Driscoll v. George Wash. Univ.

• Decision Date: 10 September 2012
• Docket Number: Civil Action No. 12–0690 ESH.
• Citation: 42 F.Supp.3d 52
• Parties: David M. DRISCOLL, et al., Plaintiffs, v. GEORGE WASHINGTON UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Columbia

42 F.Supp.3d 52

David M. DRISCOLL, et al., Plaintiffs

v.GEORGE WASHINGTON UNIVERSITY, Defendant.

Civil Action No. 12–0690 ESH.

United States District Court, District of Columbia.

Sept. 10, 2012.

Lesley Anne Tse, Michael J.D. Sweeney, Dan Charles Getman, Getman & Sweeney, PLLC, New Paltz, NY, for David M. Driscoll individually and on behalf of all others similarly situated.

Raymond C. Baldwin, Seyfarth Shaw, LLP, Washington, DC, Richard L. Alfred, Two Seaport Lane, Seyfarth Shaw LLP, Boston, MA, for George Washington University.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

David Driscoll, a former employee of George Washington University (“GWU”), has sued on behalf of himself and others similarly situated alleging that GWU violated federal and D.C. law by failing to pay overtime wages to certain employees. (First Amended Class Action Complaint, June 29, 2012 [Dkt. No. 8] (“Am. Compl.”).) GWU moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (July 3, 2012 [Dkt. No. 9] (“GWU Mot.”)), and in opposing GWU's motion (July 17, 2012 [Dkt. No. 11] (“Driscoll Opp'n”)), Driscoll filed a cross-motion to amend his complaint (July 17, 2012 [Dkt. No. 12] (“Driscoll Mot.”)), which GWU has, in turn, opposed (Aug. 3, 2012 [Dkt. No. 16] (“GWU Opp'n”)). Both parties filed replies in support of their respective motions. (See GWU Reply in Support of its Motion to Dismiss, July 27, 2012 [Dkt. No. 15] (“GWU Reply”); Driscoll Reply in Support of his Motion to Amend, August 13, 2012 [Dkt. No. 18] (“Driscoll Reply”).) For the reasons stated, the Court will deny GWU's motion to dismiss and grant in part and deny in part Driscoll's motion to amend.

BACKGROUND

Driscoll alleges that he was employed as an Executive Coordinator at GWU from April 2010–February 2012. (Am. Compl. ¶ 38.) With other Executive Coordinators, Executive Aides, Executive Assistants, Executive Support Assistants, and Executive Associates, he was classified by GWU as an exempt employee under the federal Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), and similar D.C. Code provisions, and was not paid “overtime wages for all hours worked over 40 in a week.” (Am. Compl. ¶ 40.) In 2011, GWU reclassified these employees as non-exempt “under the FLSA and D.C. Code and began to pay them overtime wages” (id. ¶ 41), and “made a payment to [each of] them for back wages owed for the period two years prior to the reclassification.” (id. ¶ 44.) Driscoll alleges, however, that these payments were calculated according to an improper method, the “ ‘half-time’ method” (id. ¶ 45), that “resulted in [the employees] receiving only one-third or less of the back overtime wages due under the FLSA and D.C. Code.” (id . ¶ 46.) Driscoll further alleges that the “payments for back wages were not based on the overtime hours [the employees] actually worked.” (id. ¶ 47.) Finally, Driscoll claims that when “he questioned [whether GWU's] payment of back overtime wages [was] in violation of the FLSA, 29 U.S.C. § 215,” GWU “discriminated against [him] by discharging him.” (Am. Compl. ¶ 55.)

Driscoll's first amended complaint alleges four causes of action: 1) individual and collective-action claims under the FLSA for overtime wages; 2) an individual claim under the FLSA for retaliation; 3) individual and collective-action claims under the D.C. Minimum Wage Act Revision Act, D.C. Code §§ 32–1001 et seq. (“DCMWA”), for overtime wages; and 4) individual and class-action claims under the D.C. Wage Payment and Collection Law, D.C. Code §§ 32–1301 et seq. (“DCWPCL”), for failure to pay wages when due.¹ Driscoll's proposed second amended complaint, along with alleging additional facts in response to GWU's motion to dismiss, asserts the same First, Second, and Fourth causes of action, but with regard to the Third Cause of Action alleges an opt-out class action, pursuant to Fed.R.Civ.P. 23, under the DCMWA. (See Driscoll Mot., Ex. A (“Second Am. Compl.”).) GWU argues that Driscoll's first amended and proposed second amended complaints fail to state a claim under Rule 12(b)(6), and it opposes Driscoll's motion to amend, claiming prejudice.

ANALYSIS

I. RULE 15 : LEAVE TO AMEND

Driscoll has already amended his complaint once, “as a [m]atter of [c]ourse,” Fed.R.Civ.P. 15(a)(1), and because GWU has not consented to his amending a second time, he may amend again “only with ... the [C]ourt's leave.” Rule 15(a)(2).

Rule 15 instructs courts to “freely give leave [to amend] when justice so requires,” id., and the “ ‘rule is to be construed liberally.’ ” In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C.Cir.2010) (quoting Belizan v. Hershon, 434 F.3d 579, 582 (D.C.Cir.2006) ). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court instructed:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [or] undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be “freely given.”

Id. at 182, 83 S.Ct. 227. “[T]he grant or denial of an opportunity to amend is within [the Court's] discretion ....” Id. “Because amendments are to be liberally granted, the non-movant bears the burden of showing why an amendment should not be allowed.” Abdullah v. Washington, 530 F.Supp.2d 112, 115 (D.D.C.2008) ; see Hajjar–Nejad v. George Washington Univ., 873 F.Supp.2d 1, 9, 2012 WL 89973, at *7 (D.D.C.2012) (“the party opposing amendment bears the burden of coming forward with a colorable basis for denying leave to amend”).

GWU argues that Driscoll's motion to amend “should be denied based on [Driscoll's] unexplained delay and [re]sulting prejudice to [GWU]” (GWU Opp'n at 20), but the Court concludes that GWU has not demonstrated a colorable basis for denying Driscoll leave to amend on these grounds. In these circumstances, it is immaterial that Driscoll has already amended his complaint once, and that at the time he filed his first amended complaint he had knowledge of the additional factual allegations in his proposed second amended complaint. “[D]elay alone is [typically] not a sufficient reason for denying leave,” Caribbean Broadcasting System, Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1084 (D.C.Cir.1998) (internal quotation marks and citation omitted), and courts have granted leave to amend even where plaintiffs have had “five previous attempts to state [a] cognizable claim ... because [the] Federal Rules suggest [that the] ‘artless drafting of a complaint should not allow for the artful dodging of a claim.’ ” Id. (quoting Poloron Prods., Inc. v. Lybrand Ross Bros. & Montgomery, 72 F.R.D. 556, 561 (S.D.N.Y.1976) ). Here, Driscoll's original complaint was filed in April 2012, his first amended complaint was filed in June 2012, and he moved to amend in July 2012. This case is not even “prolonged,” and furthermore, “the prolonged nature of a case does not itself affect whether the plaintiff may amend its complaint.” Id.

Moreover, where, as here, the party opposing amendment has not put forward a colorable basis of prejudice, “the contention of undue delay is [even] less persuasive.” Clark v. Feder Semo & Bard, P.C., 560 F.Supp.2d 1, 5 (D.D.C.2008). Discovery has yet to begin. Cf. Abdullah, 530 F.Supp.2d at 115 (denying defendants leave to amend their answer where their motion was filed five years after the case was filed and where “significant discovery [had] taken place, including document discovery, numerous depositions, and the hiring of an expert”). Indeed, all that has happened so far is the filing of the pleadings presently before the Court, wherein all parties have had ample opportunity to address the issues at hand. There is no prejudice here. To the contrary, while the Court need not address the sufficiency of the allegations in Driscoll's first amended complaint, there is no doubt that GWU is benefited by the additional specificity Driscoll provides in his proposed second amended complaint. Finally, GWU's half-hearted argument that Driscoll acted in bad faith is without merit. GWU can point to no evidence of a dilatory motive or of bad faith on Driscoll's part.

GWU's primary argument for denying Driscoll's motion is that the proposed second amended complaint “would not survive a motion to dismiss” such that amendment would be futile. In re Interbank Funding Corp. Securities Litigation, 629 F.3d at 218. Because review for futility “is, for practical purposes, identical to review of a Rule 12(b)(6) ” motion to dismiss, id. at 215–16 (internal quotation marks and citation omitted), GWU's futility arguments are addressed below, as part of the Court's consideration of GWU's arguments for dismissal.

II. RULE 12(B)(6) : LEGAL SUFFICIENCY OF DRISCOLL'S ALLEGATIONS

In order to withstand a Rule 12(b)(6) motion, a complaint need only contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ ” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Fed.R.Civ.P. 8(a) ), “in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Id. (alteration in the original) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). The notice pleading rules are “not meant to impose a great burden on a plaintiff,” Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513–515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ), and a complaint need not contain “detailed factual allegations.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Conley, 355...