Hillman v. American Federation of Government Employees

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DEVLIN HILLMAN, et al.,

Plaintiffs,
V. Case No. 1:18-cv-999 (RCL)
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, et al.,
Defendants.
MEMORANDUM OPINION

This case comes before the Court on defendants” Motion for a Bindite of Contempt,
Further Sanctions, and Dismissal (ECF No. 65). Upon consideration of defendants’ motion,
plaintiffs’ opposition (ECF No. 66), and defendants’ reply (ECF No. 70), the Court will GRANT
defendants’ motion to the extent it seeks a finding of contempt and further sanctions and DENY
the motion to the extent it seeks immediate dismissal. Should plaintiffs fail to comply with the
Court’s Memorandum Opinion and accompanying Order within thirty days, the Court will dismiss
the suit with prejudice.

I. BACKGROUND

As the facts of this case are set forth in the Court’s June 29, 2020 Memorandum Opinion
denying both parties’ summary judgment motions, the Court will provide only the facts relevant
to the instant motion. See Hillman v. Am. Fed’n of Gov't Emps., No. 1:18-cv-999-RCL, 2020 WL
3498587 (D.D.C. June 29, 2020). Defendants’ Motion for a Finding of Contempt, Further
Sanctions, and Dismissal (ECF No. 65) comes on the heels of three earlier motions for sanctions

against plaintiffs, each of which was granted. See ECF Nos. 22, 31 & 48 (motions); ECF Nos. 26,
37 & 62 (orders). The circumstances warranting the Court’s earlier orders provide necessary
context for defendants’ instant motion.
A. First Sanctions Order

The patfles initially agreed to serve written discovery by May 30, 2019 and to conduct
depositions between October 1, 2019 and October 31, 2019. ECF No. 20. Based on that schedule,
the Court initially set the close of discovery for late November 2019. ECF No. 21.

By mid-October, defendants still had not received plaintiffs’ responses to the
interrogatories, requests for admission, and requests for documents defendants timely submitted
four months earlier. ECF No. 22-1 at 4. Defendants thus moved to compel plaintiffs’ responses
and sought sanctions for plaintiffs’ failure to timely respond. ECF No. 22. Five days later, plaintiffs
moved for a six-month extension of thé deadline to serve their discovery requests and to answer
defendants’ requests. ECF No. 23.

The Court declined plaintiffs’ invitation. ECF No. 26. Instead, it granted defendants’
motion to compel and ordered plaintiffs to respond to the interrogatories and document requests
by December 12, 2019. Id! The Court also ordered plaintiffs to pay defendants $2,000 in
attorney’s fees and costs for moving to compel plaintiffs’ discovery responses. Jd.

Plaintiffs’ counsel, Ms. Marlene Morten, filed an emergency motion for reconsideration of
the Court’s Order (“First Sanctions Order’), ECF No. 27. In it, she blamed plaintiffs’ failure to
timely respond to defendants’ discovery requests on her work for another case against the same
defendant. Jd. She also explained that the Court’s December 12, 2019 deadline for plaintiffs’
discovery responses was inconvenient because she would be traveling on vacation from mid-

November until after the new year. Jd. The Court denied plaintiffs’ motion. ECF No. 29.

' The Court deemed the matters in defendants’ requests for admission admitted per Federal Rule of Civil
Procedure 36(a)(3). ECF No. 26 at 2.
B. Second Sanctions Order

The December 12, 2019 deadline came and went without plaintiffs’ response to defendants’
discovery requests. ECF No. 31 at 1. On December 21, more than a week after the Court’s deadline,
Ms, Morten sent plaintiffs’ unsigned interrogatory responses to defendants. ECF No. 31-1 at 13.
She informed defendants’ counsel that she would provide the signed interrogatory responses and
respond to defendants’ document requests by December 31. ECF No. 31-2. Ms. Morten again
blamed the delay on her travel schedule. /d.

On December 24, 2019, Defendants filed their second motion for sanctions. ECF No. 31.
Ms. Morten filed a late opposition on January 6, 2020. ECF No. 32. The Court again granted
- defendants’ request and ordered plaintiffs to “pay attorney’s fees and court costs to defendants for
the filing of defendants’ [second] motion for sanctions.” ECF No. 37.

Although plaintiffs eventually paid the $2,000 in attorney’s fees ordered by the Court’s
First Sanctions Order, Ms. Morten refused to comply with the Second Sanctions Order. ECF No.
48-5 at 2. In April 2020, defendants contacted Ms. Morten to request $6,051.95 in attorney’s fees
pursuant to the Court’s Second Sanctions Order. Jd. at 1. Apparently equating the First Sanctions
Order with the Second Sanctions Order, Ms. Morten responded that plaintiffs already paid $2,000
in attorney’s fees and would not pay a penny more. /d. at 2.

When defendants’ counsel explained to Ms. Morten that the Court issued two separate
sanctions orders, she again repeated that plaintiffs had already paid $2,000 and would not make
any further payments. ECF No. 48-5 at 5-6. After defendants’ counsel sent three more emails

explaining that the $2,000 satisfied only the first order but not the second, Ms. Morten dug her
heels in, demanded that defendants produce a copy of defendants’ second motion for sanctions,”
and refused to pay any further sums. ECF No. 48-5 at 14, 20, 27 & 33.
C. Third Sanctions Order
Unable to secure compliance with the Court’s Second Sanctions Order, defendants filed a
third motion for sanctions on April 17, 2020. ECF No. 48. In response, Ms. Morten argued that
plaintiffs have “complied with the Court’s Order by paying the $2,000 that [defendants]
demanded.” ECF No. 54 at 3. She added that plaintiffs cannot afford to pay any additional fees.
Id.
The Court rejected as frivolous plaintiffs’ theory that paying the $2,000 demanded by the
First Sanctions Order excused plaintiffs from complying with the Second Sanctions Order. ECF
No. 62. The Court thus ordered plaintiffs to pay defendants $6,501.95 in attorney’s feés and costs
as requested by defendants pursuant the Court’s Second Sanctions Order. Id.; see ECF No. 48-5 at
1. It further ordered plaintiffs to pay “attorney’s fees and court costs to [d]efendants for the work
performed in obtaining compliance with the January 14, 2020 Order [the Second Sanctions
Order].” ECF No. 62. The Court gave plaintiffs until July 29, 2020 to pay both sums. Jd.
D. The Instant Motion for Further Sanctions, Contempt, and Rule 41(b) Dismissal
This brings us to defendants’ fourth motion for sanctions (ECF No. 65) the motion
presently before the Court. In late June, defendants contacted Ms. Morten to request the fees
awarded in the Court’s Third Sanctions Order. ECF No. 65-2. In addition to the unpaid sum of

$6,051.95 from the Court’s Second Sanctions Order, defendants further requested $5,908.10 from

* This request is puzzling. Ms. Morten was certainly familiar with defendants’ second motion for
sanctions since she opposed that motion. See ECF No. 32.

4
filing their third motion for sanctions. Jd. This brought the total to $11,960.05 in attorney’s fees
and costs. Id.

On July 31, 2020, two days after the Court’s deadline for payment, Ms. Morten emailed
defendants’ counsel to request a payment plan for plaintiffs. ECF No. 65-4. She added that
“[plaintiffs] have both advised me that they are unable to pay the attorney’s fees in full at this
time.” Jd. Defendants’ counsel refused to accommodate plaintiffs’ request, reasoning that counsel
made no effort to contact defendants or comply with the Court’s order before the deadline. ECF
No. 65-5.

On August 3, 2020, defendants filed their Motion for a Finding of Contempt, Further
Sanctions, and Dismissal (ECF No. 65). Citing plaintiffs’ failure to comply with the Court’s
Second and Third Sanction Orders, defendants ask the Court to hold plaintiffs in contempt, dismiss
the complaint under Federal Rule of Civil Procedure 41(b), and order plaintiffs to pay attorney’s
fees and costs associated with filing the motion. ECF No. 65.

In response, Ms. Morten labels defendants’ refusal to allow a payment plan
“inconceivable” and evidence of their “hardheartedness.” ECF No. 66 at 3. She claims that neither
plaintiff can afford to pay any additional fees due to the financial hardships brought by the COVID-
19 pandemic. Jd. at 1. Ms. Morten also argues that defendants have unclean hands because they
failed to conduct all depositions by the parties’ original deadline. Jd. at 3.

Defendants’ motion is ripe and ready for the Court to consider.

II. DISCUSSION

For the reasons explained below, the Court will hold plaintiffs in civil contempt for failing

to comply with the Court’s Third Sanctions Order. Due to plaintiffs’ unexcused noncompliance

with the Second and Third Sanctions Orders, the Court will also order plaintiffs to pay defendants’
attorney’s fees and costs incurred when filing the instant motion (ECF No. 65). Should plaintiffs
‘fail to provide the Court with proof of compliance with this Memorandum Opinion and
accompanying Order within thirty days, the Court will dismiss the suit with prejudice.

A. The Court Will Hold Plaintiffs in Civil Contempt

The Court has the inherent power to enforce its orders by holding a disobeying party in
contempt. Broderick v. Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006). As the party seeking a
finding of civil contempt, defendants must show by clear and convincing evidence that plaintiffs
did not comply with an unambiguous court order requiring them to take a specific action. See id.
Defendants have done just this.

The Court’s Third Sanctions Order clearly and unambiguously directed plaintiffs to take a
specific action. The Court ordered plaintiffs to comply with its “January 14, 2020, Order [the
Second Sanctions Order] and pay defendants $6,051.95 in attorney fees for work performed on
their December 24, 2019, Motion for Sanctions and related filings.” ECF No. 62. And the Court
specified that “[t]his Order shall be paid within 30 days of this date if the plaintiffs are going to
continue litigating in this Court.” Jd.

This Order left no room for confusion. It provided an amount owed ($6,051.95) and a
deadline for performance (thirty days from June 29, 2020). ECF No. 62. In fact, plaintiffs do not
argue that the Third Sanctions Order was unclear. See generally ECF No. 66. Defendants have
thus shown by clear and convincing evidence that there was an unambiguous court order directing
plaintiffs to take a specific action.

Defendants have also shown by clear and convincing evidence that plaintiffs did not
comply with the Third Sanctions Order. In fact, plaintiffs admit that they have not paid any fees

beyond the $2,000 ordered in the First Sanctions Order. ECF No. 66 at 1-2.
Because the Court finds by clear and convincing evidence that plaintiffs failed to comply
with the Third Sanctions Order, it will hold plaintiffs in civil contempt. See Broderick, 437 F.3d
at 1234. Plaintiffs shall remain in contempt of court until they comply with the Third Sanctions
Order by paying defendants $11,960.05 in costs and fees. See ECF Nos. 62 & 65-2. |

B. Plaintiffs’ Counsel’s Conduct Warrants Dismissal

Defendants also ask the Court to dismiss the suit as a sanction for plaintiffs’ refusal to
comply with the Court’s Third Sanctions Order. ECF No. 65 at 5—6. Before imposing the harsh
sanction of dismissal, the Court will give plaintiffs one final opportunity to comply. Should
plaintiffs fail to comply with this Memorandum Opinion and accompanying Order within thirty
days, the Court finds that dismissal with prejudice is warranted.

Under Federal Rule of Civil Procedure 41(b)—and the Court’s inherent authority to protect
its integrity—the Court may dismiss a suit if the plaintiff fails to comply with a court order. Fed.
R. Civ. P. 41(b); Butera v. District of Columbia, 235 F.3d 637, 661 (D.C. Cir. 2001). Before doing
so, the Court must consider lesser sanctions. Webb v. District of Columbia, 146 F.3d 964, 972
(D.C. Cir. 1998). For the harsh sanction of dismissal is appropriate only when other sanctions
would be ineffective. Id.

The D.C. Circuit has identified three justifications for dismissal as a sanction: First, the
plaintiff's actions prejudiced the defendant to the extent that it would be unfair to require the
defendant to proceed with the case. Webb, 146 F.3d at 971. Second, the plaintiff's misconduct
placed a severe burden on the judicial system that cannot be remedied by lesser sanctions. Jd.
Third, the court finds a need to sanction and deter misconduct by an attorney or party that

disrespects the court. Jd.; accord Gardner v. United States, 211 F.3d 1305, 1309 (D.C. Cir. 2000).
The Court finds the third justification present here. Though inconvenient, plaintiffs’ refusal
to pay defendants’ attorney’s fees does not prejudice defendants to the extent necessary to warrant
dismissal. See Webb, 146 F.3d at 971. Nor does plaintiffs’ noncompliance place a burden on the
Court’s administration of its docket. See id. Yet given Ms. Morten’s patent disregard for the
Court’s orders, the Court finds that dismissal with prejudice is necessary to sanction her
disrespectful conduct and deter similar conduct in the future.

Ms. Morten “consciously failf[ed] to comply” with the Second and Third Sanctions Orders
despite being “cognizant of the drastic ramifications” of noncompliance. Gardner, 211 F.3d at
1309. When defendants contacted Ms. Morten to request attorney’s fees pursuant to the Second
Sanctions Order, Ms..Morten insisted that her clients’ payment of the $2,000 awarded in the First .
Sanctions Order sufficed. ECF No. 48-3. As any competent attorney would recognize, this
justification for noncompliance was utterly baseless.

Ms. Morten’s refusal to comply with the Third Sanctions Order shows an even greater
disrespect for the Court. After defendants contacted Ms. Morten to request fees pursuant to the
Third Sanctions Order, Ms. Morten waited until two days after the payment deadline to email
defendants and request a payment plan for plaintiffs. See ECF No. 65-4. She gave no reason
justifying her late response, nor did she indicate that she was unaware of the Third Sanctions Order.
See id. By treating the Court’s deadline as a mere suggestion, Ms. Morten’s conduct evinces a total
disregard for the Court’s authority.

Further, dismissal is warranted because lesser sanctions have proven ineffective. See
Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (D.C. Cir. 1990). In its Second Sanctions
Order, the Court admonished plaintiffs for failing to timely respond to defendants’ discovery

requests and ordered plaintiffs to pay defendants’ attorney’s fees as a sanction. ECF No. 37. When
Ms. Morten indicated that plaintiffs would not pay the $6,051.95 in costs and fees requested, the
Court again ordered plaintiffs to pay and imposed further sanctions. ECF No. 62. But plaintiffs did
not comply. After twice ordering plaintiffs to pay attorney’s fees as a sanction, the Court finds that
imposing additional fees would be futile. Thus, dismissal is warranted should plaintiffs fail to
comply with this Memorandum Opinion and accompanying Order within thirty days.

In plaintiffs’ defense, Ms. Morten argues that plaintiffs are unable to pay any additional
fees because of the financial hardships brought by the COVID-19 pandemic. ECF No. 66. Yet she
provides no financial records or any other evidence to substantiate this claim. See generally ECF
No. 66. At minimum, Ms. Morten should have provided the Court with affidavits from both
plaintiffs-or a statement of plaintiffs’ assets and liabilities. In the absence of this evidence, the
Court cannot accept Ms. Morten’s bald assertion that plaintiffs lack the means to pay additional
fees.

Furthermore, Ms. Morten’s representation to the Court that plaintiffs’ noncompliance is
due to the COVID-19 pandemic is frivolous on its face. Though the financial hardships caused by
the COVID-19 pandemic may have made it difficult for plaintiffs to comply with the Third
Sanctions Order (issued June 29, 2020), the Court issued its Second Sanctions Order on January
14, 2020, two months before the pandemic caused an economic downturn in the United States. See
ECF No. 37.

Ms. Mortenal8o areues that defendants failed to timely conduct depositions by October
31, 2019 and thus have unclean hands. ECF No. 66 at 3. Yet by October 11, 2019, plaintiffs had
not responded to the interrogatories, requests for admission, and requests for documents that
defendants timely submitted four months earlier. ECF No. 22. Ms. Morten acknowledges this

failure to timely respond to defendants’ discovery requests but argues that it “does not excuse
[djefendants from being required to obey the deadlines set forth in the parties’ Joint Disclosure
Statement.” ECF No. 66 at 3. This argument cannot have been amie in good faith.

It is not lost on the Court that plaintiffs’ suit may be dismissed due to their counsel’s
carelessness. Though unfair, this does not make dismissal unjust. See Link v. Wabash R.R. Co.,
370 U.S. 626, 633 (1962) (“There is certainly no merit to the contention that dismissal of [the
client’s] claim because of his counsel’s unexcused conduct imposes an unjust penalty on the
client.”’”). Nevertheless, the Court trusts that Ms. Morten will consider the effect her actions have
on her clients.

I. CONCLUSION

In sum, the Court will hold plaintiffs in civil contempt for failing to comply with the
Court’s Third Sanctions Order (ECF No. 62). Plaintiffs shall remain in contempt of court until they
comply with the Third Sanctions Order by paying defendants $11,960.05 in costs and fees. See
ECF Nos. 62 & 65-2. Additionally, due to plaintiffs’ unexcused noncompliance with the Second
and Third Sanctions Orders, the Court will order plaintiffs to pay defendants’ attorney’s fees and
costs incurred when filing the instant motion (ECF No. 65). Should plaintiffs fail to provide proof
of compliance with this Memorandum Opinion and accompanying Order within thirty days, the

Court will dismiss the suit with prejudice.

Date: September 2 ¥, 2020 c— . Poulet r-

Hon. Royce C. Lamberth
United States District Judge

10