Order Denying Motion For Reconsideration Sep26 - 14

IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Family Court
Domestic Relations Branch
____________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
Daryl WHITAKER,
:
:
Defendant.
:
____________________________________:
Astrid CHIN,
Case No. 2008 DRB 000345

Judge Hiram E. Puig-Lugo
ORDER
This matter comes before the Court on Plaintiff Astrid Chins Motion for Reconsideration
of July 28, 2014 Findings of Fact, Conclusions of Law, and Accompanying Order (the Motion
to Reconsider), filed on August 25, 2014. The Plaintiff filed this Motion to Reconsider under
Superior Court Rule 60(b).
Based on the Plaintiffs Motion to Reconsider and Defendant Daryl Whitakers
Opposition dated September 8, 2014, and for the reasons discussed below, the Motion to
Reconsider is granted in part and denied in part.
I
The Superior Courts rules, civil and domestic relations, do not provide an explicit
provision for motions for reconsideration. Civil Rule and DR Rule 60(b), however, provide
that the Court may relieve a party or a partys legal representative from a final . . . order due to,
inter alia, mistake, inadvertence, excusable neglect, newly discovered evidence, fraud; or any
other reason justifying relief. D.C. Super. Ct. Civ. R. 60(b); D.C. Super. Ct. Dom. Rel. R. 60(b).
A motion for such relief under these rules shall be made within a reasonable time and no
longer than one year after the order is entered if the underlying reason for the motion is mistake,
inadvertence, excusable neglect, newly discovered evidence; or fraud. Id. Since both rules are
identical in relevant part to the comparable federal [civil rule 60(b)], a court may look to the
decisions of the federal courts interpreting the rule as persuasive authority in interpreting the
local rule[s]. Puckrein v. Jenkins, 884 A.2d 46, 56 n.11 (D.C. 2005) (internal citations and
quotation marks omitted).
The Plaintiff asserts that the Court made numerous mistakes of fact and law and that she
is entitled to bring a Motion to Reconsider under Rule 60(b)(1). See D.C. Super. Ct. Civ. R.
60(b)(1); D.C. Super. Ct. Dom. Rel. R. 60(b)(1). In her Motion to Reconsider, Plaintiff contends
that she did not understand the Courts orders to meet and confer with Defendants counsel
(Attorney Bond). Pl.s Mot. Recons. 12-18.
Plaintiffs counsel (White & Case) also contend that their failure to adhere to court
orders and to engage in conversations with Defendant and Attorney Bond to resolve the dispute
was insufficient to warrant sanctions. Pl.s Mot. Recons. 22-26. Moreover, Plaintiff states that
Yi Ying (Attorney Ying) did not shout outside the courtroom during the March 21, 2014,
hearing, nor did he refuse to cooperate with Defendant following the immediate instructions of
the Court. Pl.s Mot. Recons. 9-11.
Finally, Plaintiff asserts that she does not have the financial means to be held jointly and
severally liable for the sanctions imposed on her and White & Case by the Courts July 28, 2014,
order. Pl.s Mot. Recons. 19-21.
II
According to Civil and DR Rule 60(b), a court may grant a party relief from an adverse
judgment or order on the grounds of excusable neglect. D.C. Super. Ct. Civ. R. 60(b)(1); D.C.
Super. Ct. Dom. Rel. R. 60(b)(1). The determination of what constitutes excusable neglect is
an equitable one, taking account of all relevant circumstances surrounding the partys omission.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 707 U.S. 380, 395 (1993). Among the factors
to consider when reaching this determination, [c]ourts have noted that fault in the delay is
perhaps the most important single factor and the burden of such proof is on the party seeking
relief. See Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C. 2003); Maynard v. District of
Columbia, 579 F. Supp. 2d 137, 142 (D.D.C. 2008).
The Plaintiff and her counsel have not shown that their failure to follow the Courts
multiple orders to engage in dialogue with Defendant and Attorney Bond to resolve the
underlying dispute rises to the level of excusable neglect. Indeed, although Plaintiff may have
been confused about her duties after the August 23, 2013, hearing, where she was unrepresented,
her lack of understanding does not excuse White & Cases subsequent unresponsiveness to
Attorney Bonds various requests that Plaintiff verify the amount in support arrears. See Attach.
J, Pl.s Mot. Recons.
White & Case chose to disregard the requests that it received from Attorney Bond, and
did not examine court records to pinpoint the results of the August 23 hearing, a reticence that it
overcame when staring at the imposition of sanctions. Pl.s Mot. Recons. 23; Attach. J, Pl.s
Mot. Recons. Indeed, the Plaintiffs and her counsels failure to comply with court orders due to
a general lack of awareness is in incredible when considering the multiple e-mails sent to
Plaintiffs counsel and the conversations discussed in court. As a result, these circumstances do
not represent excusable neglect.
Attorney Yings conduct at the March 24 hearing was unprofessional and disruptive of
the Courts subsequent proceedings. The Court heard a loud yell and saw Mr. Bonds profile as
he stood in the foyer between both sets of double doors to the courtroom. He was not speaking
and simply stood still.
The Court requested the courtroom clerk to bring into the courtroom the parties involved
in the yelling incident. It directed the parties to approach the bench when the courtroom clerk
returned with Attorney Ying and Attorney Bond in tow. It asked both attorneys to explain the
reason for the commotion outside.
Attorney Bond reported that Attorney Ying had yelled at him and refused to comply with
the Courts request. Attorney Ying did not respond or contradict Attorney Bond. He did not
respond or contradict Attorney Bond when the Court threatened sanctions should Attorney
Yings apparent recalcitrance persist. He did not respond or contradict Attorney Bond when the
case was recalled subsequent to further discussions between the parties, which miraculously
concluded that no arrears existed.
The Court interpreted this repeated failure to address the complaints against him that
Attorney Ying conceded and did not challenge the representations that Attorney Bond had made,
thus confirming its observations. In any event, it is important to note that the sanctions imposed
here did not hinge exclusively on that incident. Instead, the sanctions are premised on the
behavior of White & Case attorneys in the representation they provided over a period of months.
The Court does not agree with the Plaintiffs contention that Attorney Ying was caught
unaware during the sidebar following the outburst outside the courtroom. Attorney Ying had
been present at prior court proceedings with the Plaintiff and had general familiarity with the
Court and the tenor of prior hearings. Therefore, the Plaintiffs Motion to Reconsider does not
meet the requirements of Civil or DR Rule 60(b)(1).
Nevertheless, the Plaintiff is correct that the record here is insufficient to determine her
ability to pay. The Court erred when it relied on pleadings describing her as a graduate of the
Wharton Business School MBA Program and as a student at a law school in Washington, D.C.
This information is listed in the Defendants Answer and Counterclaim filed on April 16, 2008,
but whether the Plaintiff admitted or denied those assertions is unclear in the court files.
Therefore, it is appropriate to vacate those findings from the July 28 order, and to relieve the
Plaintiff from all liability to pay the sanctions that were imposed. Consequently, White & Case
is now solely liable for the awarded attorneys fees.
Finally, White & Case argues that imposing attorneys fees as a sanction would have a
chilling effect on pro bono work, but cites no authority for the proposition that pro bono
attorneys should be exempt from the rules customarily applicable to attorney performance and
conduct when undertaking representation. Indeed, it is troublesome that White & Case would
volunteer to provide pro bono representation, and expect to provide services less consequential
than services provided to paying clients.
THEREFORE, it is ORDERED this 26th date of September, 2014, that the order
imposing sanctions on July 28, 2014, is modified to vacate the findings about Plaintiffs ability
to pay and her liability for attorneys fees. Otherwise, Plaintiffs Motion for Reconsideration of
July 28, 2014 Findings of Fact, Conclusions of Law, and Accompanying Order is DENIED.
IT IS SO ORDERED.
Hiram E. Puig-Lugo
Associate Judge
(Signed in Chambers)
Copies to:
Astrid Chin
Plaintiff, c/o White & Case LLP
Kathleen M. Hamann
Dana Foster
White & Case LLP
701 13th Street NW
Washington, DC 20005
Counsel for Plaintiff
Daryl Whitaker
Defendant, c/o Johnnie D. Bond Jr.
Johnnie D. Bond Jr.
1100 H Street NW, Ste. 315
Washington, DC 20005
Counsel for Defendant

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IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

Case No. 2008 DRB 000345

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