesby III”), 138 S.Ct. 577 (2018).
Plaintiffs are sixteen partygoers who brought suit against
the District of Columbia (the “District”) and
five officers of the District's Metropolitan Police
Department (together with the District,
“Defendants”) after they were arrested at a house
party. See Wesby III, 138 S.Ct. at 584. Plaintiffs
brought claims for false arrest under 42 U.S.C. § 1983,
and for false arrest and negligent supervision by the
District under D.C. law. See Id. At the summary
judgment stage, the district court found that the officers
had lacked probable cause to arrest Plaintiffs. See Wesby
I, 841 F.Supp.2d at 35. The court entered summary
judgment for Plaintiffs on some of their § 1983 and
state law false arrest claims, as well as on Plaintiffs'
negligent supervision claim against the District. See
id at 48-49. After a damages-only trial, the jury
awarded Plaintiffs $680, 000 in compensatory damages and the
district court entered judgment for Plaintiffs in the same
amount. See Verdict Form 1-2, ECF No. 73; Judgment 1
(Nov. 9, 2012), ECF No. 75.
appeal, the D.C. Circuit affirmed. Wesby II, 765
F.3d at 31. The Circuit concluded, inter alia, that
there was no probable cause to arrest Plaintiffs. See
Id. at 19. Defendants were subsequently unsuccessful in
both their petition for rehearing en banc, see Wesby v.
District of Columbia, 816 F.3d 96, 96 (D.C. Cir. 2016),
and motion for a stay of the mandate to seek certiorari,
see Order at 1, ECF No. 97. On May 19, 2016,
Defendants satisfied the judgment by submitting payment of
$685, 003.27 to Lattimer Law. See Satisfaction of J.
1, ECF No. 107; Check from the District to Lattimer Law,
Lattimer Resp. Pls.' Opp'n Mot. Restitution Ex. 4,
ECF No. 143-4. Forty percent of the judgment, or $272, 000,
was set off as Lattimer Law's legal fees, and $408, 000
was distributed to Plaintiffs according to their recovery at
trial-where some plaintiffs were awarded $35, 000 and some
$50, 000, yielding distributions after attorney's fees of
$21, 000 and $30, 000, respectively. See Pls.'
Distribution Statements, Decl. of Aderson Francois Ex. C,
ECF. No. 137-4. The remaining $5, 003.27 constituted
post-judgment interest for the period between November 9,
2012, and Defendants' payment of the judgment on May 19,
2016. See Lattimer Resp. 12 n.2.
Supreme Court granted certiorari, and ultimately issued an
opinion reversing the Circuit and the district court.
Wesby III, 138 S.Ct. at 588. The Supreme Court
departed from the lower courts in finding that the arresting
officers had probable cause to arrest Plaintiffs and, in any
event, were entitled to qualified immunity. See Wesby
III, 138 S.Ct. at 589-90. It accordingly reversed and
remanded the case for entry of summary judgment to
Defendants, see Wesby, 138 S.Ct. at 593, awarding
Defendants $5, 197 in costs for their appeal, see
Judgment 3, Wesby v. District of Columbia, No.
12-7127 (D.C. Cir. Feb. 23, 2018), ECF No. 1719300.
March 30, 2018, Defendants moved this Court to order
restitution from Plaintiffs and Lattimer of the payment made
in satisfaction of the now-reversed November 9, 2012
judgment, plus post-judgment interest, as well as to order
Plaintiffs to pay the $5, 197 in costs ordered by the Supreme
Court. See Defs.' Mot. Restitution, ECF No. 114.
After determining that the motion created a conflict between
him and Plaintiffs, Lattimer withdrew as Plaintiffs'
counsel. See Lattimer Mot. Withdraw, ECF No. 122;
Min. Entry (Nov. 15, 2018). Lattimer then filed his
opposition to the motion for restitution on November 16,
2018, see Lattimer Opp'n Mot. Restitution, ECF
No. 130, with Defendants filing their reply on November 28,
2018, see Defs.' Reply Sup. Mot. Restitution
(“Defs.' First Reply”), ECF No. 131.
Represented by new, court-appointed counsel, Plaintiffs filed
their opposition to the motion on April 9, 2019. See
Pls.' Opp'n Mot. Restitution, ECF No. 137. Antoinette
Colbert, the representative for the estate of one of the
deceased plaintiffs, filed her own opposition the same day.
Colbert Opp'n Mot. Restitution, ECF No. 139. Because
Plaintiffs' arguments rested in significant part on
accusations of malpractice by their former counsel, Lattimer
filed a response to Plaintiffs' opposition on April 30,
2019, see Lattimer Resp., and Plaintiffs filed a
surreply on May 2, 2019, see Surreply, ECF No. 147.
Finally, Defendants filed their reply to Plaintiffs'
opposition on May 7, 2019. See Defs.' Reply
Pls.' Opp'n Mot. Restitution (“Defs.'
Second Reply”), ECF No. 145. Defendants' motion is
now ripe for decision.
have moved for restitution of the $685, 003.27 payment made
to Lattimer Law in satisfaction of the 2012 judgment, an
award of post-judgment interest accruing from May 19, 2016,
as well as for this Court to order payment by Plaintiffs of
Defendants' court-ordered Supreme Court litigation
costs. As an initial matter, the Court denies the
motion with respect to Defendants' Supreme Court
litigation costs. The Supreme Court has already issued an
order mandating that Plaintiffs pay the $5, 197 in costs, and
Defendants do not explain why a further order from this Court
is necessary for that order to be enforceable. In addition, the
Court defers ruling on the motion as to any restitution owed,
and by whom, on the share of the judgment distributed to
Plaintiffs. Having taken into consideration the arguments of
Defendants, Plaintiffs, and Lattimer as to the equities of
restitution in the rather unique circumstances of this case,
the Court refers the parties to mediation for a potential
resolution of the issue.
these preliminary matters addressed, the Court now considers
whether Defendants are entitled to restitution from Lattimer
Law-and Lattimer himself-on the share of the judgment
Lattimer Law retained as attorney's fees. Defendants
argue that they are entitled to restitution of the judgment
because “[t]he right to recover what one has lost by
the enforcement of a judgment subsequently reversed is well
established.” Defs.' Mem. Supp. Mot. Restitution 4
(quoting Baltimore & Ohio R.R. Co. v. United
States, 279 U.S. 781, 786 (1929)), ECF No. 114. Pointing
out that restitution is an equitable remedy left to the
Court's discretion, Lattimer makes two arguments for why
restitution is unavailable, which the Court addresses in
turn. See Lattimer Opp'n 5-11. The Court first
reviews Lattimer's argument that restitution is improper
because the negligent supervision judgment against Defendants
was not reversed by the Supreme Court. Next, the Court
reviews whether Defendants' failure to post a bond and
agreement to pay the judgment after they lost on appeal in
exchange for Plaintiffs withdrawing their request for a writ
of attachment bars restitution. Finding neither of these
arguments persuasive, the Court finally addresses whether
restitution by Lattimer Law and Lattimer himself is warranted
here. On the basis of the arguments and record before it, the
Court concludes that only restitution from Lattimer Law would
be adequate to prevent unjust enrichment. The Court
accordingly grants in part the motion for restitution, and
orders restitution by Lattimer Law of the attorney's fees
portion of Defendants' payment in satisfaction of the
2012 judgment, plus post-judgment interest accruing from May
The Supreme Court Resolved Plaintiffs' Negligent
reaching Defendants' right to recover under restitution,
the Court must address Lattimer's argument that
Defendants have not “ultimately and completely
prevailed on the merits.” Lattimer Opp'n 4.
Lattimer contends that the Supreme Court's decision
“did not address [P]laintiffs' separate and
distinct claim of negligent supervision, ” Lattimer
Opp'n 3-4, and that because this “tort claim for
damages directly against the District . . . has not been
disturbed, ” id. at 4, payment in satisfaction
of the general jury verdict should also remain undisturbed.
See Id. at 3-5. Defendants retort that
“[t]here is no question that Defendants prevailed
entirely and completely on all claims.” Defs.'
First Reply at 2. The Court agrees.
the Supreme Court's decision in Wesby III
unambiguously indicates that the Court intended to reach all
of Plaintiffs' claims, and that Defendants ultimately and
completely prevailed on the merits. The Supreme Court
expressly stated that “the District and its officers
are entitled to summary judgment on all of the
partygoers' claims.” Wesby III, 138 S.Ct.
at 589; see also Id. at 589 n.6 (“The
partygoers do not contest that the presence of probable cause
defeats all of their claims.”). And the Supreme Court
noted that the negligent supervision claim was predicated on
a finding that the officers lacked probable cause to arrest
Plaintiffs, see Wesby III, 138 S.Ct. at 584
(“The partygoers' claims ...