McMANUS v. DISTRICT OF COLUMBIA

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Docket Number

Civil Action No. 07-252(CKK).

Attorney(S)

James Quincy Butler, Butler Legal Group, PLLP, Washington, DC, for Plaintiffs. Martha J. Mullen, Office of Corporation Counsel, Brenda Catherine Zwack, O'Donnell, Schwartz Anderson, P.C., Andres M. Grajales, American Federation of Government Employees, Mark J. Murphy, John R. Mooney, Mooney, Green, Baker Saindon, PC, Alison N. Davis, Ford Harrison LLP, Frank Charles Morris, Jr., Brian Wayne Steinbach, Epstein, Becker Green, P.C., Laura E. Jordan, Law Offices of Laura E. Jordan, P.C., Charles B. Wayne, DLA Piper U.S. LLP, John W. Bramlette, Nixon Peabody, LLP, Washington, DC, Thomas V. McCarron, Semmes, Bowen Semmes, Baltimore, MD, for Defendants.

Judges

Colleen Kollar-Kotelly

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Smart Summary

Factual and Procedural Background

Sixteen current and former employees of various District of Columbia government agencies ("Plaintiffs") filed suit against fourteen Defendants, including the District of Columbia, five labor unions, five health care management companies, two insurance companies, and one physician. On December 31, 2007, this Court issued a Memorandum Opinion and Order dismissing Plaintiffs' action in its entirety on various grounds. The Court dismissed Plaintiffs' claims against Defendant Concentra, Inc. ("Concentra") pursuant to Federal Rule of Civil Procedure 12(b)(5) because Plaintiffs had attempted to serve Concentra by delivering process to a company not authorized to accept service for Concentra. The Court also granted Concentra's motion for sanctions, finding that Plaintiffs' counsel knowingly filed and failed to correct a false Return of Service indicating that Concentra had been individually served.

The Court's December 31, 2007 Order directed Concentra's counsel to file an affidavit, supported by documentation, setting forth their request for attorneys' fees and expenses by January 16, 2008, and permitted Plaintiffs' counsel to respond by January 30, 2008. Concentra filed the required affidavit on January 16, 2008. On January 30, 2008, Plaintiffs filed a Notice of Appeal of the Court's grant of sanctions and also filed a submission labeled as a motion to strike Concentra's motion for sanctions and a motion for an oral hearing. Concentra opposed Plaintiffs' filing, arguing among other things that the Court lacked jurisdiction to consider Plaintiffs' motion because Plaintiffs had filed a Notice of Appeal.

The Court treated Plaintiffs' motion as a motion for reconsideration under Federal Rule of Civil Procedure 60(b) (because it was filed more than ten days after the challenged order) and considered the parties' filings. The Court denied-in-part Plaintiffs' motion to the extent it sought reconsideration of the sanctions award and rejected Plaintiffs' arguments that Concentra could not recover fees for certain work. The Court nevertheless referred Concentra's fee request to Magistrate Judge John M. Facciola for determination of the proper sanctions award under Local Civil Rule 72.2(a), so that the request could be reviewed for reasonableness and necessity.

Legal Issues Presented

Whether the filing of a Notice of Appeal deprived the district court of jurisdiction to consider (a) Concentra's request for fees and costs and (b) Plaintiffs' later-filed motion challenging the sanctions award.
Whether Plaintiffs' post-judgment filing should be treated as a Rule 60(b) motion for reconsideration and, if so, whether relief under Rule 60(b) is warranted.
Whether Concentra may recover fees for (a) work performed by Katherine Hoekman (an associate not yet admitted to the D.C. Bar) and (b) work incurred in connection with motions to dismiss on grounds other than lack of service.

Arguments of the Parties

Plaintiffs' Arguments

Plaintiffs filed a notice of appeal and submitted a document labeled as a motion to strike Concentra's motion for sanctions and a motion for an oral hearing (filed January 30, 2008).
Plaintiffs argued that the Court's dismissal of their action was the only available sanction for their counsel's failure to properly serve Concentra and the filing of the false Return of Service (i.e., that the sanctions award was improper or excessive).
Plaintiffs contended Concentra should not be able to collect fees for time billed by Katherine Hoekman because she was not yet admitted to practice law in the District of Columbia.
Plaintiffs argued that Concentra's counsel artificially inflated their fees by moving to dismiss the case on grounds other than lack of service (and thus those hours were unnecessary).

Concentra's Arguments / Defendant's Opposition

Concentra argued the district court retained jurisdiction to consider its request for fees and costs despite Plaintiffs' notice of appeal because the court had not yet entered a specific judgment awarding sanctions (the specific monetary award was not yet determined).
Concentra argued that Plaintiffs' filing should be treated as a Rule 60(b) motion and that the Court should deny it; Concentra also argued that, on the merits, Plaintiffs' challenges to the fee request should be rejected.
Concentra provided affidavit evidence (including an affidavit from Katherine Hoekman) showing that Hoekman was admitted to the Virginia bar in 2007, that less than 360 days had elapsed since that admission, that her D.C. bar application was pending, and that she worked under the direct supervision of a member of the D.C. bar, such that her participation complied with D.C. Ct. App. R. 49.
Concentra explained that its inclusion of multiple grounds for dismissal was reasonable because Concentra had no way of guaranteeing how the Court would rule and because Plaintiffs' counsel had filed a false Return of Service, obscuring the service problem until Concentra moved to dismiss.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McManus v. District of Columbia, 530 F.Supp.2d 46 (D.D.C. 2007)	Reference to the Court's prior December 31, 2007 Memorandum Opinion and Order dismissing the action and granting sanctions.	The Court expressly incorporated that Memorandum Opinion into the present opinion and relied on its findings regarding invalid service and the false Return of Service.
Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982)	General rule that filing a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over aspects of the case involved in the appeal.	The Court acknowledged this general rule but explained why it did not preclude consideration of Concentra's fee request or Plaintiffs' Rule 60(b) motion in the present posture.
Johnson v. Bechtel Assocs. Prof Corp., 801 F.2d 412 (D.C. Cir. 1986)	District court does not regain jurisdiction over aspects of the case involved in the appeal until the court of appeals issues its mandate.	The Court cited this principle in analyzing whether it retained jurisdiction, and distinguished the present fee request as not yet a final sanctions judgment subject to appeal.
United States v. Pollard, 290 F.Supp.2d 153 (D.D.C. 2003)	Treatment of post-judgment motions: motion for reconsideration is treated as Rule 59(e) if filed within 10 days and as Rule 60(b) if filed thereafter.	The Court used Pollard to support treating Plaintiffs' tardy filing as a Rule 60(b) motion because it was filed more than ten days after the challenged order.
United States v. Clark, 984 F.2d 31 (2d Cir. 1993)	Quoted as authority for the timing distinction between Rule 59(e) and Rule 60(b) motions.	Quoted within the Court's discussion of procedural posture to justify treating the motion as Rule 60(b).
Hoai v. Vo, 935 F.2d 308 (D.C. Cir. 1991)	When a Rule 60(b) motion and an appeal are pending, the district court may consider the 60(b) motion and may deny relief; if the district court intends to grant relief, the appellant can seek remand from the appellate court.	The Court cited Hoai to explain that Plaintiffs' Notice of Appeal did not preclude the district court from considering (and denying) the Rule 60(b) motion.
Greater Boston Television Corp. v. FCC, 463 F.2d 268 (D.C. Cir. 1971)	Similar principle allowing district court consideration of Rule 60(b) motions during appeal.	The Court cited this case to support its authority to consider and deny Rule 60(b) relief while an appeal is pending.
Piper v. United States Department of Justice, 374 F.Supp.2d 73 (D.D.C. 2005)	When an order from which relief is sought is the subject of a pending appeal, the district court may deny but not grant a Rule 60(b) motion.	The Court relied on Piper to explain limits on district court relief while an appeal is pending and to justify denying reconsideration.
Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th Cir.)	Rule 60(b) preserves balance between finality of judgments and the court's conscience; quotations regarding intended purpose of Rule 60(b).	Quoted to explain the policy underlying Rule 60(b) and that relief should be sparingly granted.
Compton v. Alton Steamship Co., 608 F.2d 96 (4th Cir. 1979)	Accord citation supporting the quoted Rule 60(b) principles.	Used as part of the string citation reinforcing the Rule 60(b) standard.
Boughner v. Secretary of HEW, 572 F.2d 976 (3d Cir. 1978)	Accord citation supporting Rule 60(b) principles.	Included in the Court's string citation addressing the intended scope of Rule 60(b).
Clarke v. Burkle, 570 F.2d 824 (8th Cir. 1978)	Accord citation supporting Rule 60(b) principles.	Included in the multi-jurisdictional support for Rule 60(b) standards.
Ackermann v. United States, 340 U.S. 193 (1950)	Rule 60(b)(6) relief is extraordinary and "There must be an end to litigation someday..."	Quoted to emphasize that Rule 60(b)(6) relief is to be granted only in extraordinary circumstances and not to relieve parties from deliberate choices.
Marshall v. Board of Educ., 575 F.2d 417 (3d Cir. 1978)	Illustrative authority that Rule 60(b) cannot rescue litigants from strategic choices that later prove improvident.	Relied upon to support the Court's conclusion that Plaintiffs could not use Rule 60(b) to undo prior strategic choices.
Federal's, Inc. v. Edmonton Investment Co., 555 F.2d 577 (6th Cir. 1977)	Support for the proposition that Rule 60(b) shouldn't relieve litigants from deliberate choices.	Cited as part of the Court's discussion limiting Rule 60(b) relief.
Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972)	Support for limiting Rule 60(b) relief where litigants had opportunity to present facts earlier.	Included in the Court's exposition of Rule 60(b) principles.
Good Luck Nursing Horns, Inc. v. Harris, 636 F.2d 572 (D.C. Cir. 1980)	Rule 60(b) "gives the district judge broad latitude" but "should be only sparingly used"; extraordinary circumstances may exist where previously undisclosed facts are central.	The Court quoted Good Luck Nursing Horns/Home to describe the limited and sparing application of Rule 60(b) and to define "extraordinary circumstances."
Richardson v. Nat'l R.R. Passenger Corp., 49 F.3d 760 (D.C. Cir. 1995)	Rule 60(b) gives the district judge broad latitude to relieve a party from a judgment.	The Court cited Richardson to confirm the district court's broad discretion under Rule 60(b), tempered by sparing use.
Willy v. Coastal Corp., 503 U.S. 131 (1992)	Sanctions pursuant to Rule 11 are "collateral to the merits of the case."	The Court relied on Willy to hold that lack of personal jurisdiction over a named defendant does not preclude awarding Rule 11 sanctions against counsel.
Smith v. Martin, Civ. A. No. 02-1624(GK), 2004 U.S. Dist LEXIS 28752 (D.D.C. Jan. 28, 2004)	Example of a district court granting Rule 11 sanctions where it lacked personal jurisdiction over the defendant.	The Court cited Smith v. Martin as additional support that personal jurisdiction over a defendant is not required to sanction counsel under Rule 11.

Court's Reasoning and Analysis

The Court's analysis proceeded in several discrete steps, grounded in procedural doctrine and Rule 60(b) standards as stated in the cited authority.

Jurisdiction after Notice of Appeal: The Court began by addressing Concentra's contention that Plaintiffs' Notice of Appeal deprived the district court of jurisdiction to consider Plaintiffs' post-judgment filing. The Court acknowledged the general rule that a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over aspects of the case involved in the appeal (Griggs). But the Court explained two reasons it retained authority here:
- Concentra's specific request for fees and costs was not yet a final, appealable sanctions judgment because the Court had not entered a precise monetary award. Thus the fee request was not yet "involved in" the appeal and the district court could consider it.
- Plaintiffs' January 30 filing, which was more than ten days after the December 31 Order, must be addressed as a Rule 60(b) motion. While a district court may not grant Rule 60(b) relief while the case is on appeal, it may consider and deny such relief (Hoai; Greater Boston Television; Piper). Therefore, Plaintiffs' notice of appeal did not preclude the Court from considering and denying their Rule 60(b) motion.
Proper procedural treatment of Plaintiffs' filing: Relying on Pollard and Clark, the Court concluded that because Plaintiffs filed their post-order pleading more than ten days after the challenged Order, it was properly treated as a Rule 60(b) motion rather than a Rule 59(e) motion. The Court then set out the governing Rule 60(b) principles, quoting and citing a string of authorities (Bankers Mortgage; Good Luck Nursing Horns/Home; Ackermann; others) to explain that Rule 60(b) relief is an extraordinary remedy, meant to be used sparingly and not to rescue litigants from deliberate strategic choices.
Merits of Plaintiffs' Rule 60(b) contentions: The Court found Plaintiffs' attempt to raise belated arguments regarding Concentra's sanctions to be procedurally improper (because they were not raised previously) and substantively lacking. Plaintiffs argued that dismissal was the only permissible sanction for failure to serve Concentra; the Court concluded that Plaintiffs had ample opportunity to make that argument earlier and that Rule 60(b) could not be used to undo poor strategic choices (citing Good Luck Nursing Home and related authorities). Because Plaintiffs did not demonstrate "extraordinary circumstances" to warrant relief, the Court denied the motion for reconsideration.
Rule 11 sanctions and personal jurisdiction: Plaintiffs contended the Court could not award sanctions to Concentra because the Court lacked personal jurisdiction over Concentra. The Court rejected this argument, relying on Willy v. Coastal Corp. and Smith v. Martin to explain that Rule 11 sanctions are collateral to the merits and that the absence of personal jurisdiction over a defendant does not prevent the court from sanctioning counsel. The Court emphasized that it has jurisdiction over Plaintiffs' counsel and thus could impose sanctions on counsel even if it lacked personal jurisdiction over Concentra.
Specific challenges to Concentra's fee request: Plaintiffs advanced two principal challenges to Concentra's affidavit of fees: (1) that Katherine Hoekman was not authorized to practice in D.C. and thus her billed time should be disallowed; and (2) that Concentra improperly billed time for pursuing dismissal grounds other than lack of service. The Court reviewed the record evidence submitted by Concentra showing compliance with D.C. Ct. App. R. 49 (Hoekman's Virginia admission, pending D.C. application, and supervision by a D.C. bar member) and concluded Plaintiffs' contention regarding unauthorized practice of law was erroneous and provided no basis to reduce fees. The Court also found Plaintiffs' argument that Concentra should have limited its work to raising lack of service to be specious: Plaintiffs had filed the meritless action and had knowingly filed a false Return of Service, and Concentra could not have foreseen that the Court would limit dismissal to lack of service; it was reasonable and necessary for Concentra to include and brief other grounds for dismissal.
Appropriate disposition as to fee determination: Although the Court rejected Plaintiffs' arguments on the merits and denied reconsideration, it agreed that Concentra's fee request nonetheless should be reviewed for reasonableness and necessity. Consequently, the Court denied-in-part Plaintiffs' motion and referred the matter of the proper sanctions award (including Plaintiffs' request for oral argument on the fee issues) to Magistrate Judge Facciola under Local Civil Rule 72.2(a).

Holding and Implications

Holding: The Court DENY-IN-PART Plaintiffs' motion to strike and motion for oral hearing (Docket No. 88) to the extent that those filings sought reconsideration under Rule 60(b) of the Court's grant of sanctions and contested Concentra's entitlement to recover fees for work performed by Ms. Hoekman or for work related to dismissal grounds other than Rule 12(b)(5).

Direct implications and consequences:

The Court rejected Plaintiffs' procedural and substantive attacks on the sanctions award and concluded Plaintiffs did not show extraordinary circumstances warranting Rule 60(b) relief.
The Court ruled that the filing of a notice of appeal did not bar it from considering Concentra's fees and costs because no specific sanctions judgment had been entered and because the Court may consider and deny a Rule 60(b) motion while an appeal is pending.
The Court found Concentra's evidence sufficient to permit recovery for work by Katherine Hoekman under D.C. Ct. App. R. 49 and rejected Plaintiffs' challenge to fees related to dismissal grounds other than Rule 12(b)(5).
The Court referred Concentra's fee application to Magistrate Judge John M. Facciola for a determination of the proper sanctions award (reasonableness and necessity), pursuant to Local Civil Rule 72.2(a), and granted Plaintiffs' request for further consideration of fee reasonableness to be decided by the magistrate.

Broader legal significance: The opinion applies and synthesizes existing Supreme Court and D.C. Circuit authority on (a) the effect of a notice of appeal on district court jurisdiction, (b) the procedural characterization and limits of Rule 60(b) relief, and (c) the collateral nature of Rule 11 sanctions. The opinion does not announce any new legal rule; its effect is to resolve the parties' pending procedural and fee disputes in this case and to refer the specific fee determination to the magistrate for detailed review.

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Edna McMANUS, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

MEMORANDUM OPINION

COLLEEN KOTELLY, District Judge

Plaintiffs, sixteen current and former employees of various District of Columbia government agencies, brought this action involving an amalgam of claims against fourteen Defendants: the District of Columbia, five labor unions, five health care management companies, two insurance companies, and one physician. On December 31, 2007, this Court issued a Memorandum Opinion and accompanying Order dismissing Plaintiffs' action in its entirety on a variety of grounds. In particular, the Court dismissed Plaintiffs' claims against Defendant Concentra, Inc. ("Concentra") pursuant to Federal Rule of Civil Procedure 12(b)(5) because Plaintiffs had only attempted to serve Concentra by delivering a copy of the Summons and Complaint to a company not authorized to accept service for Concentra. See McManus v. District of Columbia, 530 F.Supp.2d 46, 67-68 (D.D.C. 2007). The Court also dismissed Plaintiffs' claims against all Defendants, for various reasons, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(5). Finally, the Court considered and granted Concentra's Motion for Sanctions, finding that Plaintiffs' counsel was on notice that Concentra was not validly served with process in this action, but nevertheless knowingly filed — and failed to correct — a false Return of Service with the Court indicating that Concentra had been individually served in this action. Id. at 83-84.

The Court assumes familiarity with its 56-page December 31, 2007 Memorandum Opinion, which thoroughly discusses the various deficiencies of Plaintiffs' Complaint. See generally Mem. Op. The Court will not repeat the majority of its findings in that respect herein, but expressly incorporates that Memorandum Opinion and makes it a part of this opinion.

The Order accompanying the Court's December 31, 2007 Memorandum Opinion directed counsel for Concentra to file with the Court, on or before January 16, 2008, an affidavit setting forth their request for reasonable attorneys' fees and expenses, supported by appropriate documentation. See Docket No. [84]. The Order further provided that Plaintiffs' counsel could respond to Concentra's request for fees and costs on or before January 30, 2008. Id. Concentra filed its affidavit of fees and costs, as ordered, on January 16, 2008. See Docket No. [86]. On January 30, 2008, Plaintiffs filed a Notice of Appeal of this Court's grant of sanctions. See Docket No. [87]. Also on January 30, 2008, Plaintiffs filed a response to Concentra's affidavit, labeled as a motion to strike Concentra's motion for sanctions and a motion for oral hearing. Concentra filed an Opposition to that filing on February 13, 2008, arguing that this Court lacks jurisdiction to entertain Plaintiffs' motion because it was filed after Plaintiffs filed their Notice of Appeal of the Court's sanctions award, and that if the Court considers Plaintiffs' motion it should be denied on the merits. Plaintiffs have not filed a reply in support of their motion.

That Notice of Appeal appears to have been entered in error, and refiled on February 6, 2008. See Docket Nos. [87], [89], and NOTICE OF CORRECTED DOCKET ENTRY, dated January 31, 2008.

The Court has thoroughly considered Concentra's affidavit, Plaintiffs' so-called motion to strike, and Concentra's Opposition, as well as the relevant legal authority. The Court concludes that Plaintiffs' motion to strike is properly considered as a motion for reconsideration — pursuant to Federal Rule of Civil Procedure 60(b) — of the Court's December 31, 2007 Order granting Concentra sanctions and shall DENY-IN-PART Plaintiffs' motion to the extent it seeks reconsideration. The Court also rejects Plaintiffs' arguments that Concentra should not be able to recover for time expended by Attorney Katherine Hoekman or for fees incurred in connection with Concentra's motion for dismissal on grounds other than Rule 12(b)(5). Nevertheless, the Court agrees that Concentra's request should be reviewed for reasonableness and necessity, and shall therefore refer Plaintiffs' request for an oral hearing and general arguments in that vein to Magistrate Judge John M. Facciola for a determination of the proper sanctions award, pursuant to Local Civil Rule 72.2(a).

I: LEGAL STANDARDS

At the outset, the Court addresses Concentra's argument that Plaintiffs' filing of a Notice of Appeal deprives this Court of jurisdiction to entertain Plaintiffs' motion to strike Concentra's motion for sanctions and for an oral hearing. First, although Plaintiffs have purported to file a motion to strike Concentra's motion for sanctions, that effort is clearly misplaced because the Court's December 31, 2007 Memorandum Opinion and Order resolved Concentra's motion for sanctions, such that it can no longer be stricken. In reality, then, Plaintiffs' motion contains two separate aspects: a motion for reconsideration of the Court's grant of sanctions, and a challenge to Concentra's request for fees and costs.

Concentra is correct that the filing of a notice of appeal generally "confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). The district court does not regain jurisdiction over the aspects of the case involved in the appeal until the court of appeals issues its mandate. Johnson v. Bechtel Assocs. Prof Corp., 801 F.2d 412, 415 (D.C. Cir. 1986) (per curiam). However, that general rule does not preclude the Court from addressing Concentra's request for fees and costs, for two reasons.

First, to the extent that Plaintiffs' motion challenges Concentra's request for fees and costs, that is not an issue or aspect of the case directly involved in Plaintiffs' appeal, nor could it be because this Court has not yet entered a specific judgment of sanctions. The Court's December 31, 2007 Memorandum Opinion and Order only addressed Concentra's motion for sanctions as a legal issue and did not make a factual finding as to the precise sanctions award to which Concentra is entitled. As such, it is premature for Plaintiffs to attempt to appeal Concentra's specific request; once the Court enters a judgment of a specific sanctions award, the issue will be fully ripe for appeal. The Court therefore continues to have jurisdiction to consider Concentra's request for fees and costs.

Second, to the extent that Plaintiffs move for reconsideration of the Court's December 31, 2007 Memorandum Opinion and Order, their motion must be addressed pursuant to Rule 60(b) because it was filed more than ten days after the Memorandum Opinion and Order issued. See United States v. Pollard, 290 F.Supp.2d 153, 156 (D.D.C. 2003) (generally, a motion for reconsideration is treated as a "[Fed.R.Civ.P.] 59(e) motion if filed within 10 days of entry of the challenged order and as a Rule 60(b) motion if filed thereafter.") (quoting United States v. Clark, 984 F.2d 31, 32 (2d Cir. 1993)). While the district court does not have jurisdiction to grant relief from a judgment pursuant to Rule 60(b) while a case is pending on appeal, a district court may consider a motion for such relief and deny such relief without remand from the appellate court. 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."); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 280 n. 22 (D.C. Cir. 1971) (same); Piper v. United States Department of Justice, 374 F.Supp.2d 73, 77 (D.D.C. 2005) ("[W]hen, as in this case, the order or judgment from which a party seeks relief is also the subject of a pending appeal . . . the district court may outright deny, but cannot outright grant, a Rule 60(b) motion."). Plaintiffs' Notice of Appeal therefore does not preclude the Court from considering their motion for reconsideration.

Under Rule 60(b), "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . any [] reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b). The Rule

was intended to preserve "the delicate balance between the sanctity of final judgments . . . and the incessant command of the court's conscience that justice be done in light of all the facts." Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 [] (1970) (emphasis in original); accord, Compton v. Alton Steamship Co., 608 F.2d 96, 102 (4th Cir. 1979); Boughner v. Secretary of HEW, 572 F.2d 976, 977 (3d Cir. 1978); Clarke v. Burkle, 570 F.2d 824, 830 (8th Cir. 1978). But as the Supreme Court has said, "There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from." Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 L.Ed. 207 [] (1950). Rule 60(b) cannot, therefore, be employed simply to rescue a litigant from strategic choices that later turn out to be improvident. See Marshall v. Board of Educ., 575 F.2d 417, 424 (3d Cir. 1978); Federal's, Inc. v. Edmonton Investment Co., 555 F.2d 577, 583 (6th Cir. 1977); Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 651-52 (1st Cir. 1972).

Good Luck Nursing Horns, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980). Rule 60(b) "gives the district judge broad latitude to relieve a party from a judgment," Richardson v. Nat'l R.R. Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995), but "should be only sparingly used," Good Luck Nursing Home, 636 F.2d at 577, and relief under Rule 60(b)(6) is granted in only "extraordinary circumstances," Ackermann, 340 U.S. at 199, 71 S.Ct. 209. Such extraordinary circumstances may be present "[w]hen a party presents a previously undisclosed fact so central to the litigation that it shows the initial judgment to have been manifestly unjust . . . even though the original failure to present the information was inexcusable." Good Luck Nursing Home, 636 F.2d at 577. However, a party that "has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has been handed down." Id.

II: DISCUSSION

Plaintiffs' motion attempts to raise issues regarding Concentra's motion for sanctions that Plaintiffs did not raise in their opposition to that motion. As the Court's December 31, 2007 Memorandum Opinion noted, "Plaintiffs' Opposition d[id] not argue that Concentra was validly served, and thus implicitly concede[d] that the Return of Service filed with the Court [was] inaccurate. Moreover, Plaintiffs' Opposition to Concentra's motion for sanctions d[id] not challenge Concentra's argument regarding the accuracy of the Return of Service filed with the Court." Mem. Op. at 55. Plaintiffs now attempt to argue that the Court's dismissal of their action was the only available sanction for their failure to properly serve Concentra and their counsel's filing of a false Return of Service. Although they might have, Plaintiffs did not make this argument in response to Concentra's motion for sanctions, and their belated attempt to challenge the Court's grant of sanctions on this ground is therefore improper. Rule 60(b) may not be relied upon to rescue Plaintiffs from their poor strategic choices. Good Luck Nursing Home, 636 F.2d at 577.

In addition to being improper, Plaintiffs' arguments lack merit, and certainly do not demonstrate the "extraordinary circumstances" that warrant relief under Rule 60(b). Specifically, Plaintiffs contend that this Court could not have validly awarded sanctions to Concentra because the Court lacked jurisdiction over Concentra since it was never validly served. However, because sanctions pursuant to Federal Rule of Civil Procedure 11 are "collateral to the merits of the case," Willy v. Coastal Corp., 503 U.S. 131, 137-38, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992), the Court's lack of personal jurisdiction over Concentra does not preclude the Court from awarding Concentra sanctions. See also Smith v. Martin, Civ. A. No. 02-1624(GK), 2004 U.S. Dist LEXIS 28752, at *13 (D.D.C. Jan. 28, 2004) (granting Rule 11 sanctions where district court lacked personal jurisdiction over defendant). Significantly, this Court has jurisdiction over Plaintiffs' counsel and has the discretion, pursuant to Rule 11, to direct him to pay sanctions, even in the absence of personal jurisdiction over Concentra. The Court therefore rejects Plaintiffs' motion insofar as it seeks reconsideration of the Courts' December 31, 2007 Memorandum Opinion and Order pursuant to Rule 60(b).

The Court turns, then, to Plaintiffs' arguments regarding Concentra's specific requests for fees and costs, made in the form of the January 16, 2008 Affidavit of Alison Nadine Davis, submitted in response to the Court's December 31, 2007 Order. See Docket No. [86]. As Concentra correctly notes, Plaintiffs do not challenge Concentra's counsel's hourly rates or Concentra's request for expenses. Concentra Opp'n at 6. Rather, Plaintiffs principally argue that: (1) Concentra should not be able to collect for time billed by Katherine Hoekman, an associate who worked on Concentra's motion to dismiss this case, because she is not yet admitted to practice law in the District of Columbia; and (2) that Concentra's counsel artificially inflated their fees by moving to dismiss this case on grounds other than Plaintiffs' failure to properly serve Concentra. Each of these arguments is unavailing.

First, as Concentra explains, Rule 49 of the Rules of the District of Columbia Court of Appeals allows an attorney who is a member in good standing of another bar to practice in the District of Columbia for a period of 360 days or less, so long as that attorney has submitted an application for admission to the District of Columbia Bar within 90 days of commencing practice in the District of Columbia, and practices under the direct supervision of a member of the District of Columbia bar. See D.C. Ct.App. R. 49, 49(c)(8) (revised effective Mar. 20, 2008); Concentra Opp'n at 7. Concentra's Opposition and the accompanying Affidavit of Katherine Hoekman explain that Ms. Hoekman was admitted to practice in the Commonwealth of Virginia in 2007, less than 90 days before Concentra's counsel entered an appearance in this matter; that less than 360 days have elapsed since she became a member of the Commonwealth of Virginia Bar; that her application for admission to the District of Columbia Bar is pending; and that her involvement in this case has been under the direct supervision of Alison Davis, a member of the District of Columbia Bar. See id. at 7-8; Attach. A (Hoekman Aff.); see also Davis Aff., Docket No. [86]. As such, Plaintiffs' argument that Ms. Hoekman was engaged in the unauthorized practice of law is entirely erroneous, and provides no basis for adjusting Concentra's fee request.

Second, Plaintiffs groundlessly suggest that because Concentra was not validly served with process in this matter, it "should have filed a responsive pleading which raised the affirmative defense of failure of service, and then filed a motion for summary judgment based upon that affirmative defense." Pls' Mot. at 4. According to Plaintiffs, Concentra's fee request is improperly inflated, because there was no need for Concentra's counsel to review the motions to dismiss filed by other Defendants in this action or to move for dismissal on any grounds other than lack of service. See generally id.

Plaintiffs' argument is specious. Plaintiffs are the ones who filed this meritless action and insisted on proceeding against Concentra, knowing that Concentra had not been validly served with process. See Mem. Op. at 25-26; 54-56. As Concentra correctly points out, until Concentra filed its motion to dismiss, the Court was unaware that Concentra had not been validly served, because Plaintiffs' counsel knowingly filed — and did not correct — a false Return of Service. Id.; Concentra Opp'n at 8-9. Indeed, if Concentra had failed to answer or move to dismiss Plaintiffs' original and amended complaints, the Court might have entered a default judgment pursuant to Federal Rule of Civil Procedure 55, on its own initiative or at Plaintiffs' request. Id. Moreover, although the Court accepted Concentra's argument for dismissal pursuant to Rule 12(b)(5) for lack of service, Concentra had no means of guaranteeing or foreseeing that outcome, and thus properly included all of its other grounds for dismissal (which the Court likewise accepted) in its motions to dismiss. In short, Plaintiffs offer no support — legal, factual, or logical — for their suggestion that Concentra's counsel improperly inflated their fees by moving for dismissal on multiple grounds. To the contrary, Concentra's obligation to respond to the allegations in Plaintiffs' complaints through its motions to dismiss, and the attorneys' fees it incurred in doing so, flow directly from Plaintiffs' failure to properly serve Concentra and filing of a false Return of Service.

III: CONCLUSION

For the foregoing reasons, the Court shall DENY-IN-PART Plaintiffs' [88] motion to strike and motion for oral hearing, insofar as that motion seeks reconsideration of the Court's grant of sanctions and argues that Concentra may not recover fees for work done by Ms. Hoekman or incurred in connection with its motion for dismissal on grounds other than Rule 12(b)(5). Nevertheless, the Court agrees that Concentra's request for fees and costs should be reviewed for reasonableness and necessity, and shall therefore refer Plaintiffs' request for an oral hearing and general arguments in that vein to Magistrate Judge Facciola for a determination of the proper sanctions award, pursuant to Local Civil Rule 72.2(a). An appropriate Order accompanies this Memorandum Opinion.