                                                     UNITED STATES DISTRICT COURT
                                                     FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA,

                      Plaintiff,

              v.                                                               Civil Action No. 11-695 (CKK)

DYNAMIC VISIONS INC., et al,

                      Defendants.


                                                               MEMORANDUM OPINION
                                                                  (January 23, 2015)

              The United States filed suit against Defendants Dynamic Visions Inc. and Isaiah M.

Bongam (“Defendants”) on April 7, 2011, for treble damages, actual damages, civil penalties and

other relief pursuant to the False Claims Act, as amended, 31 U.S.C. §§ 3729-3733. Following

several Orders to Compel Discovery, Plaintiff filed the Motion for Attorney’s Fees presently

before the Court. After considering the parties’ briefs,1 the accompanying exhibits, and the

applicable authorities, the Court shall GRANT Plaintiff’s Motion for Attorney’s Fees pursuant to

Federal Rule of Civil Procedure 37(a)(5)(A) and (b)(2)(C).

                                                                   I.   BACKGROUND

              Plaintiff seeks an award of attorney’s fees for Plaintiff’s counsel’s efforts to obtain

discovery that Defendants have repeatedly failed to provide in response to orders of the Court

compelling discovery. The facts below detail Plaintiff’s efforts to obtain financial and factual




                                                            
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           Plaintiff’s Motion for Attorney’s Fees (“Pl.’s Mot.”), ECF No. [69]; Defendants’
Opposition to Plaintiff’s Motion for Attorney’s Fees (“Defs.’ Opp’n”), ECF No. [74]; and
Plaintiff’s Reply to Opposition to Motion for Attorney’s Fees (“Pl.’s Reply”), ECF No. [77].

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discovery from Defendants and Defendants’ repeated failure to properly respond to Plaintiff’s

discovery requests or the Court’s orders compelling discovery.

       A. Financial Discovery

       On April 26, 2011, Plaintiff filed a Motion for Prejudgment Writ of Garnishment and

Attachment seeking to preserve Defendants’ financial assets after Plaintiff became concerned

that Defendants were conducting unusual financial activity by funneling large amounts of money

between various accounts. See ECF No. [6]. The Court granted Plaintiff’s Motion and on July

26, 2011, Plaintiff served a copy of Plaintiff’s Interrogatories and Requests for Production of

Documents in Aid of Prejudgment Enforcement on Defendants, seeking the location and

disposition of all of Defendants’ financial assets and all documents related to those dispositions.

See ECF No. [17]. Defendants failed to timely respond to the Interrogatories and Request for

Production of Documents. See Motion to Compel, ECF No. [19], Ex. 2. Plaintiff sent a letter to

Defendants to attempt to resolve this matter, but Defendants did not respond. See Motion to

Compel. Accordingly, Plaintiff filed a Motion to Compel. See id. Defendants failed to respond

to the Motion to Compel and the Court granted the Motion as conceded on March 8, 2012. See

Order (Mar. 8, 2012), ECF No. [22].

       The Court held an Initial Scheduling Conference on February 20, 2013, at which it

ordered Defendants to respond to Plaintiff’s still outstanding financial discovery requests by

April 19, 2013. See Scheduling and Procedures Order (Feb. 20, 2013), ECF No. [35], at 6.

Defendants did not respond by April 19, 2013, as ordered. See Notice Regarding Defendants’

Failure to Produce Court-Ordered Discovery, ECF No. [41], at 3. Plaintiff contacted counsel for

Defendants several times at the end of April in unsuccessful attempts to obtain the financial

discovery Defendants had been court-ordered to provide. See ECF Nos. [46-3]; [46-4].




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Throughout May 2013, Plaintiff attempted to assist Defendants in obtaining the financial

information requested, but Defendants failed to provide the information and authorization forms

necessary for Plaintiff to assist Defendants. See ECF No. [46-5].

              On June 12, 2013, this Court held a telephonic conference to address Defendants’ non-

compliance.                  See ECF No. [46-6].               During the telephonic conference, the Court ordered

Defendants to fully and completely respond to the financial interrogatory requests. Id. at 13-14.

24-25, 30; see also Order (June 13, 2013), ECF No. [42]. On July 8, 2014, Defendants provided

Plaintiff with their responses to the financial discovery requests. See ECF No. [46-7]. However,

Defendants’ responses were grossly incomplete and did not provide the information ordered by

the Court in the June 2013 telephonic conference. See id.

              B. Factual Discovery

              Plaintiff served Defendants with its First Set of Discovery Requests seeking factual

discovery on March 22, 2013. See ECF No. [46-8]. Defendants did not respond to Plaintiff’s

discovery request by April 24, 2013, the response date pursuant to the Federal Rules of Civil

Procedure, nor did Defendants respond to Plaintiff’s email inquiry regarding the status of the

factual discovery on May 23, 2013. See ECF No. [46-5]. At the June 12, 2013, telephone

conference, the Court ordered Defendants to fully respond to Plaintiff’s discovery requests by

July 26, 2013.2 Order (June 13, 2013), ECF No. [42]. On July 26, 2013, Defendants provided

responses to Plaintiff’s factual discovery requests; however, they were grossly incomplete. See

ECF no. [46-9].

              C. Motion for Sanctions and Further Discovery Orders

                                                            
              2
         At the June 2013 telephone conference, Defendants claimed they never received the fact
discovery requests from the United States. ECF No. [46-6], at 16-22. At the Court’s request, a
copy of the discovery requests were emailed by Plaintiff and received by Defendants during the
telephone conference. Id. at 25-29.

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       On November 13, 2013, Plaintiff moved for a second time for sanctions, including

attorney’s fees, for Defendants’ failure to provide discovery. See ECF No. [46]. The Court held

a Status Hearing on November 22, 2013, and ordered Defendants to fully respond to Plaintiff’s

financial and factual discovery requests by February 15, 2014. Minute Order (Nov. 22, 2013).

The Court held Plaintiff’s Second Motion for Sanctions in abeyance pending the completion of

discovery. Id.

       Over the next several months, Defendants disclosed several bank accounts that had not

previously been disclosed, and Plaintiff discovered several more that had not been disclosed. See

Notice of Letter to Counsel for Defendants, ECF No. [51-1]; Notice of Defendants’ Non-

Compliance with Court Order, ECF No. [68]. Defendants also continued to provide incomplete

responses to Plaintiff’s discovery requests.   See ECF No. [51-1].      On February 24, 2014,

Magistrate Judge Alan Kay met with the parties regarding outstanding discovery issues and

issued a Minute Order requiring Plaintiff’s counsel to provide Defendants with a description of

outstanding discovery requests and requests that required supplemental answers. Minute Order

(Feb. 24, 2014). Magistrate Judge Kay ordered Defendants to “provide complete responses

within two weeks after receipt of that document.” Id. Plaintiff’s counsel provided Defendants

with a letter describing all outstanding discovery on March 7, 2014, see ECF No. [51-1];

however, Defendants again failed to provide all requested discovery by the deadline set by

Magistrate Judge Kay.

       On April 16, 2014, this Court held another Status Hearing at which Defendants’

noncompliance with Plaintiff’s discovery requests and the Court’s discovery orders was

discussed at length. Following the hearing, the Court ordered that “[a]ll outstanding discovery

shall be provided to Plaintiff by no later than May 16, 2014.” Order (April 16, 2014), ECF No.




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[52]. On May 29, 2014, the Court held another Status Hearing at which the Court discussed in

great detail Defendants’ continued noncompliance with the Court’s discovery orders. Minute

Order (May 29, 2014). During the hearing, the Court ordered Plaintiff to file with the Court by

June 23, 2014, “a proposed discovery order setting out the discovery Defendant[s] must produce

pursuant to the Court’s findings during the status hearing.” Id. The Court ordered, however, that

Defendants should “immediately begin collecting the information identified by the Court during

the status hearing.” Id. On July 2, 2014, the Court issued Plaintiff’s proposed discovery order

and ordered Defendants to produce all outstanding discovery by August 1, 2014. Order (July 2,

2014), ECF No. [62].

       Defendants’ discovery responses provided to Plaintiff on August 1, 2014, were again

incomplete. See Notice of Defendants’ Non-Compliance with the Court Order, ECF No. [68];

Minute Order (Oct. 3, 2014). At a Status Hearing on October 3, 2014, the Court found that

“Defendants have still not fully complied with the Court’s orders regarding discovery.” Minute

Order (Oct. 3, 2014). The Court ordered all discovery to be completed by January 23, 2015, and

set a schedule for Plaintiff to file its Motion for Attorney’s Fees as a discovery sanction and for

Defendants to respond to Plaintiff’s Motion. Id. Plaintiff’s Motion for Attorney’s Fees is now

fully briefed and ripe for review.

                                         II.     DISCUSSION

       Pursuant to Federal Rule of Civil Procedure 37, a Court “must” grant “reasonable

expenses incurred” by a party if the opposing party fails to obey an order to provide or permit

discovery. Specifically, Federal Rule of Civil Procedure 37(b)(2)(C) provides that, if a party

fails to obey an order to provide or permit discovery, “the court must order the disobedient party




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. . . 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.”

       The Court finds that it is eminently appropriate to award Plaintiff reasonable expenses

incurred pursuant to Federal Rule of Civil Procedure 37(b)(2)(C). As discussed at length above,

this Court and Magistrate Judge Kay have issued approximately eight orders requiring

Defendants to provide discovery, and Defendants have largely failed to provide the requested

discovery. See Fed. R. Civ. P 37(a)(4) (“[A]n evasive or incomplete disclosure, answer, or

response must be treated as a failure to disclose, answer, or respond.”). Defendants attempt to

argue in their response to Plaintiff’s present Motion for Attorney’s Fees that they have neither

failed to comply with the Court’s discovery orders nor knowingly withheld discoverable

information. Defs.’ Opp’n at 3-4. However, Defendants’ representations regarding their reasons

for not providing the requested discovery are not accurate and are, in fact, contradicted by the

Court’s orders themselves and by the Court’s findings during several status conferences.

Accordingly, the Court finds that Defendants’ failure to comply with the Court’s discovery

orders was not substantially justified, and that an award of fees is not unjust, particularly in light

of Defendants’ repeated noncompliance with the Court’s orders.

       The Court also notes that an award of attorney’s fees may also be appropriate under

Federal Rule of Civil Procedure 37(a)(5)(A), which provides that if a motion to compel a

discovery response is granted, “the court must, after giving an opportunity to be heard, require

the party . . . whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses

incurred in making the motion, including attorney’s fees[,]” unless the movant filed the motion

before attempting in good faith to obtain the discovery without court action, the opposing party’s

nondisclosure or nonresponse is “substantially justified,” or other circumstances make an award




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of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). Plaintiff filed a Motion to Compel and for

Sanctions on November 13, 2013. During a Status Hearing on November 22, 2013, the Court

held Plaintiff’s Motion in abeyance pending completion of discovery, extended the discovery

deadline by approximately three months, and ordered Defendants to provide all outstanding

discovery by the new discovery deadline. See Minute Order (Nov. 22, 2013). Over the next

year, Plaintiff’s counsel effectively made repeated oral motions during status conferences to

compel Defendants to produce outstanding discovery. In response, the Court and Magistrate

Judge Kay issued repeated orders requiring Defendants to produce the outstanding discovery.

See Minute Order (Nov. 22, 2013); Minute Order (Feb. 24, 2014); Order (April 16, 2014); Order

(July 2, 2014); Minute Order (Oct. 3, 2014). Defendants must now produce all discovery by

January 23, 2015, at which point the Court will evaluate whether Defendants have complied with

the Court’s final discovery order or whether, as a further sanction, Defendants should be held in

civil contempt for their failure to comply in another effort to enforce the Court’s orders to

compel.

       None of the exceptions to the mandatory award of attorney’s fees under Rule 37(a)(5)(A)

are implicated by the facts of this case. Plaintiff’s Motion for Attorney’s Fees clearly sets forth

the repeated attempts Plaintiff made to obtain discovery from Defendants before seeking the

Court’s assistance. See Pl.’s Mot. at 2-11. Again, the Court finds that Defendants’ stated

reasons for failing to provide the ordered discovery are inaccurate and contradicted by the

Court’s orders, as well as by findings made during several status conferences. As a result,

Defendants have failed to show that their nonresponsiveness to Plaintiff’s discovery requests was

substantially justified or that an award of fees would be unjust. Accordingly, as additional




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grounds, Plaintiff’s counsel can be entitled to reasonable expenses incurred in making his

repeated motions to compel.

              Having established that Plaintiff is entitled to attorney’s fees, the only remaining question

for the Court is whether the fees that Plaintiff has requested constitute “reasonable expenses

incurred.” Fed. R. Civ. P. 37(a)(5)(A), (b)(2)(C). A district court has broad discretion in

determining the size of an attorney’s fees award under Federal Rule of Civil Procedure 37. Beck

v. Test Masters Educational Services, Inc., 289 F.R.D. 374, 382 (D.D.C. 2013). “The proper

method of awarding attorney[’]s 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.”

Tequila Centinela, S.A. de C.V. v. Bacardi & Co. LTD, 248 F.R.D. 64, 68 (D.D.C. 2008)

(citing Cobell v. Norton, 231 F.Supp.2d 295, 300 (D.D.C. 2002) and Weisberg v. FBI, 749 F.2d

864, 872-73 (D.C. Cir. 1984)). The moving party bears the burden of proving that the request for

attorney’s fees is reasonable. Id.

               “In order to demonstrate [prevailing market rates], plaintiffs may point to such evidence

as an updated version of the Laffey matrix”—a schedule of charges based on an attorney’s

experience developed in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983)—“or

the U.S. Attorney’s Office matrix, or their own survey of prevailing market rates in the

community.” Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.D.C. 2013). Here,

Plaintiff points to the Laffey Matrix to establish the reasonable rate for Plaintiff’s counsel’s

services.3              See Pl.’s Ex. 14, ECF No. [77-2]; Tequila Centinela, 248 F.R.D. at 68 (accepting


                                                            
              3
         In Plaintiff’s initial memorandum in support of its Motion for Attorney’s Fees, Plaintiff
did not propose an appropriate billing rate or provide the Laffey matrix; Plaintiff only provided
his resume for the Court to consider in determining the appropriate attorney’s fees award. After
Defendants challenged Plaintiff’s Motion on the basis that Plaintiff failed to establish its
counsel’s billing rates or the prevailing market rates in the District of Columbia, see Defs.’

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Laffey Matrix rates to calculate Rule 37 attorney’s fees award). Defendants argue that Plaintiff’s

attorney’s fees award should not be calculated based on an hourly rate, but based on a percentage

of Plaintiff’s counsel’s salary, because Plaintiff’s counsel is a salaried government attorney

“already on the government payroll.” Defs.’ Opp’n at 9. However, this Circuit has held that

“fee allowances are basically to be measured by the market value of the services rendered, not

the amount actually received by the attorney nor the amount that would have been received

absent an award of fees.” Jordan v. Dep’t of Justice, 691 F.2d 514, 523-24 (D.C. Cir. 1982); see

also Blum v. Stenson, 465 U.S. 886, 895 (1984) (A reasonable hourly rate is determined

“according to the prevailing market rates in the relevant community, regardless of whether

plaintiff is represented by private or non-profit counsel”). Accordingly, as Judge Tanya S.

Chutkan recently explained, “government attorneys who do not have customary billing rates may

rely upon the ‘Laffey Matrix.’ ” EPIC v. F.B.I., --- F. Supp. 3d ---, 2014 WL 5713859, * 7

(D.D.C. Nov. 5, 2014); see also Pl.’s Ex. 15, at 1 (Department of Justice memorandum

explaining that an Assistant United States Attorney’s fees should not be calculated based on their

salary “[w]here a circuit mandates a particular method of determining attorney[’s] fees, such as

the ‘lodestar’ method.”). Pursuant to the Laffey Matrix, as Plaintiff’s counsel has been practicing

law for twenty-six years, see Pl.’s Ex. 12, ECF No. [69-2], the reasonable hourly rate for

Plaintiff’s counsel’s services is $510 per hour, see Pl.’s Ex. 14, ECF No. [77-2].

              Defendants also argue that the time billed by Plaintiff’s counsel—one hundred twenty-six

and a half hours—is excessive.                                         Defs.’ Opp’n at 5.                          Having reviewed Plaintiff’s detailed

breakdown of the hours he spent dealing with Defendants’ repeated noncompliance with
                                                                                                                                                                                                
Opp’n at 5, Plaintiff provided the Court with the Laffey Matrix and a much fuller discussion of
the appropriate billing rate in its Reply. See Pl.’s Reply, at 6-9. Defendants have not asked to
file a sur-reply in response to Plaintiff’s more robust and supported discussion of the appropriate
attorney’s fees award in this case.
 


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Plaintiff’s discovery requests and the Court’s discovery orders,4 the Court finds that Plaintiff’s

counsel has billed a reasonable number of hours and has requested a reasonable attorney’s fees

award. See Darrell C. Valdez Declaration, at 3-8. Plaintiff’s requests for discovery and motions,

both written and oral, to compel discovery have involved complex discovery issues. Moreover,

preparing for status hearings or preparing motions to compel discovery and for sanctions have

been understandably lengthy endeavors given the complicated, multi-year history of discovery

requests and noncompliance in this case. It is also clear to the Court from Plaintiff’s counsel’s

declaration that Plaintiff’s counsel is only billing for work that he has done, not for the work of

any of his agents. Accordingly, the Court finds Plaintiff’s requested attorney’s fees award to be

reasonable under Federal Rule of Civil Procedure 37.5

                                                               III.   CONCLUSION
                                                            
              4
                    In Plaintiff’s initial memorandum in support of its Motion for Attorney’s Fees,
Plaintiff’s counsel provided a breakdown of the time he spent seeking discovery from
Defendants and dealing with Defendants’ failure to respond to the Court’s discovery orders. In
Defendants’ Opposition, Defendants challenge Plaintiff’s description of time devoted to
particular discovery activities as “replete with blocked billing in which multiple tasks are lumped
together with no delineation as to how much time was spent on which task.” Defs.’ Opp’n at 6.
In Plaintiff’s Reply, Plaintiff provides a Declaration that includes a far more detailed description
of the time Plaintiff’s counsel devoted to particular discovery activities. See ECF No. [77-1].
Defendants have not asked to file a sur-reply in response to Plaintiff’s more detailed accounting
of his billable time.  
 
              5
         Defendants argue in their Opposition to Plaintiff’s Motion that Plaintiff’s Motion should
be denied because Plaintiff’s counsel failed to comply with Local Civil Rule 7(m) and confer
with Defendants prior to filing its Motion for Attorney’s Fees. Def.’s Opp’n at 8-9.
Defendants’ argument is baseless. Plaintiff repeatedly conferred with Defendants regarding
outstanding and incomplete discovery requests, both outside the Court and in front of the Court
during several lengthy status conferences. Furthermore, Plaintiff previously moved for
sanctions, including an award of attorney’s fees, which the Court held in abeyance “pending the
completion of discovery.” Minute Order (Nov. 22, 2013). After finding nearly a year later that
“Defendants [had] still not fully complied with the Court’s orders regarding discovery,” the
Court specifically ordered the United States to file this Motion for Attorney’s Fees and set out a
timetable for the briefing of the attorney’s fees motion. Minute Order (Oct. 3, 2014).
Accordingly, the Court finds Defendants’ argument that Plaintiff failed to confer with
Defendants regarding Plaintiffs’ nondispositive Motion for Attorney’s Fees unavailing. See
Caudle v. District of Columbia, 263 F.R.D. 29, 32 (D.D.C. 2009).

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       For the reasons stated, the Court hereby GRANTS Plaintiff’s Motion for Attorney’s Fees and

awards attorney’s fees to Plaintiff in the amount of $64,515.



                                                                ____ _/s/_____________________
                                                                COLLEEN KOLLAR-KOTELLY
                                                                United States District Judge




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