Abraha v. Colonial Parking, Inc. ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Berthe Benyam Abraha, et al.,
Plaintiffs,
v. Civil Action No. 16-680 (CKK)
Colonial Parking, Inc., et al.,
Defendants.
MEMORANDUM OPINION
(April 30, 2018)
Plaintiffs Berthe Benyam Abraha, Esayas Akalu, Samuel Habtewoled, and Gedlu Melke
seek to certify a class in this action against Defendants Colonial Parking, Inc. (“Colonial”) and
FCE Benefit Administrators, Inc. (“FCE”). FCE agrees that a class should be certified, and
Colonial effectively concedes as much. However, the briefing by each party is not a model of
clarity. The Court requires further information if it is to properly assess whether class certification
is warranted and to appropriately define the scope of that class.
Accordingly, upon consideration of the briefing, 1 the relevant legal authorities, and the
record as a whole, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ [43] Motion for Class
1
The Court’s consideration has focused on the following documents, including their
accompanying attachments:
• Pls.’ Mot. for Class Certification, ECF No. 43 (“Pls.’ Mot.”);
• Decl. of Edward Scallet, ECF No. 44 (“Scallet Decl.”);
• Pls.’ Mem. in Supp. of Their Mot. for Class Certification, ECF No. 45 (“Pls.’ Mem.”);
• Def. FCE Benefit Administrators, Inc.’s Mem. of Law in Supp. of Its Partial Opp’n to Pls.’
Mot. for Class Certification, ECF No. 47 (“FCE’s Opp’n”);
• Def. Colonial Parking Inc.’s Opp’n to Pls.’ Mot. to Certify Class, ECF No. 48 (“Colonial’s
Opp’n”); and
• Pls.’ Reply Mem. in Supp. of Their Mot. for Class Certification, ECF No. 52 (“Pls.’
Reply”).
1
Certification, and DENIES as MOOT FCE’s Motion to Strike Evidence Submitted by Plaintiffs
in Support of Plaintiffs’ Motion for Class Certification (“Motion to Strike”), contained within
FCE’s [47-3] filing.
A. Issues with the Parties’ Briefing
Plaintiffs admit that their “Motion for Class Certification seeks a class definition different
from the one that appears in their Complaint.” Pls.’ Mem. at 14. In their Complaint, Plaintiffs
proposed that the class include “[a]ll persons who were employed by Colonial from 2010 through
the present for whom Colonial or FEC [sic] maintained a DUB Account administered by FEC
[sic].” Compl., ECF No. 1, ¶44. Now they seek to include “[a]ny person who was entitled to a
benefit from the Forge Health and Welfare Plan at any time from January 1, 2002, through
December 31, 2015.” Pls.’ Mem. at 14. Aside from the clearly expanded time period, it is not
readily apparent to the Court whether and how the proposed definition is otherwise enlarged.
Lingering questions include 1) how the Colonial employment benchmark in the original definition
may differ from the benefit entitlement benchmark in the new definition, and 2) how keying the
definition to maintenance of a DUB account compares with entitlement to a benefit under the
Forge Health and Welfare Plan.
Plaintiffs argue that this expanded definition is warranted by their finding, during
discovery, that Defendants engaged in “numerous acts of ‘fraudulent concealment’ and that many
of them affected [National Institutes of Health (“NIH”)] employees who received distributions
prior to 2010.” Id. In response to the statute of limitations arguments of Defendants, Plaintiffs
Among the attachments to FCE’s Opposition is its Objections to and Motion to Strike Evidence
Submitted by Plaintiffs in Support of Plaintiffs’ Motion for Class Certification, ECF No. 47-3
(“FCE’s Mot. to Strike”).
2
maintain that the “last action,” for purposes of 29 U.S.C. § 1113, occurred in December 2015; that
recent Supreme Court precedent renders Defendants’ defense off limits; and that Plaintiffs may
avail themselves of the “fraud and concealment” exception to the statute of limitations.2 Id. at 11-
12. Plaintiffs do not whisper “fraud” anywhere in their Complaint, though their allegations as to
excessive fees, among other things, could be construed that way. The Complaint also does not
state when and how Plaintiffs, as opposed to their counsel, discovered the alleged fraud associated
with any given allegation. For example, did Plaintiffs discover any of this alleged fraud during
the time periods at issue, or, with respect to each fraud allegation, has counsel informed Plaintiffs
of the alleged fraud based on counsel’s review of records?
Plaintiffs also appear to expand the claims that they are asserting. “Since [the Court
decided Defendants’ motions to dismiss], Plaintiffs have taken seven depositions and reviewed
more than 50,000 pages of documents, and they are now seeking to recover losses pursuant to six
discrete claims under ERISA. Plaintiffs recently set forth the basis for each of these claims in a
Second Supplemental Response to Defendant FCE’s First Set of Interrogatories . . . .” Id. at 1
(emphasis added). The bulk of the parties’ briefing is devoted to expounding, or defending against,
factual development as to these claims or the class period that, as discussed above, allegedly took
place during discovery preceding the respective briefs. That newly alleged information is not, of
course, reflected in the operative [1] Complaint.3
2
Plaintiffs observe that the statute of limitations issue may rule out some class members at the
post-judgment stage of allocating the recovery. See Pls.’ Reply at 3. But they argue that this
should not limit their opportunity to pursue the claims as a class, for they seek relief for harms to
the plan as a whole rather than relief for individual beneficiaries thereof. See id. at 1-3. The Court
does not express a view as to these issues at this time.
3
The Court need not decide FCE’s Motion to Strike assertions in a declaration by Plaintiffs’
counsel, see FCE’s Opp’n at 10-12, as denial of Plaintiffs’ Motion moots the issue.
3
Plaintiffs did not seek leave to amend at any point prior to the filing of their motion, despite
the Court’s express provision in the [21] Scheduling and Procedures Order for a time period within
which Plaintiffs could have sought such leave. It is true that the amendment deadline of September
15, 2016, preceded most of the discovery in this action. See Scheduling and Procedures Order,
ECF No. 21, at 5. But since then Plaintiffs have not sought any such amendment, for example by
requesting a reopened window within which to amend, as part of the relevant meet-and-confer
statement in which they could have done so. See Joint Report of All Parties Pursuant to FRCP 16
and LCvR 16.3, ECF No. 32, at 3 (recognizing simply that “[p]ursuant to the Court’s Order of
August 1, 2016, the deadline for amending the pleadings has passed”). Nor, during the more than
five months of discovery that followed the filing of their Motion for Class Certification, did
Plaintiffs indicate to the Court that they would amend if the Court would permit them to do so.
Ordinarily, the Court would not be concerned that a party did not exercise its right to seek
leave to amend pleadings when it had the right, or petition the Court for a further such right after
the lapse of that interval. In this case, however, the fact that Plaintiffs did not seek leave to amend
has materially hampered the Court’s ability to properly evaluate the parties’ arguments regarding
Plaintiffs’ Motion for Class Certification.
The onus of clear briefing does not lie entirely with Plaintiffs. Defendants too could have
better facilitated the Court’s ability to evaluate their proposed class definitions. For its part, “FCE
agrees with certifying a class in this matter,” but “asks this Court to limit any class to former
Colonial Parking, Inc. employees who worked on the National Institute of Health contract between
October 1, 2006 and December 31, 2015, and who participated in the DUB Benefit program.”
FCE’s Opp’n at 1-2. FCE’s briefing does not specify, however, 1) why the limitation to former
Colonial employees is more appropriate than a focus on participants in the Forge Health and
4
Welfare Plan; 2) how a definition keyed to the NIH contract would differ from one keyed to the
Forge Health and Welfare Plan; or 3) how “participating in” the relevant program may differ, if at
all, from being “entitled to a benefit from” that program.
Colonial’s proposed class(es) remedy some of this ambiguity at the apparent expense of
administrability. “Colonial understands that the Court may be inclined to certify a class in this
matter,” because “Plaintiffs purport to bring this action on behalf of the Forge Health and Welfare
Plan.” Colonial’s Opp’n at 2. But proceeding claim-by-claim through the allegations in Plaintiffs’
Motion for Class Certification, Colonial proposes class definitions of differing scope—as little as
no class at all—based primarily on Colonial’s statute of limitations arguments. See id. at 15-16.
Should the Court be inclined to proceed with class certification without resolving such statute of
limitations issues, as “Colonial appreciates that this Court has, at times,” done with motions to
certify, id. at 4 n.2 (citing Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174 (D.D.C. 1999)), 4 then
the Court would be left without a clear sense of the class definition that Colonial would urge vis-
à-vis those of Plaintiffs and FCE.
For those claims as to which Colonial does supply a proposed definition, Colonial may be
agreeing with Plaintiffs (but not FCE) when Colonial argues that the appropriate individuals be
“Participants in the Forge Health and Welfare Plan.” See id. at 14-16. But Colonial limits its
proposal only to those who “were entitled to a DUB benefit distribution” and “who received” it
within the proposed statute of limitations. Id. Colonial does not make clear, for example, 1) how
a limitation to “Participants in the Forge Health and Welfare Plan” differs from that of former
4
Colonial’s other citation in the same footnote makes clear that it loosely refers to “this Court”
as the U.S. District Court for the District of Columbia, rather than this specific Court hearing this
case. Colonial supplies only the one reference, to Kifafi, as a case heard by this specific Court on
the issue of statute of limitations issues at the class certification stage.
5
Colonial employees; or 2) why the Forge Health and Welfare Plan is the more appropriate
benchmark than the NIH contract. Colonial does make some attempt to explain why the Court
should adopt language of entitlement and receipt, rather than participation in, the relevant program,
though even that explanation is rather thin. See id. at 14.
In addition, all parties have failed to specifically brief the Rule 23 standards with the
adequacy necessary to facilitate the Court’s decision. Plaintiffs are so summary in their treatment
of some of the applicable standards that, for example, they attempt to prove that they adequately
represent putative class members simply by stating that “Plaintiffs stepped forward to bring this
lawsuit on behalf of their fellow employees [and] are very aware of the responsibilities that that
entails,” and making a few observations about their counsel’s experience. Pls.’ Mem. at 17. For
their part, Defendants do not address each of the Rule 23 standards with specificity. Rather, FCE
does so selectively, see, e.g., FCE’s Opp’n at 12-13 (challenging typicality and commonality), and
Colonial scarcely does so at all, see generally Colonial’s Opp’n at 8 n.4 (specifically applying Rule
23 to the facts of this case only in this footnote and only cursorily as to commonality).
Both Defendants comment in some fashion on the fact that Plaintiffs did not amend the
Complaint to account for the admitted innovation in their Motion for Class Certification. See
FCE’s Opp’n at 10 (“Plaintiffs have not amended their Complaint to reflect their ever-changing
contentions . . . .”); Colonial’s Opp’n at 1-2 (“For the last 19 months, Colonial has defended this
case with the understanding that the scope of the class, if certified, would not exceed the scope of
the Complaint itself . . . .”). Colonial makes some suggestion of prejudice by Plaintiffs’ de facto
attempt to amend the Complaint with their Motion for Class Certification. See Colonial’s Opp’n
at 1-2 (“Now, without notice, after nearly two years and all but two of the depositions, Colonial
learns upon reading Plaintiffs’ Motion that Plaintiffs abruptly seek to more than double the class
6
period from six years to fourteen years.”). But it is not clear whether the five-plus months of
discovery following Plaintiffs’ Motion for Class Certification obviated any prejudice that either
Defendant would have suffered were Plaintiffs’ broader proposed class to be certified without any
further discovery. In any event, the Court shall provide Plaintiffs with an opportunity to amend,
and Defendants with an opportunity to raise any prejudice that would result therefrom.
B. Further Proceedings in This Case
While it is not the Court’s standard practice to do so, the Court shall distill what it expects
to see in any viable amended class action complaint filed in this case. An amended complaint
should expressly identify each of Plaintiffs’ allegations against Defendants in this action. Any
allegation of fraudulent concealment sufficient to toll the statute of limitations must be pled with
particularity under the Federal Rules and must comport with further standards in this Circuit. See
Fed. R. Civ. P. 9(b); Larson v. Northrop Corp., 21 F.3d 1164, 1172-74 (D.C. Cir. 1994). An
amended complaint should sufficiently describe each named Plaintiff’s employment dates and
circumstances so as to make clear his connection, if any, to Defendants during each portion of the
proposed class period. The amended complaint should set forth a class definition that will be
consistent with any subsequently renewed motion for class certification.
In responding to a motion for leave to amend the Complaint, Defendants should raise any
prejudice but should bear in mind the generous standard by which the Court must assess any
proposed, pre-trial amendment under the Federal Rules. See Fed. R. Civ. P. 15(a)(2) (“The court
should freely give leave when justice so requires.”). Accordingly, Defendants should not base any
decision to oppose amendment on their statute of limitations defenses. There will be one or more
subsequent opportunities to raise those defenses in briefing motions under different standards that
would properly put the statute of limitations issue before this Court.
7
In likewise unusual fashion, the Court shall, albeit rather prematurely, describe the requisite
content of the briefing of any renewed motion for class certification. Each party’s briefing of the
class certification motion should propose the same class definition. If that is not possible, then
each party’s briefing should describe in detail the differences between that party’s proposed class
definition and the definitions proposed by other parties to this action, including as to time period;
employer, employment location, or plan pursuant to which a putative group of individuals would
have some connection to the instant action; and whether an individual would fall within the class
solely by maintenance of a DUB account on his or her behalf or instead by entitlement at some
specific time to Forge Health and Welfare Benefits or DUB benefits.
***
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs’ [43] Motion for Class Certification is DENIED WITHOUT
PREJUDICE; and it is
FURTHER ORDERED that Defendant FCE Benefit Administrators, Inc.’s Motion to
Strike Evidence Submitted by Plaintiffs in Support of Plaintiffs’ Motion for Class Certification,
contained within FCE’s [47-3] filing, is DENIED as MOOT; and it is
FURTHER ORDERED that the parties shall file a Joint Status Report by MAY 14, 2018,
indicating whether Plaintiffs shall take the opportunity to file a motion for leave to amend the
Complaint, whether Defendants intend to oppose that motion, and what briefing timeline the
parties would propose. The parties’ Joint Status Report also shall make any alternative proposal
to amending the Complaint that would more efficiently resolve this action.
An appropriate Order accompanies this Memorandum Opinion.
Date: April 30, 2018
___________/s/_________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
8