WESBY et al v. DISTRICT OF COLUMBIA et al

Filing 166

MEMORANDUM OPINION granting in part and denying in part 114 Defendants' motion for entry of an order of restitution and payment of court-ordered costs; and denying Defendant District of Columbia's 153 motion for reconsideration. See document for details. Signed by Judge Rudolph Contreras on 11/12/2020. (lcrc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THEODORE WESBY, et al.,
Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al.,
Defendants.

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Civil Action No.:

09-501 (RC)

Re Document Nos.:

114, 153

MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR RESTITUTION;
DENYING DEFENDANT DISTRICT OF COLUMBIA’S MOTION FOR RECONSIDERATION
I. INTRODUCTION
Faced with a money judgment of $680,000 for falsely arresting a group of partygoers
(“Plaintiffs”), Defendants the District of Columbia and Metropolitan Police Department officers
paid up. When the Supreme Court reversed summary judgment in Defendants’ favor, however,
Defendants wanted their money back and asked this Court for restitution. In an earlier ruling, the
Court ordered the law firm of Plaintiffs’ former counsel to repay the $272,000 contingency fee it
retained. But the Court declined to hold the lawyer personally liable and deferred deciding
whether Plaintiffs should repay their portion of the money judgment pending mediation.
Mediation failed. The Court now holds that, as much as it sympathizes with Plaintiffs’ financial
circumstances, Plaintiffs must pay restitution to Defendants because the legal process has
coerced from Defendants money not legally owed. In addition, the Court denies Defendants’
motion to reconsider—which merely asks the Court to clarify that its order refusing to hold
Plaintiffs’ former counsel personally liable for repaying the contingency fee is “without
prejudice”—because it is unclear what that would accomplish.

II. BACKGROUND
The Court offers only a brief description of the case’s factual background, because it
related the facts relevant to the restitution question in its previous opinion on the issue. See
Wesby v. District of Columbia (Wesby IV), 393 F. Supp. 3d 34 (D.D.C. 2019).
Plaintiffs sued the District of Columbia and the District’s Metropolitan Police
Department after their arrests at a house party. Id. at 36. They sought relief for false arrest under
42 U.S.C. § 1983 as well as for false arrest and negligent supervision under D.C. law. Id. at 37.
The district court found that the arresting officers lacked probable cause to arrest Plaintiffs and
awarded summary judgment to Plaintiffs on all claims. Wesby v. District of Columbia (Wesby I),
841 F. Supp. 2d 20, 48–49 (D.D.C. 2012). A jury then awarded $680,000 to Plaintiffs in
compensatory damages. Wesby IV, 393 F. Supp. 3d at 37. The D.C. Circuit affirmed. See
Wesby v. District of Columbia (Wesby II), 765 F.3d 13, 31 (D.C. Cir. 2014). It refused to hear
the case en banc or stay its mandate pending the District’s filing a petition for writ of certiorari.
Wesby IV, 393 F. Supp. 3d at 37.
Defendants satisfied the judgment by paying the law firm of the lawyer who represented
Plaintiffs, Gregory Lattimer. Id. The Law Offices of Gregory Lattimer, LLC (“Lattimer Law”)
retained forty percent of the judgment, or $272,000, in legal fees. Id. The firm distributed the
remaining $408,000 to Plaintiffs depending on their recoveries at trial (some received $21,000 in
after-fee distributions, others $30,000). Id.
Eventually, the Supreme Court reversed the D.C. Circuit’s ruling. District of Columbia v.
Wesby (Wesby III), 138 S. Ct. 577, 593 (2018). It found that the officers had probable cause to
arrest Plaintiffs and were entitled to qualified immunity, so it granted summary judgment to
Defendants. Id. at 582, 593.

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A flurry of filings followed on remand. Defendants asked this Court for restitution from
Plaintiffs and Lattimer Law of the payment they made to satisfy the now-reversed judgment
against them, along with postjudgment interest and costs ordered by the Supreme Court. See
Defs.’ Mot. for Entry of an Order of Restitution and Payment of Court-Ordered Costs (“Defs.’
Mot. for Restitution”), ECF No. 114; see also Defs.’ First Reply in Supp. of Defs.’ Mot. for
Restitution, ECF No. 117; Defs.’ Reply in Supp. of Defs.’ Mot. for Restitution (“Defs.’ Second
Reply”), ECF No. 145. Lattimer withdrew as Plaintiffs’ counsel once he realized the motion
created a conflict of interest, Min. Entry (Nov. 15, 2018), then he filed an opposition to
Defendants’ motion, see Lattimer’s Opp’n to Defs.’ Mot. for Restitution, ECF No. 130. After
the Court appointed Plaintiffs new counsel, they opposed the motion too. See Pls.’ Mem. in
Opp’n to Defs.’ Mot. for Restitution (“Pls.’ Opp’n”), ECF No. 137; see also Pls.’ Surreply in
Resp. to Gregory Lattimer’s Resp. Br., ECF No. 147. And because Plaintiffs wanted to put
Lattimer on the hook for repaying the money he passed along to them, Lattimer filed an
opposition to their filing as well. See Lattimer’s Resp. to Pls.’ Opp’n, ECF No. 143. Finally,
Antoinette Colbert, representative for the estate of one of the deceased plaintiffs, filed her own
opposition to Defendants’ restitution motion. See Colbert’s Opp’n to Defs.’ Mot., ECF No. 139.
The Court ordered Lattimer Law to repay Defendants what it had received in contingency
fees, but the Court deferred ruling on the share of the judgment distributed to Plaintiffs. Wesby
IV, 393 F. Supp. 3d at 38–39. First, the Court rejected Lattimer’s argument that the Supreme
Court’s decision left intact Plaintiffs’ victory on the negligent supervision claim. Id. at 39–40. It
pointed out that the Supreme Court stated unambiguously: “[T]he District and its officers are
entitled to summary judgment on all of the partygoers’ claims.” Id. at 39 (quoting Wesby III, 138
S. Ct. at 589). Second, the Court rebuffed Lattimer’s assertion that Defendants were not entitled

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to restitution either because they failed to post a bond pending appeal or because they had
entered into a settlement with Plaintiffs forgoing their right to restitution. Id. at 40–41. A party
is not required to post a bond pending appeal to seek restitution of a reversed judgment later. Id.
at 41. And there was no evidence that Plaintiffs and Defendants had entered into any kind of
agreement precluding restitution. Id. Finally, the Court awarded restitution to Defendants of the
contingency fee that Lattimer Law kept, but it declined to make Lattimer personally liable for
that restitution. Id. at 41–44. Although settled caselaw favors repayment of contingency fees
after reversal of a judgment, id. at 42–43, Defendants did not adequately develop their argument
that the Court should pierce the veil of Lattimer Law to make Lattimer himself liable, id. at 43–
44. The Court deferred deciding whether Defendants were entitled to restitution from Plaintiffs
and ordered Plaintiffs, Lattimer, and Defendants to mediation on the issue. Id. at 45. 1
Shortly after the Court issued its decision, the District asked the Court to reconsider its
ruling that Lattimer was not personally liable for repaying his portion of the judgment. Mot. to
Reconsider, ECF No. 153. Lattimer filed an opposition. Lattimer’s Opp’n to D.C.’s Mot. to
Reconsider, ECF No. 154. The District filed a reply. D.C.’s Reply, ECF No. 155.
A few months later, mediation failed. Joint Status Report, ECF No. 159. The Court
advised the parties that it would resolve the question of the Plaintiffs’ liability, see Min. Order
(Dec. 13, 2019), and the parties filed supplemental briefing, see Pls.’ Suppl. Opp’n to Defs.’
Mot. for Restitution (“Pls.’ Suppl. Opp’n”), ECF No. 162; Def. D.C.’s Reply to Pls.’ Suppl.
Opp’n, ECF No. 163; Pls.’ Reply to Def. D.C.’s Resp. to Pls.’ Suppl. Opp’n, ECF No. 164.

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The Court also denied Defendants’ motion for payment of costs awarded by the
Supreme Court because the Supreme Court’s order was already enforceable. Wesby IV, 393 F.
Supp. 3d at 38.
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The Court is now ready to rule on the question of Plaintiffs’ restitution liability and
Defendants’ motion to reconsider.
III. ANALYSIS
A. Plaintiffs’ Restitution Liability
Defendants seek restitution from all Plaintiffs except one who passed away. See Defs.’
Second Reply at 6 n.4. Accordingly, the sum at issue is $377,632.95. See Colbert’s Opp’n to
Defs.’ Mot., Ex. C, ECF No. 139-3 (showing that the deceased plaintiff received $30,367.05).
Because the reversed judgment erroneously required Defendants to pay Plaintiffs that money
under threat of law, Defendants are entitled to restitution despite Plaintiffs’ financial struggles.
Plaintiffs do not prove up any affirmative defense that would protect them from liability.
When a litigant makes a payment to satisfy a judgment that is later reversed, the general
rule is that “what has been lost to a litigant under the compulsion of a judgment shall be restored
thereafter, in the event of a reversal, by the litigants opposed to him, the beneficiaries of the
error.” Atl. Coast Line R. Co. v. Florida, 295 U.S. 301, 309 (1935); accord United States v.
Morgan, 307 U.S. 183, 197 (1939). The Restatement summarizes the law this way: “A transfer
or taking of property, in compliance with or otherwise in consequence of a judgment that is
subsequently reversed or avoided, gives the disadvantaged party a claim in restitution as
necessary to avoid unjust enrichment.” Restatement (Third) of Restitution and Unjust
Enrichment (“Restatement”) § 18 (Am. Law Inst. 2011).
That statement of the law contains an important caveat: restitution is permitted only “as
necessary to avoid unjust enrichment.” Id.; see also id. cmt. e; Vera v. Banco Bilbao Vizcaya
Argentaria, S.A., 946 F.3d 120, 143 (2d Cir. 2019). The unjust enrichment proviso reflects the
nature of restitution as an equitable remedy. Restitution “is not a matter of right, but is ‘ex
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gratia.’” Williams v. Wash. Metro. Area Transit Comm’n, 415 F.2d 922, 944 (D.C. Cir. 1968)
(quoting Atl. Coast Line, 295 U.S. at 310)). One claiming restitution must “show that the money
was received in such circumstances that the possessor will give offense to equity and good
conscience if permitted to retain it.” Atl. Coast Line, 295 U.S. at 309. So although a court
should ordinarily order restitution when a litigant satisfies a judgment that is later reversed, it
may reduce the amount owed or deny restitution altogether “if compelling equitable
considerations so dictate.” Williams, 415 F.2d. at 944.
Recognizing that there is no doubt Defendants made a payment to Plaintiffs pursuant to a
judgment that was later reversed, Plaintiffs’ argument against restitution is an appeal to equity.
They assert that requiring them to repay Defendants would be unfair for two reasons. First, they
are impoverished and could not afford to pay restitution if ordered. See Pls.’ Opp’n at 10–12;
Pls.’ Suppl. Opp’n at 3. Second, they blame Lattimer for not warning them that the judgment
may be reversed and that they may be liable for restitution; as a result, they spent the money long
ago. See Pls.’ Opp’n at 8–10, 13–19; Pls.’ Suppl. Opp’n at 10–11.
Unfortunately for Plaintiffs, the parties’ personal circumstances play a diminished role in
the unjust enrichment analysis when the original payment was “compelled by law to pay a claim
that is not legally enforceable.” Restatement, supra, § 18 cmt. e. The Restatement distinguishes
between those kinds of payments and ones made by mistake or ones made pursuant to judgments
that, despite some defects, rest on valid legal liability. Id.; see also Vera, 946 F.3d at 143
(“[T]he Restatement ties an entitlement to restitution to the legal validity of the underlying debt
or liability . . . .”). The latter two scenarios may not give rise to unjust enrichment. Restatement,
supra, § 18 cmt. e. But “[w]here money is paid to satisfy a claim that is . . . legally
unenforceable, the restitution claim based on legal compulsion stands on a different footing.” Id.

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The difference is that, when it comes to payments made to satisfy legally baseless judgments,
there is a special “need to remedy [the] misapplication of legal process [] so that the law not
stultify itself by requiring what it has declared may not be required.” Id. This “public concern
with the integrity and proper application of legal coercion” is “an important reason for restitution
that is independent of the individualized equities of the parties.” Id.; see also Vera, 946 F.3d at
144 (“In determining whether Appellees were ‘unjustly enriched’ for equitable purposes by
receiving the funds they have collected . . . we must weigh the legal validity of their underlying
claims, not the relative moral standing of the parties.”). 2 So regardless of the parties’ personal
circumstances, a payment in satisfaction of a legally groundless judgment unjustly enriches the
recipient and thus warrants restitution. See Restatement, supra, § 18 cmt. e; see also Vera, 946
F.3d at 144 (concluding that, where plaintiffs “ha[d] collected substantial funds pursuant to void
turnover orders in a case where the District Court had no basis in law for exercising jurisdiction,”
the court was “compelled . . . to rule that restitution [was] warranted” (emphasis added)).
Because Defendants’ payment to Plaintiffs had no legal basis, Plaintiffs were unjustly enriched.
Nevertheless, the recipient of a payment in satisfaction of a later-overturned judgment
may still raise affirmative defenses. Restatement, supra, § 18 cmt. e. Plaintiffs initially invoked
the change-of-position defense. Pls.’ Opp’n at 8–10. “If receipt of a benefit has led a recipient
without notice to change position in such manner that an obligation to make restitution of the
original benefit would be inequitable to the recipient, the recipient’s liability in restitution is to
that extent reduced.” Restatement, supra, § 65. Importantly, “the fact that the recipient has spent

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Several of the cases Plaintiffs rely on arise out of mistaken payments. See Metro. Life
Ins. Co. v. Beard, No. 16-cv-11782, 2019 WL 480513, at *8 (D. Mass. Feb. 7, 2019); XTO
Energy, Inc. v. Furth, No. 15-cv-1180, 2017 WL 5891740, at *4–8 (D.N.M. Nov. 27, 2017);
Marsden v. District of Columbia, 142 A.3d 525, 527–28 (D.C. 2016). Those cases lack the
independent need to correct legal error present here because the initial judgment was unfounded.
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the money is not of itself a defense to liability in restitution, because an expenditure of funds—
without more—does not constitute a change of position.” Id. cmt. c. Instead, “the recipient must
demonstrate a causal relationship between receipt and expenditure” in that he would not have
made the expenditure “but for” the payment he received. Id. Spending money on “ordinary
living expenses, debt repayment, and the acquisition of capital assets generally do not” reflect a
change of position but “[e]xpenditures devoted to extraordinary consumption” do. Id.
Yet despite raising the change-of-position defense in their first opposition to Defendants’
motion for restitution, Pls. Opp’n at 8–10, Plaintiffs concede in their subsequent filings that they
“did not change their financial positions in reliance upon receiving the judgment proceeds,” Pls.’
Suppl. Opp’n at 3 (quoting Defs.’ Second Reply at 6). That appears to be correct. Most of the
expenditures that Plaintiffs cite in their filings—such as payments toward preexisting debt,
necessary medical expenses, or food and rent—are exactly the kinds that Plaintiffs would have
made even if they had not received the Defendants’ money. See generally Pls.’ Opp’n at 9–10;
Pls.’ Suppl. Opp’n at 3–9. Some of the Plaintiffs’ expenditures are closer to the “extraordinary”
ones that could sustain a change-of-position defense. 3 But because Plaintiffs do not attempt to
establish a causal relationship between those expenditures and the receipt of Defendants’ money,
the defense does not apply.
Having determined that Plaintiffs were unjustly enriched and that Plaintiffs have not
established a change-of-position defense, the Court holds that Plaintiffs are liable to Defendants
in restitution. Defendants’ claim is “relatively straightforward” because the dispute is “between
the original parties to the underlying proceedings.” Restatement § 18 cmt. a; see also Cox v.
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For instance, two of the plaintiffs bought cars and two others paid for funerals. See Pls.’
Suppl. Opp’n at 4–8; see also Restatement § 65 cmt. c, illus. 9 (explaining that widow’s
spending more money on husband’s funeral than she would have without mistaken overpayment
would entitle her to change-of-position defense).
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Cox, 780 N.E.2d 951, 960 (Mass. App. Ct. 2002) (“Both the Restatement § 74, and the
Restatement (Third) § 18, view third parties in quite a different light than they do parties to the
judgment that was reversed.”). 4 And although Plaintiffs (perhaps rightfully) point the finger at
Lattimer, “[u]nder our system of representative litigation, ‘each party is deemed bound by the
acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be
charged upon the attorney.’” See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92 (1990)
(quoting Link v. Wabash R. Co., 370 U.S. 626, 634 (1962)). 5 When Plaintiffs, through Lattimer,
demanded payment pending appeal, they assumed the risk that they might have to repay the
Defendants if the appeal went against them. See Strong v. Laubach, 443 F.3d 1297, 1300 (10th
Cir. 2006). Under threat of legal sanction, Defendants paid money they did not owe. As
unfortunate as Plaintiffs’ financial situations are, the improper use of the law’s coercive power
demands correction. Defendants deserve restitution.
B. The District’s Motion to Reconsider
The Court deals with the District’s motion to reconsider briefly. The motion does not ask
the Court to revisit its decision to deny Lattimer’s personal liability—yet. See Mot. to
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This case is thus unlike several cases Plaintiffs cite in which the recipient of a benefit
was an innocent third party. See Mazor v. Farrell, 186 A.3d 829, 834 (D.C. 2018); Harrentsian
v. Hill, 385 P.3d 887, 892–95 (Idaho 2016); Cox, 780 N.E.2d at 960.
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Of course, Plaintiffs may well assert a claim against Lattimer Law. See Seed Co. Ltd. v.
Westerman, 832 F.3d 325, 335 (D.C. Cir. 2016) (outlining elements of malpractice under D.C.
law (quoting Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662, 664 (D.C. 2009))); see also
D.C. Code § 12-301(8) (providing three-year limitations period for such claims). But the Court
will decline Defendants’ and Plaintiffs’ invitations to order Lattimer Law to pay restitution
beyond the amount it received in contingency fees. See, e.g., Defs.’ Mot. for Restitution at 6;
Pls.’ Opp’n at 13; see also Wesby IV, 393 F. Supp. 3d at 41–43 (ordering Lattimer Law to repay
contingency fees). Plaintiffs—not Lattimer Law—are the ones whom their portion of the
judgment unjustly enriched. Cf. Restatement § 1 (“A person who is unjustly enriched at the
expense of another is subject to liability in restitution.”). Put differently, Lattimer Law did not
retain Plaintiffs’ portion of the judgment, and retention of the transferred benefit is a necessary
ingredient of unjust enrichment. See Peart v. D.C. Hous. Auth., 972 A.2d 810, 813 (D.C. 2009).
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Reconsider at 6. It merely requests the Court “add[] that its holding” regarding Lattimer’s
personal liability “is without prejudice, subject to information gained in discovery in aid of the
District’s attempts to execute on the judgment/restitution order.” Id. In other words, the District
wants to be able to renew its request to pierce Lattimer Law’s corporate veil if the law firm does
not pay what it is supposed to. Id.
The Court denies the District’s motion. Although the order accompanying this opinion is
final, the District can always seek reconsideration under Federal Rule of Civil Procedure 60(b).
In addition, the District can enforce the order using the tools and procedures permitted under
Federal Rule of Civil Procedure 69. If Lattimer Law does not pay what it owes the District and
Rule 69(a)(2) discovery uncovers evidence that the law firm is in fact Lattimer’s alter ego, the
Court will have to take a new look at the parties’ respective claims. For now, however, the Court
is unsure what the District’s proposed “without prejudice” addendum would accomplish.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for an order of restitution (ECF No. 114)
is GRANTED IN PART AND DENIED IN PART. The Court orders Plaintiffs, with the
exception of Colbert, to pay Defendants $377,632.95 plus postjudgment interest dating from
May 19, 2016. With respect to restitution owed by Lattimer and Lattimer Law, the Court’s
earlier order stands. See Order, ECF No. 148. Defendant District of Columbia’s motion to
reconsider (ECF No. 153) is DENIED.
Dated: November 12, 2020

RUDOLPH CONTRERAS
United States District Judge

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