UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
___________________________________________________

CHRISTINE MILLS, RUNAKO BALONDEMU,
GERALDINE DUNCAN, PRISCILLA IJEOMAH,
LAWRENCE PERRY, WILLIAM ROWLAND,
DAVID HUBBARD, CLIFTON KNIGHT,
SHARON TAYLOR, and CHARLES MWALIMU,
both individually and on behalf of a class of others
similarly situated,

                                     Plaintiffs,

                      v.                                                   1:04-CV-2205
                                                                               (FJS)
JAMES H. BILLINGTON, Librarian of
Library of Congress,

                              Defendant.
___________________________________________________

APPEARANCES                                         OF COUNSEL

CLARK LAW GROUP, PLLC                               DENISE MARIE CLARK, ESQ.
1250 Connecticut Avenue, NW
Suite 200
Washington, D.C. 20036
Attorneys for Plaintiffs

OFFICE OF THE UNITED                                JASON TODD COHEN, AUSA
STATES ATTORNEY
555 Fourth Street, NW
Washington, D.C. 20530
Attorneys for Defendant

SCULLIN, Senior Judge

                           MEMORANDUM-DECISION AND ORDER

                                      I. INTRODUCTION

       Pending before the Court is Plaintiffs' motion for reconsideration of the Court's March 30,

2016 Order, see Dkt. No. 277, and the March 31, 2016 judgement, see Dkt. No. 278, that the Clerk
of the Court entered in compliance with that Order. See Dkt. No. 279. Defendant opposes the

motion. See Dkt. No. 280.



                                            II. DISCUSSION1

A.      Standard of review

       A party may move to alter or amend a judgment under either Rule 59(e) or Rule 60(b) of the

Federal Rules of Civil Procedure. See Fed. R. Civ. P. 59(e); Fed. R. Civ. P. 60(b). Under Rule

59(e), a party must file "[a] motion to alter or amend a judgment . . . no later than 28 days after the

entry of the judgment." Fed. R. Civ. P. 59(e). Under Rule 60(c), a party must file "[a] motion

under Rule 60(b) . . . within a reasonable time – and for reasons (1), (2), and (3) no more than a year

after the entry of the judgment . . . ." Fed. R. Civ. P. 60(c).

       Defendant acknowledges that, under either Rule 59 or Rule 60, Plaintiffs filed their motion

for reconsideration within the required time frame. The parties' disagreement, however, relates to

whether Plaintiffs have met the other requirements that would warrant this Court granting their

motion for reconsideration. As the District of Columbia Circuit noted in Dyson v. Dist. of

Columbia, 710 F.3d 415 (D.C. Cir. 2013), "'[a] Rule 59(e) motion is discretionary and need not be

granted unless the district court finds that there is an intervening change of controlling law, the

availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Id.

at 420 (quoting Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004)).




        1
            The Court assumes the parties' familiarity with the facts of this case.

                                                     -2-
B.     Analysis

       The facts of this case fall somewhere between the circumstances that existed in Norris v.

Salazar, 277 F.R.D. 22 (D.D.C. 2011), and Lepkowski v. U.S. Dep't of Treasury, 804 F.2d 1310

(D.C. Cir. 1986), the two cases that Defendant cites in opposition to Plaintiffs' motion. In this case,

Plaintiffs' counsel did not file any opposition to Defendant's motion to dismiss until after the

Courtroom Deputy Clerk had telephoned him twice to find out whether he intended to do so.

Eventually, Plaintiffs' counsel filed a memorandum of law in opposition to Defendant's motion; but,

as the Court noted in its March 30, 2016 Order granting Defendant's motion,

               [n]ot only was this memorandum untimely but it cited no law, nor
               provided any record-supported facts, to support Plaintiffs' position
               that the Court should not grant Defendant's motion. In addition, at
               oral argument, Plaintiffs' counsel provided no valid excuse for his
               failure to respond to Defendant's motion within the required time
               frame.

See Dkt. No. 277 at 2 n.1.


       1. Plaintiffs' motion to certify a class

       Rule 23 of the Federal Rules of Civil Procedure governs class certification. Under Rule

23(a), a plaintiff who seeks class certification must demonstrate that (1) "the class is so numerous

that joinder of all members is impracticable;" (2) "there are questions of law or fact common to the

class;" (3) "the claims or defenses of the representative parties are typical of the claims or defenses

of the class;" and (4) "the representative parties will fairly and adequately protect the interests of the

class." Fed. R. Civ. P. 23(a). In addition, the proposed class must satisfy at least one of the three

requirements listed in Rule 23(b). See Fed. R. Civ. P. 23(b). In this case, Plaintiffs rely on Rule

23(b)(2), which provides that "[a] class action may be maintained if Rule 23(a) is satisfied and if . . .


                                                   -3-
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the

class as a whole[.]" Fed. R. Civ. P. 23(b)(2).

        At the proceeding at which the parties addressed this motion, the Court noted that Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338 (2011), foreclosed Plaintiffs from relying on Rule 23(b)(2) to

certify their class because they were seeking monetary relief in the form of back pay. Based on the

holding in Wal-Mart, as well as the Court's conclusion that Plaintiffs could not meet the

requirements for class certification under Rule 23(a), the Court denied Plaintiffs' motion for class

certification.

        Nothing has changed since oral argument to warrant revisiting this issue. Plaintiffs still

cannot satisfy the requirements of Rule 23(a); and, in addition, Wal-Mart still controls and

forecloses Plaintiffs from relying on Rule 23(b)(2) as a basis for certifying their class. Therefore,

the Court denies Plaintiffs' motion for reconsideration insofar as that motion seeks to reopen the

case so that Plaintiffs can reargue their motion for class certification.



        2. Defendant's motion to dismiss or, in the alternative, for summary judgment

        Whether the Court should grant Plaintiffs' motion for reconsideration and vacate the

judgment to allow Plaintiffs to oppose Defendant's motion to dismiss or, in the alternative, for

summary judgment presents a close question. First, there seems to be little doubt that, at least since

2014, if not before, Plaintiffs' counsel has suffered from a serious medical condition, which has

prevented him from adequately representing Plaintiffs in this case. Plaintiffs, through no fault of

their own, suffered from their counsel's decreased mental state, which ultimately resulted in the


                                                   -4-
Court's dismissal of their case. Moreover, although the Court did entertain the parties' arguments

regarding Defendant's motion to dismiss, the Court, ultimately, granted Defendant's motion based

not on the merits but, rather, on the fact that, because Plaintiffs did not file a memorandum of law in

opposition to Defendant's motion within the prescribed time frame, the Court deemed Defendant's

motion conceded. See Dkt. No. 277 at 2 (citing Local Civil Rule 7(b)) (footnote omitted).

       Given the extraordinary circumstances of this case, despite Defendant's argument to the

contrary, the Court finds that this case is more similar to Norris v. Salazar, 277 F.R.D. 22 (D.D.C.

2011), than Lepkowski v. United States Dep't of Treasury, 804 F.2d 1310 (D.C. Cir. 1986). In

Norris, the plaintiff, proceeding pro se, moved, pursuant to Rule 60(b), for reconsideration of an

order in which the court had granted, as conceded, the defendant's motion to dismiss and the

judgment entered in the defendant's favor. See Norris, 277 F.R.D. at 23. To support her motion,

the plaintiff "explain[ed] that she first learned of the defendant's motion to dismiss at the same time

she learned that motion had been granted due to her former counsel's inexplicable failure to

respond." See id. (citation omitted).

       In addressing the plaintiff's motion, the Norris court began by noting that "[t]he requisite

'extraordinary circumstances' under Rule 60(b)(6) may be found when a faultless plaintiff seeks

relief from a final judgment or order due to counsel's ineffective assistance amounting to neglect of

the movant's case." Id. at 25 (citing Peter B. v. U.S., No. 05-2189, 2006 WL 2038512, at *1-2

(D.D.C. Jul. 19, 2006)). The court reasoned that, although

               Rule 60(b)(6) may not be used to relieve a party from the
               consequences of improvident strategic decisions or "free, calculated,
               deliberate choices," Ackermann, 340 U.S. at 198, 71 S. Ct. 209, . . . no
               strategy or deliberate choice appears to have been made [regarding
               whether or not to file opposition to the motion to dismiss]. Rather,
               the plaintiff and her local counsel of record cite inadequate draft work

                                                  -5-
                product and apparent failed communications between local counsel
                and retained counsel as the reason for failure to file a response to the
                defendant's motion.

Id. at 26-27.

       In addition, although the court acknowledged that the defendant had correctly stated that the

party moving for reconsideration has the burden to show that she has a meritorious claim, the court,

nonetheless, found that "this factor generally applies when the court has exercised the opportunity

to review the merits of the case." Id. at 27 (citing Lepkowski v. United States Dep't of Treasury, 804

F.2d 1310, 1314 n.4 (D.C. Cir. 1986)) (other citation omitted). The court contrasted the

circumstances it was considering with the situation in Lepkowski, where the court had "granted the

defendant's motion to dismiss as conceded before reaching the merits of plaintiff's claims or

arguments potentially available to her in opposition to the defendant's motion." Id. The court also

noted that "[r]esolution on the merits is preferable to a judgment by default and, therefore, courts

should liberally allow relief under Rule 60(b), as a 'corrective remedy, mitigating the harsh impact

of calendar rules when a litigant's action is dismissed as a result of counsel's neglect.'" Id. (quoting

Butler v. Pearson, 636 F.2d 526, 530 (D.C. Cir. 1980)) (citing Pulliam v. Pulliam, 478 F.2d 935,

936 (D.C. Cir. 1973) (Rule 60(b) relief should be liberally allowed to mitigate the impact of

counsel's neglect)) (other citations omitted).

       Finally, with regard to the issue of whether there would be any prejudice to the defendant

should the court grant the plaintiff's motion, the court found that, "[g]iven the nature of the claim

here as well as the relatively few months that have passed since the April 13, 2011 Order of

dismissal, no prejudice could be shown." Id. The court noted that, "[i]n similar circumstances

involving a counsel's failure to file timely responses to interrogatories or to notify the court of


                                                   -6-
difficulties in complying with deadlines, a movant who had not 'personally misbehaved,' and an

opponent that had 'not been harmed,' the D.C. Circuit in Butler v. Pearson reversed the district

court's denial of the plaintiffs' motion for reinstatement of the case." Id. (quoting [Butler,] 636 F.2d

at 531). For all these reasons, the Norris court granted the plaintiff's motion for reconsideration,

reinstated the case, and provided the plaintiff with thirty days in which to file opposition to the

defendant's pending motion to dismiss. See id. at 28.

        Although the court in Lepkowski reached the opposite result, the facts were distinguishable

from the facts in Norris. In that case, the D.C. Circuit was considering an appeal from the district

court's denial of a motion for reconsideration under Rule 60(b)(1). See Lepkowski, 804 F.2d at

1311. The district court had dismissed the underlying action because of the plaintiff's protracted

failure to file any opposition to the defendant's motion to dismiss. See id. In support of the

plaintiff's motion for reconsideration, his counsel argued before the district court that the failure to

file a timely response to the motion to dismiss was excusable neglect under Rule 60(b)(1). See id.

(footnote omitted). The district court disagreed. See id. at 1311-12.

        The D.C. Circuit explained that, after several telephone calls between the plaintiff's counsel

and court personnel regarding the failure to file any opposition to the defendant's motion, the

district court finally set a hearing three months after the defendant had filed the motion. See id. at

1312. The D.C. Circuit noted that

                [n]o opposition ever having been received, no explanation for the
                delay ever having been provided, and no tenable defense to the statute
                of limitations defense having been interposed, the District Court
                treated the motion to dismiss as conceded under Local Rule 1-9(d)
                and dismissed the complaint with prejudice.

Id. (citation omitted).


                                                   -7-
       Approximately 1.5 months later, the plaintiff's counsel filed a motion for reconsideration,

contending that "his failure to file an opposition had been 'unintentional and inexplicable,' . . . the

result of 'law office failure.'" Id. at 1312-13 (quotation omitted). At the hearing, the plaintiff's

counsel did not appear but instead retained local counsel to argue the motion. See id. at 1313.

Local counsel

                offered argument on the underlying merits of [the plaintiff's] cause of
                action, . . ., and on the reasons for the post-dismissal delay in seeking
                reconsideration, . . ., but never advanced any explanation for [the
                plaintiff's counsel's] neglect, as sole counsel of record, to file any
                response to the dismissal motion, other than to observe that "[h]e is a
                busy lawyer, who had an associate who was assigned to the case." . . .

Id. (internal quotation and citations omitted).

       The D.C. Circuit noted, among other things, that,

                [a]lthough counsel was aware of his own default throughout the entire
                period, and indeed received repeated notice to that effect from the
                court, he failed to exert the minimal effort which would have cured
                his omission. [Counsel] readily concedes that the failure to respond
                was strictly due to the neglect of his office, yet he claims that his lack
                of attention in this matter was excusable. The only "excuse" offered,
                however, has been the reiteration of the protracted derelictions of
                counsel. Not a word of explanation nor a justification for the
                manifest negligence in this chronicle of events has been forthcoming.

Id.

       Finally, the D.C. Circuit stated that, because "motions for relief under Rule 60(b) are not to

be granted unless the movant can demonstrate a meritorious claim or defense[,] [the court] cannot

escape the fact that the complaint and the proposed opposition were insufficient as a matter of law

to defeat the motion on the statute of limitations ground." Id. at 1314 (footnote omitted). For all

these reasons, the D.C. Circuit concluded that the district court had not abused its discretion in

denying the plaintiff's motion to reopen the judgment and, therefore, affirmed that judgment. See

                                                   -8-
id. at 1314-15.

       Lepkowski is distinguishable from this case in several important ways. First, unlike the

plaintiff in Lepkowski, once Plaintiffs became aware of their counsel's problems, they tried to assist

him with their case, questioned him repeatedly about whether he had filed documents on their

behalf, and tried to get him assistance. In addition, counsel, whether intentionally or not, apparently

lied to Plaintiffs when he advised them on more than once occasion that he had filed certain

documents with the Court when, in fact, he had not done so. Furthermore, although the plaintiff's

counsel in Lepkowski had no excuse for his neglect in his client's case, Plaintiffs' counsel was

suffering from serious medical issues, which affected his mental capacity and, thus, his ability to

provide competent assistance to Plaintiffs. Finally, unlike the situation in Lepkowski, this Court did

not address the merits of Plaintiffs' claims but, rather, granted Defendant's motion to dismiss on the

ground that, by not filing any opposition to Defendant's motion, Plaintiffs had consented.

       Although this case is more than ten years old, under the circumstances, including the fact

that Plaintiffs are blameless, the Court grants Plaintiffs' motion to vacate the judgment and to

reopen the case to allow Plaintiffs to file papers in opposition to Defendant's motion to dismiss or,

in the alternative, for summary judgment.



                                        III. CONCLUSION

       After reviewing the entire file in this matter, the parties' arguments and their submissions, as

well as the applicable law, and for the above-stated reasons, the Court hereby

       ORDERS that Plaintiffs' motion for reconsideration and to reopen this case, see Dkt. No.

279, is GRANTED in part and DENIED in part; and the Court further


                                                  -9-
        ORDERS that the judgment in this case is VACATED; and the Court further

        ORDERS that Plaintiffs' motion to reconsider the Court's denial of their motion for class

certification is DENIED; and the Court further

        ORDERS that this case is reopened and Plaintiffs shall file their papers in opposition to

Defendant's motion to dismiss or, in the alternative, for summary judgment, see Dkt. No. 269, on or

before August 3, 2018; and the Court further

        ORDERS that Defendant shall file his papers in response to Plaintiffs' opposition and in

further support of his motion to dismiss or, in the alternative, for summary judgment on or before

August 17, 2018; and the Court further

        ORDERS that this matter is referred to the Chief Judge of this Court for reassignment of

this case to another district judge.


IT IS SO ORDERED.


Dated: July 6, 2018
       Syracuse, New York




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