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

, 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

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 . . . .”

(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

. 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

.

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,

at 4 n.2 (citing Kifafi v. Hilton Hotels Ret. Plan,

(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.,

(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

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