Artis v. Greenspan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
CYNTHIA ARTIS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 01-400 (EGS)
)
JANET L. YELLEN, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION

Pending before the Court is defendant’s motion to strike the

class allegations raised in plaintiffs’ Fourth Amended Complaint

and for an Order directing the plaintiffs to file an amended

complaint stating more specifically their individual claims of

discrimination. Also before the Court are plaintiffs’ motions

for a jury trial and an expedited status hearing. Upon

consideration of the motions, the responses and replies thereto,

the applicable law, and the entire record, the Court GRANTS

defendant’s motion, and DENIES plaintiffs’ motions.

I. Background

The history of this case is chronicled more fully in the

Court’s recent Opinion denying the plaintiffs’ motion for class

certification. See Artis v. Yellen, No. 1-400, 2014 WL 4801783

(D.D.C. Sept. 29, 2014). In summary, this case was filed in

2001, alleging class-wide discrimination by the Federal Reserve
Board against African-American secretarial and clerical

employees. The Court initially allowed the plaintiffs to conduct

limited discovery regarding administrative-exhaustion issues.

See Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002).

Discovery took a few years, but on January 31, 2007, the Court

granted the defendant’s motion to dismiss the case on the

grounds that the plaintiffs had failed to exhaust their

administrative remedies. See Artis v. Greenspan, 474 F. Supp. 2d

16 (D.D.C. 2007). The Court denied plaintiffs’ motion for

reconsideration on March 2, 2009. See Artis v. Bernanke, 256

F.R.D. 4 (D.D.C. 2009). On January 11, 2011, the D.C. Circuit

reversed the dismissal for failure to exhaust administrative

remedies. See Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011).

On remand, the case proceeded into a long and contentious

class-discovery period, which is discussed more fully in the

Court’s class-certification decision. See Artis, 2014 WL

4801783, at *4–6. In sum, the plaintiffs refused to participate

in discovery, necessitating a motion to compel their responses

to written discovery and appearances for depositions. See id. at

*4. The plaintiffs also filed their own motion to compel the

production of certain personnel data, which the Court denied due

to their failure to point to any discovery request that the

defendant had failed to answer. See id. Plaintiffs repeatedly

sought reconsideration of this Order in 2012 and 2013, raising

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arguments that had been previously rejected or could have been

raised in the motion to compel. See id. at *5–6. The Court

rejected these requests for reconsideration. Id. The plaintiffs’

interlocutory appeal of these decisions—which sought to

“enforce” the D.C. Circuit’s mandate in plaintiffs’ prior

appeal—was denied on November 26, 2013. See Order, Artis v.

Bernanke, No. 09-5121 (D.C. Cir. Nov. 26, 2013).

On January 3, 2014, plaintiffs filed their motion for class

certification. See Mot. to Certify Class, ECF No. 211. The Court

denied that motion on September 29, 2014. See Artis, 2014 WL

4801783. The Court found that the plaintiffs failed to

demonstrate that they satisfied the commonality and typicality

requirements of Federal Rule of Civil Procedure 23(a) because

they provided nothing—neither fact nor argument—to explain how

their claims of discrimination were anything but individualized

allegations regarding actions taken by lower-level managers

pursuant to delegated discretion. See id. at *9–12. The Court

also concluded that the plaintiffs could not satisfy the

requirements of bringing a class action under any provision of

Rule 23(b). See id. at *12–13.1

1 In addition to denying the motion for class certification, the
Court’s Opinion rejected various other requests and arguments
made by the plaintiffs, including an extremely untimely request
to submit an additional expert-witness report, an objection to
the Court addressing class-certification before adjudicating the
merits of their case, and yet another attempt to seek

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 The Court’s Order denying class certification also directed

the parties, “in accordance with the Scheduling Order,” to

“‘confer with respect to a schedule for the next phase, and . .

. submit a proposed schedule to the Court.’” Order, ECF No. 224

at 1 (quoting Scheduling Order, ECF No. 95 at 2) (alteration in

original). Per the Scheduling Order, the next phase would be

“Phase II: Merits/Liability.” Scheduling Order, ECF No. 95 at 2.

After reviewing the parties’ competing status reports, the Court

issued the following Minute Order:

The parties have filed competing status reports
containing their recommendations for further
proceedings. In plaintiffs’ status report, the
plaintiffs asserted that they intended to file a Rule
23(f) appeal of the Court’s Order denying class
certification on October 14, 2014 and to file a motion
to stay proceedings on October 15, 2014. The Court has
received neither a motion to stay nor a notice of any
appeal. Accordingly, the Court will proceed to resolve
the parties’ competing proposals. Defendant asserts that
plaintiffs’ complaint does not set forth sufficient
factual description of the plaintiffs’ individual claims
of discrimination and therefore requests that the Court
order the plaintiffs to file an amended complaint
setting forth such facts. Plaintiffs counter that their
complaint states a general pattern-or-practice claim and
that they cannot supply any additional facts absent
further discovery. Plaintiffs nonetheless ask that the
Court institute a schedule whereby they would be
permitted to amend their complaint at the close of
merits-related discovery. To begin, the Court notes that
a complaint serves to provide a defendant with notice of
the claims asserted against it and therefore to
structure the discovery process. See Chennareddy v.
Dodaro, 282 F.R.D. 9, 12 (D.D.C. 2012) (“plaintiffs are
simply not entitled to discovery on the merits of their

reconsideration of the Court’s prior discovery orders. See id.
at *6–8.

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 claims until they have properly pled such claims”).
Accordingly, if plaintiffs intend to file an amended
complaint, that complaint must be filed before Phase II
discovery begins. Plaintiffs are therefore ORDERED to
file any amended complaint by no later than November 7,
2014. The defendant shall file its response to any
amended complaint or, if no amended complaint is filed,
any motion requesting whatever relief the defendant
feels is appropriate in connection with the currently
operative complaint, by no later than December 8, 2014.
The Court STAYS discovery pending further Order of this
Court.

Minute Order of October 17, 2014.2

Plaintiffs did not file an Amended Complaint. On December 8,

2014, the defendant filed the pending motion to strike the class

allegations in plaintiffs’ Fourth Amended Complaint and for an

order directing the plaintiffs to amend their complaint to state

their individual claims of discrimination. See Mot. to Strike,

ECF No. 230. The plaintiffs have opposed that motion, Opp. to

Mot. to Strike, ECF No. 231, and the defendant filed a reply

brief. See Reply in Supp. of Mot. to Strike, ECF No. 232.

Soon after that motion became ripe, the plaintiffs moved for

an immediate jury trial on issues involving the Court’s

resolution of various class-discovery disputes as well as the

2 The plaintiffs petitioned the D.C. Circuit for interlocutory
review of the Court’s denial of class certification pursuant to
Federal Rule of Civil Procedure 23(f). See 23(f) Petition, In re
Artis, No. 14-8003, Doc. 1517894 (D.C. Cir. filed Oct. 14,
2014). On January 14, 2015, the D.C. Circuit denied the
petition, holding that “[t]he petition is devoid of argument . .
. failing to mention, let alone address, the requirements for
interlocutory appeal pursuant to Rule 23(f).” Order, In re
Artis, No. 14-8003 (D.C. Cir. Jan. 14, 2015).

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merits of the plaintiffs’ classwide pattern-or-practice claim.

See Pls.’ Mot. for Trial, ECF No. 233. The defendants object to

this request, Opp. to Mot. for Trial, ECF No. 234, and the

plaintiffs have filed a reply brief in further support of it.

See Reply in Supp. of Mot. for Trial, ECF No. 235.

Finally, on May 4, 2015, plaintiffs filed a motion that

appears to reiterate their request for a jury trial, requests a

status hearing to discuss the scope of merits discovery, and

indicates that if the Court grants the defendant’s motion to

strike, the plaintiffs will refuse to amend their Complaint. See

Pls.’ Mot. for Hearing, ECF No. 237. The defendant opposed this

motion, Opp. to Mot. for Hearing, ECF No. 238, and the

plaintiffs filed a reply brief on May 28, 2015. See Reply in

Supp. of Mot. for Hearing, ECF No. 239.

These motions are all ripe for resolution.

II. Legal Standards

Striking Class Allegations

Federal Rule of Civil Procedure 12(f) permits the Court to

“strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” This

Court’s Local Rules relatedly provide that “[a] defendant may

move at any time to strike the class action allegations or to

dismiss the complaint.” Local Civ. R. 23.1(b). The Court is also

empowered to “require that the pleadings be amended to eliminate

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allegations about representation of absent persons and that the

action proceed accordingly.” Fed. R. Civ. P. 23(d)(1)(D). As a

general matter, “the decision of whether to strike all or part

of a pleading rests within the sound discretion of the Court.”

Barnes v. District of Columbia, 289 F.R.D. 1, 6 (D.D.C. 2012).

Normally, “striking portions of a pleading is a drastic remedy,

and motions to strike are disfavored,” Uzlyan v. Solis, 706 F.

Supp. 2d 44, 51 (D.D.C. 2010), but the remedy is generally

available to “require that pleadings be amended to eliminate

class allegations,” in cases where “a suit must proceed as a

nonclass, individual action.” Eisen v. Carlisle & Jacquelin, 417

U.S. 156, 183 n.6 (1974).

Motion for a More Definite Statement

“Federal Rule of Civil Procedure 8(a)(2) provides that any

pleading asserting a claim for relief must include a ‘short and

plain statement of the claim showing that the pleader is

entitled to relief.’” Chennareddy v. Dodaro, 282 F.R.D. 9, 14

(D.D.C. 2012) (quoting Fed. R. Civ. P. 8(a)(2)). “The statement

should be plain because the principal function of pleadings

under the Federal Rules is to give the adverse party fair notice

of the claim asserted so as to enable him to answer and prepare

for trial.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Rule 8(d)(1) relatedly requires that “[e]ach allegation must be

simple, concise, and direct.” “‘Taken together, [the] Rules . .

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. underscore the emphasis placed on clarity and brevity by the

federal pleading rules.’” Ciralsky v. CIA, 355 F.3d 661, 669

(D.C. Cir. 2004) (quoting In re Westinghouse Secs. Litig., 90

F.3d 696, 702 (3d Cir. 1996)).

Federal Rule of Civil Procedure 12(e) permits a party to “move

for a more definite statement of a pleading to which a

responsive pleading is allowed but which is so vague or

ambiguous that the party cannot reasonably prepare a response.”

The Rule “provides a specific mechanism for striking a complaint

(which, if stricken as a whole, has the effect of dismissing the

action) in the context of orders for a more definite statement.”

Chennareddy, 282 F.R.D. at 14; see Fed. R. Civ. P. 12(e) (“If

the court orders a more definite statement and the order is not

obeyed within 14 days after notice of the order or within the

time the court sets, the court may strike the pleading or issue

any other appropriate order.”). Accordingly, “in some

circumstances, if a party fails or refuses to file an amended

and simplified pleading or does not exercise good faith in

purporting to do so, the severe sanction of a dismissal on the

merits may be warranted.” 5 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1217 (3d ed. 2015).

III. Analysis

Plaintiffs’ Class Allegations Must Be Stricken.

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 After an exhaustive period of class discovery, including

extensive expert-witness discovery, this Court denied the

plaintiffs’ motion for class certification on September 29,

2014. See Artis, 2014 WL 4801783. Plaintiffs’ Fourth Amended

Complaint, however, is replete with class-related allegations.

Indeed, as the defendant chronicled in her motion, the Fourth

Amended Complaint focuses almost entirely on class-wide claims.

See Fourth Am. Compl., ECF No. 127 ¶¶ 7, 11, 13–29, 31, 35, 40,

43, 45–83, 84–93. The extent to which class allegations are

interspersed throughout the Complaint renders it impossible to

discern what individual claims remain after this Court’s denial

of class certification. This difficulty means that this case is

an appropriate candidate for exercise of the Court’s authority

to “require that pleadings be amended to eliminate class

allegations,” in cases where “a suit must proceed as a nonclass,

individual action.” Eisen, 417 U.S. at 184 n.6. Accordingly, the

Court GRANTS the request to strike plaintiffs’ class

allegations.

Plaintiffs Must Amend their Complaint to Provide a Short
and Plain Statement of their Individual Claims.

The defendant also asks this Court to direct the plaintiffs to

amend their complaint to state more specifically their

individual complaints of discrimination, and not to “rely

exclusively on plaintiffs’ allegation that the Board engaged in

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a ‘pattern or practice’ of discrimination.” Mot. to Strike, ECF

No. 230 at 6. The plaintiffs respond that they should be allowed

to proceed on their pattern-or-practice allegations because

proper discovery of the electronic information they claim was

withheld during class discovery will ultimately prove their

claims. See Opp. to Mot. to Strike, ECF No. 231 at 2–7.3

The Court finds that defendant is supported by ample legal

authority. “[T]he pattern-or-practice method of proof is not

available to private, nonclass plaintiffs.” Chin v. Port Auth.,

685 F.3d 135, 149 (2d Cir. 2012); see also, e.g., Daniels v.

United Parcel Serv., 701 F.3d 620, 633 (10th Cir. 2012); Bacon

v. Honda, 370 F.3d 565, 575 (6th Cir. 2004); Lowery v. Circuit

3 The Court rejects plaintiffs’ additional argument that the
defendant’s motion should be denied pursuant to Local Civil Rule
7(m). See Opp. to Mot. to Strike, ECF No. 231 at 1–2. That Rule
provides that “[b]efore filing any nondispositive motion in a
civil action, counsel shall discuss the anticipated motion with
opposing counsel in a good-faith effort to determine whether
there is any opposition to the relief sought and, if there is,
to narrow the areas of disagreement. . . . A party shall include
in its motion a statement that the required discussion occurred,
and a statement as to whether the motion is opposed.” Local Civ.
R. 7(m) (emphasis added). As defendant notes, her motion is
potentially dispositive as it seeks to strike all class
allegations, and seeks a more definite statement of plaintiffs’
individual claims, with failure to comply resulting in dismissal
with prejudice. Accordingly, Local Civil Rule 7(m) is
inapplicable. The parties, moreover, had already conferred
regarding their proposals for further proceedings and filed
status reports setting forth their competing positions on
whether the filing of this very motion was appropriate. See
Order, ECF No. 224 at 1; Def.’s Status Report, ECF No. 226;
Pls.’ Status Report, ECF No. 227.

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City Stores, Inc., 158 F.3d 742, 759 (4th Cir. 1998), vacated on

other grounds, 527 U.S. 1031 (1999); Schuler v.

PricewaterhouseCoopers, LLP, 739 F. Supp. 2d 1, 5 (D.D.C. 2010);

Turner v. District of Columbia, 383 F. Supp. 2d 157, 169 (D.D.C.

2005). “The phrase ‘pattern or practice’ appears only once in

Title VII—in a section that authorizes the government to pursue

injunctive relief against an employer ‘engaged in a pattern or

practice of resistance to the full enjoyment of any of the

rights secured by’ the statute.” Chin, 685 F.2d at 147 (quoting

42 U.S.C. § 2000e-6). The pattern-or-practice method of proof

applies “either to this unique form of liability available in

government actions . . . or to the burden-shifting framework set

out in [International Brotherhood of Teamsters v. United States,

431 U.S. 324 (1977)], and available both to the government in §

2000e-6 litigation and to class-action plaintiffs in private

actions alleging discrimination.” Id. It is inapplicable to

private nonclass plaintiffs who “ordinarily must show that an

employer took an adverse employment action against him or her

because of his or her race.” Id. (emphasis in original).

That is not to say that pattern-or-practice evidence cannot be

used to bolster an individual claim. But in a private-individual

case, “evidence of a pattern and practice ‘can only be

collateral to evidence of specific discrimination against the

actual plaintiff.’” Gilty v. Vill. of Oak Park, 919 F.2d 1247,

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1252 (7th Cir. 1990) (quoting Williams v. Boorstin, 663 F.2d

109, 115 n.38 (D.C. Cir. 1980)).

Plaintiffs’ arguments to the contrary were entirely

unresponsive and failed to grapple with any of the applicable

precedent. The few decisions that plaintiffs cited as support

for their theory of liability were all government actions, class

actions, or both. See United States v. City of N.Y., 717 F.3d 72

(2d Cir. 2013); Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984);

EEOC v. Fed. Reserve Bank of Richmond, 698 F.2d 633 (4th Cir.

1983). “Because this case is not a class action, plaintiffs were

required to [plead] specific discrimination against them, and

cannot rely upon collateral evidence of ‘general instances of

discrimination.’” Bailey v. DiMario, 925 F. Supp. 801, 813

(D.D.C. 1995) (quoting Williams, 663 F.2d at 155 n.38). A

pattern-or-practice theory alone cannot support plaintiffs’

claims which, after the denial of class certification, must

proceed as individual claims.

Nor is the Court convinced by plaintiffs’ renewal of their

oft-repeated arguments regarding the Court’s discovery rulings.

See generally Opp. to Mot. to Strike, ECF No. 231 at 2–7. To the

extent that they use these complaints about the class-discovery

process as an excuse for failing to plead an appropriate legal

claim, this excuse is rejected:

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 [T]his Court flatly rejects plaintiffs’ contention that
they cannot—or should not be required to—submit a more
definite statement until they have been given access to
the [defendant’s] electronic personnel files. Such an
approach would permit plaintiffs to bypass the pleading
stage of litigation entirely, sanctioning an approach
under which plaintiffs could simply allege that the
information held by defendant would prove their claims
without actually stating what those claims are in the
short and plain statement required by Rule 8(a).

Chennareddy v. Dodaro, 698 F. Supp. 2d 1, 16 (D.D.C. 2009); see

also Chennareddy, 282 F.R.D. at 12 (“plaintiffs are simply not

entitled to discovery on the merits of their claims until they

have properly pled such claims”) (emphasis omitted).

Plaintiffs’ complaint must therefore contain a short and plain

statement of each plaintiff’s claim for having suffered

individual disparate treatment on the basis of race. Plaintiffs’

current complaint, however, focuses entirely on class-wide

allegations. See Fourth Am. Compl., ECF No. 127 ¶¶ 7, 9–10, 13–

31, 35, 40, 43, 45–83, 84–93. They raise essentially no specific

allegations regarding any of the individual plaintiffs,

mentioning only the plaintiffs’ names, race, the division of the

Federal Reserve Board in which they worked, and their years of

service. See id. ¶ 44. None of the plaintiffs allege any

individual act of discrimination that is specific to them, and

none even specify which of the five areas challenged on a class-

wide basis—“salary, cash awards, promotions, performance

reviews, and career-transition agreements,” Artis, 2014 WL

13
4801783, at *2—they personally challenge. A plaintiff’s

complaint must “give the defendant fair notice of what the claim

is and the grounds upon which it rests,” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quotations marks and

alteration omitted), but plaintiffs have failed to do so.

Accordingly, the Court GRANTS the defendant’s request and Orders

that plaintiffs file an amended complaint that sets forth the

individual discrimination claims of each plaintiff.

Plaintiffs’ Requests for a Trial and Status Hearing Are
Denied.

Plaintiffs make what can only be described as a “bizarre,”

Opp. to Mot. for Trial, ECF No. 234 at 1, request that this

Court schedule on an expedited basis a trial to address

plaintiffs’ objections to this Court’s class-discovery rulings.

See Mot. for Trial, ECF No. 233 at 4–10. Plaintiffs’ pleadings

describe an elaborate procedure under which these issues would

be tried by a jury, the jury would then recess to permit the

defendant to produce additional discovery information, and later

be recalled to decide the merits of plaintiffs’ claims. See id.

What is missing from plaintiffs’ proposal is any mention of the

Federal Rules of Civil Procedure. Discovery disputes, of course,

are not issues for a jury. Nor is there any basis for the

plaintiffs to obtain a trial when they have yet to plead their

individual claims consistent with Federal Rule of Civil

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Procedure 8. Because plaintiffs have failed properly to plead

their claims, the Court also finds no need for a status hearing

at this time. Plaintiffs’ motions are therefore DENIED.

If Plaintiffs Fail to Comply with this Order, their
Claims Will Be Dismissed With Prejudice.

In one of their pleadings, the plaintiffs appeared to indicate

their intent to defy any Order of this Court directing them to

submit an Amended Complaint. Their assertion appears to be that

if the Court grants the defendant’s motion and denies

plaintiffs’ requests for a jury trial and status hearing, then:

Plaintiffs request entry of a continuing objection to
all matters and decisions of the Court to date in this
case as not in accordance with the applicable law and in
direct contradiction of demonstrated [sic] fact of the
withholding of evidence by this federal agency and
request entry of judgment on the existing record subject
the [sic] following objection, with Certification of the
Ruling to the Court of Appeals for the District of
Columbia Circuit.

Pls.’ Mot. for Status Hearing, ECF No. 237 at 16. They elaborate

that “[s]taying the course would require plaintiffs’ performance

of useless and impossible tasks” and that granting the

defendant’s motion “would be the conversion of the entire theory

of [plaintiffs’] factual and legal case from an invidious

pattern and practice provable only by evidence withheld by

defendants in violation of law, to a series of basically

unprovable individual claims.” Id. at 16–17 (emphasis added).

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 Putting aside plaintiffs’ shocking admission that their

individual claims are “basically unprovable,” this statement is

reflective of plaintiffs’ and their counsel’s approach

throughout this case. Whether failing repeatedly to comply with

Court Orders and the requirements of this Court’s Local Rules;4

refusing entirely to participate in class discovery until

ordered to do so by this Court;5 filing repeated, frivolous

requests for reconsideration of the Court’s discovery orders;6 or

submitting misleading factual information in support of their

motion for class certification;7 the plaintiffs have consistently

flouted Court orders and the basic requirements placed on

litigants who bring their case to court. These actions have

unquestionably burdened the Court’s docket with unnecessary

filings and delay, have prejudiced the defendant by forcing her

to respond to unnecessary and improper filings, and clearly

constitute defiant behavior that, if continued, calls out for

deterrence. See Bristol Petroleum Corp. v. Harris, 901 F.2d 165,

4 See Artis, 2014 WL 4801783, at *6 nn.8–9; Minute Order of
December 4, 2012; Minute Order of October 17, 2014; Minute Order
of November 10, 2014.

5 See Artis, 2014 WL 4801783, at *4; Order, ECF No. 184 at 2;
Order, ECF No. 139.

6 See Artis, 2014 WL 4801783, at *5–6, 8; Order, ECF No. 184;
Order, ECF No. 199.

7 See Artis, 2014 WL 4801783, at *7 n.10.

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167 (D.C. Cir. 1990) (“Considerations relevant to ascertaining

when dismissal, rather than a milder disciplinary measure, is

warranted include the effect of a plaintiff’s dilatory or

contumacious conduct on the court’s docket, whether the

plaintiff’s behavior has prejudiced the defendant, and whether

deterrence is necessary to protect the integrity of the judicial

system.”); Shea v. Donohoe Const. Co., 795 F.2d 1071 (D.C. Cir.

1986). If plaintiffs refuse to file an Amended Complaint, or if

they file an Amended Complaint that does not comply with this

Order, this history of refusal to follow the rules of procedure

and Court Orders will justify “the severe sanction of a

dismissal on the merits.” 5 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1217 (3d ed. 2015); see

Chennareddy, 282 F.R.D. at 15–16 (dismissing with prejudice

after a plaintiff’s “inexplicable failure to comply with the

Court’s Orders and the Federal Rules”).

IV. Conclusion

For the foregoing reasons, the Court GRANTS defendant’s motion

to strike the class allegations from plaintiffs’ Fourth Amended

Complaint and to require plaintiffs to file a Fifth Amended

Complaint setting forth with sufficient particularity their

individual claims of discrimination. The Court also DENIES

plaintiffs’ requests for a jury trial and status hearing. An

appropriate Order accompanies this Memorandum Opinion.

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 SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
June 22, 2015

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