Davis v. District of Columbia Child and Family Services Agency,et Al ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RONDA L. DAVIS et al., :
:
Plaintiffs, : Civil Action No.: 10-1564 (RC)
:
v. : Re Document No.: 72
:
DISTRICT OF COLUMBIA CHILD AND :
FAMILY SERVICES AGENCY et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SANCTIONS
I. INTRODUCTION
In this putative class action lawsuit, Plaintiffs, former employees of the District of
Columbia Child and Family Services Agency, allege that their employment was terminated as
part of a discriminatory reduction in force — namely, that the agency’s imposition of a
bachelor’s degree requirement for the position of “Family Social Worker” was a pretextual
reason for terminating the putative class members based on their race and/or age. More than
three years after this litigation began, the parties still have not completed the class certification
phase. Instead, the parties remain mired in discovery disputes relating to Plaintiffs’ failure to
produce court-ordered discovery relevant to fundamental class certification issues.
Currently pending before the Court is the District of Columbia’s (the “District”) motion
for sanctions, in which the District seeks monetary, evidentiary, and/or terminating sanctions
pursuant to Federal Rule of Civil Procedure 37. See generally Def.’s Mot. for Sanctions, Dec.
17, 2013, ECF No. 72. For the reasons set forth below, the Court will grant the District’s motion
and order monetary sanctions against Plaintiffs’ attorneys, David Rose and Donald Temple, in
the amount of $4,629.50.
II. BACKGROUND
At the outset of discovery in this action, the Court limited the scope of appropriate
discovery topics to four questions, which the Court and the parties refer to as “Phase I” issues:
(1) the existence and statistical validity of group-based disparities caused by the reduction in
force and/or the education requirements for Family Social Workers; (2) Plaintiffs’ exhaustion of
their administrative remedies; (3) the provision of notice in accordance with D.C. Code
§ 12-309; and (4) the appropriateness of class certification. See generally Sched. Order, Apr. 4,
2013, ECF No. 59. Phase I discovery closed on January 24, 2014, but there remain a number of
open discovery disputes that the District brings to the Court’s attention through its motion for
sanctions. See Min. Order, Nov. 21, 2013.
A. First Set Of Interrogatories
The District served its first items of written discovery “[s]hortly after discovery
commenced” in early 2013. See Def.’s Mem. in Supp. Mot. Sanctions, ECF No. 72-1, at 3. The
discovery included a set of interrogatories and requests for production. See id. On
approximately June 4, 2013, Plaintiffs provided the District with written responses and about 200
pages of documents. See id. Interrogatory number 8 asked each Plaintiff to “describe in detail
your educational background since high school, including the name of each school or institution
you attended, the dates of your attendance, your field(s) of study, and any degree earned.” Def.’s
Mot. Sanctions, ECF No. 72-2, at 2 (letter from Chad Naso to Joshua Rose, with Donald Temple
cc’d, Sept. 6, 2013). Plaintiffs objected to the interrogatory and refused to answer on the basis of
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relevancy. See id. The interrogatory answers that Plaintiffs did provide were not verified by
individual signatures. See id. at 1.
On November 7, 2013, the Court held a telephonic status conference to address the
parties’ disputes over written discovery. The Court found that the information sought through
interrogatory number 8 was relevant to Phase I discovery issues and ordered that Plaintiffs
respond to the request by December 9, 2013. See Min. Order, Nov. 7, 2013. When asked by the
Court at a April 10, 2014, status hearing whether Plaintiffs had supplied the District with
answers to interrogatory number 8, attorney David Rose, lead counsel for the putative class,
restated his argument that this interrogatory is not relevant. Mr. Rose then confirmed that he had
not yet provided the District with the required answers. 1
B. Right To Sue Letters
Also among the District’s initial discovery items was a request for the production of
Plaintiffs’ “right to sue” letters. 2 See Def.’s Req. Prod. No. 9, ECF No. 89-1. As part of their
June 4, 2013, document production, Plaintiffs produced Equal Employment Opportunity
Commission (“EEOC”) charges signed by Zacchaeus T. Ajakaiye and Darius Morris on behalf of
the putative class but did not produce any “right to sue” letters with respect to the charges. See
1
Plaintiff Ernest Hunter, represented by attorney David Branch, submitted his
answers to the District’s interrogatories on January 22, 2014. Besides being filed past the
Court’s deadline, the answer to interrogatory number 8 appears to be lacking in the necessary
details and did not include any documents. See Def.’s Suppl. Mem. Supp. Mot. Sanctions, ECF
No. 80, at 4-5; see also ECF No. 80-1 (Hunter’s Supp. Answer to Interrog. 8).
2
Generally, there are two prerequisites to maintaining a Title VII race
discrimination claim in a district court. First, a plaintiff must timely file a charge with the
EEOC, and second, she must receive from the EEOC a “right to sue” letter before filing a civil
complaint. See 42 U.S.C. § 2000e–5(b), (e), (f); see also Alexander v. Gardner-Denver Co., 415
U.S. 36, 47 (1974); Bell v. Redding, 539 F. Supp. 2d 423, 424 (D.D.C. 2008). Absent a showing
that a plaintiff has exhausted her administrative remedies, her claims will be dismissed. See
Jones v. Dist. of Columbia, 273 F. Supp. 2d 61, 64 (D.D.C. 2003) (dismissing without prejudice
Title VII claims of plaintiffs who “failed to make any showing of administrative exhaustion (i.e.,
a ‘right to sue’ letter)”).
3
Def.’s Mem. in Supp. Mot. Sanctions, ECF No. 72-1, at 3. On September 6, 2013, the District
sent Plaintiffs’ counsel a meet-and-confer letter outlining the deficiencies in their discovery
responses, including the failure to produce the “right to sue” letters. See Def.’s Mot. Sanctions,
ECF No. 72-2, at 1 (letter from Chad Naso to Joshua Rose, with Donald Temple cc’d, Sept. 6,
2013).
Following the November 7, 2013, conference, the Court ordered Plaintiffs to produce the
“right to sue” letters, to the extent they exist at all, by December 9, 2013. See Min. Order, Nov.
7, 2013. In briefing on February 26, 2014, more than two months after they were ordered to
produce the letters, Plaintiffs informed the Court that they had requested the letters but conceded
that they failed to meet the discovery deadline. See Pls.’ Suppl. Resp. Mem. Supp. Mot.
Sanctions, ECF No. 84, at 7. To date, Plaintiffs have produced only one letter, that of Plaintiff
Darrius Morris. See Pls.’ Suppl. Resp. Mem. Supp. Mot. Sanctions, ECF No. 84-1. Indeed, at
the April 10, 2014, status hearing, attorney David Rose informed the Court that he had not yet
requested the “right to sue” letters from every named Plaintiff, and he could not tell the Court
which Plaintiffs may or may not have the letters. Mr. Rose also informed the Court that the
Plaintiffs he contacted did not look hard for the letters that may be in their possession. Thus,
although the failure to provide the letters may be the fault of the individual Plaintiffs, it appears
that, at the very least, counsel has made an inadequate inquiry with his clients regarding the
existence of these documents.
C. Signed Verifications
Federal Rule of Civil Procedure 33(b)(5) requires that “[t]he person who makes the
answers [to interrogatories] must sign them, and the attorney who objects must sign any
objections.” On September 6, 2013, the District sent Plaintiffs’ counsel a meet-and-confer letter
4
outlining the deficiencies in Plaintiffs’ responses to the first set of interrogatories, including the
missing interrogatory verifications. See Def.’s Mot. Sanctions, ECF No. 72-2, at 1 (letter from
Chad Naso to Joshua Rose, with Donald Temple cc’d, Sept. 6, 2013). Plaintiffs did not resolve
this issue on their own, so on November 7, 2013, the Court ordered them to provide the
verifications by December 9, 2013. See Min. Order, Nov. 7, 2013. Plaintiffs failed to meet this
deadline. See Def.’s Mem. Supp. Mot. Sanctions, ECF No. 72-1, at 3.
At the April 10, 2014, discovery status hearing, the Court asked David Rose whether he
had provided to the District the verifications for each Plaintiff. Mr. Rose responded that he did
not know why the signed verifications were important, and he told the Court that he was unsure
if signed statements are required by the rules of civil procedure. At the same time, Mr. Rose
conceded that he still had not complied with this requirement four months after the Court’s
deadline.
D. Second Set Of Interrogatories
On September 6, 2013, the District served a second set of interrogatories. See generally
Def.’s Mot. Sanctions, ECF No. 72-3 (Def.’s 2d Interrogs.). Included in this set was an
interrogatory asking Plaintiffs to “[i]dentify the class representatives for each class and/or
subclass that Plaintiffs will seek to certify in this matter.” See id. at Interrog. No. 1. Plaintiffs
did not respond to the second set of interrogatories, despite the District’s emails following up on
the matter. See Def.’s Mot. Sanctions, ECF No. 72-4, at 2 (e-mails from Chad Naso to David
Rose, Oct. 3-16, 2013). On October 28, 2013, Plaintiffs’ counsel sent the District an email
stating that “Darrus [sic] Morris is expected and and [sic] Cynthia Dudley are to be a class agents
[sic] for the class of older employees; and Trina M. Robinson expected [sic] to be a class agent
for the class of black workers harmed by the RIF.” Id. at 8 (e-mail from David Rose to Chad
5
Naso, with Donald Temple cc’d, Oct. 28, 2013). The District replied that it did not consider this
email to be a formal response to the interrogatories. See id. at 7 (e-mail from Chad Naso to
David Rose, with Donald Temple cc’d, Oct. 29, 2013).
On November 7, 2013, the Court ordered Plaintiffs to respond to the District’s second set
of interrogatories by December 9, 2013. See Min. Order, Nov. 7, 2013. In a telephone
conversation on or around January 17, 2014, which was one week before the close of Phase I
discovery, Plaintiffs notified the District that they intended to designate Plaintiff Karone Gray as
an additional class representative. See Def.’s Suppl. Mem. Supp. Mot. Sanctions, ECF No. 80, at
11. The District, however, was unable to depose Ms. Gray before the close of Phase I
discovery, 3 see id. at 3, and Plaintiffs did not file a formal response to the interrogatory before
the discovery deadline. Nevertheless, the District deposed Plaintiffs Darius Morris and Trina
Robinson, and sought to depose Cynthia Dudley, before the close of discovery. See id. The
District also deposed Rodney Williams and Carla Johnson. See id.
E. Expert Reports
Under the case schedule, Plaintiffs’ expert reports were due on October 30, 2013. See
Am. Sched. Order, ECF No. 70. On October 17, 2013, the District emailed Plaintiffs’ counsel to
inquire about the status of the expert disclosures. See Def.’s Mot. Sanctions, ECF No. 72-4, at 5
(e-mail from Chad Naso to David Rose and Donald Temple, Oct. 17, 2013). Specifically, the
District asked whether an unsigned declaration by Dr. Paige Munro that Plaintiffs provided to the
District in April 2012 constituted their disclosures under Rule 26(a)(2)(B). See id.; see also
Def.’s Mot. Sanctions, ECF No. 72-5 (1st Munro Decl.). The District noted that the declaration
3
In briefing submitted to the Court on May 21, 2014 — five months after the
December 9, 2013, deadline for responding to the second set of interrogatories — Plaintiffs
indicated that Ms. Gray would not be designated as a class representative. See Pls.’ Resp. Suppl.
Mem. Supp. Mot. Sanctions, ECF No. 95, at 1.
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did not include a list of Dr. Munro’s publications from the previous ten years, a list of all other
cases in which Dr. Munro testified as an expert in the past four years, or a statement of
Dr. Munro’s compensation for her work on the case. See Def.’s Mot. Sanctions, ECF No. 72-4,
at 5 (e-mail from Chad Naso to David Rose and Donald Temple, Oct. 17, 2013). The District did
not receive a response.
On November 18, 2013, the District again contacted Plaintiffs’ counsel to request the
expert disclosures. See Def.’s Mot. Sanctions, ECF No. 72-6, at 1 (e-mail from Chad Naso to
David Rose, with Donald Temple cc’d, Nov. 18, 2013). Later that day, Plaintiffs’ counsel
responded that he was going to forward an “up-to-date version” of Dr. Munro’s declaration, but
counsel only followed up by including a scanned, signed copy of page five of the declaration.
See id. (e-mail from Mark Rose to Chad Naso, Nov. 18, 2013). The content of this scanned page
differed from the content of Dr. Munro’s initial declaration, dated April 2012. Compare id. at 2
(2d Munro Decl.), with Def.’s Mot. Sanctions, ECF No. 72-5 (1st Munro Decl.). Despite not
timely receiving a proper copy of Dr. Munro’s declaration, the District served the report of its
rebuttal expert, Dr. Stephen Bronars, on January 8, 2014. See Def.’s Suppl. Mem. Supp. Mot.
Sanctions, ECF No. 80, at 3.
In briefing regarding the District’s motion for sanctions, Plaintiffs asserted on February
26, 2014, that Dr. Munro has authored no publications at any time and has not testified at trial or
been deposed as an expert in the past four years. See Pls.’ Suppl. Resp. Mem. Supp. Mot.
Sanctions, ECF No. 84, at 5. Plaintiffs do not explain why they did not provide this information
before October 30, 2013, although they did eventually provide the District with Dr. Munro’s
résumé and hourly compensation information, according to counsel’s statement at the April 10,
2014, status hearing. Plaintiffs, however, do attempt to justify their noncompliance by
7
explaining that they “represent largely an undercapitalized group, having lost their source of
income and thus have an inherent economic disadvantage in the prosecution of this claim.” Id. at
6. They further argue that “Plaintiffs’ [c]ounsel have adjusted and maximized their limited
resources to ensure compliance with discovery and other deadlines.” Id.
On May 13, 2014, Plaintiffs submitted a significantly revised expert report by Dr. Munro.
See ECF No. 93. Dr. Munro explained that this new report was in response to discrepancies
between the data she relied on in her original report and the data in Dr. Bronars’ rebuttal report
for the District. Id. at 1. Plaintiffs, however, did not request leave from the Court to file the
report or to reopen expert discovery, and they made no attempt to explain whether good cause
existed for the Court to permit them to file a late report from Dr. Munro. As a result of this tardy
filing, the District now likely must obtain a revised report from its expert and engage in further
expert discovery many months after the discovery window should have shut.
F. Dudley Deposition
On November 13, 2013, the District properly served a notice of deposition for Plaintiff
Cynthia Dudley, setting the deposition date for December 12, 2013. See generally Def.’s Mot.
Sanctions, ECF No. 72-7 (Dudley Dep. Notice). December 12th arrived, and Ms. Dudley did not
appear for her deposition. See Def.’s Mem. Supp. Mot. Sanctions, ECF No. 72-1, at 7.
According to Plaintiffs’ counsel, “[b]ased upon communication dynamics, [Ms.] Dudley was not
informed of her December 17, 2013 [sic] deposition and therefore did not attend.” Pls.’ Suppl.
Resp. Mem. Supp. Mot. Sanctions, ECF No. 84, at 2. Plaintiffs explain that the parties attempted
to reschedule the deposition, but because Plaintiffs later informed the District that Ms. Dudley
would not serve as a class representative, the District no longer pursued the deposition. See id.;
Def.’s Reply Supp. Mot. Sanctions, ECF No. 85, at 3. The court reporter billed the District
8
$175.00 for the late cancellation of Ms. Dudley’s deposition. See Def.’s Mot. Sanctions, ECF
No. 72-8 (Olender Reporting, Inc. Invoice).
III. MOTION FOR SANCTIONS
On December 17, 2013, the District filed a motion for sanctions, citing many of the
above-described discovery issues. See generally Def.’s Mot. Sanctions, ECF No. 72. Plaintiffs’
response was due on December 31, 2013, see D.D.C. Civ. R. 7(b), but they neither filed a brief
nor moved for an extension of time by that deadline. 4 On January 15, 2014, Plaintiff Ernest
Hunter, through individual counsel David Branch, moved for an extension of time to respond to
the District’s motion. See generally Hunter’s Mot. Ext. Time, ECF No. 75. The Court granted
an extension over the District’s objection, and on January 22, 2014, Mr. Hunter filed a two-page
response to the District’s motion for sanctions stating that he “was unaware of the court’s
November 7, 2013 order until he retained counsel, but has now responded to the discovery
requests.” Hunter’s Opp’n Mot. Sanctions, ECF No. 78, at 1. The District also received
Mr. Hunter’s verified responses to interrogatory number 8 and the second set of interrogatories
on January 22, 2014, but it did not receive verifications from Mr. Hunter for the remaining
interrogatories in the District’s first set. See Def.’s Suppl. Mem. Supp. Mot. Sanctions, ECF
No. 80, at 3-5.
On January 29, 2014, the Court held a hearing to address the District’s motion and
receive an update on the status of discovery. In attendance were Chad Naso, counsel for the
District, and David Rose, counsel for the putative class. David Branch and Donald Temple did
4
Plaintiffs’ counsel, David Rose, states that he “drafted their Motion for Extension
of Time and Opposition to Motion for Sanctions and to Dismiss, but [was] unable to file both in
a timely manner due to problems with the Electronic Court Filing account; the issue was
resolved on February 14, 2014” — more than one month after the opposition was due. Pls.’
Suppl. Resp. Mem. Supp. Mot. Sanctions, ECF No. 84, at 3.
9
not attend. At the hearing, the parties indicated that, aside from Mr. Hunter’s interrogatory
responses, no further discovery progress had been made. Nonetheless, the Court indicated that
dismissal may be too drastic a sanction and asked the parties to submit further briefing “updating
the Court as to any discovery progress and suggesting alternatives to default as a sanction[.]”
Min. Order, Jan. 29, 2014.
The District’s supplemental memorandum restated its position that terminating sanctions
were appropriate, but the District also suggested evidentiary and monetary sanctions as
alternatives. See generally Def.’s Suppl. Mem. Supp. Mot. Sanctions, ECF No. 80. Plaintiffs
responded by arguing that dismissal of the case, or of any particular Plaintiff, would be too harsh
a sanction. See generally Pls.’ Suppl. Resp. Mem. Supp. Mot. Sanctions, ECF No. 84. Plaintiffs
also noted that they were in the process of obtaining copies of the “right to sue” letters from the
Department of Justice and asked that discovery be reopened for the limited purpose of deposing
Ms. Gray, Dr. Munro, and Dr. Bronars. See id. at 7. On March 6, 2014, the District filed a reply
memorandum arguing that Plaintiffs had not demonstrated good cause to reopen discovery and
reaffirming their request for sanctions. See Def.’s Reply Supp. Mot. Sanctions, ECF No. 85, at
5-7.
On April 10, 2014, the Court held a second hearing on the District’s motion. The parties
reported no further discovery progress since the January 29 hearing. This time, attorneys from
all three law firms representing Plaintiffs were present. When questioned by the Court about the
progress of discovery, David Rose appeared confused and was unable to answer basic questions
about the status of the case. For example, when asked whether he had provided answers to
interrogatory number 8, Mr. Rose responded that this question was not relevant. Of course, the
Court had ruled months prior that the interrogatory was in fact relevant and Plaintiffs were
10
required to answer. See Min. Order, Nov. 7, 2013. When the Court pushed Mr. Rose on the
issue, he expressed further confusion, stating that he thought he had provided the answers to the
District already and offering to do so now if the District says it never received them.
Mr. Rose provided the same confused response to the Court’s questioning about the
signed verifications for the interrogatory answers. He told the Court that he did not know why
the signed verifications were important, and he did not know if signed verifications were
required by the rules of civil procedure. At the same time, Mr. Rose conceded that he had not
complied with this requirement. Similarly, when asked whether he had requested the “right to
sue” letters from every Plaintiff, Mr. Rose again expressed confusion, stating that he thought he
sent an e-mail to some Plaintiffs, but he was not sure. He also conceded that he had not talked to
every Plaintiff about providing the letters. Mr. Rose followed up that after his son and law
partner left the firm in September 2013, he was left with limited time and resources. Finally,
upon questioning about issues surrounding the expert report from Dr. Munro, Mr. Rose was
unable to answer where the rest of the report was for the signature page he produced in 2013,
which clearly did not match the April 2012 expert report.
Following the hearing, the Court expressed deep concern about the ability of Mr. Rose to
adequately prosecute this action and instructed all Plaintiffs’ counsel to meet, confer, and devise
a plan to jointly handle the case going forward. See Min. Order, Apr. 10, 2014. The Court
ordered Plaintiffs’ counsel to file a status report regarding their proposed plan by May 12, 2014,
and stayed the case until that date. See id.
On May 12, 2014, attorneys David Branch and Donald Temple filed separate status
reports. Attorney David Rose, counsel for the punitive class, did not file a status report or sign
on to the other reports, although the individual reports indicate that Mr. Rose participated in
11
discussions with counsel. Mr. Branch explained that after conferring with Mr. Temple and Mr.
Rose, it was not agreed that he would represent class members other than Ernest Hunter. See
Status Report, ECF No. 91. Separately, Mr. Temple explained in his report that he would
continue to represent four clients “and possibly 1-2 additional plaintiffs in this case.” 5 See Status
Report, ECF No. 92. Mr. Temple also stated that “the case may be consolidated for discovery
purposes only, and separated for trial purposes given the Plaintiffs’ collaborative limited
financial resources to litigate this case.” Id. Neither counsel provided further details about how
they intended to jointly prosecute the case moving forward, despite the Court’s order to do so.
On May 13, 2014, the Court issued a Minute Order requesting supplemental briefing
from the parties regarding additional facts relevant to the District’s motion for sanctions that may
have occurred since the last set of briefs were filed. See Min. Order, May 13, 2014. In its
supplemental brief, the District stated that since the April 10, 2014, status conference, Plaintiffs
had not provided additional discovery pursuant to the Court’s orders. See Def.’s Notice, May 21,
2014, ECF No. 94, at 1. David Rose filed a supplemental brief on behalf of all Plaintiffs in
which he argued that the District’s request for individual declarations from each Plaintiff is
duplicative of the information provided by the District in its Answer to the Third Amended
Complaint regarding the identity and characteristics of the individual Plaintiffs. See Pls.’ Supp.
5
Donald Temple entered an appearance in this case in February 2013, but which
Plaintiffs he represented at certain times is somewhat unclear from the record. In the First
Amended Complaint, Mr. Temple is listed as counsel for “Dudley et al.,” and the caption
indicated that Cynthia Dudley’s action was being consolidated with the action of Rhonda Davis
and others, who were represented by Mr. Rose. See generally 1st Amend. Compl., ECF No. 21-
1. In the Second and Third Amended Complaints, however, Mr. Temple is listed as an attorney
for all Plaintiffs, but the captions still indicated that the Dudley action was consolidated with the
Davis action. See generally 2d Amend. Compl., ECF No. 58; 3d Amend. Compl., ECF No. 66.
In his May 12, 2014, status report, Mr. Temple stated that he represents only four clients:
Cynthia Dudley, Karone Gray, David Hailes, and Lorraine Kelly. See Status Report, ECF No.
92.
12
Brief, May 21, 2014, ECF No. 95, at 1-2 (citing Def.’s Answer to 3d Am. Compl., ECF No. 67).
Mr. Rose also argued for why Dr. Munro qualifies as an expert and indicated that Dr. Munro’s
résumé was provided to the District. Id. at 2. He did not address the other discovery issues or
explain what progress Plaintiffs had made toward satisfying their outstanding discovery
obligations.
IV. LEGAL STANDARD
A. Rule 37 Sanctions
The Federal Rules of Civil Procedure allow a court to impose sanctions for a party’s
failure to cooperate during the course of discovery. See generally Fed. R. Civ. P. 37. Rule 37
sets forth specific guidelines for the imposition of sanctions when a party fails to disclose
information or witnesses, answer interrogatories, attend a deposition, or comply with a court
order. The district court has broad discretion to impose sanctions under this rule, and the
“central requirement … is that ‘any sanction must be just.’” Bonds v. Dist. of Columbia, 93 F.3d
801, 807-08 (D.C. Cir. 1996) (quoting Ins. Corp. v. Compagnie des Bauxites de Guinée, 456
U.S. 694, 707 (1982)). As such, “[t]he choice of sanction should be guided by the ‘concept of
proportionality’ between offense and sanction.” Id. at 808 (citation omitted).
The range of available sanctions under Rule 37 includes taking facts as established,
striking answers or defenses, precluding the introduction of evidence, striking pleadings,
dismissing claims, default judgment, or holding a party in contempt. See Fed. R. Civ. P.
37(b)(2); see also Law Office of Azita Mojarad v. Aguirre, No. CIV.A. 05-0038, 2006 WL
785415, at *10 (D.D.C. Mar. 27, 2006). Further, “the court must order the disobedient party, the
attorney advising that party, or both to pay the reasonable expenses, including attorneys’ fees,
caused by the failure [to comply with a discovery order], unless the failure was substantially
13
justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(c).
The possible sanctions listed in Rule 37 are not mutually exclusive, and the Court may impose
multiple sanctions at the same time. See Atkins v. Fischer, 232 F.R.D. 116, 127 (D.D.C. 2005)
(citation omitted).
B. The Court’s Inherent Power To Impose Sanctions
“In situations where a party has committed discovery abuses but Rule 37 does not apply,
a court may instead issue appropriate sanctions under its inherent power.” Parsi v. Daioleslam,
286 F.R.D. 73, 77 (D.D.C. 2012) (citing Shepherd v. Am. Broadcasting Cos., Inc., 62 F.3d 1469,
1474 (D.C. Cir. 1995)). Similar to Rule 37, the Court’s inherent power to issue sanctions
includes the ability to impose “fines, awards of attorneys’ fees and expenses, contempt citations,
disqualifications or suspensions of counsel, and drawing adverse evidentiary inferences or
precluding the admission of evidence.” Shepherd, 62 F.3d at 1474. When selecting the
appropriate sanction, the Court must “properly calibrate the scales to ensure that the gravity of an
inherent power sanction corresponds to the misconduct.” Id. at 1479 (citations omitted).
V. ANALYSIS
As explained above, Plaintiffs clearly have been and continue to be in violation of
multiple Court discovery orders. Plaintiffs have missed or ignored discovery deadlines, not
provided appropriate documentation or answers to discovery requests, and generally failed to
comply with the Federal Rules of Civil Procedure. The first complaint in this matter was filed in
September 2010, just months after the allegedly wrongful conduct at issue. See generally
Compl., ECF No. 1. Phase I discovery started in early 2013 on a set of limited but important
issues. Yet more than a year later, and more than three years since this action began, significant
deficiencies remain regarding a number of critical discovery topics.
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Plaintiffs’ inability to comply with discovery in a timely and effective manner has slowed
the progress of this action to a snail’s pace and hindered the District’s ability to develop fully its
defense, such as preparing an expert report and determining which Plaintiffs have exhausted their
administrative remedies. Plaintiffs’ failures also have delayed class certification, which is a
critical next step in adjudicating this action. 6 And perhaps even more troubling, Plaintiffs’
counsel have given this Court no reassurances that they are capable of resolving these discovery
issues moving forward, despite repeated — and increasingly pointed — attempts by the Court to
nudge them in the right direction. As such, there is no doubt that sanctions under Rule 37 are
deserved, and the Court next must determine what those sanctions ought to be.
A. Dismissal Or Other Sanctions Against The Merits Of Plaintiffs’ Claims Are
Inappropriate
“[I]t is well-established that ‘[u]nder Rule 37, the district court has broad discretion to
impose sanctions for discovery violations[,]’ and to determine what sanctions to impose.” Kister
v. Dist. of Columbia, 229 F.R.D. 326, 329 (D.D.C. 2005) (quoting Bonds v. Dist. of Columbia,
93 F.3d 801, 807 (D.C. Cir. 1996)). Due to the foregoing violations, the District has requested
several different sanctions against Plaintiffs, including dismissing claims, preventing Plaintiffs
from presenting certain evidence of discrimination, treating critical facts as established,
6
One prerequisite for class certification under Rule 23 is that the named
representatives must “fairly and adequately represent the interests of the class.” See Fed. R. Civ.
P. 23(a)(4). This requirement “necessitates an inquiry into the adequacy of representation,
including the quality of counsel, any disparity of interest between class representatives and
members of the class, communication between class counsel and the class and the overall context
of the litigation.” Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit
Auth., 239 F.R.D. 9, 28 (D.D.C. 2006) (citation and quotation omitted). The Court continues to
have serious concerns about counsel’s ability and resources to represent the potential class of
Plaintiffs. After repeated problems complying with discovery, missed deadlines, and other
delays, counsel recently were offered an opportunity to meet, confer, and propose a plan for
jointly prosecuting this case, see Min. Order, Apr. 10, 2014, but their cursory responses were far
from convincing. See Status Report, ECF No. 91; Status Report, ECF No. 92.
15
excluding the expert report and expert testimony, and dismissing the action entirely. See Def.’s
Mem. Supp. Mot. Sanctions, ECF No. 72-1, at 8-10; Def.’s Suppl. Mem. Supp. Mot. Sanctions,
ECF No. 80, at 6-11.
As an initial matter, the Court must recognize that the discovery violations described
herein were committed by counsel for Plaintiffs, namely David Rose and Donald Temple, both
of whom have been involved in this case since the start of discovery. It nonetheless is within the
Court’s power to dismiss the action or impose other sanctions against the merits of Plaintiffs’
claims even though the attorneys committed the misconduct. See Shea v. Donohoe Const. Co.,
Inc., 795 F.2d 1071, 1074 (D.C. Cir. 1986) (“When the misconduct of one party’s attorney
prejudices the other party so severely as to make it unfair to require the other party to proceed
with the case, dismissal of the case, or any portion thereof, has been held appropriate.”).
However, “outright dismissal even where the other party has been prejudiced may not be
appropriate where less drastic action is available to cure the harm.” Id. at 1075. This is
especially true because “our [judicial] system favors the disposition of cases on the merits.”
Trakas v. Quality Brands, Inc., 759 F.2d 185, 186 (D.C. Cir. 1985); see also Webb v. Dist. of
Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (“Because disposition of cases on the merits is
generally favored, we have said that a default judgment must be a sanction of last resort, to be
used only when less onerous methods (for example, adverse evidentiary determinations or other
issue-related sanctions) will be ineffective or obviously futile.” (citation and internal quotation
omitted)).
The central tenet of Rule 37 is that the sanction must be “just.” See Hildebrandt v.
Vilsack, 287 F.R.D. 88, 94 (D.D.C. 2012). As such, the extreme sanction of dismissal is
warranted only when “(1) the other party has been ‘so prejudiced by the misconduct that it would
16
be unfair to require [the party] to proceed further in the case,’ (2) the party’s misconduct has put
‘an intolerable burden’ on the court by requiring the court to modify its own docket and
operations in order to accommodate the delay, or (3) the court finds it necessary ‘to sanction
conduct that is disrespectful to the court and to deter similar misconduct in the future.’” Id.(quoting Webb, 146 F.3d at 971). The Court finds that none of these conditions exist here, and
dismissal therefore is inappropriate.
Although Plaintiffs’ behavior has caused the District to waste time and money while
defending this action, the District has not suffered the type of actual prejudice required for
dismissing a case. Instead, “the fact that the other party has incurred costs due to the
malfeasance will not ordinarily be enough to warrant dismissal, since the court may order the
guilty counsel to pay a designated amount to the other party to cover his costs and
inconvenience.” Shea, 795 F.2d at 1075. Nor have Plaintiffs’ discovery delays imposed an
intolerable burden on the Court. Although the Court is frustrated by the time and energy it has
spent babysitting discovery in the case — and has informed Plaintiffs’ counsel several times to
that effect — it remains capable of managing the delays in the future without prejudicing its own
docket. See Webb, 146 F.3d at 975 (vacating and remanding the district court’s default judgment
order when, among other reasons, “it [was] not apparent … from the record … that the court’s
continued involvement in the discovery dispute would continue to call on far more resources into
the future than the system should be required to allocate to the case.”). Finally, the Court does
not believe dismissal is necessary at this time to punish disrespect to the Court, egregious
misconduct, or to prevent further violations in the future. See Webb, 146 F.3d at 975 (explaining
that default is inappropriate when the party’s discovery failures do not rise “to the level of
flagrant or egregious misconduct”); cf. Synanon Church v. United States, 820 F.2d 421, 423, 428
17
(D.C. Cir. 1987) (affirming dismissal due to the party’s “willful, deliberate and purposeful
scheme” to destroy evidence (internal quotation omitted)).
When considering other penalties, the Court must remain cautious that “any alternative
sanctions ordered in lieu of dismissal [do] not effectively amount to a default judgment.”
Hildebrandt, 287 F.R.D. at 98. The Court therefore does not find that dismissing specific claims
or preventing Plaintiffs from presenting certain critical evidence is appropriate because doing so
might effectively constitute a judgment on the claims without reaching the merits. See Johnson
v. BAE Sys., Inc., No. 11-cv-02172, 2013 WL 6241135, at *12 (D.D.C. Nov. 27, 2013) (refusing
to impose the “issue-related sanction of exclusion of all evidence of and damages for Plaintiff’s
alleged mental health conditions and treatments” because that “is the functional equivalent to
dismissal”) (internal quotations omitted).
The Court also does not find that precluding Plaintiffs from presenting their expert report
and expert testimony at trial is appropriate when alternative, less severe sanctions are available,
and when that expert discovery is critical to adjudicating the merits of Plaintiffs’ claims.
Further, the District will have an opportunity to rebut the revised expert report and conduct
discovery on Plaintiffs’ expert, including through deposition, if it so chooses. Again, in reaching
this conclusion the Court is influenced by the fact that the expert discovery problems are the
result of Plaintiffs’ counsel, not the individual Plaintiffs, and the Court hesitates to punish the
parties for errors outside their control, particularly when significant time and expense already has
gone into preparing the expert report.
B. Monetary Sanctions Are Appropriate
After considering the range of available sanctions, the Court concludes that monetary
sanctions in the amount of the District’s attorneys’ fees and reasonable expenses are the just
18
penalty for the discovery violations in this case. The Court further concludes that these sanctions
should not fall on the individual Plaintiffs because it is their counsel who have failed to meet the
discovery obligations. See Hildebrandt, 287 F.R.D. at 99 (explaining that “imposing a monetary
penalty on these plaintiffs for the misdeeds of their attorney would be unjust”). Rather, attorneys
David Rose and Donald Temple have represented various Plaintiffs in this action throughout
Phase I discovery, and neither has complied with the Court’s discovery orders or demonstrated
that they are capable of complying in the near future. 7 As such, the sanctions should fall on the
attorneys directly.
When requesting attorneys’ fees under Rule 37, the moving party bears the burden of
proving that the request is reasonable. See Kister v. Dist. of Columbia, 229 F.R.D. 326, 329
(D.D.C. 2005) (citation omitted). If, however, the party opposing the fee request objects with
specificity, the Court has discretion to adjust the fee award in light of those objections. See id.(citation and quotation omitted). “[G]enerally, the proper method of awarding attorneys’ fees for
a violation of Rule 37 is the lodestar method, in which the court multiplies a reasonable hourly
rate by a reasonable number of hours expended.” Kornegay v. AT&T, No. CIV.A 05-0001, 2008
WL 4482970, at *2 (D.D.C. Sept. 29, 2008). A “near ‘but for’ relationship must exist between
the Rule 37 violation and the activity for which fees and expenses are awarded.” Cobell v.
Babbitt, 188 F.R.D. 122, 127 (D.D.C. 1999) (citation omitted).
7
Attorney David Branch entered an appearance for Plaintiff Ernest Hunter on
January 6, 2014. See Branch Notice of Appear., ECF No. 74. Mr. Branch immediately
attempted to comply with discovery, see ECF No. 80-1 (Hunter’s Supp. Answer to Interrog. 8),
and has participated in briefing on the District’s motion for sanctions. See generally Hunter’s
Opp’n Mot. Sanctions, ECF No. 78. Given that Mr. Branch joined this action late, represents
only one Plaintiff, and has at least attempted to comply with discovery and engage in this matter,
the Court concludes that he should not be held liable for the misconduct of Plaintiffs’ other
counsel. The Court therefore orders no sanctions against Mr. Branch at this time.
19
The District requests compensation at the hourly rates provided in the fee schedule
commonly known as the “Laffey Matrix.” See Def.’s Mem. in Supp. Mot. Sanctions, ECF No.
72-1, at 10. This matrix, which derives its name from the decision in Laffey v. Northwest
Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), establishes the presumptive prevailing market
rates in the District of Columbia for attorneys of varying experience levels. See Embassy of Fed.
Rep. of Nigeria v. Ugwuonye, 297 F.R.D. 4, 15 (D.D.C. 2013). In its briefing, the District
provides that its attorney, Chad Naso, has five years of experience, so under the Laffey Matrix,
his rate is $295.00/hour. See Def.’s Mem. in Supp. Mot. Sanctions, ECF No. 72-1, at 10; Naso
Decl., ECF No. 72-9, at 2-3. The District requests that the Court award attorneys’ fees for the
following activities related to Plaintiffs’ discovery violations: 3.6 hours preparing for the
deposition of Plaintiff Cynthia Dudley; 0.2 hours calling and speaking with attorney David Rose
regarding Ms. Dudley’s failure to appear for her deposition; and 11.3 hours researching and
drafting the District’s motion for sanctions. See Naso Decl., ECF No. 72-9, at 1-2. The District
therefore requests fees for 15.1 billable hours, which, at a rate of $295.00/hour, equals a total
award of $4,454.50 in attorneys’ fees. See Def.’s Mem. in Supp. Mot. Sanctions, ECF No. 72-1,
at 10.
The District, however, does not point to case law in this circuit applying Laffey rates to
government attorneys, who are paid a salary and do not charge fees based on an hourly rate or
otherwise. Nevertheless, at least one example exists of this Court using the Laffey Matrix to
establish the appropriate rates for the District’s attorneys. In Fowler v. District of Columbia, the
District submitted a request for attorneys’ fees under the Laffey rates. No. CIV.A. 00-270, 2001
WL 1704308, at *1 (D.D.C. Aug. 16, 2001). This Court agreed with the District’s proposed
20
methodology, explaining that “[w]hen an attorney works for the government or a public interest
group, the court can apply market rates in setting the fees of that attorney.” Id.Cases in other circuits also support applying the relevant private market rate — which the
Laffey Matrix provides — to government attorneys when calculating attorneys’ fees for
sanctions. For example, the U.S. Court of Appeals for the Eighth Circuit held in United States v.
Big D Enterprises, Inc. that the prevailing private sector market rate applies to U.S. Department
of Justice attorneys when calculating discovery sanctions under Rule 37. 184 F.3d 924, 936 (8th
Cir. 1999). The U.S. Court of Appeals for the Fifth Circuit reached a similar conclusion when
reviewing a district court’s calculation of civil contempt sanctions, explaining that “[w]hen a
court awards attorney’s fees to the government as a sanction for an adverse party’s improper
conduct, … we treat the hourly rate in the local legal community as a benchmark for determining
the amount of attorney’s fees to be imposed.” United States v. City of Jackson, Miss., 359 F.3d
727, 733 (5th Cir. 2004). Likewise, in Napier v. Thirty or More Unidentified Federal Agents,
Employees or Officers, the U.S. Court of Appeals for the Third Circuit held that a district court
did not abuse its discretion by using the prevailing market rate to determine the reasonable
hourly fee for an Assistant United States Attorney when calculating Rule 11 sanctions. 855 F.2d
1080, 1092-93 (3d Cir. 1988); see also NLRB v. Local 3, Int’l Bhd. of Elec. Workers, 471 F.3d
399, 407 (2d Cir. 2006) (concluding that the Special Master properly calculated fees for National
Labor Relations Board attorneys “using the prevailing market rate”); Hamilton v. Daley, 777
F.2d 1207, 1213 (7th Cir. 1985) (stating that fees for lawyers in the Cook County State’s
Attorney’s Office “are based on reasonable billing rates in the relevant community, not net
hourly earnings”).
21
As noted above, this Court “has broad discretion under Rule 37 to impose sanctions for
discovery violations and to determine what level of sanctions is appropriate.” Gordon v.
Borigini, 297 F.R.D. 1, 3 (D.D.C. 2013) (citations omitted). Plaintiffs cursorily object that the
District “did not make clear … the basis for its calculation of ‘reasonable’ attorneys’ fees.” Pls.’
Resp. Suppl. Mem. Supp. Mot. Sanctions, ECF No. 84, at 8. Plaintiffs do not explain if they are
objecting to the use of the Laffey Matrix, the amount of time the District’s attorney spent on
certain tasks, or some other unspecified issue. In a subsequent motion, Plaintiffs concede that a
monetary sanction is appropriate and suggest that $750.00 or $1,000.00 “would be sufficient
penalty.” Pls.’ Notice Suppl. Auth., ECF No. 86, at 2. Plaintiffs do not explain how they
calculated these figures. Nevertheless, the District clearly has demonstrated the basis for its
calculation, including its requested hourly rate and the time spent on each task, and Plaintiffs’
generalized and halfhearted objections are hardly persuasive to the contrary.
The Court therefore concludes that the Laffey Matrix is a reasonable measurement for
calculating the District’s rates under Rule 37, and the Court will award the District $4,454.50 in
attorneys’ fees. In addition, the Court will award the District its $175.00 expense for the court
reporter when Cynthia Dudley failed to appear for her properly noticed deposition due to a lack
of communication between Plaintiffs’ counsel and their client. 8 See Def.’s Mem. in Supp. Mot.
Sanctions, ECF No. 72-1, at 10-11; Def.’s Mot. Sanctions, ECF No. 72-8 (Olender Reporting,
Inc. Invoice); see also Fed. R. Civ. P. 37(d)(1)(A)(i) (“[A court] may, on motion, order sanctions
if a party … fails, after being served with proper notice, to appear for that person’s deposition.”).
8
Again, Plaintiffs’ counsel concedes that this error was due to his own failure to
inform Ms. Dudley, rather than due to her failure to appear. See Pls.’ Suppl. Resp. Mem. Supp.
Mot. Sanctions, ECF No. 84, at 2. As such, it is appropriate that counsel, rather than Ms.
Dudley, pay the cost.
22
Accordingly, the Court concludes that Mr. Rose and Mr. Temple are ordered to pay to the
District a total of $4,629.50 in attorneys’ fees and reasonable expenses as sanctions.
VI. DISCOVERY MOVING FORWARD
Due to the issues described above, discovery in this matter remains woefully incomplete,
and Plaintiffs’ responsibility to fulfill their many unmet discovery obligations does not end with
this order. Instead, Plaintiffs must provide the District with the answers and documentation
responsive to its outstanding discovery requests moving forward, as the District clearly is entitled
to this information as it builds a defense to this action. The Court therefore will order — once
again — that Plaintiffs shall provide the missing discovery within thirty days of this ruling.
Plaintiffs are reminded, moreover, that their failure to comply with discovery moving
forward can and will result in more drastic sanctions than paying attorneys’ fees and reasonable
expenses. The Court has hesitated to punish Plaintiffs for what largely are errors of their
counsel, and the Court thus has opted for less severe sanctions at this time. But if counsel fall
short of their discovery obligations again, the Court will be forced to issue harsher sanctions that
affect the merits of Plaintiffs’ action, up to and including dismissal with prejudice. See Bonds v.
Dist. of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (“[D]ismissal is a sanction of last resort to
be applied only after less dire alternatives have been explored without success or would
obviously prove futile.” (citation and quotation omitted)).
The Court also will reopen discovery in this matter for the narrow purpose of expert
discovery, including depositions. This is because following Plaintiffs’ late filing of a revised
report from Dr. Munro, the District deserves an opportunity to prepare its own rebuttal report and
depose Plaintiffs’ expert. Plaintiffs also will have an opportunity to depose the District’s expert
if they so choose. Further, it appears that the District already has deposed the class
23
representatives for Plaintiffs, so opening discovery for that purpose is not required. If, however,
the District believes depositions of additional Plaintiffs are necessary, it may file an appropriate
motion with the Court.
Finally, the Court will not reopen discovery so Plaintiffs can conduct Rule 30(b)(6)
depositions. See Pls.’ Suppl. Resp. Mem. Supp. Mot. Sanctions, ECF No. 84, at 10. Plaintiffs
have had over a year to notice the depositions, and they have provided no reason for why the
Court should reopen discovery for these depositions at this late stage or what they hope to
accomplish if the depositions were to occur. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge’s consent.”); U.S. ex rel. Pogue v. Diabetes
Treatment Ctrs. of Am., 576 F. Supp. 2d 128, 133 (D.D.C. 2008) (“The focus of a court’s inquiry
is upon the moving party’s reasons for seeking modification. If that party was not diligent, the
inquiry should end.” (citation and quotation omitted)). Plaintiffs’ request therefore is denied.
VII. CONCLUSION
For the foregoing reasons, the District’s motion for sanctions is granted and monetary
sanctions are ordered against David Rose and Donald Temple, counsel for Plaintiffs, in the
amount of $4,629.50. Furthermore, the Court orders that Plaintiffs fulfill their outstanding
discovery obligations to the District within thirty days of this decision. The Court also orders
that discovery is reopened for the limited purpose of conducting expert discovery. An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: June 4, 2014 RUDOLPH CONTRERAS
United States District Judge
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