                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
CHARLES H. ROGERS, JR.,                   )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                 Case No. 1:14-cv-01650 (APM)
                                          )
AMALGAMATED TRANSIT UNION,                )
LOCAL 689, et al.,                        )
                                          )
      Defendants.                         )
_________________________________________ )

                                MEMORANDUM OPINION

       On January 4, 2017, the court issued a Memorandum Opinion and Order granting

Defendant Amalgamated Transit Union, Local 689’s Motion for Attorney’s Fees (“Fees Motion”).

Mem. Op. and Order, ECF No. 47 [hereinafter Fees Mem. Op.]. The court treated Local 689’s

Fees Motion as conceded under Local Civil Rule 7(b) after Plaintiff filed an untimely opposition

(“Fees Opposition”). See id. at 1. As the court explained in its Memorandum Opinion:

              Defendant’s “motion for attorney’s fees [is] a perfect candidate for
              enforcement of Local Rule 7(b).” This is not the first time Plaintiff
              has missed a filing deadline. It is his fifth. Moreover, when he filed
              his Opposition more than three weeks after the deadline, he offered
              no reason for its untimeliness. Finally, Plaintiff’s untimely response
              came even after the court had observed that he had “shown a
              remarkable lack of diligence in prosecuting this matter since its
              inception.” Evidently, the court’s words and admonishments had no
              impact. He apparently believes that deadlines are merely advisory
              and that he can file a response whenever he pleases. To accept
              Plaintiff’s late filing and not treat Local 689’s Motion as conceded
              would only reward his impertinence.
Id. at 2 (citations and footnote omitted). The court imposed the fees and costs award against

Plaintiff’s counsel, rather than against Plaintiff himself. Order, ECF No. 49 [hereinafter Fees

Order], at 1–2.

         Plaintiff’s counsel now seeks to save himself from his own errors. He has filed a Motion

to Extend Time to Oppose Local 689’s Motion for Attorneys’ Fees and Costs and a Motion for

Reconsideration and to Relieve Plaintiff and Counsel from the Court’s Orders.1 See Pl.’s Mot. to

Extend Time, ECF No. 50 [hereinafter Pl.’s Mot. to Extend Time]; Pl.’s Mot. for Recons., ECF

No. 51 [hereinafter Pl.’s Mot. for Recons.]. Taken together, both motions seek to undo the court’s

award of attorney’s fees and costs to Local 689.

         Both motions are denied. The court, however, is compelled sua sponte to reduce the total

fees and costs award. In its recent decision, Goodyear Tire & Rubber Co. v. Haeger, the Supreme

Court held that a fees award issued pursuant to a court’s inherent authority to sanction bad-faith

conduct must be “limited to the fees the innocent party incurred solely because of the

misconduct—or put another way, to the fees that party would not have incurred but for the bad

faith.” 581 U.S. ___, ___, 137 S. Ct. 1178, 1184 (2017). Accordingly, based on that standard and

for the reasons detailed below, the court reduces the total fees and costs award from $16,490 to

$7,341.35.

         Plaintiff’s Motion to Extend Time

         The court denies Plaintiff’s Motion to Extend Time because Plaintiff has failed to establish

“excusable neglect” for untimely filing his Fees Opposition. After a party misses a filing deadline,



1
 Although Plaintiff has noticed an appeal from the court’s Fees Order, see Notice of Appeal, ECF No. 53, the court
has jurisdiction to decide Plaintiff’s timely Motion for Reconsideration under Rule 60(b) of the Federal Rules of Civil
Procedure. See Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir. 1991) (“[W]hen both a Rule 60(b) motion and an appeal are
pending simultaneously, appellate review may continue uninterrupted. At the same time, the District Court may
consider the 60(b) motion and, if the District Court indicates that it will grant relief, the appellant may move the
appellate court for a remand in order that relief may be granted.”).

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a court may extend the time to file if there is good cause and “if the party failed to act because of

excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “Excusable neglect” requires “some reasonable

basis for not meeting a filing deadline.” Cohen v. Bd. of Trs. of the Univ. of the Dist. of Columbia,

819 F.3d 476, 479 (D.C. Cir. 2016) (internal quotation marks omitted). Courts should consider

four factors in determining whether a party has met the excusable neglect standard: “(1) the risk

of prejudice to the other side; (2) the length of the delay and the potential impact on judicial

proceedings; (3) the reason for the delay and whether it was within counsel’s reasonable control;

and (4) whether counsel acted in good faith.” Id. (citing Pioneer Inv. Servs. Co. v. Brunswick

Assocs., Ltd. P’ship, 507 U.S. 380, 395 (1993)). None of these factors favor granting Plaintiff’s

Motion to Extend Time.

       Plaintiff’s original deadline to respond to Local 689’s fees motion was November 9, 2016.

See Fees Mem. Op. at 1. Plaintiff’s counsel belatedly filed his Fees Opposition on November 29,

2016. Pl.’s Opp’n, ECF No. 46. He did not, however, seek leave to late-file the Fees Opposition,

and he did not otherwise explain why he had missed the deadline. Id.; Fees Mem. Op. at 1–2.

Now, over three months later, Plaintiff’s counsel offers an explanation: “I was too busy.” Counsel

explains that he was unable to timely file his Fees Opposition because of the burdens associated

with an out-of-town litigation in which he served as trial counsel. See Pl.’s Mot. to Extend Time

at 2–4. When that trial concluded in the third week of October 2016, Plaintiff’s counsel claims he

was “physically and mentally exhausted.” Id. at 3. He now says he “do[es] not remember realizing

in these times that my response to the [Fees] Motion was due in early November.” Id. at 4. The

court finds that explanation incredible. Plaintiff’s counsel apparently was not so exhausted that he

neglected his other commitments, just those he owed to this court. As he admits, during the post-

trial period, he “worked exclusively on [ ] post-trial matters . . . [and] [caught] up with my other



                                                 3
professional commitments to other clients which the trial had deferred.” Id. at 3–4. The sad,

unvarnished truth is that Plaintiff’s counsel missed this deadline for the same reason he repeatedly

missed other deadlines in this case—he simply did not care enough to meet them. Had Plaintiff’s

counsel missed one, or even two deadlines, the court would have been more understanding. But

he missed no less than five, see Fees Mem. Op. at 2 & n.1—a pattern which demonstrates a

complete disregard for court deadlines, not excusable neglect. Pardoning counsel’s conduct at this

late date, some four months after his original opposition was due, would not only be unfair and

prejudicial to Local 689, to whom the court already has awarded fees and costs, but also would

send the wrong message to the lawyers who practice before this court. Deadlines are not

meaningless. Lawyers cannot file pleadings when it is convenient for them to do so, and repeatedly

missing deadlines will have consequences. Therefore, Plaintiff’s Motion to Extend Time is denied.

       Plaintiff’s Motion for Reconsideration

       The court denies Plaintiff’s Motion for Reconsideration for similar reasons. Plaintiff’s

counsel filed the Motion pursuant to Rules 60(b)(1) and 60(b)(6) of the Federal Rules of Civil

Procedure, which, respectively, authorize a court to relieve a party from an order for “mistake,

inadvertence, surprise, or excusable neglect” and for “any other reason that justifies relief.” Fed.

R. Civ. P. 60(b)(1), (6); Pl.’s Mot. for Recons. at 1–2. Plaintiff’s counsel has not satisfied either

standard.

       Plaintiff’s counsel’s overarching argument is that the court lacked the authority to grant

Local 689’s Fees Motion pursuant to Local Civil Rule 7(b). That rule permits the court to treat a

motion as conceded if the non-moving party files an untimely opposition. See LCvR 7(b).

Plaintiff’s counsel cites the Supreme Court’s decision in Roadway Express Inc. v. Piper, 447 U.S.

752 (1980), for the proposition that, before imposing a fee award as a sanction, a court must find



                                                 4
that counsel acted in bad faith. Pl.’s Mot. for Recons. at 3. He argues that the court did not make

the requisite finding of bad faith before imposing the fee award against him. Id. He is wrong.

The court’s finding of bad faith is clear from the court’s Fees Order. See Fees Order at 1–2. In

that Order, the court fixed the final fees award and, citing Railway Express, held that “for the

reasons set forth in the court’s Memorandum Opinion and Order, Plaintiff’s counsel acted in bad

faith during this litigation and imposes the attorney’s fees and costs award against Plaintiff’s

counsel.” Id. The reasons for the bad faith finding to which the court referred—as detailed in the

Memorandum Opinion, see Fees Mem. Op. at 2 & n.1—were Plaintiff’s counsel’s repeated

missing of deadlines throughout the course of litigation. Because the court did make a finding of

bad faith, the court committed no error in imposing the fees award against him.

        Plaintiff’s counsel’s explanation for why he did not oppose Local 689’s summary judgment

motion supplies yet another reason for the finding of bad faith. Counsel admits that “I determined

that Mr. Rodger’s [sic] legal position in this case could not be well defended against Defendants’

motions for summary judgment. . . . In summary, I discovered in discovery that we could not

prove those facts which [Plaintiff] sincerely believed he knew and communicated to me as the

factual bases of the Complaint.” Pl.’s Mot. to Extend Time at 3 (emphasis added). That admission

is stunning. Even though he now concedes that he “discovered in discovery” that he could not

prove his case, Plaintiff’s counsel nevertheless joined with Defendants’ counsel in proposing a

summary judgment briefing schedule, including a date for an opposition brief. Joint Proposed

Revised Briefing Schedule, ECF No. 37. 2 Why on earth would counsel consent to a summary




2
  During a telephone conference held on April 21, 2016, the court ordered the parties jointly to propose a summary
judgment briefing schedule by April 28, 2016. Minute Order, Apr. 21, 2016. The parties did so, and Plaintiff took no
additional discovery after that date from Local 689. See Mem. Op., ECF No. 43, at 6.

                                                         5
judgment schedule if he already had concluded that he had no basis to oppose Defendants’

motions? Plaintiff’s counsel offers no explanation.

       Even if counsel’s claimed “eureka” moment somehow occurred after he jointly proposed

a briefing schedule, at no point did Plaintiff’s counsel communicate to Defendants’ counsel that

he had no case. That failure was not for want of opportunity. By Minute Order dated April 21,

2016, the court allowed Plaintiff to depose a limited number of witnesses of Defendant WMATA.

See Minute Order, Apr. 21, 2016. Plaintiff’s counsel took, at most, one deposition of a WMATA

supervisor. See Mem. Op., ECF No. 43, at 6; Def. Local 689’s Mot. for Att’y’s Fees, ECF No. 45,

at 7–8. Defendants’ summary judgment briefs were due on June 29, 2016, approximately four

weeks after the close of fact discovery. See Minute Order, Apr. 29, 2016. Plaintiff’s counsel

therefore had nearly a month, at the very least, to notify Defendants’ counsel that he would not

oppose their motions. Yet, he remained silent, forcing both Defendants to incur the needless and

avoidable expense of summary judgment briefing. Such behavior by a member of this District

Court bar is unacceptable. It is unquestionably bad faith. Indeed, Plaintiff’s counsel should

consider himself fortunate that the court has taken no action against him other than imposing a

monetary sanction.

       Plaintiff’s counsel advances a second reason to relieve him from payment of the fees award.

He asserts that courts in this jurisdiction have relied on Local Rule 7(b) to grant a fees motion as

conceded only when a party files no opposition at all, as opposed to a late-filed opposition, which

he argues renders this court’s reliance on Rule 7(b) improper. Pl.’s Mot. for Recons. at 3–6. That

argument, too, is unavailing.     As Plaintiff’s counsel concedes, Local Rule 7(b) makes no

distinction between when a party files an opposition late or not at all. The decision whether to

treat an unopposed motion as conceded lies within the court’s sound discretion. See Cohen, 819



                                                 6
F.3d at 480. Here, the court had had enough of Plaintiff’s counsel’s repeated flouting of deadlines.

Therefore, it deemed this the unusual case in which it would be appropriate to treat a fees motion

as conceded, notwithstanding a late-filed opposition. Accordingly, the Motion for Reconsideration

is denied.

        Reduction in the Total Fees and Costs Award

        The court granted in full Local 689’s fees award request of $16,490. Fees Order at 1–2. 3

That was error. In its recent decision in Goodyear Tire, the Supreme Court held that, when a court

orders the payment of the other side’s legal fees as a sanction for bad-faith conduct, “such an order

is limited to the fees the innocent party incurred solely because of the misconduct—or put another

way, to the fees that party would not have incurred but for the bad faith.” 137 S. Ct. at 1184. Thus,

there must be a “causal link” “between the litigant’s misbehavior and legal fees paid by the

opposing party.” Id. at 1186. “The court’s fundamental job is to determine whether a given legal

fee . . . would or would not have been incurred in the absence of the sanctioned conduct.” Id. at

1187.

        When fixing the fees award in this case, the court did not undertake that inquiry. Instead,

it granted Local 689 the full amount of attorney’s fees it incurred from the inception of the case.

Such an award would have been defensible if the court had found, or were now to find, that Plaintiff

and his counsel’s initiation of the case itself constituted bad faith, such “that every cost of defense

is attributable only to sanctioned behavior.” Id. at 1188. The court cannot, however, make such a

sweeping finding. Although the court entered summary judgment in favor of Local 689, the record

contains no compelling facts from which to conclude that Plaintiff and his counsel brought the

lawsuit in bad faith or that, from the start, the claims made against Local 689 were frivolous. The


3
 That total should have been higher. The court mistakenly excluded the costs award from the final Fees Order. See
Fees Order at 1–2.

                                                       7
court takes Plaintiff’s counsel at his word when he says that “I discovered in discovery that we

could not prove [the] facts which [my client] . . . believed he knew and communicated to me as

the factual bases for the Complaint, which I believed at the time to be true.” Pl.’s Mot. to Extend

Time at 3 (emphasis added).

       That determination does not mean that Plaintiff’s counsel is fully relieved from payment

of attorney’s fees. As the court already has made clear, Plaintiff’s counsel’s repeated missing of

deadlines in this case rose to the level of bad-faith conduct. Yet, with one exception, the court can

discern no actual costs incurred by Local 689 as a result of that behavior. The sole exception is

that Local 689 was forced to respond to a motion filed by Plaintiff’s counsel that sought to reverse

the court’s award of expenses incurred by Local 689 when Plaintiff’s counsel failed to appear for

a deposition that he had noticed. See Order, ECF No. 33; Pl.’s Mot. for Recons. of Order on Mot.

for Sanctions, ECF No. 34; Local 689’s Opp’n to Pl.’s Mot. for Recons., ECF No. 36. Plaintiff’s

counsel did not file an opposition to Local 689’s motion for expenses, but he then filed a Motion

for Reconsideration of the court’s award. Local 689 thus was compelled to respond to a motion

for reconsideration that Plaintiff’s counsel filed only because he had missed the opposition

deadline. The court therefore will award Local 689 attorney’s fees for the time expended in

drafting its Opposition to the Motion for Reconsideration.

       The court also will award Local 689 the attorney’s fees and costs arising from the

preparation of its summary judgment motion. As discussed above, it was bad faith for Plaintiff’s

counsel’s not to notify Local 689’s counsel that he had “discovered in discovery” that he could not

prove his case before defense counsel commenced drafting Local 689’s motion for summary

judgment. As a result of that failure, Local 689 incurred the unnecessary expense of its counsel

drafting a summary judgment motion, which Plaintiff’s counsel now admits he had no intention of



                                                 8
opposing. Accordingly, the court will award Local 689 attorney’s fees and costs associated with

the drafting of that motion.

       The court has re-reviewed the billing records submitted by Plaintiff’s counsel and, for the

reasons explained above, will adjust the attorney’s fees award downward to $5,890 (which

includes the $490 expense award that remains unpaid). The court arrived at that amount based on

the following summaries of Plaintiff’s counsel’s time records:

               Summary of work done by Brian Connolly

 4/8/16–4/14/16           9 hours                   Began to draft motion $1,080.00
                                                    for Summary
                                                    Judgment

 4/22/16–4/25/16          5 hours                   Drafted and filed       $600.00
                                                    opposition to
                                                    Plaintiff’s motion to
                                                    reconsider

 6/15/16–6/29/16          27 hours                  Drafted and filed       $3,240.00
                                                    Motion for Summary
                                                    Judgment

               Summary of work done by Douglas Taylor

 6/21/16                  1.5 hours                 Reviewed and helped     $480.00
                                                    draft motion for
                                                    summary judgment

Def. Local 689’s Detailed Summ., ECF No. 48, at 3–4.

       In addition, the court will award $1,451.35 for the costs of the deposition transcripts that

counsel ordered in anticipation of briefing summary judgment. See id. at 5. Accordingly, the final

fees and costs award will equal $7,341.35.




                                                9
      A separate final order denying Plaintiff’s Motions and revising the attorney’s fees and costs

award accompanies this Memorandum Opinion.




Dated: May 1, 2017                                  Amit P. Mehta
                                                    United States District Judge




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