UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KATHARINE BUSH,
MELIA WILDER (NEE STOPA), and
SHELLY GOOREVICH,
Plaintiffs, Civil Action No. 10-cv-01721 (BJR)
v. ORDER GRANTING MOTION TO
AMEND
RUTH’S CHRIS STEAK HOUSE, INC., and
RUTH’S HOSPITALITY GROUP, INC.
Defendants.
This matter is before the court on Plaintiffs’ Motion for Leave to File Amended
Complaint, Points and Authorities in Support Thereof, and Related Notice of New
Parties and Claims [Docket No. 23; Filed May 6, 2011] (the “Motion”). Defendants
filed a response in opposition to the Motion on April 20, 2011 [Docket No. 24] and
Plaintiffs filed a reply on May 31, 2011 [Docket No. 25]. After completion of briefing,
Defendants moved for and received leave to file supplemental briefing regarding the
impact of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___,
131 S. Ct. 2541 (2011) on the present Motion. Defendants’ supplemental brief was filed
on June 24, 2011 [Docket No. 27] and Plaintiffs’ response was filed on July 8, 2011
[Docket No. 28]. The matter was reassigned to this court in September 2011. The
Motion is fully briefed and ripe for resolution. As an initial matter, the Motion was filed
within the pleading amendment deadline and is therefore timely. For the reasons set
forth below,
IT IS HEREBY ORDERED that the Motion is GRANTED.
I. Background
This matter pertains to Defendants’ alleged discriminatory employment practices.
Specifically, Plaintiffs are former female employees of Ruth’s Chris Steakhouse.
Plaintiffs contend that Defendants violated Title VII of the Civil Rights Act of 1964
(“Title VII”) and Plaintiffs Bush and Wilder contend that Defendants violated their rights
pursuant to the District of Columbia Human Rights Act (“DCHRA”). Complaint [#1] at
33-40. The operative Complaint purports to assert “pattern and practice” gender
discrimination and retaliation claims. At the time of filing of the parties’ Joint Meet and
Confer Reports, they were in agreement that “this case . . . has not been brought as a class
action.” Report [#13] at 6; Revised Report [#16] at 9.
On March 14, 2011, Defendants filed a Motion for Partial Summary Judgment to
dismiss any pattern and practice allegations contained in the operative Complaint on the
basis that such allegations are only relevant in cases involving class claims [Docket No.
14]. In its April 1, 2011 opposition to that motion, Plaintiffs do not allege that they
intend to pursue class claims [Docket No. 20]. Instead, Plaintiffs argue that pattern and
practice allegations and evidence may be used to prove individual claims of
discrimination. Opposition [#20] at 2, 8. That motion remains pending and is fully
briefed.
On the date of the pleading amendment deadline, Plaintiffs filed the Motion at
issue here. Specifically, Plaintiffs move to add individual DCHRA claims associated
with a new Plaintiff and current employee of Ruth’s Chris Steakhouse, LaDawn Harris-
Robinson, and, for the first time, to add class claims. Plaintiffs also provide notice of
their intent to seek amendment at a later time to assert claims held by an individual
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named Amy Fisher and to assert additional, but presently unexhausted, Title VII claims
held by Ms. Harris-Robinson.
As a preliminary matter, Defendants do not oppose amendment to add DCHRA
claims on behalf of LaDawn Harris-Robinson. To the extent that Plaintiffs provide
notice of their intention to seek amendment to add Ms. Fisher and her claims and any
later-exhausted Title VII claims held by Ms. Harris-Robinson, those potential
amendments are not at issue here, and the court passes no judgment as to whether such
amendments may be granted.
In relation to the class claims, Defendants contend that amendment should not be
permitted because Plaintiffs failed to raise class claims earlier despite ample opportunity
to do so, Defendants would be unduly prejudiced, and the proposed amendment to add
class claims would be futile. Opposition [#24] at 7-9. In regard to futility, Defendants
argue that although Plaintiffs contend that the named Plaintiffs share common claims
related to employment discrimination, many of the individual claims are distinct from
each other and no one Plaintiff has the same claims as another. Id. at 10-12.
II. Analysis
The court should grant leave to amend “freely . . . when justice so requires.” Fed.
R. Civ. P. 15(a)(2); Atchinson v. Dist. of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996).
Leave to amend need not be given, however, when the moving party unduly delayed,
failed to amend despite ample opportunity to do so, the nonmoving party would be
unduly prejudiced, or amendment would be futile. Foman v. Davis, 371 U.S. 178, 182
(1962).
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A. Undue Delay and Prejudice
As a preliminary matter, although Defendants characterize the timing of
Plaintiffs’ request as a failure to cure, the court finds that this argument is more
appropriately analyzed as undue delay. While recognizing that Plaintiffs could have
made their intention to seek relief on the behalf of a class sooner, e.g., before
unnecessary scheduling and dispositive motions briefing, the court does not find that
Plaintiffs’ conduct to date prevents them from pursuing amendment. See Caribbean
Broad. Sys. Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1084 (D.C. Cir. 1998)
(noting that even prolonged delay does not necessarily prohibit amendment in light of
overwhelming desire to resolve case on its merits). Moreover, the court weighs this
factor against whether Defendants are prejudiced by the timing of the amendment.
Undue prejudice to Defendants is arguably the most important consideration in
determining whether amendment should be permitted. See United States v. Hougham,
364 U.S. 310, 316 (1960) (“Rule 15 . . . was designed to facilitate the amendment of
pleadings except where prejudice to the opposing party would result.”). Undue prejudice
is not implicated merely because the proposed amendment would “increase defendant’s
potential liability” or prompt the need for additional discovery. 6 Charles Alan Wright et
al., Federal Practice and Procedure § 1487, at 723 (3d ed. 2010); M.K. v. Tenet, 216
F.R.D. 133, 139-40 (D.D.C. 2002).
Given that the Motion was filed within the pleading amendment deadline and that
the Complaint already contained pattern and practice allegations, the court finds that
Defendants are not unduly prejudiced by the amendment. See 6 Wright et al., supra, at
726-27. Further, pursuant to this Order, the court will direct the parties to propose a new
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case schedule to conduct class-related discovery and to file a motion for class
certification.
B. Futility
The parties disagree as to the scope of the court’s review regarding whether the
proposed amendment to add class claims is futile. Defendants argue that there is a
heightened threshold for determining futility when class claims are implicated.
Opposition [#24] at 9-12. For example, in addition to considering the traditional Fed. R.
Civ. P. 15(a) standard, Defendants’ argue that the amendment should be subjected to a
preliminary, yet rigorous, Fed. R. Civ. P. 23 analysis. By contrast, Plaintiffs contend that
the traditional futility analysis of whether a pleading could survive a motion to dismiss is
the appropriate threshold. Reply [#25] at 7-11.
The D.C. Circuit does not appear to have resolved this question, and courts are
split as to whether a heightened standard applies when amendment relates to the addition
of class claims. Compare Smith v. Transworld Sys., Inc., 953 F.2d 1025 (6th Cir. 1992)
(imposing heightened review); Presser v. Key Food Stores Coop., Inc., 218 F.R.D. 53
(E.D.N.Y. 2003) (same), with In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571
(D.N.M. 2010) (reserving heightened review for class certification stage). The court
finds that a hybrid approach of the parties’ proposals is warranted here. Specifically, the
court considers whether Plaintiffs’ proposed Amended Complaint contains sufficient
allegations to implicate a Rule 23 claim, but only in relation to whether Plaintiffs have
satisfied the plausibility pleading requirements governing resolution of a motion to
dismiss.
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Although Defendants cite to Wal-Mart as a basis for summarily rejecting
Plaintiffs’ class allegations as inadequate, see Supplement [#27] at 2-5, that case was
postured dramatically differently than the one at issue here. The decision in Wal-Mart
was rendered after discovery had occurred and the issue of class certification had been
fully vetted. There, the Supreme Court was able to consider evidence in determining
whether a class should be certified. See, e.g., Wal-Mart, 131 S. Ct. at 2551-52. Here, the
court need only consider whether Plaintiffs’ proposed Amended Complaint contains
sufficient allegations, taking them as true, to raise a plausible basis for pursuing class
claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While to make this
determination, the court must cursorily consider whether Plaintiffs allegations speak to
the necessary elements of Rule 23, any ambiguity in this area is resolved in favor of
Plaintiffs. See Scheuer v. Rhondes, 416 U.S. 232, 236 (1974). Moreover, to the extent
that Defendants cite to evidence, or the lack thereof, to support its position or disprove
Plaintiffs’, it is inappropriate to consider matters outside the Complaint at this stage, and
the court does not do so. See Firestone v. Firestone, 76 F.3d 1205, 1210 (D.C. Cir.
1996).
In order to plausibly implicate Rule 23, Plaintiffs’ allegations must speak to
whether (1) the class is sufficiently numerous such that it would be infeasible to
adjudicate all claims separately; (2) there exist questions of law or fact common to the
class; (3) the representative parties’ claims are typical of the class; and (4) the
representative parties can fairly protect the interests of class members. Fed. R. Civ. P.
23(a). These four factors are often referred to as numerosity, commonality, typicality
and adequate representation. See, e.g., Wal-Mart, 131 S. Ct. at 2250. Moreover, the
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class must be alleged to fall within one of the three categories of class actions listed in
Rule 23(b).
On its face, the proposed Amended Complaint contains sufficient allegations that
speak to each of the four factors set forth in Rule 23(a). In addition, Plaintiffs assert that
their class claims could potentially be certified pursuant to either Rule 23(b)(2) or (b)(3).
These allegations can and should be thoroughly vetted after pre-class discovery and
further briefing. See, e.g., Thornburg, 265 F.R.D. at 581. It is not the court’s role at this
stage to weigh the persuasiveness of the parties’ respective positions. See Scheuer, 416
U.S. at 236 (noting that the issue is “not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims”); Nat’l Cmty.
Reinvestment Coal. v. NovaStar Fin., Inc., 604 F. Supp. 2d 26, 31 (D.D.C. 2009)
(recognizing that “a low likelihood of success is not an acceptable reason for denying
leave to amend”). Therefore, the court will leave the question of whether Plaintiffs are
actually entitled to class recovery to be decided on a fully-briefed motion for class
certification.
Resolving all ambiguities in favor of Plaintiffs, the court concludes that it is not
clear that the proposed amendments are futile. Furthermore, the request was timely made
and Defendants have not demonstrated that they will suffer any undue prejudice.
Accordingly,
III. Conclusion
IT IS HEREBY ORDERED as follows:
(1) Plaintiffs’ Amended Complaint [Docket No. 23-1] is accepted for filing as
of the date of this Order;
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(2) Defendants shall answer or otherwise respond to the Amended Complaint
on or before November 14, 2011;
(3) the court passes no judgment as to the appropriateness of further
amendment to include additional claims by Ms. Harris-Robinson or new claims by Ms.
Fisher; and
(4) on or before November 23, 2011, the parties shall submit a revised Joint
Meet and Confer Report which takes into account the existence of class claims and
proposes deadlines and parameters for class-certification discovery and a deadline to file
a motion for class certification.
Given that Defendants’ Motion for Partial Summary Judgment addresses
dismissal of Plaintiffs’ pattern and practice allegations on the basis that no class claims
are asserted, the court’s holding above necessarily moots Defendants’ motion.
Accordingly,
IT IS FURTHER ORDERED that Defendants’ Motion for Partial Summary
Judgment [#14] is STRICKEN as moot.
Dated: October 12, 2011
/s Barbara J. Rothstein
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
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