D.C. Superior Court Opinions

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E.g., March 19, 2018
E.g., March 19, 2018
  • Attorney’s Fees

    Windfall / Applicable Laffey Rate / Fees for Time Spent Defending Clear Error / Discretion to Cut Fees


    Request for plaintiff’s attorney’s fees arising from a successful employment discrimination case is granted in part. There is no rule of proportionality so a total fee award 73% of the amount of judgment is not inherently inappropriate and a supplemental fee for legal work an attorney actually performed is not a windfall. It is within the Court’s discretion to award fees consistent with Laffey rates current the year the motion was filed rather than the year most of the work was done as an adjustment for delay in payment and the work performed, legal research and drafting, is at the core of appellate advocacy and not unreasonable to assign to an attorney of counsel’s experience. While the Court will not deduct fees from time spent trying to
    enforce judgment, fees from times spent defending erroneous jury instructions will be deducted as they were clearly wrong and Plaintiff could have conceded error on appeal and limited argument to harmlessness. Court will not exercise discretion to cut fees in response to errors by Plaintiff’s counsel as such cuts would be duplicative and contrary to the Human Rights Act’s legislative instruction that prevailing parties are entitled
    to attorney’s fees.

  • Civil Procedure

    Subpoena / Speech or Debate Privilege

    Motion by non-party City Councilmember to quash Plaintiff’s subpoena and compel production of documents is granted as it runs afoul of the Speech or Debate statute D.C. Code § 1-301.42. While it is possible that materials relating to investigation, fact-finding, and oversight of the Plaintiff would include documents not covered by the Speech or Debate statute, Plaintiff must make a particularized request for them and explain why the Councilmember would be involved beyond his official capacity in connection with oversight and legislation. The burden is not on subpoenaed legislators to identify non-exempt documents.

  • Insurance Law

    Denial of Defense and Coverage / Types of Discrimination Covered by Policy

    Motion to dismiss denied. Plaintiff has set forth sufficient factual allegations that an insurance policy providing coverage for a suit alleging injury that is “caused by an offense of: ... discrimination, harassment or segregation based on a person’s protected human characteristics as established by law” could cover a suit alleging discrimination based on “sources of income.” The policy neither contains an applicable law provision nor defines “established by law,” rendering it unclear enough to survive a motion to dismiss.

  • Defamation

     D.C. Anti-SLAPP Act / Likely to Succeed on the Merits / Provably False Statements / Fair Comment Privilege / Actual Malice / Intentional Infliction of Emotional Distress / 12(b)(6) Motion to Dismiss

    Anti-SLAPP and 12(b)(6) motions to dismiss a defamation suit brought by a scientist against media organizations and writers over accusations of data fraud are denied. A Plaintiff seeking to show he is likely to succeed on the merits on a defamation claim in response to an anti-SLAPP motion must satisfy a standard comparable to that used for a motion for judgment as a matter of law. Assertions that Plaintiff’s research was “fraudulent,” “bogus,” “scientific misconduct,” and “data manipulation” are not mere opinion or hyperbole but statements based on provably false facts sufficient to demonstrate a prima facie case for libel. Fair Comment privilege is not available where challenged statements are misstatements of fact. Where Plaintiff’s work has been investigated and found accurate several times, continued accusations that Plaintiff’s work is “intellectually bogus” shows a reckless disregard for the truth sufficient to indicate that further discovery may uncover evidence of actual malice and possibly sustain a finding of intentional infliction of emotional distress. Defendants’ motion to dismiss pursuant to 12(b)(6) is denied for the same reasons.

  • Employment Law


    Retaliatory Discharge / Disparate Treatment Based on Disability / Hostile Work Environment / Intentional Infliction of Emotional Distress / Negligent Infliction of Emotional Distress


    Defendant’s Motion for Summary Judgment granted in a suit alleging termination and discrimination resulting from Plaintiff’s cooperation with a criminal investigation of Defendant employer. Plaintiff has not proffered evidence to prove prima facie case for wrongful retaliatory discharge where her own testimony conflicts with her claim she was discharged for refusing to violate the law. Plaintiff’s termination does not fall within the public policy exception to at-will employment where she has not cited a specific statute that was violated or alleged that Defendant asked her to not cooperate with the police, refrain from reporting problems, or colluding in a cover-up. There is no genuine issue of fact that Plaintiff was terminated due to her disability where the record shows Plaintiff was fully functional while medicated, Defendant was aware of Plaintiff’s mental disorder when it hired her, and Plaintiff had failed to comply with company policy. Plaintiff has not made a prima facie case for a hostile work environment where, since she is fully functional with medication, she is not a member of a protected class and the only specific insult she alleged receiving was “Sherlock Holmes,” which does not appear to be related to a mental disorder and is commonly thought of as a compliment as he is a “superior detective.” Plaintiff’s allegations of mere stress and anxiety do not rise to the level of the severe emotional distress necessary to succeed in a claim for intentional infliction of emotional distress. While the employer-employee relationship is a “special relationship” for the purposes of a negligent infliction of emotional distress finding, such a claim cannot succeed where the record does not show that Defendant was negligent or that said negligence caused Plaintiff emotional distress.

  • Family Law

    Notice of Hearing and Order Directing Appearance

    In a civil paternity action, the court is not permitted to issue a bench warrant for a respondent based solely upon his failure to appear or otherwise respond to a Notice of Hearing and Order Directing Appearance (“NOHODA”) served upon the respondent’s person when the NOHODA was issued by the court based upon a petition which merits sua sponte dismissal. NOHODA was promulgated in conflict with the legislature’s intention that adjudication of paternity issues be entirely civil in nature and the process lacks adequate procedural safeguards to protect against erroneous arrest. There is no specific statutory authorization for either the issuance or enforcement of a NOHODA. Civil contempt is not applicable as the basis for a bench warrant for failure to respond to a NOHODA since there has been no judgment issued and it would provide no direct benefit to the complainant. Criminal contempt is inapplicable as there is no showing that respondent’s failure to appear was willful and the NOHODA did not include notices concerning the duties and protections of the subpoenaed person.

  • Family Law

    Reinstatement of Child Support Case


    Motion to Reinstate Child Support Case denied where it is not timely filed, respondent was not properly served, and Petitioner has not shown good cause for reinstatement. Petitioner must provide a basis for the Court to exercise its discretion to vacate the dismissal. Merely providing reasons why it should proceed with an action for paternity and support is insufficient.

  • Civil Procedure

    Class Certification


    Motion for class certification denied in suit over elevated levels of lead in tap water. Plaintiffs’ proposed class definition of any child who, from 2000 to 2004, while six years old or younger and a resident of DC consumed water that was supplied by Defendant and that passed through a line containing lead and had amounts of lead considered to be a “level of concern” does not satisfy the requirements of (1) identifiability; (2) numerosity, (3) typicality, (4) adequacy of representation, (5) predominance, or (6) superiority. (1) Plaintiffs have not met their burden to show that class members are identifiable or ascertainable where there are no available current and comprehensive records showing the location of children with elevated lead levels or the homes connected to lead service lines and Plaintiffs have not proposed any manageable and cost-effective solutions. (2) Plaintiffs have not met numerosity requirement where proposed class includes a high percentage of members who have not suffered harm and face no realistic probability of harm caused by any act or omission of Defendant. (3) Typicality requirements are not met where Plaintiffs have not shown that their claims are typical of class members who have not suffered demonstrable harm from lead exposure in the decade since the class period ended or shown that their claims are typical of class members who resided in DC for particular periods of time. (4) Plaintiffs have not met requirement of adequate representation for the interests of the entire proposed class where they have not demonstrated they can adequately represent members whose strongest liability arguments relate to information that Defendant provided or failed to provide in different months than the months on which the named plaintiffs would focus or represent the interests of class members who have not exhibited any demonstrable harm in the decade or so since the class period ended. (5) Plaintiffs have not established that common issues predominate individual issues where there are many complex and individualized issues relating to damages and causation, requiring a further two years of hearings to resolve individualized claims even if class certification were granted. Rule 23(c)(4)(A) is a housekeeping rule that allows courts to sever common issues for a class trial, not a repeal of the predominance requirement. (6) Plaintiffs have not established that a class action would be superior to individual actions where: (a) the members of the class have an interest in individually controlling separate actions as their claims likely involve substantial damages; (b) there is pre-existing litigation on substantially similar claims; (c) it is desirable to concentrate the litigation; and (d) the case would be unmanageable as a class action for all of the previously-discussed reasons.

  • Civil Procedure

    Application of Res Judicata to Consent Judgments / Rights of Pro Se Litigants

    Under the doctrine of res judicata, a prior consent judgment does not preclude Defendant’s counterclaims of breach under the implied warranty of habitability unless it clearly addresses the issue of counterclaims. The Plaintiff must establish the parties had a mutual understanding that the consent judgment was intended to resolve all claims and defenses. Pro se litigants are entitled to reasonable accommodation from courts to ensure they understand the proceedings and procedural requirements. The doctrine of res judicata is subject to the overriding public policy that a party must not be deprived of an actual opportunity to be heard, a limitation which is of particular significance in cases where the party against whom the doctrine is advanced was self-represented in the earlier action.






    Abstract: Providing for the process which is sometimes referred to as “probation without judgment” or “probation with expungement,” the D.C. Code (the statute) establishes a one-time-only provision to permit first-time drug offenders to enter a guilty plea, receive probation, and upon completion of the probationary conditions (typically within one year), to have their guilty plea vacated and the entire documentary record of the case expunged. But what records, exactly, are included in the expungement? In this case, with the assistance of briefing by the parties and three amici, the Trial Court meticulously answered that question. Facts: (1) At all times relevant herein, the Plaintiff rented an apartment located in the 500 block of 50th Place NE, near Marvin Gaye Park, which was leased under the aegis of the D.C. Housing Authority (DCHA). (2) In July 2010, a police operative purchased a quantity of opiate from the Plaintiff inside the apartment. Based on a police affidavit containing this information, a search warrant was procured and executed for the premises, which turned up quantities of crack cocaine, together with drug paraphernalia for both use and distribution. (3) The Defendant in the instant case was charged with a misdemeanor drug offense and the prosecution of the case also generated several other police forms and reports, together with filings in the Criminal Division of the Superior Court. (4) Inasmuch as it was her first drug offense, the Defendant was eligible for “first offender treatment” under the statute at issue herein and in September 2010, she entered a guilty plea and was placed on probation for twelve months on the condition that she fulfill all the terms thereof, after which her record would be expunged. (5) The statute provides in pertinent part that upon successful completion of such probation, “such discharge or dismissal shall not be deemed a conviction, for purposes of disqualification or disabilities imposed by the law.” (6) It further provides that upon said completion of probation a person “may apply to the court for an order to expunge from all official records … all recordation relating to his or her arrest, indictment or information, trial, finding of guilty, and dismissal and discharge” of the case. (7) Finally, the statute provides that “the effect of such order shall be to restore such person, in the contemplation of this law, to the status he or she occupied before such arrest, indictment, or information” and expressly provides that such a person may state, without being subject to penalties for perjury or false statement, that s/he has never been convicted of the misdemeanor drug offense in question. (8) In July 2011, the Defendant herein received a court order to this effect, discharging her from probation early. (9) However, in August 2011, she received a “notice to quit” from the DCHA, quoting documents in the expunged case, requiring her to vacate her apartment within 30 days because of the drug activities that had concededly occurred therein. Proceedings: (1) in December 2011, when the Defendant failed to vacate the premises, DCHA filed suit in the Landlord and Tenant Branch of Superior Court for possession thereof. (2) There was no indication that DCHA was aware of the expungement. (3) The Defendant filed an Answer requesting a jury trial and the case was certified to the Civil Division for same. (4) The Plaintiff then propounded interrogatories containing questions about the misdemeanor drug prosecution. (5) The Defendant, through counsel, adopted the position that the statutory expungement provided her with a “testimonial privilege” permitting her to refuse to answer any such questions, despite a Motion to Compel. (6) She also moved for dismissal, or alternatively for summary judgment, based on the total expungement of her record in the criminal case, arguing that because it had been purged, there were no legal grounds for the L&T suit to begin with. (7) The Court stayed discovery until what it termed “several novel issues” could be fully briefed and, because the prospective ruling had ramifications beyond the L&T suit for the criminal law as well, it invited amici briefs from the Offices of the U.S. Attorney (USA) and the D.C. Attorney General (OAG), as well as the D.C. Legal Aid Society (LAS). The prosecutorial amici filed briefs in support of DCHA as Plaintiff and Legal Aid filed a brief in support of the Defendant. (8) The issues to be briefed were whether: (a) the documents in the possession of DCHA, as an agency of the Government, were “official records” subject to the expungement; (b) the search warrant and return constituted such documents; and (c) the civil suit should therefore be dismissed. Rulings: The Court ruled on the issues presented as follows: (A) Records. (1) The USA, as the prosecuting office in the collateral misdemeanor case, acknowledged that the documents relied upon by DCHA were “official records” within the scope of the statute “relating to the defendant’s arrest and prosecution.” (2) Moreover, DCHA also conceded that “if the documents were required to be expunged” by the Court’s order, it could not rely on them. (B) Scope. (1) This left the question of the scope of the expungement, particularly whether it applied to the affidavit in support of the search warrant, the warrant itself, and the return thereon – documents on which DCHA primarily relied for the factual basis for its notice to the Defendant to vacate the apartment. (2) Put another way, the question was whether, in the statutory language, the search warrant documents “relate to” the Defendant’s arrest, charge, and disposition of the case. (C) Statutory Interpretation. (1) Language Used. (a) The first rule of statutory interpretation is to look at the language used therein. (b) Here, the Court found that language to be “broad … with which it defines its own scope.” (c) It found that, particularly, the phrase “relating to” was “one of the broadest and most inclusive terms available.” (d) Both the legal dictionary and lay dictionary definitions use the same broad terminology (to have “some relation to”). (e) The Court concluded that “on their face, the search warrant documents ‘relate to’ the arrest and subsequent charge” because their “plain language” provided the background, authority for seizure of the evidence, and the basis for prosecution of the criminal case. (2) Appellate Authority. (a) Moreover, the Court’s research revealed that pertinent appellate authority held that “expungement statutes should be liberally construed because of their remedial purpose.” (b) This “further confirmed” that the search warrant documents “related to” the expungement order. (3) Practical Uses. (a) The Court emphasized that the “practical uses” of the search warrant documents served to provide the police with the authority to act, resulting in the search, the discovery of the evidence, and the arrest of the Defendant, and were, in the ordinary course of things, forwarded to the prosecutor’s office for preparation of the charges and later disposition of the case. (b) Moreover, as such, they would have constituted materials which would be required to be turned over to the defense under the criminal rules of discovery. (c) Such “practical uses” bolstered the nexus between the documents and the expungement. (4) Rejection of Contrary Arguments. (a) The Court also found a general “lack of support” for the arguments of the Plaintiff and supporting governmental amici that the documents at issue were “unrelated” to the expungement. (b) The Court found it “particularly telling” that their briefs “more or less avoided” the “related to” concept, but also took the aggressive position that this “statutory language clearly and unambiguously requires the expungement [only] of all documents of a person’s arrest and criminal prosecution,”
    , that are inherent in these processes. (c) But the Court found that “this construction misstates the language of the statute,” which requires the expungement of all documents that are even “related to” the case. (d) It further rejected the argument that search warrants are not “related” to an arrest because they are issued whether the personal target of the search warrant is arrested or not. This negative pregnant does not prove that such documents are “unrelated” to the ensuing processes culminating in the expungement, the Court found. (e) Similarly, it rejected the argument of both prosecutorial amici that expungement applies only to documents which bear the accused’s name, noting that, although such a concept is reasonable, it was not expressly adopted by the legislature in writing the statute. (f) The Court paused briefly over the argument of the USA that, because the statute referred only to the post-investigatory process of the “arrest, indictment or information, trial, finding of guilty, and dismissal and discharge,” but not to the pre-arrest investigation stages, which include search warrants, the latter category of documents do not fall into the category comprehended by the expungement. (g) The Court concluded, however, that if the legislative intent had been to exclude “pre-arrest” documents, it “would have so specified.” (h) In addition, the Court found that “persuasive authority” from other state-level appellate courts’ interpretations of similar expungement statutes take the traditional “liberal” and expansionary approach to the “documentary” language. (5) Policy Considerations. The prosecutorial amici also made what the Court deemed “persuasive,” albeit unsuccessful, arguments sounding in “public policy,” as follows: (a) Practicality. (i) Both prosecutorial amici argued, again as a practical matter, that whatever may happen with regard to documents in the Executive Branch, copies would remain on file in the Criminal Clerk’s Office of the Superior Court, anyway. (ii) Whether this was so or not, however, the Court ruled that it did not narrow the scope of the liberal language of the statute that the expungement process should apply to a properly-filed motion for same. (b) Pragmatism. (i) The USA argued that the logic of the Defendant’s suggested interpretation was precluded by the ironic result which would obtain to such a tenant who would, in fact, end up in a better position as the result of having been arrested – and having it expunged -- than s/he would have been had she never been arrested and charged -- but only implicated – in the drug scheme. (ii) In that event, the DCHA could have arrived on the underlying facts of the drug activity in evicting the Defendant without running into the obstacles erected by the expungement process. (c) Necessity. (i) The USA argued that it needs access to such records for law enforcement purposes, particularly for determining whether a person accused of a drug-related misdemeanor has already used the “one-time-only” relief provided by the statute for first offenders. (ii) Finally, the Plaintiff, as “landlord,” also argued such records help to identify “nuisance properties” wherein illegal drug activities occur with high frequency. (D) Rule 12(b)(6) Dismissal. The Court ruled on the arguments advanced in the Defendant’s Motion to Dismiss as follows: (1) Standards. (a) The Defendant moved to dismiss the civil suit under Rule 12(b)(6), which challenges the legal sufficiency of the complaint. (b) A case may be dismissed only if is beyond a doubt that a plaintiff cannot prove any facts that would entitle it to relief. (c) However, the court may not dismiss a case simply because it does not believe that a plaintiff can prevail on the claim. (d) Rather, the court must conduct a two-pronged inquiry, examining whether the complaint: (i) contains well-pleaded factual allegations, and (ii) they plausibly give rise to an entitlement to relief. (e) The Court found that the complaint “clearly satisfied the … standard” in order to allow the Plaintiff to go forward with the case. (2) Facial Defects. The Court then turned to the two preliminary arguments of the Defendant and the LAS as to why the complaint should be dismissed based on facial defects. (a) The first argument challenged the form of the complaint under L&T Rule 3 because it was not “verified,” i.e., submitted under oath, averring that its contents were “true to the best of the plaintiff’s knowledge, information, and belief.” (b) The second argument was that pursuant to Civil Rule 11(b)(2), the complaint was not submitted in a good faith assurance that the claims … and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.” (c) Since the Rule 3 problem could be easily cured and because Rule 11 does not normally provide a basis for dismissal, the Court rejected these arguments by the Defendant. (3) Expungement. (a) It was agreed that DCHA’s receiving “notice of the expungement triggers the obligation … not to rely upon” the pertinent records for the L&T-Civil action. (b) The Defendant’s central argument for dismissal was that the overall purpose of the statute is “to provide recipients of an expungement with a fresh start,” which goal would be defeated if the Plaintiff could use the criminal proceedings as a basis for evicting her. (c) That purpose, they argued, made the case void ab initio, inasmuch as it totally deprived the Plaintiff of any legal basis to file or proceed with the suit. (d) The Court found that the central issue in this question is “whether the statute expunges merely the records relating to the criminal conduct, or the underlying conduct itself.” (e) The Court carefully noted two facts about the statute in this regard: (i) its language “does not contain provisions that prevent reliance by anyone, be they governmental or non-governmental actors, on the conduct underlying the records”; and (ii) appellate court cases on actual pardons themselves dating back to 1866, e.g., with regard to the lack of effect of a presidential pardon for a criminal conviction on such matters as disbarment, do “not require the exclusion from consideration by the … authorities of the facts surrounding the arrest or conviction” of the person pardoned. (f) The Court therefore concluded that “the statute expunges records and the fact of an arrest, charge, or conviction, but does not go further to prohibit separate actions based on independent evidence of the conduct underlying the expunged conviction.” (g) Accordingly, the Court ruled that because (i) the complaint adequately set forth a claim upon which relief could be granted; (ii) the Plaintiff did not know of the expungement order at the time it filed this suit; and (iii) the statutory language does not preclude the Plaintiff’s reliance on the underlying facts regarding the drug offense to which the Defendant had pleaded guilty before that record was expunged, “dismissal under Rule 12(b)(6) was not appropriate.” (E) Summary Judgment. (1) “Given the order of expungement and the Court’s decision as to its scope and effect,” the Court ruled that DCHA “cannot oppose the [Defendant’s] request for summary judgment through the use of any of the documents” in the criminal case. (2) Moreover, although the Court had ruled that the “underlying conduct” itself had not been expunged, it also ruled that no testimony derived from the documents could be introduced in support of the eviction process. (3) This, it reasoned, is because “if records are to be expunged, … [DCHA] should not have [had] them” in the first place and the agency “cannot simply [have them] reviewed by a [prospective] witness and regurgitated into affidavits or testimony in order to defeat summary judgment or to prevail at trial” based on that review. (4) Any such evidence, therefore, must have been “independently” obtained. “A contrary result,” the Court concluded, “would vitiate the purpose of the expungement statute.” (5) Nevertheless, the Court granted the Plaintiff an opportunity attempt to demonstrate that any evidence it might proffer in opposition to the Defendant’s motion for summary judgment was “independent” of or “untainted” by the documents expunged in the criminal case. (6) Accordingly, it denied the Defendant’s summary judgment motion without prejudice at this time (also, in the process, rejecting the LAS’s theory of “laches” because this is an equitable doctrine which “requires fact-intensive focus on [the] reasonableness of delay and [the] prejudice to the opposing party”). (F) Motion to Compel. (1) Having made the foregoing rulings, the Court rejected the Defendant’s argument that the statute created a “testimonial privilege” against answering discovery or testifying at trial with regard to her “acts or conduct” involving the criminal activities leading up to the charge in the case against her, the records of which were expunged. (2) The Court held that the purpose of the statute “is not to restore a person to the status he or she occupied before he or she committed the underlying act, or to eliminate the act as if it did not occur as a historical event.” (3) Despite the fact that the statute provides that “the effect of such [an expungement] order shall be to restore such person, in the contemplation of this law, to the status he or she occupied before such arrest, indictment, or information,” the Court held that the italicized phrase above does not act to obviate the underlying facts as though they had never occurred. (4) Even though the statute speaks to how such a person may speak about the event, in the final analysis, all it does is to protect a person from “charges of perjury or false statement” for denying that s/he has any such conviction – it does not protect such a person from perjury for deliberately lying about the underlying facts or stating that they had never occurred. (5) The Court therefore granted in part DCHA’s Motion to Compel answers to certain interrogatories, “except to the extent that the responses would implicate the arrest itself, the charge itself, or the court proceedings.” Conclusions. In sum, the Trial Court ruled as follows: (1) The Plaintiff, as a D.C. governmental agency, “must forthwith expunge all of the police records in its possession that relate to the Defendant’s arrest … [and] charge” in the collateral criminal case. (2) The Defendant’s Motion to Dismiss under Rule 12(b)(6) was denied because the expungement statute does not bar inquiry into the underlying facts of the collateral criminal case or create a testimonial privilege with regard thereto. (3) The Defendant’s alternative Motion for Summary Judgment was denied without prejudice, permitting the Plaintiff to demonstrate that it has evidence “independent” of the expunged documents in the criminal case that would create a genuine issue of material fact. (4) The Defendant was required to respond within ten days with qualified answers to the Plaintiff’s outstanding interrogatories at issue.