                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

                                                       )
ERICK LITTLE, et al.,                                  )
                                                       )
                 Plaintiffs,                           )      Civil No. 14-1289 (RMC)
                                                       )
          v.                                           )
                                                       )
WASHINGTON METROPOLITAN AREA                           )
TRANSIT AUTHORITY, et al.,                             )
                                                       )
                 Defendants.                           )
                                                       )

                                              OPINION

                 Defendants Washington Metropolitan Area Transit Authority (WMATA),

Diamond Transportation (Diamond), and Executive Personnel Services, Inc. (EPSI) have moved

to strike the class allegations brought by Plaintiffs Erick Little, Lawrence Whitted, Timothy

McClough, Gerald Tucker, Leroy Quarles, Fitzgerald Stoney, Leon McKenzie, Louia McKenzie,

and Marcello Virgil (collectively, Plaintiffs). 1 For the reasons set forth below, Defendants’

motions will be denied.

                                              I. FACTS

                 Plaintiffs filed a class action lawsuit on July 30, 2014, seeking relief under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Fair Credit Reporting Act, 15

U.S.C. § 1681, and the District of Columbia Human Rights Act, D.C. Code § 12-1401 et seq.

Compl. [Dkt. 1]. Plaintiffs challenge WMATA’s background check policy, which disqualifies

from employment individuals with a criminal history. They argue that the policy

disproportionately excludes African-American job applicants and employees because arrest and



1
    The remaining Defendant, First Transit, Inc. (First Transit), has not moved to strike.
                                                   1
conviction rates in Washington, D.C. are higher for African Americans. Id. ¶¶ 1, 16. The

proposed classes “consist of all terminated employees, employees deterred from applying for

internal job openings, employees deterred from taking medical or personal leave, and applicants

denied employment based on WMATA’s Criminal Background Check Policy.” Id. ¶ 37.

               Plaintiffs sued WMATA and its contractors, Diamond, EPSI, and First Transit

(the Contractor Defendants), which currently serve or at one time served as staffing agencies for

WMATA, referring employees to work as MetroAccess drivers or operators, or janitors and

landscapers in WMATA’s administrative office buildings. Id. ¶¶ 20, 22, 24. WMATA “requires

all of its contractors, including Diamond, EPSI, and First Transit, to utilize the [background

check] policy in hiring, promoting, and terminating employees.” Id. ¶ 15. The Contractor

Defendants moved to dismiss on various grounds, including that Plaintiffs lacked standing to

pursue claims against them and that they were not responsible for WMATA’s policy. See

Diamond Mot. to Dismiss [Dkt. 16]; First Transit Mot. to Dismiss [Dkt. 25]; EPSI Mot. to

Dismiss [Dkt. 44].

               While Diamond and First Transit’s motions to dismiss were pending, 2 Plaintiffs

sought to schedule a Rule 26(f) conference; Defendants objected, asserting their belief that a

Rule 26(f) conference was not yet “practicable,” Fed. R. Civ. P. 26(f)(1), and that in any event,

the parties were not required to meet and confer until after the Court issued a scheduling order.

See Weddle Decl., Exs. A-M [Dkt. 67-13].




2
 At that time, EPSI had not yet moved to dismiss. On October 20, 2014, Plaintiffs moved for
partial default judgment against EPSI. Pl. Mot. for Default Judgment [Dkt. 39]. The Court
denied Plaintiffs’ motion, see 12/2/14 Minute Order, and EPSI subsequently filed a motion to
dismiss.

                                                 2
               On October 17, 2014, Plaintiffs requested a telephone conference seeking a ruling

on whether discovery should proceed and Defendants should be required to participate in a Rule

26(f) conference notwithstanding the motions to dismiss. See Notice of Request for a

Telephonic Conference [Dkt. 38]. The Court held a telephone conference on October 22, 2014,

after which it issued a Minute Order directing that:

               [P]ursuant to the telephone conference held on October 22, 2014, all
               discovery shall be stayed pending decision on the motions to dismiss
               of Defendant Diamond Transportation Services and First Transit. It
               is further ordered that, within 14 days of a decision on the motions
               to dismiss, the parties shall file a joint report addressing the status
               of the case and the issues set forth in Local Rule 16.3.

10/22/14 Minute Order.

               On January 23, 2015, the Court held a status conference to address the pending

motions to dismiss and the role of the Contractor Defendants. During that conference, the parties

agreed that the Contractor Defendants should be treated as third parties for the purposes of

discovery. On January 26, 2015, the Court issued an Order directing that the Contractor

Defendants be treated as such and ordered that they be subject to discovery involving Plaintiffs’

discrimination claims. See Order [Dkt. 50]. The Court denied the Contractor Defendants’

motions to dismiss as moot and stayed all claims against them. Id. Additionally, the Court

directed Plaintiffs and WMATA to meet and confer and file a report pursuant to Federal Rule of

Civil Procedure 26(f).

               Also on January 26, 2015, the Court issued its template Order for an Initial

Scheduling Conference. See Order [Dkt. 51]. In that Order, the Court directed counsel to

“confer at least 21 days prior to the [date of the Initial Scheduling Conference] and submit their

Report addressing all topics listed in Local Rule 16.3(c) no later than 14 days following their




                                                 3
meeting.” Id. 3 Local Civil Rule 16.3 sets forth a list of 14 topics to be discussed by the parties

at the pre-scheduling conference meet and confer. See LCvR 16.3(c). One matter to be

discussed is “[i]n class actions, appropriate procedures for dealing with Rule 23, F.R.Civ.P.

proceedings, including the need for discovery and the timing thereof, dates for filing a Rule 23

motion, and opposition and reply, and for oral argument and/or an evidentiary hearing on the

motion and a proposed date for decision.” LCvR 16.3(c)(10).

               On February 17, 2015, the parties filed a joint report pursuant to Federal Rule of

Civil Procedure 26(f) and Local Rule 16.3(c). See Meet and Confer Statement [Dkt. 54].

However, the parties disagreed on the scope of discovery and filed separate memoranda in which

Plaintiffs requested discovery on issues relating to both class certification and the merits and

WMATA sought to limit initial discovery to class action issues. See Pl. Meet and Confer Mem.

[Dkt. 55]; WMATA Meet and Confer Mem. [Dkt. 56]. WMATA proposed a discovery schedule

that contemplated discovery and briefing on class certification. Meet and Confer Statement at

10. WMATA also explicitly reserved the right to object to a motion for class certification on the

ground that Local Civil Rule 23.1(b), which requires a plaintiff to move for class certification

within 90 days of filing its complaint unless the court has extended that deadline, foreclosed

Plaintiffs’ right to seek class certification. Id. at 3 (“WMATA’s positions in this Joint Report are

subject to WMATA’s reservation under, and to the applicability of, Local Rule 23.1(b).”); see

also WMATA Meet and Confer Mem. at 2 (“WMATA discusses class certification issues in this

memorandum and the Joint Report to address a situation where Local Rule 23.1(b) is not applied

but does not waive its rights under Local Rule 23.1(b) to object to a class certification motion.”).


3
  The Initial Scheduling Conference was originally set for March 17, 2015, but was later vacated
to address the status of a potential class member. In light of the instant matter, it has not yet been
rescheduled.

                                                  4
                On February 24, 2015, WMATA filed a motion to strike Plaintiffs’ class action

allegations and to bar a future request for class certification. See WMATA Mot. to Strike [Dkt.

62]. 4 Plaintiffs opposed, arguing that “the deadline to file a motion for class certification under

Local Rule 23.1(b) has not expired” because this Court’s “previous orders staying the case and

then extending the deadline for the parties to agree to a case schedule, which, under Local Rule

16.3 includes timing for the filing of a class certification motion, stayed Plaintiffs’ time to file a

motion for class certification.” Pl. Opp. [Dkt. 67] at 3. Alternatively, in the event the Court

were to find that the deadline had expired, Plaintiffs requested that “the Court construe this

Opposition as a motion for an extension of time under Rule 6(b) and, in the interest of justice,

extend Plaintiffs’ time to file a class certification motion until a date to be established at the

Initial Scheduling Conference.” Id. at 4. WMATA filed its Reply [Dkt. 70] and the matter is

now fully briefed.

                                           II. ANALYSIS

        A. Plaintiffs Failed to File a Timely Motion for Class Certification.

                Local Civil Rule 23.1(b) provides:

                Within 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, the plaintiff shall move for a
                certification under Rule 23(c)(1), Federal Rules of Civil Procedure,
                that the case may be so maintained. In ruling upon the motion, 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. A defendant may
                move at any time to strike the class action allegations or to dismiss
                the complaint.

4
  Diamond and EPSI also filed Motions to Strike the class allegations. Diamond Mot. to Strike
[Dkt. 59]; EPSI Mot. to Strike [Dkt. 63]. Both parties contend that they have standing to seek
dismissal of class allegations because they could be required to reinstate all former employees in
the putative class as part of any potential remedy. See Diamond Reply [Dkt. 71] at 2-3; EPSI
Response to Order of the Court [Dkt. 72] at 1-2.

                                                   5
LCvR 23.1(b).

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

Circuit.” Howard v. Gutierrez, 474 F. Supp. 2d 41, 53 (D.D.C. 2007) (citing cases); Batson v.

Powell, 912 F. Supp. 565, 570 (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.’”) (quoting Weiss v. Int’l Bhd. of

Elec. Workers, 729 F. Supp. 144, 148 (D.D.C.1990)), aff’d, 203 F.3d 51 (D.C. Cir. 1999). The

D.C. Circuit has held that “strict enforcement” of the 90-day limit “implements the policy of

Rule 23(c)(1) of the Federal Rules of Civil Procedure, which states that the status of class actions

should be determined quickly.” Black Panther Party v. Smith, 661 F.2d 1243, 1279 (D.C. Cir.

1981).

                Plaintiffs filed their Complaint on July 30, 2014, and did not ask to extend the

time period for filing a motion for class certification until March 9, 2015, when they filed their

opposition to WMATA’s motion to strike. See Pl. Opp. at 7. Indeed, Plaintiffs maintain that the

deadline for filing has not yet expired; they argue that the Court stayed the deadline to file their

Rule 23 motion when it stayed discovery pending a decision on the Contractor Defendants’

motions to dismiss and ordered the parties to submit a joint report addressing all issues set forth

in Local Rule 16.3 within 14 days of the decision. See 10/22/2014 Minute Order. The stay was

continued, Plaintiffs contend, when the Court issued its Order for an Initial Scheduling

Conference on January 26, 2014, in which the Court directed counsel to confer and “address[ ]

all topics listed in Local Rule 16.3(c).” 5 See ISC Order at 1.




5
 As noted above, Local Rule 16.3(c) requires that the parties discuss “[i]n class actions,
appropriate procedures for dealing with Rule 23, F.R.Civ.P. proceedings, including the need for
discovery and the timing thereof, dates for filing a Rule 23 motion, and opposition and reply, and
                                                  6
               The Court recognizes that its Orders may have confused Plaintiffs’ counsel.

Upon receiving the Contractor Defendants’ motion to dismiss, the Court stayed all discovery

pending a decision on those motions. 10/22/14 Minute Order. This Order did not expressly

address Plaintiffs’ obligation to move for class certification under Local Rule 23.1(b), but it cited

to Local Rule 16.3(c), thereby requiring the parties to meet and confer prior to an initial

scheduling conference to discuss, among other matters, “dates for filing a Rule 23 motion.”

LCvR. 16.3(c). The Court reaffirmed the meet and confer requirement after it ruled on the status

of the Contractor Defendants. See ISC Order at 1. As a result of their meet and confer, both

WMATA and Plaintiffs submitted a joint report agreeing that pre-certification discovery will be

necessary prior to any class certification motion. Thus, Plaintiffs’ counsel’s conclusion that its

obligations to file a class motion were suspended until such discovery was allowed cannot be

said to be unreasonable. Furthermore, the Court’s comments at the January 23, 2015 status

hearing did not help elucidate matters for Plaintiffs. See 1/23/15 Hearing Tr. at 15-16 (Dkt. 52)

(The Court: “The plaintiffs would like this to be a class action. I don’t know about that yet, you

know, we’re going to wait and see how this thing develops to see if we have a full class action.

But I don’t think we should take your small contractors through defense of a class action

lawsuit.”).

               However, none of the Court’s Orders referred to an extension of the deadline for

filing a motion for class certification. Despite any passing confusion, Plaintiffs never asked for,

or received, an extension of time to file a timely class certification motion under Local Rule

23.1(b). The law is clear and the Rule has serious consequences.




for oral argument and/or an evidentiary hearing on the motion and a proposed date for decision.”
LCvR 16.3(c)(10).

                                                  7
       B. Plaintiffs Have Made a Showing of Excusable Neglect.

               A district court may forgive a party’s failure to file a timely certification motion if

that party makes a showing of excusable neglect. 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”).

See Howard, 474 F. Supp. 2d at 55-56. In deciding whether to grant a motion for an extension of

time on the ground of excusable neglect, the Court may consider (1)”the danger of prejudice to

the [other party],” (2) “the length of delay and its potential impact on judicial proceedings,”

(3) “the reason for delay, including whether it was within the reasonable control of the movant,”

and (4) “whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. P’ship, 507 U.S. 380, 395 (1993). The determination of whether neglect is excusable “is at

bottom an equitable one, taking account of all relevant circumstances surrounding the party’s

omission.” Id. “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 omissions caused by circumstances

beyond the control of the movant.” Id. at 392 (internal quotations omitted).

               The Court finds that Plaintiffs’ failure to request an extension of time to file a

motion for class certification constitutes excusable neglect. First, Defendants have suffered no

prejudice as a result of the delay. While WMATA reserved the right to raise a timeliness

objection, it clearly still contemplated the future filing of a class certification motion. See Meet

and Confer Statement at 6-7 (WMATA’s position that discovery should be limited to issues

related to class certification), 10 (WMATA’s proposed schedule for class discovery and motions

on class certification). And although the parties disagree on its exact scope, they concur that

some discovery is warranted before a class certification motion should be filed. At base,
                                                  8
WMATA’s argument is an attempt to strike class allegations not because Plaintiffs have failed to

seek class certification, but rather because they failed to request an extension of time to file their

motion. See WMATA Reply at 11-12. 6

               Second, the scope of the case has shifted. This case began against WMATA and

three small contractors. At an initial in-court conference, after discussion of the allegations, the

governing legal precepts, and the roles and finances of the contractors, Plaintiffs’ counsel agreed

to proceed against WMATA only and to treat the contractors as third parties. This alteration in

the litigation plan undoubtedly caused Plaintiffs’ counsel to pause and reevaluate certain plans

they had made regarding case strategy.

               Third, the Court sidetracked the normal orderly proceeding of this case. When it

received a pro se plaintiff’s complaint against WMATA for the same alleged disparate treatment,

the Court asked Plaintiffs’ counsel, who are appearing pro bono, to consider representation of the

pro se plaintiff. Plaintiffs’ counsel acceded to the Court’s request and devoted time and energy

to the question, postponing progress on their own Complaint.

               Clearly, there have been delays in this case causing the Court to postpone

rendering a decision about the scope of discovery; however, those delays were not a result of

Plaintiffs’ failure to file a timely class certification motion. Rather, the case was stayed to

address the Contractor Defendants’ motions to dismiss and the initial scheduling conference was

vacated in order to ascertain the status of a potential class member who had filed a similar

lawsuit (at the Court’s request). Moreover, the Court has held off issuing any scheduling order


6
  WMATA also argues that it, along with the “public interest” and “the interest of justice,” will
be prejudiced if the Court denies its motion to strike because publicly available statistics
undermine Plaintiffs’ theory of disparate impact—according to WMATA, 97% of its workforce
is African American. WMATA Reply at 10-11. This argument goes to the question of whether
the Court should certify a class.

                                                  9
while it considered the pending motions to strike. These delays, which stymied the progress of

discovery (and, in turn, the filing of a motion for class certification), were all out of Plaintiffs’

control. Accordingly, Defendants fail to point out any unfair prejudice they have suffered due to

Plaintiffs’ delay in filing a motion for class certification or seeking an extension of that

deadline. 7

                Defendant Diamond argues that the analysis of excusable neglect in Howard v.

Gutierrez, 474 F. Supp. 2d 41 (D.D.C. 2007) should apply here. In Howard, the plaintiffs argued

a lack of prejudice “because the class-action nature of the proceedings has been apparent from

the outset of the case, and [ ] their delay will have no impact on the judicial proceedings because

the litigation is at an early stage.” Id. at 56. Howard stated that “Local Rule 23.1 is designed to

enable defendants ‘to ascertain at the earliest practicable moment whether they will be facing a

limited number of known, identifiable plaintiffs or whether they will instead be facing a much

larger mass of generally unknown plaintiffs,’” id. (quoting McCarthy v. Kleindienst, 741 F.2d

1406, 1411-12 (D.C. Cir. 1984)), and found that the plaintiffs’ failure to move for certification

for three months after learning of their error “prolonged the uncertainty as to the scope of the

class they would actually move this Court to certify.” Id.

                In the instant matter, because discovery has not yet begun and Plaintiffs could not

have moved for class certification within the 90-day deadline, Defendants are in the exact same

position as they would have been had Plaintiffs sought an extension of their filing deadline.

Thus, any generalized complaints about the increasing number of plaintiffs or class action



7
 It is true that Plaintiffs alleged a putative class of 79 members in the Complaint, Compl. ¶ 15,
and that Plaintiffs recently estimated that figure had grown to 130 members, Pl. Meet and Confer
Mem. at 3. However, the scope of any purported class would likely change after discovery,
which has not yet begun, and thus any change is not the result of delay.

                                                  10
discovery because such problems “are not inherent to the delay itself.” Smith v. Ergo Solutions,

LLC, Civil Case No. 14-382 (JDB), 2015 WL 1424153, at *6 (D.D.C. Mar. 30, 2015).

                Furthermore, striking class allegations would be inefficient and unwieldy, as

Plaintiffs’ counsel would be required “to prosecute this action as a multiple-plaintiff action rather

than a class action and [would] have to amend or file new complaints to include the claims of

dozens of individuals who have been identified as potential class members.” Pl. Opp. at 10.

Finally, Plaintiffs’ counsel’s interpretations of this Court’s Orders and statements are expansive

but not unreasonable under the circumstances. Counsel could reasonably have believed that a

motion for class certification would not be due until after the Court had ruled on the scope of

discovery and entered a scheduling order, and thus were acting in good faith. Therefore, the

equities here tip in favor of Plaintiffs and the Court finds that their neglect in failing to request an

extension is excusable.

                                        IV. CONCLUSION

                For reasons set forth above, Defendants WMATA, Diamond, and EPSI’s Motions

to Strike will be denied. A memorializing Order accompanies this Opinion.



Date: April 23, 2015
                                                                       /s/
                                                        ROSEMARY M. COLLYER
                                                        United States District Judge




                                                  11
