UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

KATHLEEN BREEN, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 05-0654 (PLF)

)

ELAINE L. CHAO, Secretary of )

Transportation, Department of )

Transportation, et al., )

)

Defendants. )

____________________________________)

OPINION

This matter comes before the Court on the motion [Dkt. No. 317] of dismissed 

plaintiffs for reconsideration of the Court’s orders of dismissal. For the following reasons, the 

Court will grant the dismissed plaintiffs’ motion and reinstate their claims.1

 1 In connection with the pending motion, the Court has reviewed the following 

filings, including the exhibits attached thereto: Class Action Complaint [Dkt. No. 1] (“Compl.”); 

First Amended Class Action Complaint [Dkt. No. 3] (“Am. Compl.”); Plaintiffs’ Motion for 

Class Certification (Corrected) [Dkt. No. 4] (“Mot. for Certif.”); Gebhardt & Associates’ Motion 

to Withdraw as Counsel for 714 Plaintiffs [Dkt. No. 71] (“Mot. to Withdraw”), Defendants’ 

Opposition [Dkt. No. 77] (“Opp’n to Mot. to Withdraw”), and Gebhardt & Associates’ Reply 

[Dkt. No. 83] (“Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate”); Defendants’ Motion 

to Bifurcate Discovery and Trial on Liability and Damages [Dkt. No. 78] (“Mot. to Bifurcate”), 

Plaintiffs’ Opposition [Dkt. No. 83] (“Reply to Mot. to Withdraw & Opp’n to Mot. to 

Bifurcate”), and Defendants’ Reply [Dkt. No. 85] (“Reply to Mot. to Bifurcate”); Defendants’ 

Motion to Compel Plaintiffs’ Responses to Defendants’ First Set of Interrogatories and Requests 

for Production of Documents to Plaintiffs [Dkt. No. 90] (“Mot. to Compel”) and Defendants’ 

Notice of Supplement [Dkt. No. 91] (“Suppl. to Mot. to Compel”); Plaintiffs’ Consent Motion to 

Defer Consideration of Defendants’ Motion to Compel [Dkt. No. 99] (“Mot. to Defer”); Plaintiff 

Donna Dodson’s Motion for Reconsideration of the Court’s May 30, 2008, Order [Dkt. No. 156] 

(“Dodson Mot.”), Defendants’ Opposition [Dkt. No. 159] (“Opp’n to Dodson Mot.”), and 

Dodson’s Reply [Dkt. No. 164] (“Reply to Dodson Mot.”); Plaintiff Steven K. Patterson’s 

Motion for Reconsideration of the Court’s Order of May 30, 2008 [Dkt. No. 165] (“Patterson 
2

In their motion for reconsideration, the dismissed plaintiffs ask the Court to 

review, on the basis of new evidence, its prior orders dismissing a total of 663 plaintiffs from this 

case.

2

 The Court’s orders, issued in 2008 and 2009, dismissed the 663 plaintiffs for their failures 

to respond to defendants’ discovery requests and to the Court’s subsequent show cause orders. 

As new evidence, the dismissed plaintiffs proffer correspondence sent by their prior counsel –

Gebhardt & Associates, LLP – conditioning the firm’s continued representation on satisfaction 

of a new and substantial demand for payment by each individual plaintiff.

3 In the letters, the 

 

Mot.”), Defendants’ Opposition [Dkt. No. 166] (“Opp’n to Patterson Mot.”), Patterson’s Reply 

[Dkt. No. 175] (“Reply to Patterson Mot.”), and Patterson’s Supplement [Dkt. No. 182] (“Suppl. 

to Patterson Mot.”); Plaintiff Kenneth D. Thomas’ Motion for Reconsideration of the Court’s 

Order of May 30, 2008 [Dkt. No. 172] (“Thomas Mot.”), Defendants’ Opposition [Dkt. No. 177] 

(“Opp’n to Thomas Mot.”), and Thomas’ Reply [Dkt. No. 185] (“Reply to Thomas Mot.”); 

Plaintiff Frank Matkins’ Motion for Modification of the Court’s May 30, 2008, Order [Dkt. No. 

203] (“Matkins Mot.”), Matkins’ Reply to Defendants’ Opposition [Dkt. No. 204] (“First Reply 

to Matkins Mot.”), Defendants’ Opposition [Dkt. No. 207] (“Opp’n to Matkins Mot.”), and 

Matkins’ Reply to Defendants’ Opposition of October 24, 2008 [Dkt. No. 212] (“Second Reply 

to Matkins Mot.”); Plaintiff Janice I. Teed-Wilson’s Motion for Modification of the Court’s May 

30, 2008, Order [Dkt. No. 213] (“Teed-Wilson Mot.”) and Defendants’ Opposition [Dkt. No. 

216] (“Opp’n to Teed-Wilson Mot.”); Plaintiff Henry Ontiveros’ Motion for Modification of the 

Court’s May 30, 2008, Order [Dkt. No. 234] (“Ontiveros Mot.”) and Defendants’ Opposition 

[Dkt. No. 241] (“Opp’n to Ontiveros Mot.”); Defendants’ Motion to Dismiss James S. Hill [Dkt. 

No. 257] (“Mot. to Dismiss Hill”); Transcript of Status Hearing (Feb. 7, 2007) [Dkt. No. 286] 

(“Feb. 7, 2007 Hr’g Tr.”); Transcript of Status Hearing (Sept. 14, 2007) [Dkt. No. 311] (“Sept. 

14, 2007 Hr’g Tr.”); Plaintiffs’ Notice of Filing Regarding Individuals Who Retained Plaintiffs’ 

Counsel [Dkt. No. 313] (“Notice of Individuals Who Retained Pls.’ Counsel”); Dismissed 

Plaintiffs’ Motion for Reconsideration of Dismissal [Dkt. No. 317] (“Mot. for Recons.”), 

Defendants’ Opposition [Dkt. No. 330] (“Opp’n to Mot. for Recons.”), and Dismissed Plaintiffs’ 

Reply [Dkt. No. 335] (“Reply to Mot. for Recons.”); Plaintiffs’ Third Status Report [Dkt. No. 

337] (“Third Status Report”); and Plaintiffs’ Request for Status Conference [Dkt. No. 348] 

(“Req. for Status Conf.”). 

2 The Court notes that at the time the instant motion for reconsideration was filed, 

only 226 of the 663 dismissed plaintiffs had retained counsel and thus moved for 

reconsideration. See Notice of Individuals Who Retained Pls.’ Counsel at 1. 

3 In total, the motion for reconsideration attaches four documents as new evidence: 

Exhibit A is a letter dated February 16, 2007, from Gebhardt & Associates conditioning the 

firm’s continued representation on payment of $10,000 by each individual client; Exhibit B is a 
3

dismissed plaintiffs argue, the firm used misleading language to suggest to its clients that they 

were unrepresented, despite the fact that Gebhardt & Associates remained counsel of record. See

Mot. for Recons. at 4-6, 8-9, 10-11. The dismissed plaintiffs also argue that the letters 

emphasized, in various implicit ways, that plaintiffs would have little chance of prevailing on 

their claims and recovering damages without counsel. See id. at 5 n.7, 8.

The dismissed plaintiffs assert that these letters, presented for the first time in 

their entirety, amount to new evidence explaining why they failed to respond to defendants’ 

requests for discovery and the Court’s show cause orders. See Mot. for Recons. at 10-11, 15-17. 

The dismissed plaintiffs argue that these communications – showing that Gebhardt & Associates

denied its clients assistance in complying with pending discovery requests, discouraged them 

from participating in the case unless they could pay the firm $10,000 each, and inaccurately 

suggested that the firm did not already represent them – demonstrate that their failures to respond 

were neither willful nor egregious. See id. at 2, 15-17. Rather, they argue that their failures to 

respond resulted from the misleading and confusing nature of the letters. See id. In addition, the

dismissed plaintiffs proffer the declarations of fourteen dismissed plaintiffs, attached to the 

motion for reconsideration as Exhibit E, to affirm that this confusing and misleading 

correspondence did in fact cause the declarants to misunderstand their rights, obligations, and 

options for proceeding in the case. 

 

letter dated April 12, 2007, from Gebhardt & Associates to those clients who made payments 

pursuant to the February 16, 2007, letter; Exhibit C is a letter dated April 17, 2007, from 

Gebhardt & Associates to those clients who did not make payments pursuant to the February 16, 

2007, letter; and Exhibit D is an undated “Frequently Asked Questions” handout. Although the 

dismissed plaintiffs explain that Exhibit D was also prepared by Gebhardt & Associates, it is not 

clear when or to whom it may have been sent. See Mot. for Recons. at 6 n.8. Accordingly, the 

Court has limited its analysis to the correspondence attached as Exhibits A through C. 
4

In their opposition, defendants challenge whether the proffered correspondence 

amounts to new evidence. Defendants acknowledge that the letters were not previously provided 

to the Court in full. They argue, however, that the communications between Gebhardt & 

Associates and the dismissed plaintiffs “were described in sum and substance” in the parties’ 

prior briefings and by the Court itself. See Opp’n to Mot. for Recons. at 14. Defendants 

maintain that the dismissed plaintiffs failed to use reasonable diligence in prosecuting their 

claims and have not adequately explained why they did not communicate with Gebhardt & 

Associates or respond to the Court’s show cause orders. See id. at 15-20. To the contrary,

defendants note that “the Court was clear about the consequences of plaintiffs’ continued nonresponsiveness in its show cause orders” and “even considered – and in appropriate cases, 

granted – reconsideration motions a year later.” See id. at 24. And although defendants concede 

that the dismissed plaintiffs may have some dispute with their prior counsel, they assert that such 

issues are more appropriately resolved in a separate attorney malpractice action. See id. at 21-

22. This is especially so, defendants explain, because permitting the dismissed plaintiffs to 

rejoin the litigation would unfairly prejudice defendants. See id. at 22-24. 

In their reply, the dismissed plaintiffs reemphasize why the proffered 

communications should be considered new evidence warranting reconsideration. See Reply to 

Mot. for Recons. at 1. They also characterize the prejudice alleged by defendants as both 

minimal and premature – the dismissed plaintiffs’ discovery responses regarding liability would 

have been duplicative, while damages discovery will need to be supplemented for all plaintiffs in 

any event, and the Court may address defendants’ other concerns without resorting to the 

extreme sanction of dismissal. See id. at 5-7, 11-12. This is especially so, the dismissed 

plaintiffs argue, because their conduct was neither willful nor egregious and has not unduly
5

burdened the Court or delayed the litigation. See id. at 2, 8-11. The dismissed plaintiffs 

conclude by proposing more appropriate alternatives to dismissal. See id. at 11-12. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The Court recently recounted the factual and procedural history of this case in its 

opinion granting in part and denying in part defendants’ motion for summary judgment. See

Breen v. Chao, 253 F. Supp. 3d 244, 247-53 (D.D.C. 2017). The Court thus recites here only

those facts relevant to the instant motion for reconsideration. 

In seeking to challenge defendants’ reduction-in-force, the National Association 

of Air Traffic Specialists retained Gebhardt & Associates in a letter dated January 29, 2005. See

Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate Ex. 2. In the letter, the union stated 

that it “would like to engage [the] firm to represent [union] members in an age discrimination 

claim against the Federal Aviation Administration.” Id. at 1. The letter recited the terms of the 

retention agreement: “Our understanding of the agreement is your firm will charge us $250.00 

per hour for services and if there is any monetary award 10 percent of the final award. We will 

send your firm a $10,000.00 retainer the week of January 31st to begin.” Id. 

On February 1, 2005, plaintiff Kathleen A. Breen sent her individual authorization 

letter to Gebhardt & Associates. See Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate 

Ex. 3. Ms. Breen, a former president of the National Association of Air Traffic Specialists, 

explained in her declaration that this letter was “substantially similar” to those sent by each of 

the other union members seeking to be plaintiffs in the case. See Reply to Mot. to Withdraw & 

Opp’n to Mot. to Bifurcate Ex. 1 at 1-3. Ms. Breen’s authorization letter stated: “I am writing to 

retain you and your law firm, Gebhardt & Associates, LLP, to file an age discrimination claim on 

my behalf, as part of the age discrimination action organized by the National Association of Air 
6

Traffic Specialists.” See Reply to Mot. to Withdraw & Opp’n to Mot. to Bifurcate Ex. 3 at 1. 

The letter provided relevant personal details and contact information, but did not mention 

payment or any other requirements for representation. Id. 

Thereafter, Gebhardt & Associates filed a complaint in this Court on March 31, 

2005, amended on June 24, 2005, on behalf of the 834 individuals who had retained the firm 

with the assistance of the union. See Compl.; Am. Compl. Gebhardt & Associates then filed a 

motion for class certification on June 29, 2005. See Mot. for Certif. The union paid Gebhardt & 

Associates in accordance with their agreement through February 3, 2006. See Reply to Mot. to 

Withdraw & Opp’n to Mot. to Bifurcate Ex. 1. at 3. Following the reduction-in-force, however,

the union no longer received dues from those affected – now former members of the union – and

ceased payments to Gebhardt & Associates. See id. at 3-4. 

On February 7, 2007, Judge Richard W. Roberts, to whom this case was then 

assigned, held a status conference at which he denied the motion to certify the class without 

prejudice and set a schedule for discovery. See Feb. 7, 2007 Hr’g Tr. at 8-10. Gebhardt & 

Associates then sent a letter to each of the individual plaintiffs dated February 16, 2007, the first 

of the three letters attached to plaintiffs’ motion for reconsideration. See Mot. for Recons. Ex. 

A. This letter advised plaintiffs that they had a decision to make about their continued 

involvement in the case and had three options for proceeding in the litigation: “(1) Continue as 

an active Plaintiff with our law firm’s representation. (2) Stay in the case without representation 

(‘pro se’). (3) Request dismissal from the case.” See id. at 2. In order to remain represented by 

Gebhardt & Associates, the letter made clear that individual plaintiffs would have to make 

significant financial payments:
7

Your case is large and complex, and it will be time-intensive and 

hence necessarily expensive. . . . Your former union at the FAA 

initially financed this case, but the union is no longer in the 

picture. . . . [W]e have designed a payment structure assuming that 

we have approximately 100 paying clients who continue with our 

representation (we do not know the actual number at this time, and 

it may change depending on your interests). With 100 paying 

clients, your total individual cost will be $10,000 over the next two 

years. However, in order to assist you with the cost of litigation, 

we have decided to give you the option of making four payments 

in the first two years of your case. . . . Your payment of $2,500 by 

March 9, 2007, will constitute your agreement to also pay the next 

three semi-annual payments of $2,500 . . . . If you do not make 

your next promised payment, you will fall automatically into the 

pro se group and no longer be represented by our firm. 

See id. at 2-3. If plaintiffs would or could not commit to paying this substantial sum, the letter 

misleadingly explained: “The pro se individuals who stay in the case without our representation 

will get whatever (if anything) the FAA decides to give them when the case ends. If these 

individuals get relief, it is likely to be less than the remedies awarded to the represented 

Plaintiffs.” See id. at 2. The letter did not make clear that Gebhardt & Associates already 

represented each of the individual plaintiffs and, as a result, the firm had ongoing obligations 

toward its clients. Rather, the letter simply stated that if a client did not commit to the payment 

plan, Gebhardt & Associates would “inform the Court that you intend to proceed as an 

unrepresented pro se plaintiff.” See id. at 4. 

On March 16, 2007, defendants served their initial discovery requests on 

plaintiffs’ counsel. See Mot. to Compel Ex. 1. The discovery requests included four 

interrogatories and four requests for production of documents. The first interrogatory sought

current contact information, while the three other interrogatories pertained to damages. See id. at 

4-6. Defendants requested production of documents related to these four interrogatories. See id. 

at 6-7. 
8

On April 12, 2007, Gebhardt & Associates sent a letter to those clients who had 

paid or agreed to pay Gebhardt & Associates in accordance with the firm’s February 16, 2007,

letter. See Mot. for Recons. Ex. B. This letter informed recipients that 172 flight service 

controllers had paid or agreed to pay Gebhardt & Associates, requested that clients encourage 

others to do likewise, and provided the interrogatories and requests for production to be 

completed and returned to Gebhardt & Associates for compilation. See id. at 1. 

On April 17, 2007, Gebhardt & Associates sent a letter to those individuals who 

had not paid or agreed to pay Gebhardt & Associates in accordance with the February 16, 2007,

letter. See Mot. for Recons. Ex. C. From the outset, the letter implied that Gebhardt &

Associates did not in fact already represent the recipients. The letter was addressed “Dear 

Unrepresented Plaintiff,” and began: 

We are writing to you and all the plaintiffs in the Flight Service 

Controllers’ age discrimination case against the FAA who have not 

yet signed up for legal representation. This is to offer you one last 

chance to obtain representation in this large, complex federal 

district court lawsuit before the Court’s May 8, 2007 deadline. 

See id. at 1 (emphasis added). The letter also used confusing language that, when read one way, 

suggested that those without counsel were likely to be dismissed from the case for failure to 

prosecute. See id. (“If you do not have legal representation, you will be obligated to represent 

yourself, and if you don’t, you run the substantial risk of being dismissed from the case under the 

legal doctrine of ‘failure to prosecute.’”). The letter emphasized that “[i]n [the firm’s] 

experience, pro se and inactive plaintiffs often fair [sic] poorly in multi-party and class cases,” 

and described two of the firm’s “recent cases” in which numerous pro se plaintiffs had either 

been “recommended [for] dismiss[al]” by a magistrate judge or “got nothing,” after each of the 

other represented plaintiffs “received a monetary settlement and a full refund of their legal fees.” 
9

See id. at 3-4. The letter enclosed defendants’ discovery requests and advised that those who did 

not pay Gebhardt & Associates “should answer the enclosed government discovery requests, and 

return your discovery answers . . . to the government’s lead attorney . . . .” See id. at 1.

On June 8, 2007, Gebhardt & Associates filed a motion to withdraw as counsel 

for those plaintiffs who did not fulfill the firm’s payment demands. See Mot. to Withdraw. The 

motion included a copy of the notice sent to those plaintiffs from whom counsel sought to 

withdraw, in accordance with Local Civil Rule 83.6. See Mot. to Withdraw Ex. 3. In the motion 

to withdraw, Gebhardt & Associates explained that these individuals had “indicated in writing or 

by their conduct that they no longer wish[ed] to be represented by GEBHARDT & 

ASSOCIATES, LLP.” See Mot. to Withdraw at 1. The firm clarified that twenty plaintiffs had 

affirmatively indicated in writing that they wished to proceed pro se, while nearly seven hundred

other individuals had simply “not responded to counsel’s two written communications to them 

regarding representation in prosecuting their claims.” See Mot. to Withdraw Mem. at 1-2. 

Regarding the nature and contents of these two written communications, the motion simply 

stated: “Plaintiffs’ counsel has twice written detailed letters, with lengthy attachments . . . in 

order to obtain the information necessary to prosecute this case on their behalf, respond to 

Defendants’ discovery requests, and make payment arrangements.” See id. The motion also 

selectively quoted the letters, but these quotations did not paint a complete picture of the letters’

tone and contents. See id. at 2-3. Thus, Gebhardt & Associates represented to the Court that 

despite the firm’s “diligent[] attempt[s] to communicate with the 694 nonresponding pro se

Plaintiffs, . . . these individuals ha[d] remained uncommunicative,” but did not disclose the 

confusing and misleading letters that likely brought about this unresponsiveness. See id. at 3. 
10

Defendants opposed the motion to withdraw, arguing that leaving hundreds of 

individual plaintiffs to represent themselves pro se would be “manifestly unworkable, . . . 

severely prejudice defendants, and . . . delay resolution of the case.” See Opp’n to Mot. to 

Withdraw at 1. Defendants also argued that because “Gebhardt’s motion does not disclose what 

its underlying fee arrangement with plaintiffs was, . . . [it] does not support any conclusion that 

the 714 plaintiffs have failed, let alone failed substantially, to meet their obligations under the 

undisclosed fee arrangement.” See id. at 2-3. In addition, on June 22, 2007, defendants filed a 

motion to bifurcate discovery and the trial on liability and damages. See Mot. to Bifurcate. In 

their briefings, defendants explained that it was “uncontroverted that proving damages and 

liability will require no duplicative testimony: plaintiffs admit that ‘the damages portion of this 

lawsuit for each plaintiff will relate solely to the harm suffered, not to whether each was in fact a 

victim of the discrimination proved to have occurred.’” See Reply to Mot. to Bifurcate at 2. The 

Court subsequently denied defendants’ motion to bifurcate without prejudice. See Sept. 14, 2007 

Hr’g Tr. at 6. 

On August 14, 2007, defendants filed a motion to compel 708 plaintiffs to 

respond to their first set of interrogatories and requests for production of documents. See Mot. to 

Compel. One week later, plaintiffs filed a consent motion to defer consideration of the motion to 

compel until the Court ruled on Gebhardt & Associates’ motion to withdraw as counsel for the 

non-paying plaintiffs. See Mot. to Defer. The consent motion represented that plaintiffs’ 

counsel, “[c]onsistent with their ethical obligations” had “transmitted copies of Defendants’ 

discovery requests to all Plaintiffs named in the Complaint who had not requested withdrawal 

from the case,” including those from whom counsel sought to withdraw representation. See id.

at 2. Gebhardt & Associates explicitly acknowledged that the firm still “formally represent[ed]” 
11

those from whom it sought to withdraw and explained that deferred consideration of the motion 

to compel would allow counsel to “know on whose behalf they are expected to respond and . . . , 

if necessary, be able to formulate an effective response in light of the Court’s rulings.” See id. at 

3-4. As to the reason counsel sought to withdraw, the motion simply explained that these 

plaintiffs “were not responding to counsel’s communications, particularly regarding discovery, 

and . . . were not willing to pay for continued representation.” See id. at 2. 

On September 14, 2007, Judge Roberts held a hearing at which he granted 

Gebhardt & Associates’ motion to withdraw as to the twenty plaintiffs who affirmatively 

represented in writing that they wished to proceed pro se. See Sept. 14, 2007 Hr’g Tr. at 4. But

Judge Roberts denied the motion as to all of the remaining plaintiffs from whom the firm sought 

to withdraw. See id. Judge Roberts explained that he would instead order the remaining 692 

plaintiffs to show cause why they should not be dismissed from the case for their 

unresponsiveness. See id. at 4-5. In doing so, he also denied defendants’ motion to compel 

discovery responses without prejudice and denied plaintiffs’ consent motion to defer ruling on 

the motion to compel as moot. See id. at 6. 

Judge Roberts then issued a show cause order [Dkt. No. 107] on November 8, 

2007, to those plaintiffs identified both by defendants as unresponsive to discovery requests and 

by Gebhardt & Associates as unresponsive to counsel’s “multiple attempts to contact them to 

determine whether they wish to proceed with this case.” He issued a second show cause order 

[Dkt. No. 123] on January 8, 2008, for those parties for whom the first show cause order had 

been returned as undeliverable and new addresses had been found. On May 30, 2008, Judge 

Roberts issued an order [Dkt. No. 151] dismissing the plaintiffs who did not respond to these two

show cause orders, except those for whom mail had been returned as undeliverable and updated 
12

addresses could not be identified. On October 23, 2008, Judge Roberts issued a third show cause 

order [Dkt. No. 206] for twenty additional plaintiffs who failed to respond to defendants’ written 

requests for discovery. On February 12, 2009, he issued an order [Dkt. No. 245] dismissing

thirteen of those plaintiffs who did not respond to the third show cause order. 

Judge Roberts considered six individual motions for reconsideration filed by those 

whom he had dismissed. On January 6, 2009, he issued a memorandum opinion and order [Dkt. 

No. 230] granting motions for reconsideration filed by dismissed plaintiffs Steven K. Patterson 

and Kenneth D. Thomas. Gebhardt & Associates had filed both motions for reconsideration on 

the movants’ behalves, as Messrs. Patterson and Thomas had apparently “re-retained” the firm 

after their dismissals. Both motions represented that the movants had been unaware of the show 

cause orders and discovery requests because they had undergone several moves since the start of 

litigation as a result of the reduction-in-force and had not timely received the mailings. See

Patterson Mot. Ex. 1; Suppl. to Patterson Mot. Ex. 1; Thomas Mot. Ex. 1. Judge Roberts

emphasized in his opinion that he would grant the motions for reconsideration because nothing in 

the record disproved the movants’ explanations for why they did not sooner learn about the show 

cause orders and discovery requests and both movants had apparently acted as soon as they did 

learn about them. 

Unlike Messrs. Patterson and Thomas, four other dismissed plaintiffs filed 

motions for reconsideration of their dismissals pro se.

4 Judge Roberts denied each of these 

motions for reconsideration, finding that his prior show cause orders had been “unambiguous.”

See Mem. Op. & Order Den. Matkins, Ontiveros & Teed-Wilson Mots. [Dkt. No. 247] at 3 n.2 

 4 It appears that Gebhardt & Associates did assist these pro se movants with their 

motions, although the extent of this assistance is unclear. See Dodson Mot. at 1 n.1; TeedWilson Mot. at 1 n.1; Ontiveros Mot. at 1 n.1. 
13

(Feb. 17, 2009); Mem. Op. & Order Den. Dodson Mot. [Dkt. No. 180] at 4 n.2 (Aug. 15, 2008). 

Not having seen the letters sent by Gebhardt & Associates, he found that the dismissed plaintiffs 

had not provided “any justification for failing to stay in communication with plaintiffs’ counsel 

to monitor the progress of the litigation and learn of their obligation to respond to the order to 

show cause in a timely fashion.” See Mem. Op. & Order Den. Matkins, Ontiveros & TeedWilson Mots. at 6-7; see also Mem. Op. & Order Den. Dodson Mot. at 6-7 (“[P]laintiffs are 

expected to use reasonable diligence in participating in litigation, and plaintiffs are expected to 

maintain communication with their counsel. Unfortunately for her, Dodson’s conduct has fallen 

short.” (citations omitted)). 

II. LEGAL STANDARD

The Federal Rules of Civil Procedure do not specifically address motions for 

reconsideration. See Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237, 241-42 (D.D.C. 

2015). “While the most analogous rule is Rule 60, which provides relief from a final judgment 

or order, motions to reconsider interlocutory orders are not governed by Rule 60(b), but rather, 

such determinations ‘are within the discretion of the trial court.’” Id. at 242 (quoting Keystone 

Tobacco Co. v. U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)); see also FED. R. CIV.

P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the 

claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time 

before the entry of a judgment adjudicating all the claims and all the parties’ rights and 

liabilities.”); Langevine v. District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997) 

(“Interlocutory orders are not subject to the law of the case doctrine and may always be 

reconsidered prior to final judgment. This is true even when a case is reassigned to a new 

judge.” (citations omitted)).
14

This judicial discretion is broad. While the judicial interest in finality disfavors 

reconsideration, a district court has inherent authority to reconsider its interlocutory orders “as 

justice requires.” See Wannall v. Honeywell Int’l, Inc., 292 F.R.D. 26, 30-31 (D.D.C. 2013), 

aff’d sub nom. Wannall v. Honeywell, Inc., 775 F.3d 425 (D.C. Cir. 2014) (citations omitted). 

Although the “as justice requires” standard may be imprecise, it is at least clear that a court has 

“more flexibility in applying Rule 54(b) than in determining whether reconsideration is 

appropriate under Rules 59(e) and 60(b).” See id. at 30, 32 (internal quotations and citation 

omitted).

To determine whether justice requires reconsideration of an interlocutory 

decision, courts look to whether the moving party has demonstrated “(1) an intervening change 

in the law; (2) the discovery of new evidence not previously available; or (3) a clear error of law 

in the first order.” Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d at 242 (citation 

omitted). Even where none of these three factors is present, “the Court may nevertheless elect to 

grant a motion for reconsideration if there are other good reasons for doing so.” Cobell v. 

Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005). For example, justice may require revision 

where “the Court has patently misunderstood a party, has made a decision outside the adversarial 

issues presented to the Court by the parties, [or] has made an error not of reasoning but of 

apprehension . . . .” See Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 

2005) (internal quotations and citation omitted); see also Stewart v. FCC, 189 F. Supp. 3d 170, 

173 (D.D.C. 2016). 

The efficient administration of justice requires, however, that there be good 

reason for a court to reconsider an issue already litigated by the parties: “[W]here litigants have 

once battled for the court’s decision, they should neither be required, nor without good reason 
15

permitted, to battle for it again.” Isse v. American Univ., 544 F. Supp. 2d 25, 30 (D.D.C. 2008) 

(quoting Singh v. George Washington Univ., 383 F. Supp. 2d at 101). Ultimately, the moving 

party has the burden to demonstrate “that reconsideration is appropriate and that harm or 

injustice would result if reconsideration were denied.” FBME Bank Ltd. v. Mnuchin, 249 F. 

Supp. 3d 215, 222 (D.D.C. 2017) (quoting U.S. ex rel. Westrick v. Second Chance Body Armor, 

Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012)); see also Isse v. American Univ., 544 F. Supp. 2d 

at 29. 

III. ANALYSIS

A. The Proffered Correspondence Amounts to New Evidence Warranting Reconsideration

Although the correspondence was summarily described and selectively quoted in 

counsel’s earlier representations to the Court, the letters from Gebhardt & Associates, now 

provided to the Court in full for the first time, amount to new evidence justifying reconsideration 

of the plaintiffs’ dismissals. The letters reflect several issues of which Judge Roberts apparently

was unaware: Despite the fact that the firm was counsel of record, Gebhardt & Associates

conditioned its continued representation on each plaintiff paying $10,000 over the course of two 

years and refused to assist its clients with their discovery obligations until and unless they 

committed to paying that amount; Gebhardt & Associates made these payment demands without 

any warning to its clients and without any attempt to mitigate the prejudice to them in the midst 

of litigation; Gebhardt & Associates used misleading language to suggest to its non-paying

clients that they were currently unrepresented, that the firm had no ongoing obligation to them, 

and that legal assistance would be all but necessary for their success in the litigation; for those of 

its clients who did not forward payment, Gebhardt & Associates continued to withhold any 

assistance in the case, including with respect to discovery, while its motion to withdraw was 
16

pending and even after Judge Roberts denied the motion to withdraw; and Gebhardt & 

Associates did all of this while leading Judge Roberts to believe that counsel simply had been 

unable to elicit a response from any of these individuals, see Mot. to Withdraw Mem. at 1-3; 

Mot. to Defer at 2; Sept. 14, 2007 Hr’g Tr. at 4.5 Now having seen the complete contents of 

these letters, the Court more fully understands the context giving rise to the dismissed plaintiffs’ 

misunderstandings – for example, that they were not already represented by counsel, that the 

class action was no longer proceeding, or that they would have no realistic chance of success if 

they could not pay $10,000 (and possibly more) to Gebhardt & Associates. See Mot. for Recons. 

Ex. E at 1-17. With a more complete view of the attendant circumstances, the conduct of the 

dismissed plaintiffs now is more understandable. In light of this new evidence, justice requires 

reconsideration. 

Defendants’ arguments to the contrary are unavailing. They primarily assert that 

the proffered letters and affidavits do not amount to new evidence. They characterize the 

fourteen declarations as “self-serving” and argue that the relevant correspondence from Gebhardt 

& Associates was “already the subject of extensive briefing . . . and . . . described in detail in 

several prior orders of this Court . . . .” See Opp’n to Mot. for Recons. at 3 n.4.6 Because the 

 5 To be clear, Gebhardt & Associates did allude in its briefings to the fact that its 

correspondence had pertained to payment arrangements. See Mot. to Withdraw Mem. at 1-2 

(explaining that Gebhardt & Associates had written to its clients to “make payment 

arrangements,” among other reasons). And the firm did state that it sought to withdraw, in part,

because certain plaintiffs “were not willing to pay for continued representation.” See Mot. to 

Defer at 2. Thus, Judge Roberts was aware, generally, that payment was one of several matters 

at issue. This fact does not negate any of the Court’s conclusions here. 

6 Defendants specifically argue that two of the letters – the February 16, 2007, and 

April 17, 2007 communications – “were already the subject of extensive briefing circa 

2007-2009 and were described in detail in several prior orders of this Court.” See id. With 

regard to the third letter, dated April 12, 2007, defendants acknowledge that it was not previously 
17

relevant contents of the letters “were described in sum and substance in prior briefing,” 

defendants argue that the proffered documents do not add anything new to the Court’s 

understanding of the matter. See id. at 13-14.7 

Defendants further argue that the dismissed plaintiffs have failed to show any 

error in Judge Roberts’ decisions to dismiss the claims of those who did not respond to the show 

cause orders. See Opp’n to Mot. for Recons. at 3-4. These show cause orders were, as Judge 

Roberts already has described, “unambiguous.” See id. at 3-4, 6 n.8, 13, 15, 16. Defendants 

argue that the dismissed plaintiffs “do not attempt to distinguish themselves from the numerous 

other individual plaintiffs who did manage to respond to the same show cause orders” or 

“explain why they waited so long after their dismissals to seek reconsideration by this Court.” 

See id. at 3. And because their “excuses for not responding to the show cause orders are no 

better than the explanations provided in the past by dismissed plaintiffs seeking reconsideration 

of their dismissals,” defendants assert that Judge Roberts’ reasons for denying earlier motions for 

reconsideration apply equally to the instant motion for reconsideration. See id. at 15-16. 

These arguments fail to respond to the dismissed plaintiffs’ main point, however. 

The letters – now disclosed to the Court in full – show for the first time the confusing and 

misleading nature of Gebhardt & Associates’ communications with its clients and belie the 

notion that the dismissed plaintiffs simply lacked interest in the case and disregarded defendants’ 

 

described to the Court, but assert that the letter does not “provide any new information relevant 

to the non-participating plaintiffs’ dismissals . . . .” See id.

7 In making these arguments, defendants directly contradict the assertions they 

raised in opposing Gebhardt & Associates’ motion to withdraw. In their brief opposing the 

motion to withdraw, defendants argued that the Court could not meaningfully assess whether the 

firm’s withdrawal was justified because Gebhardt & Associates had almost entirely withheld the 

contents of its communications with its clients. See Opp’n to Mot. to Withdraw at 2-3, 11-18. 
18

requests for discovery and the Court’s orders. A reasonable interpretation of the show cause 

orders issued by Judge Roberts requires assessment in light of the contemporaneous 

communications the dismissed plaintiffs received from Gebhardt & Associates, of which Judge 

Roberts was unaware. He could not have known that Gebhardt & Associates was demanding

$10,000 in exchange for continued representation, without ever informing the non-paying 

plaintiffs that the firm had already assumed the responsibilities of representing them, including 

the obligation to assist with discovery. Judge Roberts could not have known that these payment 

demands came without any warning, but came with strong cautions from Gebhardt & Associates 

that the firm’s clients would have no reasonable prospect of success unless they paid $10,000 

each to proceed with counsel. And he surely could not have known that Gebhardt & Associates 

refused to assist its non-paying clients with discovery and instead informed them that they were 

unrepresented. What Judge Roberts did know when he issued his show cause orders beginning 

on November 8, 2007, however, was that he had denied the motion of Gebhardt & Associates to 

withdraw on September 14, 2007, and the firm thus remained counsel of record – with ongoing 

responsibilities to each of its clients – with respect to all but the twenty plaintiffs who 

affirmatively represented in writing that they wished to proceed pro se. 

The proffered letters provide new insights into why the dismissed plaintiffs did 

not respond to defendants’ discovery requests and the show cause orders, belying the notion that 

their unresponsiveness reflected a lack of interest in the litigation or a disregard for Judge 

Roberts’ orders. When Gebhardt & Associates suddenly demanded payment for representation 

after the motion for class certification was denied, it was not unreasonable for a lay person to 

conclude “that this meant that the class action lawsuit was lost and over.” See Mot. for Recons. 

Ex. E at 3-4 (“I later heard that the judge rejected the class action. I understood that this meant 
19

that the class action lawsuit was lost and over. I heard that Gebhardt & Associates was offering 

to represent individual Flight Service Control Specialists in a new lawsuit challenging the RIF.”).

Likewise, the letters emphasized that if plaintiffs could not afford to pay Gebhardt & Associates, 

they were not entitled to any legal assistance from the firm and had no realistic chance of success 

in the litigation. It thus is not difficult to see why so many non-paying plaintiffs did not 

respond – they had been told by their “former” counsel that, without a $10,000 payment, they 

simply had no meaningful option to proceed in the litigation. See id. at 1-17.8

In addition, defendants argue that the fourteen individual declarations “do not 

demonstrate why all of the 226 movants should be allowed back in the case eight years after they 

were dismissed.” See Opp’n to Mot. for Recons. at 19. Defendants correctly assert that among 

hundreds of movants, some have cases more analogous to those of the declarants and some have 

cases less so, and it is likely that these movants would not all share a single uniform explanation 

for their unresponsiveness. The Court must keep in mind, however, that the applicable standard 

here is simply “as justice requires.” While the dismissed plaintiffs have submitted only fourteen 

declarations, each of the declarants confirms that the objectively confusing and misleading 

communications sent by Gebhardt & Associates did in fact confuse and mislead them. And 

considering that each of the dismissed plaintiffs would have received these objectively confusing 

and misleading letters, the slight variations in their individual cases do not alter the overarching 

 8 The four prior motions for reconsideration filed pro se also allude to the movants’ 

misunderstandings regarding their rights and responsibilities for proceeding in the litigation. 

See, e.g., Dodson Mot. at 3; First Reply to Matkins Mot. at 1-2; Teed-Wilson Mot. at 1-3; 

Ontiveros Mot. at 1. Without fully understanding the nature of Gebhardt & Associates’ 

communications to the firm’s clients, these pro se briefings do not make clear the reasons for 

these misunderstandings. But the correspondence from Gebhardt & Associates similarly puts 

these pro se briefings into a new light. As a result, the Court finds defendants’ arguments that 

these briefings preclude the letters from being treated as new evidence to be unconvincing. See

Opp’n to Mot. for Recons. at 16-19.
20

impact of former counsel’s conduct. The interests of justice would not be served by parsing the 

thin lines that distinguish certain dismissed plaintiffs from others, as defendants ask the Court 

to do.

9

 

B. Prior Counsel’s Conduct Is Appropriate for the Court’s Consideration and 

Need Not Be Relegated to a Separate Malpractice Action

Defendants also argue that the instant matter would be more appropriately 

resolved in a separate attorney malpractice action, characterizing the dispute as one between the 

dismissed plaintiffs and their prior counsel. Their grievances with counsel, defendants argue, do 

not excuse the dismissed plaintiffs’ failures to prosecute, and a motion for reconsideration cannot 

substitute for a malpractice action. See Opp’n to Mot. for Recons. at 21-22. In support of this 

argument, defendants cite to United States Supreme Court precedent holding that “clients must 

be held accountable for the acts and omissions of their attorneys.” See Pioneer Inv. Servs. v. 

 9 For example, defendants cite James Hill as one dismissed plaintiff with a 

particularly unique narrative. Defendants filed a motion to dismiss James Hill on May 6, 2009,

for his failure to respond to discovery requests. See Mot. to Dismiss Hill. The motion certified 

that Mr. Hill’s counsel – Gebhardt & Associates – did not oppose the motion. See id. at 1. 

Mr. Hill had been among the non-paying plaintiffs from whom Gebhardt & Associates sought to 

withdraw representation. See Mot. to Dismiss Hill Mem. at 2. Because Mr. Hill responded to 

the Court’s show cause order, however, he was not dismissed from the case (and Gebhardt & 

Associates remained his counsel of record). See id. at 2-3. After defendants still did not receive 

the requested discovery responses, they filed the motion to dismiss, see id. at 3, which the Court 

granted by minute order on June 25, 2009. In addition, two of the movants – Frank Matkins and 

Henry Ontiveros – already filed unsuccessful motions for reconsideration of their dismissals. 

See supra pp. 12-13. And two other movants – Jody L. Edwards and Erik C. Greer – were not 

listed in Gebhardt & Associates’ June 8, 2007, motion to withdraw as counsel, yet were also 

subsequently dismissed for their failures to respond to the Court’s November 8, 2007, order to 

show cause. See Opp’n to Mot. for Recons. at 10 n.13; see also Mot. to Withdraw Ex. 1. While 

one may speculate as to the reasons for these discrepancies, they are inconsequential to 

resolution of the instant motion. In the face of such overwhelming evidence of misconduct by 

Gebhardt & Associates, it seems more than likely that each of these dismissed plaintiffs was 

unfairly prejudiced with unwarranted dismissal as a result – the prejudice and confusion they 

faced simply manifested in slightly different outcomes. 
21

Brunswick Assocs., 507 U.S. 380, 396-97 (1993) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 

633-34 (1962)). 

Defendants’ reliance on Pioneer Investment Services is unpersuasive for several 

reasons. First, the Supreme Court issued its ruling in that case in the context of determining 

whether conduct qualifies as “excusable neglect” for purposes of Rule 60(b) of the Federal Rules 

of Civil Procedure or Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure. See

Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. at 387-97. Accordingly, the United States 

Court of Appeals for the District of Columbia Circuit has only ever applied this holding in the 

Rule 60(b) context, never in the more flexible Rule 54(b) context. Furthermore, the D.C. Circuit

has cabined this Supreme Court precedent to instances in which the plaintiff “voluntarily chose 

his attorney as his representative.” See Pigford v. Veneman, 292 F.3d 918, 925-26 (D.C. Cir. 

2002) (quoting Link v. Wabash R.R. Co., 370 U.S. at 633-34). In contrast, in class actions where 

plaintiffs do not “voluntarily choose [counsel] in the usual sense,” the D.C. Circuit has found “no 

basis for holding [a plaintiff] responsible for [counsel]’s failure” to meet a court’s deadlines. See

id. at 926-27 (internal quotations omitted). And the D.C. Circuit has been particularly reluctant 

to impose dismissal as a sanction where a client is innocent of counsel’s misconduct. See Shea 

v. Donohoe Constr. Co., 795 F.2d 1071, 1077 (D.C. Cir. 1986) (“When the client’s only fault is 

his poor choice of counsel, dismissal of the action has been deemed a disproportionate 

sanction.”); Butler v. Pearson, 636 F.2d 526, 531 (D.C. Cir. 1980) (“[T]he concept of 

proportionality demands that plaintiffs not be unfairly penalized for negligence of their attorney. 

In these circumstances, we are persuaded that the drastic remedy of dismissal was 

disproportionate to the level of negligence shown.”); see also Hildebrandt v. Vilsack, 287 F.R.D.

88, 96-97 & n.5 (D.D.C. 2012). More to the point, the Court is not aware of any case in which 
22

the D.C. Circuit has held a party “accountable for the acts and omissions of their attorneys” 

where counsel engaged in the kind of conduct involved here, including misleading 

representations to both counsel’s clients and the Court. See Jackson v. Washington Monthly Co., 

569 F.2d 119, 122 & n.18, 123-24 (D.C. Cir. 1977); cf. Anderson v. Chevron Corp., 190 F.R.D. 

5, 9-12 (D.D.C. 1999). 

When an attorney agrees to undertake the representation of a client, “counsel is 

under an obligation to see the work through to completion.” See Sabre Int’l Sec. v. Torres 

Advanced Enter. Solutions, LLC, 219 F. Supp. 3d 155, 157 (D.D.C. 2016); Byrd v. District of 

Columbia, 271 F. Supp. 2d 174, 176 (D.D.C. 2003). Of course, attorneys may withdraw where a 

“client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and 

has been given reasonable warning that the lawyer will withdraw unless the obligation is 

fulfilled.” See Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 310 F.3d 537, 540 (7th 

Cir. 2002) (quoting MODEL RULES OF PROF’L CONDUCT r. 1.16(b) (AM. BAR ASS’N)). But 

whether an individual has “failed substantially” depends on the obligations agreed upon when 

the parties entered the attorney-client relationship. Compare Byrd v. District of Columbia, 271 

F. Supp. 2d at 178, with Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 310 F.3d at 

540.

10 While an attorney is not expected to work for free forever, see ABA MODEL RULES OF 

PROF’L CONDUCT r. 1.16(b)(6); RULES OF PROF’L CONDUCT r. 1.16(b)(4) (D.C. BAR), a client’s 

non-payment does not justify failing to provide competent representation, see Aka v. U.S. Tax 

Court, 854 F.3d 30, 33-35 (D.C. Cir. 2017). 

 10 For this reason, rules of professional conduct require that “[t]he scope of the 

representation and the basis or rate of the fee and expenses for which the client will be 

responsible . . . be communicated to the client, preferably in writing, before or within a 

reasonable time after commencing . . . the representation . . . .” See ABA MODEL RULES OF 

PROF’L CONDUCT r. 1.5(b); see also D.C. RULES OF PROF’L CONDUCT r. 1.5(b). 
23

In addition, once an attorney has entered an appearance in a pending lawsuit, the

attorney may not unilaterally decide to consider a client unrepresented simply because the client 

has not paid fees or because a motion to withdraw from the case is pending before the court. 

One cannot assume that the relief requested will be granted simply because a motion has been 

filed. And certainly, an attorney may not do so after the court has denied such a motion. 

Furthermore, even if a court grants a motion for withdrawal, a lawyer must continue to take steps 

to the extent reasonably practicable to protect a client’s interests upon termination of 

representation, “such as giving reasonable notice to the client, [and] allowing time for 

employment of other counsel . . . .” See ABA MODEL RULES OF PROF’L CONDUCT r. 1.16(d);

D.C. RULES OF PROF’L CONDUCT r. 1.16(d); see also ABA Comm. on Ethics & Prof’l 

Responsibility, Formal Op. 16-476 (“In effectuating a withdrawal, a lawyer should do so in a 

manner that minimizes any prejudice to the client.”). In fact, even when a lawyer has been 

unfairly discharged, counsel must nonetheless “take all reasonable steps to mitigate the 

consequences to the client” of withdrawal. See ABA MODEL RULES OF PROF’L CONDUCT r. 1.16

cmt. 9; see also D.C. RULES OF PROF’L CONDUCT r. 1.16 cmts. 7, 9. Such steps to mitigate 

prejudice to the client would certainly include responding to pending motions, discovery 

requests, and directives from the court in compliance with court-ordered deadlines.

Finally, and most fundamentally, a lawyer may “not make a false or misleading 

communication about the lawyer or the lawyer’s services,” including statements that are truthful 

but misleading or material misrepresentations or omissions. See ABA MODEL RULES OF PROF’L 

CONDUCT r. 7.1 & cmt. 2; see also D.C. RULES OF PROF’L CONDUCT r. 7.1. Rather, lawyers have a 

professional obligation to explain matters to their clients “to the extent reasonably necessary to 
24

permit [their clients] to make informed decisions regarding the representation.” See ABA 

MODEL RULES OF PROF’L CONDUCT r. 1.4(b); D.C. RULES OF PROF’L CONDUCT r. 1.4(b). 

Here, Gebhardt & Associates did not provide reasonable or sufficient notice to its 

clients or even attempt to mitigate the prejudice attendant to the firm’s withdrawal. To the 

contrary, Gebhardt & Associates made its initial payment demand only nine days after the Court 

set the discovery schedule at the February 7, 2007, status conference and only one month before 

defendants served their first requests for discovery, see Mot. to Compel Ex. 1. In the midst of 

discovery, Gebhardt & Associates refused assistance to any client who did not commit to paying 

the firm $10,000 and sent them misleading communications that indicated that they were 

unrepresented and discouraged them from proceeding in the litigation without counsel. Gebhardt 

& Associates continued to treat the non-paying plaintiffs as if they were unrepresented while its 

motion to withdraw was pending and even after the Court denied the motion. And in explaining 

the matter, Gebhardt & Associates represented to the Court that these non-paying plaintiffs had 

“indicated in writing or by their conduct that they no longer wish[ed] to be represented” by the 

firm. See Mot. to Withdraw at 1. 

Gebhardt & Associates acknowledged in the consent motion to defer 

consideration of the motion to compel that it understood its professional obligations, expressly 

stating that unless and until the Court granted its motion to withdraw, the firm still “formally 

represent[ed]” the non-paying plaintiffs. See Mot. to Defer. at 3. Still, it did not fulfill these 

obligations. Gebhardt & Associates also had alternatives avenues for fulfilling its obligations as 

it sought to withdraw after the union ceased making payments – for example, providing more 

appropriate and advance notice, attempting to find other counsel, and moving to withdraw at a 

time that would minimize prejudice. See, e.g., Brandon v. Blech, 560 F.3d 536, 538 (6th Cir. 
25

2009); Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 310 F.3d at 540-41. Instead, 

counsel pursued a course of conduct that did not conform to their ethical and professional 

obligations. Had Judge Roberts understood then what this Court does now, it is likely that he

would have proceeded very differently. Cf. Sanford v. Maid-Rite Corp., 816 F.3d 546, 550 (8th 

Cir. 2016) (“The presumption favoring withdrawal . . . should be disregarded, however, if it 

would severely prejudice the client or third parties.” (citation omitted)); Brandon v. Blech, 560 

F.3d at 538 (“[A] district court may forbid withdrawal if it would work severe prejudice on the 

client or third parties.” (citation omitted)). Instead of holding the dismissed plaintiffs 

accountable for Gebhardt & Associates’ misleading communications and the firm’s failure to 

fulfill its ethical and professional obligations to them, justice requires that this Court reconsider 

their dismissals. 

C. The Dismissed Plaintiffs’ Conduct Did Not Warrant Their Dismissals

Where a plaintiff fails to comply with a discovery order or otherwise fails to 

prosecute their claims, a court may impose a range of sanctions, including dismissal. See FED.

RS. CIV. P. 37(b)(2)(A), 41(b); Bradshaw v. Vilsack, 286 F.R.D. 133, 140 n.5 (D.D.C. 2012) 

(explaining that “[t]he same factors are relevant to determining whether dismissal is appropriate 

for failure to prosecute and failure to obey a discovery order” (citations omitted)). The “central 

requirement” of a Rule 37 sanction is that it “must be just.” Campbell v. Nat’l R.R. Passenger 

Corp., 309 F.R.D. 21, 25-26 (D.D.C. 2015) (citation omitted); see also Bradshaw v. Vilsack, 286 

F.R.D. at 140; Arias v. Dyncorp Aerospace Operations, LLC, 677 F. Supp. 2d 330, 332 (D.D.C. 

2010). The extreme sanction of dismissal is thus warranted only where (1) the other party has 

been “so prejudiced by the misconduct that it would be unfair to require [the party] to proceed 

further in the case”; (2) the party’s misconduct has put “an intolerable burden” on the court by 
26

requiring the court to modify its own docket and operations in order to accommodate the delay;

or (3) the court finds it necessary “to sanction conduct that is disrespectful to the court and to 

deter similar misconduct in the future.” See Webb v. District of Columbia, 146 F.3d 964, 971 

(D.C. Cir. 1998) (citations omitted); see also Young v. U.S. Senate Sergeant at Arms, 217 F.R.D. 

61, 65-66 (D.D.C. 2003). In addition, before imposing the sanction of dismissal, “a district court 

must consider whether lesser sanctions would be more appropriate for the particular violation

because the judicial system favors disposition of cases on the merits.” See Bradshaw v. Vilsack, 

286 F.R.D. at 140 (quoting Moore v. Napolitano, 723 F. Supp. 2d 167, 179 (D.D.C. 2010)); see 

also Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (“[D]ismissal is a sanction 

of last resort to be applied only after less dire alternatives have been explored without success or 

would obviously prove futile.” (quoting Shea v. Donohoe Constr. Co., 795 F.2d at 1075)). These 

parameters apply not only to dismissal, but to any other “severe” or “litigation-ending” sanction 

that effectively denies a party the right to a trial on the merits. See Bradshaw v. Vilsack, 286 

F.R.D. at 140 (citing Bonds v. District of Columbia, 93 F.3d at 808-09, and Klayman v. Judicial 

Watch, Inc., 802 F. Supp. 2d 137, 151 (D.D.C. 2011)). 

As a result, a sanction that denies a party the right to a trial on the merits must be 

supported by a finding either that the more severe sanction is necessary to avoid prejudice to the 

opposing party or to the court’s calendar or to prevent a benefit to the sanctioned party or, if the 

sanction is based only on deterring future misconduct, that the sanctioned party engaged in 

“flagrant or egregious misconduct.” See Bonds v. District of Columbia, 93 F.3d at 809. “In 

determining whether a party’s misconduct prejudices the other party so severely as to make it 

unfair to require the other party to proceed with the case, courts look to whether the aggrieved 

party has cited specific facts demonstrating actual prejudice, such as the loss of key witnesses.” 
27

Campbell v. Nat’l R.R. Passenger Corp., 309 F.R.D. at 26 (quoting Bradshaw v. Vilsack, 286 

F.R.D. at 140-41). And although a court may presume that some prejudice results from any 

“unreasonable delay,” dismissal is warranted only where there are “specific, factually supported 

allegations” of severe actual prejudice. See Bradshaw v. Vilsack, 286 F.R.D. at 141 (citations 

omitted).

Reconsidering the issue in light of the new evidence presented, the Court 

concludes that the dismissed plaintiffs’ conduct did not warrant dismissal. As discussed in supra

Part III(A), the correspondence from Gebhardt & Associates was confusing and misleading, and 

the dismissed plaintiffs have proffered fourteen declarations affirming that the correspondence 

did in fact confuse and mislead the declarants. See Mot. for Recons. Ex. E. Thus, it does not 

appear that the dismissed plaintiffs’ errors were willful or egregious, but likely based on their 

understandable confusion regarding their rights, obligations, and options for proceeding in the 

case. As a result, dismissal would not be warranted as a deterrent. In addition, the dismissed 

plaintiffs have not significantly delayed or prejudiced the Court. The Court’s adjudication of 

summary judgment did not depend on the production of damages discovery, and the paying 

plaintiffs have continued to drive the case forward. 

Defendants argue that they would be severely prejudiced if the Court permitted 

the dismissed plaintiffs to revive their claims. They assert that the parties have already spent two 

years in discovery and have spent time and money and made strategic litigation decisions based 

on the discovery obtained. See Opp’n to Mot. for Recons. at 22. In particular, defendants argue 

that they relied extensively in their original motion for summary judgment on the depositions of 

those plaintiffs who remained in the case. See id. at 22-23. Although defendants agreed to

plaintiffs’ aggregate responses to their merits-based discovery requests, they argue they were still 
28

“entitled to complete[] . . . answers from all the plaintiffs on their merits contentions,” as 

“defendants would have no way of discovering which of [the dismissed plaintiffs might contend]

that they are aware of potential merits-relevant evidence without receiving discovery responses 

from them.” See id. Furthermore, defendants argue that they had a right to understand their 

ultimate exposure before undertaking extensive, although ultimately unsuccessful, settlement 

efforts. See id. at 23 n.19. Defendants also suspect that the dismissed plaintiffs have not 

understood their preservation obligations over the past decade and, as a result, they would “face 

prejudice due to lost or destroyed evidence.” See id. at 23. 

While the Court is sympathetic to defendants’ concerns stemming from the longrunning nature of this case, defendants have not identified the kind of substantial prejudice that 

would justify the extreme sanction of dismissal. The discovery responses to which the dismissed 

plaintiffs failed to respond had little to no relevance to the question of liability. See supra at 7, 

10. And defendants already had access to much of the information requested, because each 

dismissed plaintiff was a federal employee. See Mot. for Recons. at 14-15. In fact, defendants 

were required to maintain some of the requested information by law. See id. at 14 (citing 29 

C.F.R. § 1602.14). Most importantly, the delayed discovery responses from the dismissed 

plaintiffs would cause little prejudice to defendants, due to the relative uniformity of plaintiffs’ 

liability discovery and the ongoing need to supplement damages discovery. As the dismissed 

plaintiffs have explained: 

Dismissed Plaintiffs challenged the outsourcing of their jobs, the 

response to which would be identical to the responses already 

provided, as they each challenged the same personnel action. No 

new information would have been provided by responses to 

[inquiries regarding the merits of Plaintiffs’ claims] by Dismissed 

Plaintiffs. On the other hand, responses to questions propounded 

about the harm suffered by each Dismissed Plaintiff would likely 

differ from each other, requiring separate responses from each 
29

plaintiff, but the intervening passage of time would require 

supplementation of any responses provided. The damages 

discovery would not have concluded in any event and, therefore, 

Dismissed Plaintiffs’ failure to respond to the discovery of the 

remedies they seek did not delay or inhibit the conclusion of 

discovery on this subject. 

See Reply to Mot. for Recons. at 1-2. As further evidence of their uniform liability claims, the 

dismissed plaintiffs note that defendants only took approximately twenty depositions of 

individual plaintiffs, although over two hundred plaintiffs remained in the case, before filing 

their original summary judgment motion. See id. at 12. 

Because the delayed discovery requests were of such limited value, the unduly 

harsh sanction of dismissal would be neither warranted nor proportional to the prejudice 

defendants would face from the dismissed plaintiffs’ reinstatement. This is particularly so where 

any prejudice resulted from the dismissed plaintiffs’ understandable confusion, rather than any 

egregious or willful misconduct, and such prejudice may be resolved or mitigated by the Court.

11 

Of course, where plaintiffs file a case, they “take[] on certain responsibilities, including the duty 

to participate in discovery in good faith.” See Campbell v. Nat’l R.R. Passenger Corp., 309 

F.R.D. at 24. But the dismissed plaintiffs’ errors here were neither willful nor egregious, and 

“the Court has the right, if not the duty, to temper justice with understanding.” See id. (internal 

quotations and citation omitted). 

 11 The dismissed plaintiffs have proffered several alternatives to dismissal more 

appropriate to the circumstances presented here. See Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 

1469, 1478 (D.C. Cir. 1995); see also FED. R. CIV. P. 37(b)(2). For example, the Court could 

prohibit them from submitting evidence and giving testimony at trial regarding liability issues 

not raised in discovery. See Reply to Mot. for Recons. at 11-12. The Court could also impose 

similar restrictions to account for any lost or destroyed evidence, should this issue arise. See id. 

at 12. 
30

IV. CONCLUSION

For the reasons set forth in this opinion, the Court will grant the dismissed 

plaintiffs’ motion [Dkt. No. 317] for reconsideration and reinstate their claims. An order 

consistent with this opinion shall issue this same day.

SO ORDERED.

_________/s/_____________

PAUL L. FRIEDMAN

United States District Judge

DATE: March 27, 2018