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On May 2, 2001, a jury of seven in District of Columbia Superior Court awarded a total of $928,200.00 in compensatory and punitive damages to three Latino immigrant laborers, in the case of Gutierrez v. Restaurant Equipment and Supply Depot. The jury found that three plaintiffs were entitled to compensation as a result of discrimination based on national origin, retaliation for protected protests against discrimination and battery. This Firm represented the three plaintiffs.

We alleged that Plaintiffs, who are Latino, were subjected to a hostile environment, called derogatory names (“stupid” and “garbage”), denied breaks and necessary safety equipment, discriminatorily paid less than non-Latino workers and unlawfully denied rightful wages. We asserted that Defendant Kim struck Plaintiff Gutierrez for handing him the wrong size screw, and that when Plaintiffs requested medical care for Gutierrez, Defendant forbade him from leaving the facility. We further alleged that as a result of protesting this situation internally to Defendants, Plaintiffs were retaliatorily fired.

Although they filed a dispositive motion and served their own discovery requests, Defendants' counsel– Stanley Goldschmidt and Tamir Damari– refused to provide us with required information. Most importantly, they failed to file an answer when that motion was denied, as required by the Superior Court Rules.

The Superior Court — as it was required to pursuant to SCR Civil 12(a)(5)– entered a default order against Restaurant Equipment Defendants. The Court stated that its Order was “based upon Defendants' failure to answer the complaint or to request an extension of time in which to do so.”

Restaurant Equipment Defendants moved to vacate the entry of default, asserting that the failure to file the Answer was inadvertent. However, the Superior Court found Defendants' explanation failed to address the issue of the Answer, and declined to vacate. The Court maintained that posture in denying Defendants' request for reconsideration.

We moved for a jury trial on damages instead of a judge-only hearing, and a jury trial was held on damages. Defendants' counsel litigated vigorously. We obtained verdicts and a judgment for all three Plaintiffs, totaling over $900,000.00.

Defendants appealed only the entry of default and the Superior Court's declination of the opportunity to vacate it. The conduct and outcome of the trial was not at issue on appeal.

Leizer Z. Goldsmith argued the case on appeal. Two questions were presented. First, whether the Superior Court abused its discretion in entering the default, or whether, as we argued, the entry of default was proper because it was explicitly mandated by law once Defendants failed to timely file their Answer. Second, whether the Superior Court abused its discretion in declining to vacate the entry of default.

The Court of Appeals held that the entry of default was indeed mandated by law. With regard to the question of whether the default should have been vacated pursuant to Defendant's request, the Court agreed with Plaintiffs, that Defendants would have had to show “good cause.” Defendants had asserted that they had “inadvertently” failed to file their answer, and provided various, sometimes contradictory excuses for that failure, including some raised for the first time ever on appeal. The Court held that simply “forgetting” to file was insufficient to show good cause, especially where, as here, appellants had conceded at oral argument that they were reminded of their obligation to file by Plaintiffs nearly three weeks before the default was entered. Accordingly, the Court upheld the verdict in our clients' favor.  Attorneys' fees were later awarded as well.

Leizer Goldsmith

Position: Principal Born: Halifax, Nova Scotia, Canada, June 22, 1962 Bar Admissions 1988, Massachusetts 1989, District of Columbia 1992, Maryland, U.S. Court of Appeals, Fourth, Fifth and District of Columbia Circuits; 1995, U.S Supreme Court Education University of Michigan (B.A...


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