UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) DENNIS JOHNSON, ) ) Plaintiff, ) Civil Action ) No. 15-1851(EGS) v. ) ) PARAGON SYSTEMS, INC, et al., ) ) Defendants. ) ___________________________________)
MEMORANDUM OPINION AND ORDER
Pending before the Court is Paragon Systems, Inc.’s
(“Paragon”) motion for attorney’s fees. Upon consideration of the
parties’ memoranda, the applicable law, and the entire record, the
Court GRANTS in PART and DENIES in PART Paragon’s motion.
I. BACKGROUND
A brief history of this litigation makes clear that Mr.
Johnson’s lawsuit against Paragon was meritless, and that his
counsel’s conduct wasted Paragon’s time and resources as well as
those of this Court.
Mr. Johnson, represented by Kevin J. McCants, initiated this
action against Paragon in October 2015. See Compl., ECF No. 1. On
February 1, 2016, Paragon filed a partial motion to dismiss. ECF
No. 6. When no opposition to that motion was filed, the Court
issued an Order directing Mr. Johnson to respond to Paragon’s
motion by no later than March 31, 2016. See Minute Order of Mar.
1 17, 2016. Mr. Johnson failed to comply with that deadline but did
file a two-page opposition on April 1, 2016. See Pl.’s Opp. to
Mot. to Dismiss, ECF No. 7. The Court subsequently granted
Paragon’s motion, dismissing Mr. Johnson's claim for intentional
infliction of emotional distress after concluding that Mr. Johnson
had failed to sufficiently allege that his injury resulted from
“extreme and outrageous conduct.” See Johnson v. Paragon Sys.,
Inc., 195 F. Supp. 3d 96 (D.D.C. 2016).
After conducting discovery, Paragon moved for summary
judgment on its remaining claims on the ground that Mr. Johnson
had “mistakenly and improperly included Paragon as a party-
defendant in this litigation.” See Def.'s Mem. in Supp. of Mot.
for Summ. J., ECF No. 18-1 at 7. When no opposition to that motion
was filed, the Court directed Mr. Johnson to file his opposition
by no later than March 23, 2017. See Minute Order of Mar. 9, 2017.
Despite the Court’s Order, Mr. Johnson never filed an opposition.
The Court entered judgement in Paragon’s favor on the merits
on September 27, 2017. See Johnson v. Paragon Sys., Inc., 272 F.
Supp. 3d 1 (D.D.C. 2017). In so doing, the Court noted that, on
the record before the Court, it appeared that the lawsuit against
Paragon was “ill-conceived and a waste of this Court’s time and
resources.” Id. at 5. Accordingly, the Court ordered Mr. Johnson
and his counsel, Mr. McCants, to show cause why
2 sanctions, including significant monetary sanctions, should not be imposed against them both pursuant to Federal Rule of Civil Procedure 11(b) and why Mr. McCants should not be referred to the Committee on Grievances of the United States District Court for the District of Columbia for any investigation or proceedings that the Committee may deem appropriate. Id.
The next day, Mr. McCants, on behalf of himself and his
client, filed a cursory five-sentence response to that Order. See
Pl.’s Resp. to Order of the Court, ECF No. 26. Mr. McCants stated
that Paragon was “sued in good-faith” and that he “didn’t know”
that Paragon was not involved in the underlying incident leading
to Mr. Johnson’s alleged injuries “until the depositions.” Id. at
1. Mr. Johnson further stated that “[w]hen it became clear that
Paragon was not the liable party,” Mr. McCants thought Mr. Johnson
“was being responsible” by informing Paragon’s attorney that he
“would not oppose [Paragon’s] motion for summary judgment.” Id.
The remaining defendants 1 timely filed their motions to
dismiss, ECF Nos. 22 and 23, and, again, Mr. Johnson failed to
file an opposition to these motions until the Court ordered him to
do so, see Minute Order of Oct. 6, 2017. Although Mr. Johnson
complied with the Court’s Order, his response was cursory at best.
See, e.g., Pl.’s Opp. to Mot. to Dismiss, ECF No. 29 (a three-page
1After the Court granted Paragon’s motion to dismiss, Mr. Johnson filed an amended complaint adding a number of defendants. See Am. Compl., ECF No. 12. 3 memorandum with a six-sentence “argument” section). Thereafter,
the Court dismissed the remaining defendants on March 29, 2018.
See Order, ECF No. 35.
Shortly after dismissing the remaining defendants in this
litigation, see Johnson v. Paragon Sys., Inc., No. 15-1851, 2018
WL 1542134 (Mar. 29, 2018), the Court directed Paragon to file its
motion for attorney’s fees, see Minute Order of April 3, 2018. Mr.
Johnson was directed to file his response to Paragon’s motion by
no later than April 27, 2018; in keeping with his pattern of
dilatory conduct in this case, Mr. Johnson’s counsel failed to
file a timely opposition. Four days after the deadline for an
opposition had passed, Mr. Johnson requested additional time to
respond to Paragon’s fee petition, see Emergency Mot. for
Extension of Time, ECF No. 38, which the Court reluctantly
granted, see Minute Order of May 2, 2018. Mr. Johnson filed his
response on May 4, 2018, see Pl.’s Opp. to Fee Shifting, ECF No.
39, asserting that a fee award is not warranted or, in the
alternative, that fees should be limited to expenses incurred
after the date of Mr. Johnson’s deposition. See id.
II. ANALYSIS
The Court agrees that Paragon is entitled to attorney’s fees,
however Paragon’s requested fee must be reduced to only expenses
incurred following Mr. Johnson’s deposition. “Federal courts
possess certain ‘inherent powers,’ not conferred by rule or
4 statute, ‘to manage their own affairs so as to achieve the orderly
and expeditious disposition of cases.’” Goodyear Tire & Rubber Co.
v. Haeger, 137 S.Ct. 1178, 1186 (2017) (quoting Link v. Wabash R.
Co., 370 U.S. 626, 630-631 (1962)). Those powers include “the
ability to fashion an appropriate sanction for conduct which
abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S.
32, 44–45 (1991). Accordingly, a court may issue “contempt
citations, fines, awards of attorneys’ fees, and such other orders
and sanctions” when necessary to reimburse a party for frivolous
litigation conducted against it. Parsi v. Daioleslam, 778 F.3d
116, 130 (D.C. Cir. 2015) (citation and internal quotation marks
omitted). 2 Generally, “a finding of bad faith is required for an
award of attorney’s fees under the court’s inherent power.” Id. at
131.
In Goodyear Tire & Rubber Co. v. Haeger, the Supreme Court
held that a fees award issued pursuant to a court’s inherent
authority to sanction a litigant for bad-faith conduct must be
2 Although Paragon urges the Court to consider issuing sanctions pursuant to Federal Rule of Civil Procedure 11, see Paragon’s Mot. for Fees, ECF No. 37 at 2, the misconduct here does not involve “any pleading or paper submitted to the court.” Ali v. Tolbert, 636 F.3d 622, 627 (D.C. Cir. 2011).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) DENNIS JOHNSON, ) ) Plaintiff, ) Civil Action ) No. 15-1851(EGS) v. ) ) PARAGON SYSTEMS, INC, et al., ) ) Defendants. ) ___________________________________)
MEMORANDUM OPINION AND ORDER
Pending before the Court is Paragon Systems, Inc.’s
(“Paragon”) motion for attorney’s fees. Upon consideration of the
parties’ memoranda, the applicable law, and the entire record, the
Court GRANTS in PART and DENIES in PART Paragon’s motion.
I. BACKGROUND
A brief history of this litigation makes clear that Mr.
Johnson’s lawsuit against Paragon was meritless, and that his
counsel’s conduct wasted Paragon’s time and resources as well as
those of this Court.
Mr. Johnson, represented by Kevin J. McCants, initiated this
action against Paragon in October 2015. See Compl., ECF No. 1. On
February 1, 2016, Paragon filed a partial motion to dismiss. ECF
No. 6. When no opposition to that motion was filed, the Court
issued an Order directing Mr. Johnson to respond to Paragon’s
motion by no later than March 31, 2016. See Minute Order of Mar.
1 17, 2016. Mr. Johnson failed to comply with that deadline but did
file a two-page opposition on April 1, 2016. See Pl.’s Opp. to
Mot. to Dismiss, ECF No. 7. The Court subsequently granted
Paragon’s motion, dismissing Mr. Johnson's claim for intentional
infliction of emotional distress after concluding that Mr. Johnson
had failed to sufficiently allege that his injury resulted from
“extreme and outrageous conduct.” See Johnson v. Paragon Sys.,
Inc., 195 F. Supp. 3d 96 (D.D.C. 2016).
After conducting discovery, Paragon moved for summary
judgment on its remaining claims on the ground that Mr. Johnson
had “mistakenly and improperly included Paragon as a party-
defendant in this litigation.” See Def.'s Mem. in Supp. of Mot.
for Summ. J., ECF No. 18-1 at 7. When no opposition to that motion
was filed, the Court directed Mr. Johnson to file his opposition
by no later than March 23, 2017. See Minute Order of Mar. 9, 2017.
Despite the Court’s Order, Mr. Johnson never filed an opposition.
The Court entered judgement in Paragon’s favor on the merits
on September 27, 2017. See Johnson v. Paragon Sys., Inc., 272 F.
Supp. 3d 1 (D.D.C. 2017). In so doing, the Court noted that, on
the record before the Court, it appeared that the lawsuit against
Paragon was “ill-conceived and a waste of this Court’s time and
resources.” Id. at 5. Accordingly, the Court ordered Mr. Johnson
and his counsel, Mr. McCants, to show cause why
2 sanctions, including significant monetary sanctions, should not be imposed against them both pursuant to Federal Rule of Civil Procedure 11(b) and why Mr. McCants should not be referred to the Committee on Grievances of the United States District Court for the District of Columbia for any investigation or proceedings that the Committee may deem appropriate. Id.
The next day, Mr. McCants, on behalf of himself and his
client, filed a cursory five-sentence response to that Order. See
Pl.’s Resp. to Order of the Court, ECF No. 26. Mr. McCants stated
that Paragon was “sued in good-faith” and that he “didn’t know”
that Paragon was not involved in the underlying incident leading
to Mr. Johnson’s alleged injuries “until the depositions.” Id. at
1. Mr. Johnson further stated that “[w]hen it became clear that
Paragon was not the liable party,” Mr. McCants thought Mr. Johnson
“was being responsible” by informing Paragon’s attorney that he
“would not oppose [Paragon’s] motion for summary judgment.” Id.
The remaining defendants 1 timely filed their motions to
dismiss, ECF Nos. 22 and 23, and, again, Mr. Johnson failed to
file an opposition to these motions until the Court ordered him to
do so, see Minute Order of Oct. 6, 2017. Although Mr. Johnson
complied with the Court’s Order, his response was cursory at best.
See, e.g., Pl.’s Opp. to Mot. to Dismiss, ECF No. 29 (a three-page
1After the Court granted Paragon’s motion to dismiss, Mr. Johnson filed an amended complaint adding a number of defendants. See Am. Compl., ECF No. 12. 3 memorandum with a six-sentence “argument” section). Thereafter,
the Court dismissed the remaining defendants on March 29, 2018.
See Order, ECF No. 35.
Shortly after dismissing the remaining defendants in this
litigation, see Johnson v. Paragon Sys., Inc., No. 15-1851, 2018
WL 1542134 (Mar. 29, 2018), the Court directed Paragon to file its
motion for attorney’s fees, see Minute Order of April 3, 2018. Mr.
Johnson was directed to file his response to Paragon’s motion by
no later than April 27, 2018; in keeping with his pattern of
dilatory conduct in this case, Mr. Johnson’s counsel failed to
file a timely opposition. Four days after the deadline for an
opposition had passed, Mr. Johnson requested additional time to
respond to Paragon’s fee petition, see Emergency Mot. for
Extension of Time, ECF No. 38, which the Court reluctantly
granted, see Minute Order of May 2, 2018. Mr. Johnson filed his
response on May 4, 2018, see Pl.’s Opp. to Fee Shifting, ECF No.
39, asserting that a fee award is not warranted or, in the
alternative, that fees should be limited to expenses incurred
after the date of Mr. Johnson’s deposition. See id.
II. ANALYSIS
The Court agrees that Paragon is entitled to attorney’s fees,
however Paragon’s requested fee must be reduced to only expenses
incurred following Mr. Johnson’s deposition. “Federal courts
possess certain ‘inherent powers,’ not conferred by rule or
4 statute, ‘to manage their own affairs so as to achieve the orderly
and expeditious disposition of cases.’” Goodyear Tire & Rubber Co.
v. Haeger, 137 S.Ct. 1178, 1186 (2017) (quoting Link v. Wabash R.
Co., 370 U.S. 626, 630-631 (1962)). Those powers include “the
ability to fashion an appropriate sanction for conduct which
abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S.
32, 44–45 (1991). Accordingly, a court may issue “contempt
citations, fines, awards of attorneys’ fees, and such other orders
and sanctions” when necessary to reimburse a party for frivolous
litigation conducted against it. Parsi v. Daioleslam, 778 F.3d
116, 130 (D.C. Cir. 2015) (citation and internal quotation marks
omitted). 2 Generally, “a finding of bad faith is required for an
award of attorney’s fees under the court’s inherent power.” Id. at
131.
In Goodyear Tire & Rubber Co. v. Haeger, the Supreme Court
held that a fees award issued pursuant to a court’s inherent
authority to sanction a litigant for bad-faith conduct must be
2 Although Paragon urges the Court to consider issuing sanctions pursuant to Federal Rule of Civil Procedure 11, see Paragon’s Mot. for Fees, ECF No. 37 at 2, the misconduct here does not involve “any pleading or paper submitted to the court.” Ali v. Tolbert, 636 F.3d 622, 627 (D.C. Cir. 2011). Rather, as explained more fully below, it involves plaintiff’s “failure to present a document” dismissing claims he knew to be meritless. Id. Because Rule 11, on its face, only applies to representations made to the Court made in a “pleading, written motion, or other paper,” the Court concludes that sanctions in this case are not authorized under Rule 11. 5 “limited to the fees the innocent party incurred solely because of
the misconduct.” 137 S.Ct. at 1184. In other words, there must be
a “causal link” between “the litigant’s misbehavior and legal fees
paid by the opposing party.” Id. at 1186. Accordingly, before
awarding fees, a court must “determine whether a given legal fee —
say, for taking a deposition or drafting a motion — would or would
not have been incurred in the absence of the sanctioned conduct.”
Id. at 1187.
On the record before it, the Court cannot definitively
conclude that Mr. Johnson’s suit against Paragon was initiated in
bad faith. See Pl.’s Resp. to Order of the Court, ECF No. 26 at 1
(stating that, when Mr. McCants started investigating Mr.
Johnson’s claims, the guards at the facility “were wearing Paragon
uniforms” and that the contract had “switched from Paragon to MVM
six days after the incident” underlying Mr. Johnson’s complaint).
Mr. Johnson and Mr. McCants assert that they did not know that
Paragon was an improper party “until the depositions” were taken
in this case. Id. Although they do not specify the “depositions”
to which they refer, Paragon’s billing records indicate that Mr.
Johnson was deposed on October 3, 2016. See Paragon’s Mot. for
Fees Ex. 1, ECF No. 37-1 at 6. As the Court noted in granting
Paragon’s motion for summary judgment, Mr. Johnson conceded at
that deposition that he had no knowledge or information to support
his belief that Paragon caused his alleged injuries. See Johnson
6 v. Paragon Sys., Inc., 272 F. Supp. 3d 1, 2 (D.D.C. 2017). Indeed,
shortly after the conclusion of the deposition, Paragon’s counsel
emailed Mr. McCants and asked that, “[g]iven [his] client’s
deposition testimony,” he “voluntarily dismiss his Complaint
against Paragon Systems.” ECF No. 27-1 at 10. Mr. Johnson and Mr.
McCants’ decision to continue this litigation despite Mr.
Johnson’s concession that he had no knowledge or information to
support his belief that Paragon caused his alleged injuries
constitutes bad-faith. Mr. Johnson refusal to dismiss the claims
against Paragon forced Paragon to continue incurring expenses
defending itself until the Court granted summary judgment in its
favor on September 27, 2017. See Order, ECF No. 25. Accordingly,
the Court concludes that fees incurred by Paragon after Mr.
Johnson’s deposition on October 3, 2016 were caused by Mr.
Johnson’s and Mr. McCants’s bad-faith conduct in this litigation.
Because the Court finds that both Mr. Johnson and Mr. McCants
acted in bad faith during the course of these proceedings, the
Court will impose the fee award against Mr. Johnson and Mr.
McCants jointly and severally. See Roadway Express v. Piper, 447
U.S. 752, 764-67 (1980) ("The power of a court over members of its
bar is at least as great as its authority over litigants. If a
court may tax counsel fees against a party who has litigated in
bad faith, it certainly may assess those expenses against counsel
who willfully abuse judicial processes.").
7 The Court has reviewed Paragon’s billing records and finds
that Paragon’s counsel spent 40.7 hours after the deposition on
October 3, 2016 in connection with the defense of this case. This
includes time spent drafting and filing a motion for summary
judgment that Mr. Johnson or Mr. McCants admit they had no
intention of opposing. See Pl.’s Resp. to Order of the Court, ECF
No. 26 at 1 (“When it became clear that Paragon was not the liable
party, counsel thought I was being responsible by telling
Paragon[‘s] attorney I would not oppose their motion for summary
judgment and that’s why I didn’t respond to it.”). The Court
further concludes that Paragon’s hourly rate of $175 comports with
prevailing community standards and is eminently fair and
reasonable. See U.S. Attorney’s Office Attorney’s Fees Matrix,
2015-2018 (providing for hourly rates between $302 and $602
depending on years of experience), https://www.justice.gov/usao-
dc/file/796471. Accordingly, pursuant to Federal Rule of Civil
Procedure 11, it is hereby
ORDERED that Paragon’s motion for attorney’s fees is GRANTED
in PART and DENIED in Part; and it is
FURTHER ORDERED that plaintiff and/or his attorney shall pay
$7,122.50 in attorney’s fees and costs to Paragon by no later than
December 31, 2018. Any request for an extension of time for
payment of this fee shall be viewed with disfavor.
8 SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge October 17, 2018