UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) MCDONALD’S USA, LLC et al., ) ) Plaintiffs, ) ) v. ) Case No. 17-cv-00119 (APM) ) WILLIE T. CRAFT, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

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. I.

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

2 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,

3 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.

II.

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.

1 Plaintiffs also cite to Rule 37(a)(5)(A). See Pls.’ Mot. at 12. That rule does not apply, however, because it pertains only to the payment of expenses if a discovery motion is granted or discovery is supplied after the motion’s filing. See Fed. R. Civ. P. 37(a)(5)(A). Here, the court did not grant a discovery motion—rather, it granted Plaintiffs’ motion for judgment on the pleadings, see Mem. Op., ECF No. 45—and, to the court’s knowledge, Defendant did not provide discovery after Plaintiffs filed their motion for sanctions. Accordingly, Plaintiffs’ Motion arises only under Rule 37(b)(2)(C).

4 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,

, 873–74 (D.C. Cir. 1984). The

rule “places the responsibility of apportioning awards of expenses between client and counsel with

the trial court.”

. 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.”

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,

(D.C. Cir. 1993).

III.

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’ counsel has submitted a spreadsheet detailing

the time spent on various tasks. See Pls.’ Mot., Ex. A, Decl. of Joseph J. Bottiglieri, ECF No. 47-

2.

The court begins with the thorny issue of whether to hold Defendant responsible for fees

and costs incurred during the period before the court granted his former counsel’s motion to

withdraw on July 6, 2017. Judge Friedman in Bradshaw v. Vilsack,

(D.D.C. 2012),

faced a similar problem. There, as here, one of the party’s counsel—in that case, the plaintiff’s—

faced disciplinary action during the course of litigation that prevented him from continuing to

represent the plaintiff. See

. Thereafter, unable to find replacement counsel, the plaintiff

5 elected to proceed pro se and, during that time, failed to comply with a discovery order, prompting

the defendants to file a motion for sanctions. See

As part of their motion for sanctions, the

defendants sought under Rule 37(b)(2)(C) “an award of attorneys’ fees and expenses associated

with the filing of their motion for sanctions.”

. Judge Friedman denied the request,

finding that, under the circumstances of that case, “imposing a monetary penalty on th[e] now pro

se plaintiff for the misdeeds of his attorney would be unjust.”

He observed, however, that

monetary sanctions—although not yet requested—would be appropriate against the plaintiff’s

former lawyer for the “cost, inconvenience, and difficulty that his professional misconduct ha[d]

imposed on the defendants, the Court, and his own former client,” and invited the defendants to

re-file their motion against counsel.

This court concurs with Judge Friedman’s approach in Bradshaw. Here, too, imposing

fees and costs against Defendant for the misdeeds of his former counsel would be “unjust.” See

Fed. R. Civ. P. 37(b)(2)(C). Although Plaintiffs assert that Defendant chose his counsel and

therefore should bear equal responsibility for his misconduct, see Pls.’ Reply Br., ECF No. 69, at

3–4, the court finds little evidence on the record that Defendant knew that, while represented, his

counsel had been disciplined and had stopped working on his behalf. Indeed, Defendant expressly

avers that he was not aware of his counsel’s misconduct in this case and only found out about it

for the first time on or about June 1, 2017. See Def.’s Mem. at 2–3. The court has no reason to

question that representation. The circuit law is clear that when considering a motion under Rule

37, a trial court must distinguish between the actions of counsel and the client. See Weisberg,

. Here, the court cannot say that Defendant’s conduct before July 6, 2017, caused

Plaintiffs to incur unnecessary fees and costs in chasing discovery. Accordingly, the court denies

the motion insofar as it seeks from Defendant fees and costs incurred before July 6, 2017.

6 Of course, Defendant proceeded pro se after July 6, 2017, and his pro se status does not

immunize him from Rule 37 sanctions. Cf. Akers v. Beal Bank,

(D.D.C. 2011)

(observing that “a pro se plaintiff” does not “carry a ‘license . . . to ignore the Federal Rules of

Civil Procedure.’” (alteration in original) (quoting Moore v. Agency for Int’l Dev.,

(D.C. Cir. 1993))). The court finds, however, that during his time as a pro se litigant,

Defendant did not display the type of recalcitrance that would justify awarding fees. On July 6,

2017, when the court allowed counsel to withdraw and notified Defendant that he no longer was

represented by counsel, the court warned Defendant that if he did not provide initial disclosures to

Plaintiffs by July 27, 2017, he could face sanctions, including possible entry of a default judgment.

See Order, ECF No. 35, at 2. Defendant responded to the court’s order by the deadline, mailing a

“Response to Plaintiff’s Request for Rule 26 Initial Disclosures” on that date. See ECF No. 38.

While far from a comprehensive Rule 26(a) disclosure, Defendant did identify some witnesses

with knowledge, as required by Rule 26(a)(1)(A)(i), thus exhibiting some effort at compliance.

Additionally, he asked for 30 more days to secure counsel and make disclosures. Although no

counsel entered an appearance within the next 30 days and Defendant appears not to have made

any additional disclosures in that time, the court shortly thereafter entered judgment on the

pleadings in favor of Plaintiffs, thereby ending the need for discovery. See Mem. Op., ECF No.

45; Order, ECF No. 46. The court understands the frustration that Plaintiffs have experienced in

this matter. In the end, however, the court finds that the fees and costs that they incurred are largely

attributable to the misdeeds of Defendant’s former counsel. Under the circumstances, it would be

unjust to levy a fees award against Defendant.

Before concluding, the court also denies Plaintiffs’ sanctions request, as to some categories,

on another ground: Plaintiffs do not seek fees and costs associated with disobedience of a

7 discovery order, as required under Rule 37(b)(2)(C). For example, all fees and costs associated

with the failed mediation cannot be recovered under Rule 37(b)(2)(C). In any event, in view of

the court’s holding above, the court need not flyspeck Plaintiffs’ counsel’s fees charts to determine

what work is attributable to events other than discovery disobedience.

IV.

For the foregoing reasons, Plaintiffs’ Motion for Attorney’s Fees and Costs, ECF No. 47,

is denied. Additionally, Plaintiffs’ Motion to Strike Defendant’s Surreply, ECF No. 72, is denied

as moot.

This is a final, appealable Order.

Dated: June 25, 2018 Amit P. Mehta United States District Judge

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