United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 2, 1997 Decided September 23, 1997
No. 96-5126
Federal Deposit Insurance Corporation, as Receiver for
Madison National Bank,
Appellee
v.
Morton A. Bender, et al.,
Appellants
Consolidated with
No. 96-5137
Appeals from the United States District Court
for the District of Columbia
(No. 93cv00864)
---------
Ross D. Cooper argued the cause for appellants, with whom
Nelson Deckelbaum was on the briefs.
Sharon M. Murphy, Attorney, United States Department
of Justice, argued the cause for appellee, with whom Eric H.
Holder, Jr., United States Attorney at the time the brief was
filed, Frank W. Hunger, Assistant Attorney General, United
States Department of Justice, J. Christopher Kohn, Director,
Ruth A. Harvey, Attorney, and J. Scott Watson, Counsel,
Federal Deposit Insurance Corporation, were on the brief for
appellee.
Before: Wald, Williams and Ginsburg, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: On October 27, 1994, the district
court granted summary judgment to the Federal Deposit
Insurance Corporation ("FDIC") in its action against Van
Dorn Retail Management, Inc. ("Van Dorn Retail") to recover
the amounts due on several promissory notes, including attor-
neys' fees of 15 percent of the outstanding balance as provid-
ed in the notes. See FDIC v. Bender, Civ. No. 93-0864
(D.D.C. Oct. 27, 1994). Similarly, on February 28, 1996, the
district court granted summary judgment to the FDIC in its
action against Morton Bender ("Bender") as guarantor of the
loan to Van Dorn Retail, holding that Bender's opposition to
the motion for summary judgment was untimely. See FDIC
v. Bender, Civ. No. 93-0864 (D.D.C. Feb. 28, 1996). In this
consolidated appeal, Van Dorn Retail now challenges the
district court's refusal to reconsider its award of 15 percent
attorneys' fees to the FDIC, and Bender challenges the
district court's treatment of the FDIC's motion for summary
judgment as conceded. We hold that the district court erred
with respect to Van Dorn Retail, but not with respect to
Bender, in granting summary judgment on the fee issue to
the FDIC, but because these results run the risk of creating
inconsistent obligations between Van Dorn Retail and Bender
as guarantor, we remand both cases to the district court for
renewed consideration.
I. Background
On December 1, 1986, Morton Bender, on behalf of MAB
Development, Inc., executed and delivered to Madison Na-
tional Bank ("Madison") a promissory note in which MAB
Development, Inc., promised to pay a principal amount of
$1,700,000 plus interest. On or about December 4, 1986, this
note was replaced with six separate notes from Morton
Bender, Scott Bender, Kenneth Bender, Jeffrey Bender, Lisa
Bender, and Jay Bender. Each maker promised to make
quarterly payments until December 4, 1991, when the balance
payable under the note would become due. On December 31,
1986, Morton Bender executed a personal guaranty of each of
the six notes.
In addition, on December 1, 1989, Morton Bender executed
and delivered to Madison a promissory note, of which he was
sole maker, in which he promised to pay a principal amount of
$2,000,000 plus interest by December 1, 1990. This additional
note provided that should it go into default, Bender would be
liable for attorneys' fees in the amount of 15 percent of the
outstanding balance of principal and interest. On April 5,
1990, N Street Follies, a limited partnership of which Morton
Bender was general partner, executed and delivered to Madi-
son a promissory note in which it agreed to pay a principal
amount of $2,500,000 plus interest by April 5, 1991. Morton
Bender also executed a personal guaranty of this note, which,
similar to the note on which Bender was sole maker, provided
for attorneys' fees of 15 percent upon default.
Finally, on January 21, 1991, Morton Bender, acting as
secretary of Van Dorn Retail, executed and delivered to
Madison a promissory note in which Van Dorn Retail agreed
to pay a principal amount of $2,500,000 plus interest on
demand. This note, too, provided for attorneys' fees of 15
percent upon default.
On May 10, 1991, Madison was declared insolvent, and the
FDIC was appointed as receiver pursuant to 12 U.S.C.
s 1819. As such, it succeeded to all of Madison's rights
under the promissory notes. When each of these promissory
notes and guaranties went into default, the FDIC brought
suit in district court on April 26, 1993, seeking judgment
against the Benders and N Street Follies (collectively, the
"Bender Defendants") and Van Dorn Retail for the amount
due, costs, and, where applicable, the full 15 percent in
attorneys' fees.
The FDIC moved for summary judgment on all of the
notes on February 4, 1994. The Bender Defendants and Van
Dorn Retail, who were represented by the same counsel,
jointly opposed the motion, arguing, among other things, that
the 15 percent attorneys' fees requested in the FDIC's mo-
tion were "not only unreasonable, but clearly unconscionable"
because, though based on the contractual rates provided for
in the notes, they bore no relationship to the reasonable fees
actually incurred. The district court granted the FDIC's
motion on October 27, 1994, ruling that because the defen-
dants "have not produced any evidence other than the mere
allegation that the attorney's fees are unconscionable to com-
bat plaintiff's motion for summary judgment[,] the court must
grant plaintiff's motion for summary judgment."
The Bender Defendants (but not Van Dorn Retail, which
had obtained separate counsel) filed a motion for reconsidera-
tion on November 8, 1994, citing FDIC v. Hadid, 947 F.2d
1153 (4th Cir. 1991), as authority for the proposition that
under District of Columbia law the court may hold an eviden-
tiary hearing if there is a legitimate dispute as to the reason-
ableness of a contractual attorneys' fee provision. The court
denied the motion on February 28, 1996, erroneously stating
that the Bender Defendants had not sought reconsideration of
the ruling on attorneys' fees. The Bender Defendants (this
time joined by Van Dorn Retail) filed a motion for reconsider-
ation of this ruling on March 13, 1996, pointing out that they
had, in fact, sought reconsideration of the fee award in their
earlier motion. The court, recognizing its error, granted the
motion in favor of the Bender Defendants on April 17, 1996,
and required the FDIC to submit a motion for attorneys' fees
addressing the reasonableness of the 15-percent provision.
However, it denied Van Dorn Retail any relief, noting that
Van Dorn Retail had not filed a motion for reconsideration in
November and thus could not ask the court to reconsider its
February decision.
In the meantime, the FDIC had been granted leave on May
17, 1994, to amend its complaint to include a new count
against Bender as guarantor of the loan to Van Dorn Retail,
which provided for 15 percent attorneys' fees, as well as a
count against Delburt Van Dorn, Marc Goodman, Cindy Van
Dorn, John C. Richards, and Connie J. Richards (the "Van
Dorn Guarantors"), none of whom is a party to this appeal, as
guarantors of the same loan. The FDIC subsequently moved
for summary judgment on the amended complaint on Novem-
ber 10, 1994. The Van Dorn Guarantors filed an opposition
to the motion on December 9, 1994, alleging that a material
issue of fact existed with respect to the amount of attorneys'
fees. The Bender Defendants1 filed an opposition to the
motion on December 19, 1994, which stated that the Bender
Defendants joined the opposition of the Van Dorn Guaran-
tors. This opposition was challenged by the FDIC as untime-
ly filed. On February 28, 1996, the district court granted the
FDIC's motion as to the Bender Defendants in its entirety,
ruling that the opposition was filed beyond the time limit
prescribed in Local Rule 108(b) and that the FDIC's motion
was thereby conceded. As to the Van Dorn Guarantors, the
district court granted the FDIC's motion with respect to the
amount due on the notes but reserved judgment as to the
amount of attorneys' fees, holding that because the Van Dorn
Guarantors had challenged the reasonableness of the contrac-
tual provision in their opposition to the FDIC's motion for
summary judgment, the court, pursuant to District law, would
not enforce the 15-percent provision "absent a showing by
plaintiff that the amount is reasonable." The Bender Defen-
dants and Van Dorn Retail appeal from these rulings, both
__________
1 The Bender Defendants have filed as a unit throughout this suit
and on appeal despite the fact that Morton Bender is the only party
of the group to whom the guaranty agreement pertains. We refer
to the parties on appeal as "Morton Bender" or "Bender."
arguing that the district court erred in not affording them a
similar opportunity to contest the 15-percent fee provision.
II. Discussion
A. Van Dorn Retail's Appeal
Although Van Dorn Retail has styled its appeal as a
challenge to the district court's failure to extend to it the
benefit of the reconsideration afforded the Bender Defen-
dants on the fee issue, we believe that it is more properly
considered as a direct challenge to the original grant of
summary judgment in favor of the FDIC as to the 15 percent
attorneys' fees provided in the note. Although Federal Rule
of Appellate Procedure 4(a)(1) requires that appeals be taken
within 30 days after the date of entry of the judgment
appealed from, Federal Rule of Appellate Procedure 4(a)(4)
provides that if any party files a timely motion under Rule 59,
the time for appeal for all parties runs from the entry of the
order disposing of the last such motion. The Bender Defen-
dants filed two motions for reconsideration; the last, filed on
March 13, 1996, was granted on April 17, 1996. Van Dorn
Retail's appeal was filed on May 8, 1996, and thus may be
considered a timely filed appeal from the initial grant of
summary judgment. As a result, we do not need to reach
Van Dorn Retail's challenge to the district court's denial of
reconsideration.
This court reviews de novo the district court's order grant-
ing the FDIC's motion for summary judgment. Consumer
Fed'n of Am. and Public Citizen v. U.S. Dep't of Health and
Human Servs., 83 F.3d 1497, 1501 (D.C. Cir. 1996). Sum-
mary judgment is appropriate if there is no genuine issue as
to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial
burden on both these determinations rests with the moving
party, who must show initially the absence of a genuine issue
concerning any material fact, Adickes v. S.H. Kress & Co.,
398 U.S. 144, 159 (1970), as well as her entitlement to
judgment in her favor as a matter of law, Bloomgarden v.
Coyer, 479 F.2d 201, 207 (D.C. Cir. 1973). If the moving
party complies with this requirement, the burden shifts to the
opposing party, who must set forth, by affidavit or otherwise,
"specific facts showing that there is a genuine issue for trial,"
Fed. R. Civ. P. 56(e), or demonstrate that the moving party is
not entitled to judgment as a matter of law in order to defeat
the motion. Our first task, then, is to ascertain whether a
factual dispute existed as to any material issue. If we find
there to be no controversy with regard to the material facts,
we focus on whether the district court correctly applied the
relevant law. Painting and Drywall Work Preservation
Fund, Inc. v. Dep't of Housing and Urban Development, 936
F.2d 1300, 1302 (D.C. Cir. 1991).
Because the promissory notes themselves provide, and the
parties do not dispute, that their enforcement is to be gov-
erned by the law of the District of Columbia, we look to that
law to determine how stipulated attorneys' fees provisions are
to be interpreted and, thus, the nature of the burden each
party must meet in a motion for summary judgment.2 Dis-
trict law incorporates the "American Rule," under which each
party bears his or her own attorneys' fees "unless a statute or
a contract specifically provides for an award of such fees."
Cahn v. Antioch Univ., 482 A.2d 120, 132-33 (D.C. 1984)
(quoting Washburn v. Washburn, 475 A.2d 410, 413 (D.C.
1984)); see also Nepera Chemical, Inc. v. Sea-Land Service,
Inc., 794 F.2d 688, 695-96 (D.C. Cir. 1986). Unlike some
jurisdictions, which hold that a contractual provision for a
fixed percentage to be paid as attorneys' fees is enforced
according to its terms, see, e.g., NationsBank v. Scott Farm,
465 S.E.2d 98, 101 (S.C. Ct. App. 1995), the D.C. Court of
Appeals has long held, and this court has acknowledged, that
in the District such provisions are sustained "only as an
indemnity for the reasonable fees necessarily and properly
paid or incurred," United States v. Reed, 31 A.2d 673, 675
__________
2 Although the district court's ruling was based on an opinion of
the D.C. Court of Appeals, Central Fidelity Bank v. McLellan, 563
A.2d 358 (D.C. 1989), we review de novo its determination of
District law. Salve Regina College v. Russell, 499 U.S. 225, 231
(1991).
(D.C. 1942); see also Manchester Gardens, Inc. v. Great West
Life Assur. Co., 205 F.2d 872, 878 (D.C. Cir. 1953).3 The
amount of these fees is to be determined by the trial judge
"on an individual basis." Central Fidelity Bank v. McLellan,
563 A.2d 358, 360 n.6 (D.C. 1989). Although a court charged
with the task of enforcing a contract that provides for attor-
neys' fees does not have the discretion to award no fees at all,
it does retain the discretion to determine what constitutes a
reasonable amount. Id. at 360.
Included within the scope of this discretion is the nature
and amount of proof necessary to determine reasonableness.
As the D.C. Court of Appeals noted in Reed, "[t]he question
of what constitutes a reasonable fee depends on the circum-
stances of each case. If the court deems it necessary, or if
either party desires, testimony may be taken as to the nature
of the services rendered, and the reasonable value thereof."
Reed, 31 A.2d at 675-6. Subsequent cases interpreting Reed
have read "testimony may be taken" (emphasis added) as
permissive rather than hortatory and have taken pains to
make clear that the trial judge decides what sort of proof, if
any, is needed to determine what a reasonable fee would be in
any individual case. See, e.g., Nolan v. Nolan, 568 A.2d 479,
490 (D.C. 1990) ("Lest there be any uncertainty, we now
make explicit that the trial court retains discretion to decide
the nature of proof necessary to establish the facts affecting
its decision as to the amount of fees to award."). Because a
judge who has monitored the case from its inception is
considered to be "an expert on the value of legal services,"
she can fix the amount of the fee without hearing any
evidence at all. Dew v. Simon, 95 A.2d 482, 484 (D.C. 1953);
see also Tyler v. Dixson, 57 A.2d 648, 649-50 (D.C. 1948);
Williams Enterprises, Inc. v. Sherman R. Smoot Co., 938
F.2d 230, 237 (D.C. Cir. 1991) (interpreting D.C. law).
__________
3 This is not the case, however, with respect to contingent fee
agreements between a client and his or her attorney; contingent fee
agreements in the District of Columbia are "entirely permissible as
long as they meet certain requirements and are not invalid for any
other [public policy] reason." Chang v. Louis & Alexander, Inc.,
645 A.2d 1110, 1116 (D.C. 1994).
With these principles in mind, we now consider whether the
FDIC met its burden pursuant to Rule 56. The FDIC's legal
memorandum accompanying its motion for summary judg-
ment asserted that Van Dorn Retail had defaulted under the
terms of the note and thus was liable for the amount due, plus
interests, costs, and attorneys' fees pursuant to the provisions
of the note. The motion was accompanied by an affidavit
supporting the FDIC's claims of default. Van Dorn Retail
contends in its argument before this court that because
District law requires that only reasonable fees be awarded
pursuant to such contractual provisions, the FDIC, in order
to make out its case, was required to submit with its motion
for summary judgment some evidence of what would consti-
tute a reasonable fee in this case. We disagree. Such a
requirement would be inconsistent with our prior reading of
District law in Columbia Plaza Corp. v. Security Nat'l Bank,
676 F.2d 780 (D.C. Cir. 1982), in which we held that absent a
challenge to a stipulated fee provision, the terms of the
contract governed. At issue in Columbia Plaza was a fore-
closure on property that secured a number of promissory
notes held by two banks, each of which provided for attor-
neys' fees of either 10 or 15 percent. The trial court, on a
directed verdict, awarded attorneys' fees to the banks in
accordance with the terms of the notes. The debtors chal-
lenged this ruling on appeal, claiming that the court erred by
not inquiring into the reasonableness of the fee award. We
rejected the debtors' contention as to the 10-percent notes--
that the trial court, by treating the fee provision as conceded,
had precluded them from challenging the reasonableness of
the fees--by noting that the parties had stipulated before
trial that the foreclosure deficiency included attorneys' fees
pursuant to the terms of the note. Id. at 791. With respect
to the 15-percent notes, we observed that before the banks
presented the court with the amount of claimed interest and
fees, the trial court asked the debtors whether they had any
issue to present to the jury. Id. The debtors did not take
advantage of that or any other opportunity to challenge the
attorneys' fees provisions. Because the debtors did not chal-
lenge either of the attorneys' fees provisions, and because the
trial court did not have "an independent duty to examine
whether [the debtors] had entered into a favorable bargain,"
we held that the trial court properly awarded attorneys' fees
pursuant to the terms of the notes. Id.
A similar analysis of D.C. law was conducted by the Fourth
Circuit in Hadid. Hadid involved two promissory notes, each
of which provided for attorneys' fees of 15 percent in the
event litigation to collect was required. The trial court,
relying on our Columbia Plaza case, after finding that the 15-
percent provision was the result of arm's-length bargaining,
awarded the contractual amount on a motion for judgment
notwithstanding the verdict. Hadid challenged the award on
appeal, noting that the amount was unreasonable in light of
the bank's affidavit that the actual fees incurred were consid-
erably less than the amount granted. The Fourth Circuit,
noting that, unlike the debtors in Columbia Plaza, Hadid had
challenged the amount of the award before the trial court,
remanded the case to the district court with instructions to
award only reasonable attorneys' fees, not exceeding the
contractual limit of 15 percent. Hadid, 947 F.2d at 1158.
The court noted:
[I]n the absence of a challenge to the fees' reasonable-
ness, in which the actual fees are proved, the contractual
provision would be enforced, much as a liquidated dam-
age provision would be. When, however, as here, the
reasonableness of the fees is challenged before the trial
court and the proved actual fees amount to $99,861, an
award of $272,035 in accordance with a 15% contractual
provision amounts to a windfall, or even a penalty, that
the District of Columbia courts will not permit.
Id.
Columbia Plaza and Hadid both establish that absent a
challenge to a stipulated fee provision, the trial court should
award attorneys' fees in accordance with the terms of the
contract. In effect, as the FDIC argued before this court, a
contractual provision creates a rebuttable presumption that
the stipulated amount is reasonable. If this provision goes
completely unchallenged, the trial court may assume that the
parties are in agreement as to the fee provision and award
summary judgment to a moving creditor. Van Dorn Retail is
therefore incorrect in its assertion that the FDIC was re-
quired to submit evidence of reasonableness with its motion
for summary judgment, for until an opposition to that motion
was received, the district court could properly have assumed
that the reasonableness of the contractual provisions would
go unchallenged and thus awarded attorneys' fees in the
amount of 15 percent.
The adequacy of the FDIC's motion does not end our
analysis, however. Before we can affirm the district court's
grant of summary judgment, we must find that Van Dorn
Retail did not establish the existence of a genuine issue of
material fact and that the FDIC was entitled to judgment as
a matter of law.
In its memorandum in opposition to the FDIC's motion for
summary judgment, Van Dorn Retail claimed both that there
were material facts in dispute and that the FDIC was not
entitled to judgment as a matter of law. It went on to argue
that the amounts sought as attorneys' fees "are not only
unreasonable, but clearly unconscionable, since they are
based on the contractual rates set forth in the notes, and in
no wise constitute an indemnity for the reasonable fees
necessarily and properly paid or incurred," citing Hadid,
Reed, and Central Fidelity and attaching, as required by
Local Rule 108(h),4 a "Statement of Material Facts in Issue,"
which included "2. Whether the claimed attorneys [sic] fees
are justified."
In granting the FDIC's motion, the district court held that
the promissory notes "clearly and unambiguously" established
the terms of the agreement as to attorneys' fees, which it was
bound to enforce given that Van Dorn Retail failed to produce
any evidence "other than the mere allegation that the attor-
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4 Local Rule 108(h) provides, in pertinent part: "An opposition to
[a summary judgment motion] shall be accompanied by a separate
concise statement of genuine issues setting forth all material facts
as to which it is contended there exists a genuine issue necessary to
be litigated, which shall include references to the parts of the record
relied on to support the statement." D.D.C. R. 108(h).
ney's fees are unconscionable." We find this appraisal of the
record to be inaccurate. The district court, understandably,
construed Van Dorn Retail's challenge as one attempting to
present issues of fact. We believe, however, that despite the
inclusion of its challenge to the fees in its Rule 108(h)
statement, Van Dorn Retail's opposition is more properly
read as a challenge to the FDIC's entitlement to the stipu-
lated fee amount as a matter of District law. In other words,
even assuming that Van Dorn Retail conceded the factual
matters alleged in the FDIC's motion--the existence of the
notes, the occurrence of default, and the language of the fee
provision--it is clear that it disputed the legal effect of the
fee provision. If its opposition sufficed as a challenge to the
stipulated fee, the district court was obliged under District
law to award only reasonable fees, with reasonableness a
determination to be made by the judge. See Urban Masonry
Corp. v. N & N Contractors, Inc., 676 A.2d 26, 34-35 (D.C.
1996). Van Dorn Retail's challenge to the FDIC's entitle-
ment to collect the full 15 percent in attorneys' fees thus
represented a legal, rather than a factual, dispute.
The question thus remaining is whether Van Dorn Retail's
inclusion of the fee issue in its Rule 108(h) statement and its
identification of the relevant District law in its legal memo-
randum raised a challenge sufficient to warrant a conclusion
that the FDIC was not entitled to 15 percent attorneys' fees
as a matter of law without a determination that such an
amount would be reasonable. We hold that the challenge was
sufficient. By citing to Hadid, Central Fidelity, and Reed,
the seminal District case on this issue, and by clearly setting
forth in its legal memorandum the appropriate interpretation
of the fee provision, Van Dorn Retail put the district court on
notice that the controlling law required a determination of
reasonableness. The district court's conclusion that Van
Dorn Retail failed to discharge its burden under Rule 56 was
therefore in error.
Given that Van Dorn Retail successfully challenged the
contractual fee provision, it was incumbent upon the district
court to award only a reasonable fee. Because under District
case law, the trial judge has discretion as to the amount of
proof, if any, needed to determine a reasonable fee, see, e.g.,
Nolan, 568 A.2d at 490, we could still uphold a 15-percent fee
award if the record before us showed that the district court
had awarded the fees on the basis of a finding that the 15-
percent figure was reasonable. The district court's opinion
shows that this was not the case. From the record before us,
it is clear that the district court did not use the "lodestar"
method5 or, indeed, any other method to arrive at a conclu-
sion that the 15-percent figure was reasonable. Rather,
believing that Van Dorn Retail had not raised a sufficient
challenge to the stipulated fee, the district court awarded the
FDIC attorneys' fees pursuant to the provisions of the note.
It did not hold that such an amount was reasonable, nor did it
make any attempt to determine whether the amount that 15
percent represented in any way reflected the time and labor
exerted by the FDIC's attorneys in litigating this case.6 We
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5 The lodestar method, a common method for calculating the
amount of attorneys' fee awards, involves multiplying the number of
hours reasonably expended by a reasonable hourly rate. The
former is determined by considering the total number of hours
expended and disallowing unproductive time; the latter is deter-
mined by reference to the prevailing market rate in the relevant
community. Murray v. Weinberger, 741 F.2d 1423, 1427 (D.C. Cir.
1984); see also Ginberg v. Tauber, 678 A.2d 543, 552 (D.C. 1996),
cert. denied, 117 S. Ct. 738 (1997).
6 The District has adopted a list of 12 factors to be considered by
the trial judge in determining attorneys' fee awards. These in-
clude:
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly;
(4) the preclusion of other employment by the attorney due to
acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circum
stances;
(8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
therefore conclude that the lower court misapplied District
law and thus reverse its grant of summary judgment to the
FDIC only with respect to the issue of the amount of
attorneys' fees for which Van Dorn Retail is liable and
remand to the district court with instructions to award only a
reasonable attorneys' fee, not to exceed the 15-percent limit
in the notes.7
B. Morton Bender's Appeal
Although Bender attempted to challenge the 15-percent fee
provision before the district court, he denied himself the
opportunity to do so by the late filing of his opposition to the
FDIC's motion for summary judgment. In the United States
District Court for the District of Columbia, Rule 56 of the
Federal Rules of Civil Procedure and other federal rules
concerning the submission of motions are supplemented by
Local Rule 108(b), which provides, in pertinent part, that in
response to all motions:
Within 11 days of the date of service or at such other
time as the Court may direct, an opposing party shall
serve and file a memorandum of points and authorities in
opposition to the motion. If such a memorandum is not
filed within the prescribed time, the Court may treat the
motion as conceded.
D.D.C. R. 108(b). Like other local rules that contain time
limits for submissions, the purpose of Rule 108(b) is to assist
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(10) the "undesirability" of the case;
(11) the nature and length of the professional relationship with
the client; and
(12) awards in similar cases.
Frazier v. Franklin Inv. Co., Inc., 468 A.2d 1338, 1341 n.2 (D.C.
1983). These factors are derived from Johnson v. Georgia High-
way Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), a case
concerning Title VII of the Civil Rights Act of 1964, 42 U.S.C.
s 2000e et seq., but have been held by the D.C. Court of Appeals to
apply to the assessment of attorneys' fees in general. Frazier, 468
A.2d at 1341 n.2.
7 Of course, the district court is free to award the same amount if
it is persuaded that such an amount represents a reasonable fee in
this case.
the district court in "maintain[ing] docket control and ...
decid[ing] motions for summary judgment efficiently and
effectively." See Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996) (dis-
cussing Rule 108(h)). Rule 108(b) is a rule of "neutral
applicability," Geller v. Randi, 40 F.3d 1300, 1304 (D.C. Cir.
1994), applying to any and all oppositions to motions filed in
the district court.
We review the district court's decision under Rule 108(b) to
bar consideration of Bender's opposition only for abuse of
discretion. Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir.
1988), cert. denied sub nom. Twist v. Thornburgh, 490 U.S.
1066 (1989). In claiming that the refusal of the district court
to entertain his opposition was such an abuse, Bender argues
that default is to be used only in extreme circumstances and
is thus subject to certain procedural constraints, citing Shep-
herd v. American Broadcasting Cos., Inc., 62 F.3d 1469, 1478
(D.C. Cir. 1995), and Shea v. Donohoe Constr. Co., Inc., 795
F.2d 1071 (D.C. Cir. 1986). He further notes that admission
of the opposition would not have been prejudicial: the FDIC
admitted that it would not have opposed an extension of time;
the district court took over a year to issue a ruling on the
motion; and the brief submitted raised no new issues.
Bender's reliance on Shepherd and Shea is misplaced. In
both cases, we were concerned with a district court's inherent
power to issue a default judgment as a sanction for miscon-
duct--a power whose exercise avoids the textual constraints
on rules, which, consequently, earns it more searching review:
"When rules alone do not provide courts with sufficient
authority to protect their integrity and prevent abuses of the
judicial process, the inherent power fills the gap.... Here
... the court imposed a default judgment under its inherent
power, which is not grounded in rule or statute and must be
exercised with particular restraint." Shepherd, 62 F.3d at
1474, 1480. Bender's characterization of the district court's
action as a sanction is thus unpersuasive.
Rather, the district court's action constituted a straightfor-
ward application of Rule 108(b), and we have yet to find that
a district court's enforcement of this rule constituted an abuse
of discretion. See, e.g., Weil v. Seltzer, 873 F.2d 1453, 1459
(D.C. Cir. 1989) (appellant who failed to file response within
time prescribed by Local Rule 108(b) "is deemed to have
waived his opposition" to the motion and "may not now
complain on appeal"); Twist, 854 F.2d at 1424-25 (noting that
the letter of Rule 108(b) specifically provides the time limit
within which an opposition should be filed).
This court's most recent consideration of the rule suggests
that the discretion to enforce this rule lies wholly with the
district court: "Where the district court relies on the absence
of a response as a basis for treating the motion as conceded,
we honor its enforcement of the rule." Twelve John Does v.
District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997). The
district court's decision in this case was clearly based on
Bender's late filing:
As the Bender defendants did not request, nor did this
court grant, an extension of time in which to file an
opposition, this opposition was untimely.... Thus, pur-
suant to Local Rule 108(b), this court shall treat plain-
tiff's motion as conceded in its entirety.
Any doubt that the district court was acting in response to
Bender's late filing is resolved by the last sentence of foot-
note 3 of the memorandum opinion:
Moreover, the pleading rules of this court shall not be
plainly disregarded by litigants. It is incumbent upon all
parties appearing before this court to read and follow
these rules. This court will not tolerate an unjustified
deviation.
Because Local Rule 108(b) provides for an exception to the
11-day limit only upon leave from the court ("[w]ithin 11 days
of the date of service or at such other time as the Court may
direct ..."), and because Bender did not seek such an
extension of time, it was not an abuse of discretion for the
district court, pursuant to Local Rule 108(b), to treat the
FDIC's motion for summary judgment as conceded.
Nonetheless, we think that it would create an anomalous
situation were we to enforce the 15-percent fee award against
Bender as guarantor of the loan to Van Dorn Retail when we
have vacated that award as to Van Dorn Retail itself. We are
confident that the district court would welcome the opportuni-
ty to reconsider its disposition of Bender's opposition in light
of its assessment of attorneys' fees against Van Dorn Retail,
and, accordingly, we vacate the summary judgment against
Bender and remand to the district court so that it can
appropriately exercise its discretion as to both parties'
claims.8
III. Conclusion
We reverse the grant of summary judgment against Van
Dorn Retail, vacate the grant of summary judgment against
Bender, and remand to the district court with directions to
enter judgment against Van Dorn Retail for reasonable attor-
neys' fees not to exceed the contractual limit of 15 percent
and for the district court to reconsider its refusal to permit
Bender, as guarantor of the loan to Van Dorn Retail, to
challenge the fee award in light of the outcome of any future
proceedings concerning the award of fees against Van Dorn
Retail.
It is so ordered.
__________
8 With respect to the Bender Defendants, the district court has
held upon reconsideration that it will require the FDIC to submit a
motion for attorneys' fees that "specifically addresses the reason-
ableness of the fifteen percent provision." Given the congruence of
the issues in this case, it would not be inappropriate for the district
court to conduct proceedings with respect to Van Dorn Retail
and/or Bender in the same manner.