UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PRINCESS SAKYI,

Plaintiff, Civil Action No. 17-1863 (BAH) v. Chief Judge Beryl A. Howell ESTEE LAUDER COMPANIES, INC., et al.,

Defendants.

MEMORANDUM AND ORDER

Upon consideration of the plaintiff Princess Sakyi’s Motion to Extend the Deadline for

Class Certification (“Pl.’s Mot.”), ECF No. 17, the memoranda submitted in support and

opposition, and the entire record herein, the plaintiff’s motion is GRANTED.

The plaintiff initiated this action, individually and on behalf of all others similarly

situated, against defendants Estee Lauder Companies, Inc., Aveda Institute, Inc., Aveda

Corporation, and Beauty Basics, Inc. (collectively, “defendants”), in the Superior Court of the

District of Columbia on July 31, 2017, alleging unlawful and deceptive trade practices under

, failure to pay minimum wage under the District of Columbia Minimum

Wage Revision Act, and failure to pay all wages earned under the District of Columbia Wage

Payment Collection Law. See Defs.’ Notice of Removal, Ex. 1, Complaint (“Compl.”) at 8–10,

ECF No. 1-1. The defendants removed the case to federal court on September 12, 2017, see

Defs.’ Notice of Removal, ECF No. 1, and the plaintiff filed an amended complaint on October

24, 2017, see generally Amended Private Att’y General & Class Action Compl. (“Amended

Compl.”), ECF No. 10. On January 12, 2018, the parties filed their joint meet and confer

statement, see generally Jt. Meet & Confer Stmt. (“Jt. MCS”), ECF No. 15, which mentioned,

1 for the first time, that the plaintiff intended to file a motion for extension of time to seek class

certification,

at 6–7. The plaintiff filed the instant motion the same day.

Federal Rule of Civil Procedure 23(c)(1) requires the court to determine, “[a]t an early

practicable time after a person sues or is sued as a class representative,” whether to certify the

action as a class action. FED. R. CIV. P. 23(c)(1)(A). Consistent with this federal rule, Local

Civil Rule 23.1(b) requires the plaintiff to move for class certification “[w]ithin 90 days after the

filing of a complaint in a case sought to be maintained as a class action, unless the Court in the

exercise of its discretion has extended this period.” LCvR 23.1(b); see also D.C. Sup. Ct. Cv. R.

23-I(b) (same). When ruling on a motion for class certification, the court may “allow the action

to be so maintained, may deny the motion, or may order that a ruling be postponed pending

discovery or other appropriate preliminary proceedings.” LCvR 23.1(b).

“Local Rule 23.1(b) and its predecessors have been strictly applied in this Circuit.”

Howard v. Gutierrez,

(D.D.C. 2007) (citing Black Panther Party v. Smith,

(D.C. Cir. 1981)); see also Batson v. Powell,

(D.D.C.

1996) (“As this Court has made clear, the 90-day limit of Local Rule 203(b) has been strictly

enforced in this Circuit.”) (internal quotation marks omitted); Weiss v. Int’l Bhd. of Elec.

Workers,

(D.D.C. 1990) (same). As the D.C. Circuit has explained, strict

enforcement of this rule is justified because the local rule “implements the policy behind the

already extant requirement of Fed. R. Civ. P. 23(c)(1) that class certification decisions be made

‘as soon as practicable.’” McCarthy v. Kleindienst,

(D.C. Cir. 1984)

(quoting FED. R. CIV. P. 23(c)(1)) (some internal quotation marks omitted). Accordingly, the

D.C. Circuit has affirmed a district court’s denial of a motion for an extension of time to move

for class certification that was filed merely eleven days late. See Black Panther Party,

; see also Batson, 912 F. Supp. at 570–71 (denying motion for class certification filed

twenty days late). Moreover, as this Court has held, “the most natural reading” of Local Rule

23.1(b) is that the rule “requires the filing of a certification motion within ninety days of the first

complaint that states class allegations.” Howard,

; see also Smith v. Ergo

Sols., LLC,

(D.D.C. 2015) (“As this Court has held, the ninety-day deadline is

measured from the filing of the first complaint alleging a class action—not from the subsequent

filing of an amended complaint.”) (citing Howard, 474 F. Supp. 2d at 54–55). Indeed, “[i]f the

local rule were intended to apply to all subsequent amended complaints, it would refer to ‘the

filing of any complaint.’ It does not.” Howard,

.

A district court may nevertheless forgive a party’s failure to file a timely motion for class

certification if that party makes a showing of “excusable neglect.” Little v. Wash. Metro. Area

Transit Auth.,

(D.D.C. 2015); FED. R. CIV. P. 6(b)(1)(B) (“When an act may

or must be done within a specified time, the court may, for good cause, extend the time . . . on

motion made after the time has expired if the party failed to act because of excusable neglect.”).

The determination of whether a party’s neglect is excusable “is at bottom an equitable one,

taking account of all relevant circumstances surrounding the party’s omission,” including “the

danger of prejudice to the [other party], the length of the delay and its potential impact on

judicial proceedings, the reason for the delay, including whether it was within the reasonable

control of the movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship,

(1993); see also Smith v. District of Columbia,

, 456 n.5 (D.C. Cir. 2005). “Although inadvertence, ignorance of the rules, or

mistakes construing the rules do not usually constitute ‘excusable’ neglect, it is clear that

‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not limited strictly to

3 omissions caused by circumstances beyond the control of the movant.” Pioneer,

(footnote omitted); see also Cryer v. InterSolutions, Inc., No. 06-cv-2032,

, at

*5 (D.D.C. Apr. 20, 2007) (“The Pioneer Court ‘purposely fashioned a flexible rule which, by its

nature, counsels against the imposition of a per se rule on attorney neglect.’”) (quoting In re

Vitamins Antitrust Class Actions,

(D.C. Cir. 2003)).

In this case, the plaintiff first filed a complaint in D.C. Superior Court on July 31, 2017.

That court has a local rule almost identical to this Court’s Local Civil Rule 23.1(b), making a

motion for class certification due by October 29, 2017. See D.C. Sup. Ct. Cv. R. 23-I(b). The

plaintiff argues, however, that “the 90-day deadline runs from the deadline of the filing of

Plaintiff’s Amended Complaint, which was filed on October 24, 2017, making the deadline

January 22, 2018.” Pl.’s Mem. Supp. Mot. Extend Deadline Class Cert. (“Pl.’s Mem.”) at 3,

ECF No. 17-1. The plaintiff is incorrect, for the same reasons stated in Howard. See Howard,

474 F. Supp. 2d at 54–55. This Court has not had the opportunity to address whether the ninety-

day deadline runs from the filing of the original complaint in state court or instead from the

removal of the case to federal court, and doing so today is unnecessary because the deadline has

lapsed under either rule: ninety days from the filing of the complaint was October 29, 2017,

while ninety days from removal was December 11, 2017. 1

Nevertheless, the plaintiff’s neglect is excusable. The plaintiff’s motion and the parties’

Joint Meet and Confer Statement indicate that the plaintiff requested the defendants’ consent to

1 The plaintiff also argues that the defendants have conceded, through their failure to respond to this argument, that “the deadline did not begin to run with respect to defendants Aveda Corporation and Beauty Basics until the filing of the amended complaint,” because those defendants were not added in this matter until the amended complaint was filed on October 24, 2017. See Pl.’s Reply Supp. Mot. Extend Deadline Class Cert. (“Pl.’s Reply”) at 1–2, ECF No. 22. Local Rule 23.1(b) does not, however, make any reference to later-added parties and instead refers to only “the filing of a complaint.” LCvR 23.1(b) (emphasis added). The plaintiff’s decision to add additional defendants after filing a complaint in this matter does not affect the applicable time period during which she was required to move for class certification.

4 an extension of time sometime around November 8, 2017, when defendants’ counsel represented

that they would “confer” about the plaintiff’s request. Jt. MCS at 6. When plaintiff’s counsel

followed up on that request on November 13, 2017, defendants’ counsel responded two days

later asking “why [plaintiff’s counsel] [is] requesting an extension of the certification deadline,

so we can discuss the matter with our client.”

Five minutes later, plaintiff’s counsel

explained that the request was due to the discovery he anticipated would be necessary to support

the motion.

at 6–7. Defendants’ counsel never responded to that e-mail but later represented

to plaintiff’s counsel that the defendant took “no position on Plaintiff’s request.” Id. at 7. That

neutrality changed into opposition by the time the parties discussed the joint meet and confer

statement. See id. at 7.

The plaintiff’s attempts to communicate the request for an extension to defendants’ counsel

indicate that the defendants have suffered no prejudice as a result of this delay. Even in the

absence of a motion for class certification or a motion for extension of time, the defendants

“clearly still contemplated the future filing of a class certification motion,” Little,

, and knew at least by November 8, 2017, that the plaintiff intended to seek an extension. See

also Cryer,

, at *6 (concluding that “defendants are not prejudiced if the court

allows plaintiffs to file for class certification” because they had “been on notice since the filing of

the original complaint,” nearly four months before the request for an extension, “that plaintiffs

intended to pursue a class action”). Assuming arguendo that the ninety-day deadline runs from the

date of removal—the rule adopted by most district courts to address the question—the plaintiff’s

thirty-two-day delay is not so great that it has made an appreciable impact on these proceedings.

Cf. Howard, 474 F. Supp. 2d at 55–57 (finding no excusable neglect when plaintiffs waited

almost six months after the ninety-day period, and three months after being notified they had

5 missed the deadline, to request an extension); see also Copeland v. MCI Commc’ns Servs., Inc.,

No. 07-cv-4865,

, at *2–3 (C.D. Cal. Mar. 13, 2008) (finding that the date of

removal triggered the ninety-day deadline); Lauer v. Chamale Cove, No. 06-1423,

, at *1 (E.D. La. Jan. 24, 2007) (“When a case has been removed, the 90 days begins to

run from the date of removal.”); Joseph N. Main P.C. v. Elec. Data Sys. Corp.,

(N.D. Tex. 1996) (noting that if the deadline ran from the filing of a state court complaint,

“state court plaintiffs who sought to maintain class actions would be required to anticipate

removal and to begin calculating deadlines under rules which do not apply to state actions”).

The plaintiff’s reasons for the delay, namely, the absence of discovery and the delayed

responses from defendants’ counsel, see Pl.’s Mem. at 5–6, also favor granting an extension.

The plaintiff notified the defendants that an extension would be sought, and the parties have

agreed to a schedule pursuant to which discovery will close on July 27, 2018. See Jt. MCS at 4–

6; Minute Order (Jan. 30, 2018). As the defendants acknowledge, Local Rule 23.1(b)

“provide[s] for the possibility that the a [sic] party may require discovery to support its motion

for class certification.” Defs.’ Opp’n Pl.’s Mot. Extend Deadline Class Cert. (“Defs.’ Opp’n”) at

3, ECF No. 21. Granting an extension will allow the plaintiff to conduct that discovery. Finally,

the plaintiff acted in good faith by communicating to defendants’ counsel the request for an

extension and the reasons for that request, and the defendants have not identified any bad faith

on the part of the plaintiff in seeking this extension. See Smith,

(“In the absence

of any allegation of bad faith on the part of plaintiffs, the Court finds that the equities counsel

against denying class certification on the basis of a relatively short delay alone—plaintiffs’

neglect, then, is excusable.”). While the plaintiff’s tardiness is not condoned, the balance of

6 equities favors granting an extension of time to move for class certification. Accordingly, it is

hereby

ORDERED that the plaintiff’s motion is GRANTED; and it is further

ORDERED that the plaintiff shall, by August 10, 2018, file any motion for class

certification. The Scheduling Order entered on January 30, 2018, remains in effect.

SO ORDERED.

Date: February 6, 2018

__________________ BERYL A. HOWELL Chief Judge

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