                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


____________________________________
                                    )
KATHLEEN BREEN, et al.,             )
                                    )
      Plaintiffs,                   )
                                    )
      v.                            )                  Civil Action No. 05-0654 (PLF)
                                    )
ELAINE L. CHAO, Secretary of        )
Transportation, Department of       )
Transportation, et al.,             )
                                    )
      Defendants.                   )
____________________________________)


                           MEMORANDUM OPINION AND ORDER

               This matter is before the Court on plaintiffs’ motion to join additional plaintiffs

[Dkt. No. 399].1 Filed pursuant to the Court’s July 16, 2018 Minute Order, the plaintiffs’ motion

seeks joinder of 114 additional plaintiffs who were not previously named in the complaints and

who have not previously sought to join this case. 2 The government has filed a memorandum in

opposition [Dkt. No. 401], and the plaintiffs have filed a reply in support of their motion [Dkt.



       1
               The Court has reviewed the following filings in resolving the pending motion:
First Amended Complaint [Dkt. No. 3]; Plaintiffs’ Motion to Join Additional Plaintiffs (“Pl. Mot.
Join”) [Dkt. No. 399]; Government’s Opposition to the Plaintiffs’ Motion to Join Additional
Plaintiffs (“Opp.”) [Dkt. No. 401]; and Plaintiffs’ Reply (“Reply”) [Dkt. No. 402].
       2
                 Plaintiffs’ motion to join additional plaintiffs requests that the Court allow 113
individuals to join the case. See Pl. Mot. Join at 4; Pl. Mot. Join Ex. A. Without filing a
correction, plaintiffs have indicated in a footnote in their reply brief that the original number and
list of individuals seeking to join the case was incorrect. See Reply at 2 n.3. Instead, plaintiffs
state, 114 individuals seek to join the case. See id. In their Reply, plaintiffs detail three edits to
the original list submitted to the motion as Exhibit 1, but have not provided an updated and
complete list of the movants. See id.
No. 402]. Having considered the parties’ arguments, the relevant legal authorities, and the entire

record in this case, the Court will deny the plaintiffs’ motion without prejudice.

               The Court has previously considered whether to allow additional plaintiffs to join

this case and it permitted fifteen prospective plaintiffs to do so. See Breen v. Chao, Civil Action

No. 05-0654 (PLF), 2018 WL 1509077 (D.D.C. Mar. 27, 2018). 3 Plaintiffs now argue that the

Court should permit 114 additional plaintiffs to join the case because “[t]he Court’s March 27,

2018 Order permitting the previous prospective plaintiffs into the case applies equally to the[ ]

additional prospective plaintiffs at issue in this Motion.” See Pl. Mot. Join at 5.

               Plaintiffs assert that the 114 prospective plaintiffs’ circumstances match those of

the fifteen individuals who were allowed to join the case in March 2018: The prospective

plaintiffs were all formerly employed as flight service controllers, over the age of 40 when they

were adversely affected by the Federal Aviation Administration’s (“FAA”) reduction-in-force

(“RIF”), and “seek to bring functionally identical claims under the [Age Discrimination in

Employment Act (“ADEA”)], challenging the loss of their jobs resulting from the RIF.” See Pl.

Mot. Join at 10. According to plaintiffs, the 114 individuals also vicariously exhausted their

administrative remedies, thereby meeting the condition upon which the Court decided to admit

the fifteen prospective plaintiffs. See id. at 10-11; Breen v. Chao, 2018 WL 1509077, at *6-11.

In addition, the plaintiffs argue that the 114 prospective plaintiffs’ claims relate back to the

original complaint and – just as the Court found in relation to the fifteen individuals previously

permitted to join – their claims therefore are not time-barred by the statute of limitations. See Pl.




       3
                The Court will limit its discussion to the facts and the procedural history most
relevant to the instant motion. A more fulsome discussion of the facts of this case can be found
in the Court’s prior decisions. See, e.g., Breen v. Chao, 253 F. Supp. 3d 244 (D.D.C. 2017);
Breen v. Chao, 2018 WL 1509077.
                                                  2
Mot. Join at 11; Breen v. Chao, 2018 WL 1509077, at *9-11. For these reasons, plaintiffs

contend that “[t]hese additional prospective plaintiffs should . . . be permitted to join the case on

the same grounds applied to the former prospective plaintiffs.” See Pl. Mot. Join at 5. The

question for the Court, therefore, is whether the reasoning and decision set forth in the Court’s

March 27, 2018 Opinion is a sufficient basis on which to permit the 114 additional prospective

plaintiffs to join the case. The Court concludes that it is not.


                     A. Permissive Joinder Not Barred by Rule 20 or Rule 15

                In its prior decision permitting fifteen prospective plaintiffs to join this case, the

Court determined that the plaintiffs met “the basic legal standards that apply to a motion seeking

to amend a complaint to add a plaintiff” – specifically, Rules 15 and 20 of the Federal Rules of

Civil Procedure. See Breen v. Chao, 2018 WL 1509077, at *9-11. Here, the government does

not argue against the joinder under Rule 15 or Rule 20. And the Court sees no reason why the

rationale that substantiated its decision to allow the fifteen prospective plaintiffs to join the case

would not also apply to these 114 prospective plaintiffs. The government points to only one

factor to distinguish between the fifteen plaintiffs who were allowed to join the case in March of

2018 and the 114 prospective plaintiffs now seeking to join: when plaintiffs moved to join them.

                Rule 21 of the Federal Rules of Civil Procedure provides that “[o]n motion or on

its own, the court may at any time, on just terms, add or drop a party.” See FED. R. CIV. P. 21.

Under Rule 20, trial courts may allow the joinder of plaintiffs to an action if the plaintiffs “assert

any right to relief . . . with respect to or arising out of the same transaction, occurrence, or series

of transactions or occurrences” and if “any question of law or fact common to all plaintiffs will

arise in the action.” See FED. R. CIV. P. 20(a)(1). In exercising this discretion, courts also assess

the potential for prejudice to any party or any undue delay. See Alexander v. Edgewood Mgmt.

                                                   3
Corp., 321 F.R.D. 460, 463 (D.D.C. 2017). Thus, the Court has discretion to permit the

prospective plaintiffs to join this case, so long as it does so “on just terms,” see FED. R. CIV.

P. 21, and in accordance with Rule 20 governing permissive joinder. See FED. R. CIV. P. 20; see

also Alexander v. Edgewood Mgmt. Corp., 321 F.R.D. at 462-63. Just as it explained in its

March 27, 2018 Opinion, the Court is not aware of any reason why the prospective plaintiffs

would fail to meet the Rule 20 standard, see Breen v. Chao, 2018 WL 1509077, at *9, nor does

the government articulate any opposition under Rule 20.

               But a joinder pursuant to Rule 21 is “not immune from the statute of limitations.”

See 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE &

PROCEDURE § 1688 (3d ed. 2018); see also Griffin v. District of Columbia, Civil Action No.

93-2617 (PLF), 1996 WL 294280, at *1 n.1 (D.D.C. May 29, 1996) (explaining that the granting

of a joinder motion “does not resuscitate claims that are barred by the statute of limitations.”).

And futility is a ground on which to deny a motion to join a plaintiff where the prospective

plaintiffs’ claims would not survive a motion to dismiss because of the statute of limitations. See

Fleck v. Cablevision VII, Inc., 799 F. Supp. 187, 190 (D.D.C. 1992); see also Hawkins v. Groot

Indus., Inc., 210 F.R.D. 226, 229 (N.D. Ill. 2002).

               Rule 15 of the Federal Rules of Civil Procedure governs when, for statute of

limitations purposes, an amended complaint relates back to an earlier filed complaint. See Breen

v. Chao, 2018 WL 1509077, at *9. Although Rule 15 only expressly deals with amendments that

change “the party . . . against whom a claim is asserted,” usually the defendant, see FED. R. CIV.

P. 15(c)(1)(C), the Advisory Committee’s notes make clear that the Rule applies by analogy to

amendments that add plaintiffs as well. See FED. R. CIV. P. 15 advisory committee’s note to

1966 amendment; see also Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1308 (D.C. Cir.



                                                  4
1982). In order to invoke the relation-back doctrine, Rule 15 requires two things: (1) the new

claim must arise from the same “conduct, transaction, or occurrence” set forth in the original

pleading; and (2) the party against whom the claim is asserted must have had sufficient notice of

the claim. See FED. R. CIV. P. 15(c)(1)(C); Leachman v. Beech Aircraft Corp., 694 F.2d at

1308-09. Such notice must come “within the period provided by Rule 4(m) for serving the

summons and complaint.” FED. R. CIV. P. 15(c)(1)(C).

               The Court concluded in its March 2018 Opinion that the statute of limitations did

not bar the joinder of the fifteen individuals because their claims related to the original

complaint, which the government did not dispute was timely filed. See Breen v. Chao, 2018 WL

1509077, at *9-10. Similarly, the Court does not see any reason why the relation back doctrine

would not apply equally to the 114 prospective plaintiffs’ claims. Just as with the admitted

plaintiffs, the instant 114 prospective plaintiffs seek to challenge, as a violation of the ADEA, the

loss of their jobs resulting from the FAA’s RIF – that is, the same employment decision that

serves as the basis for the current plaintiffs’ claims brought under the same statute. See First

Amended Complaint ¶ 1 [Dkt. No. 3]; Pl. Mot. Join at 10. The 114 prospective plaintiffs

therefore meet the “conduct, transaction or occurrence” requirement, just as their previous

counterparts did. See Breen v. Chao, 2018 WL 1509077, at *9-10; see also Estate of Doe v.

Islamic Republic of Iran, 808 F. Supp. 2d 1, 17 (D.D.C. 2011); Page v. Pension Benefit Guar.

Corp., 130 F.R.D. 510, 512 (D.D.C. 1990).

               In addition, the government had sufficient notice of the 114 prospective plaintiffs

and their potential involvement in the case – just as it had fair notice of the fifteen previous

individuals and their claims – because the original complaint was instituted as a prospective class

action. See Breen v. Chao, 2018 WL 1509077, at *10; see also Fleck v. Cablevision VII, Inc.,



                                                  5
799 F. Supp. at 192. Like their predecessors, the 114 prospective plaintiffs not only fit the

definition of the prospective class – which included “approximately 834 of the FAA’s 1,770

current Flight Service Controllers” – but also meet the FAA’s own class definition, which

included “all Flight Service Air Traffic Control Specialists employed by the FAA who are over

40 years of age and adversely affected by the FAA’s decision to eliminate federal employment

and related benefits.” See Breen v. Chao, 2018 WL 1509077, at *10. The Court concludes,

therefore, that the joinder of the 114 prospective plaintiffs would not be futile.

               Nor can the Court find any reason why prejudice should proscribe the addition of

these 114 prospective plaintiffs when it did not bar the joinder of the other plaintiffs. Rule 21

provides that a court may allow a party to join “on just terms.” See FED. R. CIV. P. 21. In its

prior Opinion, the Court concluded that the addition of the fifteen individuals not only met that

standard, but that allowing them to resolve their disputes on the merits would serve the interests

of justice. See Breen v. Chao, 2018 WL 1509077, at *11; see also Alexander v. Edgewood

Mgmt. Corp., 321 F.R.D. at 462-63. In so deciding, the Court determined that the government

would suffer only minimal, if any, prejudice, and that joinder would not create any undue delays.

See Breen v. Chao, 2018 WL 1509077, at *11.

               Here, the government argues that the joinder of 114 new plaintiffs would cause

further delay and “encourage[] more potential plaintiffs to join,” causing the government undue

prejudice. See Opp. at 6. Certainly, the addition of 114 new plaintiffs would expand the

potential liability of the government. But there has been no substantial change in the status of

this matter since the Court’s previous Order that would substantiate new cause for concern of

prejudice. In the intervening months, the parties have engaged in limited expert discovery,

which is still on-going; the addition of 114 plaintiffs would not impact that progress. See



                                                  6
February 15, 2019 Joint Status Report [Dkt. No. 419]. Moreover, any unfair prejudice to

defendants may be mitigated or resolved by the Court. See Breen v. Chao, 2018 WL 1509077,

at *11.


                        B. Failure to Show “Good Cause” under Rule 16

               The fact that the joinder of the 114 prospective plaintiffs is permissible does not

end the Court’s inquiry. The government opposes the joinder of these additional plaintiffs

because it would contravene a prior court order. See Opp. at 1. On February 9, 2007, Judge

Roberts – to whom this case was originally assigned – issued a scheduling order, ordering that all

joinders of parties were to be submitted to the Court by May 8, 2007. See February 9, 2007

Scheduling Order at 1 [Dkt. No. 53]. According to the government, the plaintiffs’ reliance on the

Court’s March 2018 decision allowing the joinder of the fifteen individuals is mistaken because

those fifteen individuals sought joinder before the court-determined deadline for doing so had

lapsed. See Opp. at 1. The Court agrees that this is a valid distinction. The fifteen prospective

plaintiffs who were permitted to join by the Court’s March 27, 2018 Order first moved to join the

case on May 8, 2007 [Dkt. No. 63]. Here, in contrast, the 114 prospective plaintiffs seek joinder

to the case almost twelve years after that deadline – without explanation for their delay. See id.

at 1.

               Rule 16 of the Federal Rules of Civil Procedure provides that “[a] schedule may

be modified only for good cause and with the judge’s consent.” See FED. R. CIV. P. 16(b)(4).

The D.C. Circuit has recognized that “[t]he good cause standard requires the party seeking relief

to show that the deadlines cannot reasonably be met despite [its] diligence.” See Capitol

Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 226 (D.C. Cir. 2011) (alterations in

original) (internal quotations omitted) (quoting S & W Enters., L.L.C. v. S. Trust Bank of

                                                 7
Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003)); see also Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“If the party was not diligent, the inquiry should end.”);

Wye Oak Tech., Inc. v. Republic of Iraq, Civil No. 1:10-cv-01182-RCL, 2018 WL 4623564,

at *1 (D.D.C. Sep. 26, 2018); United States v. Kellogg Brown & Root Servs., Inc., 285 F.R.D.

133, 136 (D.D.C. 2012). “Rule 16(b)’s good cause standard focuses on the timeliness of the

amendment and the reasons for its tardy submission.” Ijoor v. Consummate Comput.

Consultants Sys., LLC, Civil Action No. 15-1292 (ESH), 2017 WL 9613962, at *1 (D.D.C. Sep.

8, 2017) (quoting Lurie v. Mid-Atl. Permanente Med. Grp., P.C., 589 F. Supp. 2d 21, 23 (D.D.C.

2008)). In addition, even “if the moving party establishes that she acted diligently, she must also

show that there is a lack of prejudice to the opposing party.” See Lovely-Coley v. District of

Columbia, 255 F. Supp. 3d 1, 7 (D.D.C. 2017); see also Richardson v. Yellen, 323 F.R.D. 444,

446 (D.D.C. 2018) (“To show good cause, the moving party must show both diligence and a lack

of prejudice to the opposing parties.”).

               The government argues that these 114 plaintiffs should not be allowed to join

after the court-ordered deadline has passed without demonstrating “good cause” to modify the

May 2007 scheduling order – a test which plaintiffs fail to meet. See Opp. at 1. In addition,

according to the government, allowing the prospective plaintiffs to join at this stage would

“encourage ‘wait and see’ litigation tactics and undermine Rule 16(b)(4)’s purpose to keep

courts in control of their dockets and avoid unnecessary delay.” See id. at 5-6. 4 In response to




       4
                The government also argues that the joinder of 114 plaintiffs will cause undue
prejudice, but as discussed supra at 6-7, the Court does not agree. Regardless, as the government
explains, “prejudice to the Defendants is of little relevance in the absence of a showing of
diligence.” See Opp. at 6; United States v. Kellogg Brown & Root Servs., Inc., 285 F.R.D.
at 136.


                                                 8
the government’s opposition, plaintiffs do not attempt to demonstrate “good cause” for adding

the additional 114 individuals almost twelve years after the deadline for doing so. Instead, they

reassert that the addition of these prospective plaintiffs would cause no undue prejudice to the

defendants for the same reasons that the Court previously found that the addition of the fifteen

prospective plaintiffs would not prejudice the defendants. See Reply at 1-3. In so arguing,

plaintiffs propose methods through which the Court may mitigate the potential flood of

additional plaintiffs should it choose to allow the instant 114 movants to join the case: certify

the class or accept the moving counsel’s representation that they will not file further motions to

join additional plaintiffs. See id. at 2.

                The Court concludes that plaintiffs have failed to show good cause to justify the

addition of 114 plaintiffs at this time. The plaintiffs have not even attempted to exemplify their

diligence in complying with the court-ordered schedule. Nor have they indicated that any

amended timeline has superseded Judge Roberts’ original Order. It is possible that there is a

legitimate reason for the plaintiffs’ delay that might meet the good cause standard – potentially

stemming from the complicated procedural history of this case or for other reasons. But without

more explanation, the Court does not see why it should allow these 114 plaintiffs to join the case

over the defendants’ objections. 5 As the Court previously stated, it is “necessary to establish

with greater certainty and finality which individuals may participate in this case as plaintiffs.”

See May 3, 2018 Order at 1. A line must be drawn at some point because – as the government

argues – it “need[s] a final and concrete understanding of the scope of [its] litigation risk.” See



        5
               Attached as exhibits to their Reply, plaintiffs submit documentation that
demonstrates that Larry Feazell – one of the 114 instant movants – previously communicated to
prior counsel his interest in joining the case. See Reply at 1 n.2 & Ex. 1. Without evidence that
he previously moved to join the case, the Court does not see a basis for distinguishing between
Mr. Feazell and the 113 other movants requesting the Court permit their joinder now.
                                                  9
Opp. at 6. 6 Without a demonstration of good cause to overcome the requirements of the previous

Scheduling Order almost twelve years after it was entered, the Court declines to exercise its

discretion to allow 114 new plaintiffs to join this case at such a late stage.

               Accordingly, it is hereby

               ORDERED that the plaintiffs’ motion [Dkt. No. 399] to join additional plaintiffs

is DENIED WITHOUT PREJUDICE.

               SO ORDERED.



                                                               _______________________
                                                               PAUL L. FRIEDMAN
                                                               United States District Judge

DATE: March 21, 2019




       6
                 The 114 prospective plaintiffs – a subset of the 205 individuals who have
contacted plaintiffs’ counsel about joining the case – are those prospective plaintiffs who had
retained plaintiffs’ counsel at the time of the July 27, 2018 motion. See Reply at 2 n.3.
Plaintiffs’ counsel requests that those “91 individuals who contacted but did not retain
undersigned counsel prior to the briefing be given an opportunity to do so” if the Court grants
plaintiffs’ motion. See id. Although the Court need not decide this now, it will not entertain
future motions to join additional plaintiffs – including any of these 91 individuals – without a
separate and additional showing of good cause for admitting additional parties after the deadline
set by the Court’s July 16, 2018 scheduling order. See July 16, 2018 Minute Order (directing
plaintiffs to file their motion seeking to join additional individuals by July 27, 2018).
                                                  10
