Evans et al v. Arizona Cardinals Football Club, LLC et al

Filing 175

ORDER DENYING #171 EXTENSION OF TIME TO FILE SECOND AMENDED COMPLAINT by Hon. William Alsup. (whalc2, COURT STAFF) (Filed on 2/21/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ETOPIA EVANS, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,

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No. C 16-01030 WHA

v.

ORDER DENYING
EXTENSION OF TIME TO
FILE SECOND AMENDED
COMPLAINT

ARIZONA CARDINALS FOOTBALL
CLUB, LLC, et al.,
Defendants.
/

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INTRODUCTION
Following partial dismissal of their first amended complaint, plaintiffs move for (1) an

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extension of time to file their second amended complaint, and (2) leave to add a new plaintiff

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and re-plead their RICO and conspiracy claims. The motion is DENIED.

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STATEMENT
The allegations underlying this action first touched down in this district in May 2014,

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when eight plaintiffs, represented by the same counsel and seeking to represent the same

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purported class as our plaintiffs here, sued the National Football League. In that case, Dent v.

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NFL, the first and second amended complaints added one plaintiff each, bringing the total to ten

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(Richard Dent, Jeremy Newberry, Roy Green, J.D. Hill, Keith Van Horne, Ron Stone, Ron

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Pritchard, James McMahon, Marcellus Wiley, and Jonathan Rex Hadnot, Jr.). The undersigned

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dismissed all claims — including for fraud, fraudulent concealment, negligent
misrepresentation, negligence, and violations of substance control laws — as preempted by the

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Labor Management Relations Act. See Dent v. NFL, No. C 14–02324 WHA, 2014 WL

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7205048 (N.D. Cal. Dec. 17, 2014). Plaintiffs’ appeal from that dismissal remains pending.

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In May 2015, a new roster of 13 plaintiffs — Etopia Evans, Robert Massey, Troy

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Sadowski, Christopher Goode, Darryl Ashmore, Jerry Wunsch, Eric King, Alphonso Carreker,

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Steven Lofton, Duriel Harris, Jeffrey Graham, Mel Renfro, and Cedric Killings — filed this

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action asserting claims for intentional misrepresentation and conspiracy against the individual

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clubs of the NFL. A prior order denied defendants’ first motion to dismiss (Dkt. No. 89). A

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case management order issued the same day, stating in part, “Leave to add any new parties or

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pleading amendments must be sought by OCTOBER 31, 2016” (Dkt. No. 90 (bold and small caps
in original)). On October 31, 2016, plaintiffs sought leave to file an amended complaint to (1)

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For the Northern District of California

United States District Court

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add RICO and concealment claims, (2) modify the class definition, and (3) add and remove

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plaintiffs (Dkt. No. 112). A subsequent order granted plaintiffs leave to do so by November 30,

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2016 (Dkt. No. 122). The amended complaint substituted in plaintiff Reggie Walker, who

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played in the NFL from 2009 to 2014, for Mel Renfro, who played in the NFL from 1964 to

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1977 (compare Dkt. No. 1 at 16 with Dkt. No. 136 at 9).

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Meanwhile, discovery continued. On January 26, at the hearing on defendants’ motion

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to dismiss the amended complaint, plaintiffs’ counsel claimed they had “conducted over 20

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depositions,” were “70 percent of the way through the documents,” and could “amend [the

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complaint] to any degree of particularity” required (Dkt. No. 169 at 40:3–40:8, 44:7–44:16).

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On February 3, an order granted in part the motion to dismiss, stating (Dkt. No. 168 at 10):

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[T]he amended complaint shows plaintiffs’ RICO claim is barred
by the statute of limitations. This order therefore does not reach
additional arguments regarding the sufficiency of the pleading as
to this claim, except that the amended complaint’s failure to plead
allegations showing a conspiracy is addressed below within the
context of plaintiffs’ conspiracy claim.

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Within the context of plaintiffs’ conspiracy claim, the order then stated, “The amended
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complaint contains no well-pled allegations of any conspiracy between clubs” (id. at 19). Thus,
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the order concluded (ibid.):
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Leave to amend the RICO claim is denied as futile because
plaintiffs have already had ample opportunity to investigate and
plead a timely claim under RICO. If, as discovery proceeds in this
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matter, evidence surfaces indicating the existence of a conspiracy,
or indicating that some clubs lied to plaintiffs, then the Court will
at least consider allowing plaintiffs to amend their complaint to
re-add a conspiracy claim. Otherwise, generous opportunity to
shore up the complaint having already been given, further leave to
amend is not warranted as to this claim.

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The order gave plaintiffs until February 22 to file their second amended complaint. To allow
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time for both the amendment and defendants’ response thereto, the order also continued the
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deadline for plaintiffs’ class certification motion from February 23 to May 18 (id. at 20). Trial
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remains scheduled to begin on October 30 (Dkt. No. 90 at 4).
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On February 14, plaintiffs filed this motion for (1) an extension of time to file their
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second amended complaint, and (2) “leave to add a new party, Carlos Rogers, who on behalf of
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claims, a [RICO] claim . . . and to re-plead their conspiracy claim” (Dkt. No. 171). Rogers,
For the Northern District of California

United States District Court

a putative class will be filing, in addition to intentional misrepresentation and concealment
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plaintiffs explain, is “[a] former player . . . who suffered a RICO injury within the applicable
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statute of limitations period (the sole RICO-related issue this Court addressed in granting in part
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Defendants’ motion to dismiss)” (id. at 1). A “retained client” of plaintiffs’ counsel, Rogers
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apparently “decided to serve as a named Plaintiff” “in response to hearing about the Court’s
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February 3 order” (id. at 2). Plaintiffs proclaim that Rogers “will proceed with RICO,
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intentional misrepresentation, and conspiracy claims, whether as part of this suit or separately.”
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Thus, they argue, adding Rogers’s claims to this lawsuit would be more efficient than waiting
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for him to file a new one that “will almost certainly be consolidated with this suit” (id. at 3).
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ANALYSIS
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The February 3 order expressly denied leave to amend plaintiffs’ RICO claim because
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“plaintiffs have already had ample opportunity to investigate and plead a timely claim under
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RICO” (Dkt. No. 168 at 19). Yet, for all the time spent and ink spilled between both this case
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and Dent, its predecessor, plaintiffs’ counsel did not bring forth Rogers to secure plaintiffs’
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RICO and conspiracy claims. Even at the hearing on January 26, with the benefit of significant
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discovery and oral argument on whether leave to amend was warranted (see, e.g., Dkt. No. 169
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at 46:1–46:19, 53:6–54:3), plaintiffs’ counsel never mentioned Rogers.
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Now, plaintiffs’ carefully worded motion states Rogers “came forward” as a potential

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plaintiff on February 8 (Dkt. No. 171 at 2–4), insinuating that he is a newly discovered,

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uniquely qualified plaintiff who can and should be allowed to salvage plaintiffs’ claims. The

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motion does not, however, explain when plaintiffs’ counsel actually made contact with Rogers,

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and ignores plaintiffs’ counsel’s prior statement that they had “met with and received signed

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Retainer Agreements from over 1,300 Class Members” as of November 30, 2016 (Dkt. No. 136

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at 72). In light of the extensive history of this case, the abundance of information and clients

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available to plaintiffs’ counsel, and the ample opportunity before this late stage for plaintiffs to

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perfect their lineup, plaintiffs’ suggestion that Rogers should now be permitted to resurrect their

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For the Northern District of California

United States District Court

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dismissed RICO and conspiracy claims rings hollow.
Moreover, insofar as Rogers is proffered as a new opportunity to re-plead claims

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grounded in conspiracy, plaintiffs have not satisfied the condition expressly set forth in the

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February 3 order — that the Court will “consider allowing plaintiffs to amend their complaint to

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re-add a conspiracy claim” if, “as discovery proceeds in this matter, evidence surfaces

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indicating the existence of a conspiracy, or indicating that some clubs lied to plaintiffs” (Dkt.

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No. 168 at 19 (emphasis added)). The instant motion acknowledges the aforementioned

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condition (Dkt. No. 171 at 2) but alleges no new (and improved) evidence that any clubs

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conspired or lied to plaintiffs. Thus, as stated in the February 3 order, “further leave to amend

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is not warranted” as to plaintiffs’ conspiracy claims (Dkt. No. 168 at 19).

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In short, plaintiffs’ case for permitting the belated and purportedly game-changing

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addition of Rogers to their ranks is essentially that, if the Court does not acquiesce to their

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request, Rogers will file a separate lawsuit and force everyone to go through the process of

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consolidating the two actions and delaying deadlines as a result (see Dkt. No. 171 at 3). True,

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Rogers is free to file his own lawsuit in this district, in which case it would likely be “related” to

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the instant action and reassigned to the undersigned. But that is no guarantee that the two

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actions would be “consolidated.”

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Given the advanced stage of these proceedings, it would be problematic to introduce a
new plaintiff who seeks to upend the current litigation landscape by resurrecting dismissed
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claims. Additionally, and as plaintiffs recognize, the deadline for their class certification

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motion — already pushed back significantly — is coming up on May 18. Both sides would

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presumably need more discovery on Rogers, not only to cope with any additional motions

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practice necessitated by his appearance but also to assess his adequacy as a putative class

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representative. This process could plausibly be completed between now and May 18, but would

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be burdensome on all parties.

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Plaintiffs, through their counsel, had over a year (more than that, if Dent is counted) to

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find suitable representatives from a vast pool of clients. They are not oblivious to the

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importance of choosing the right plaintiffs, having previously amended their complaints — both
here and in the related Dent case — to fine-tune their lineup. The instant motion hints at a

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For the Northern District of California

United States District Court

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strategy by plaintiffs’ counsel to shuffle their client deck and produce new plaintiffs to patch up

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any weaknesses in their case, effectively rebooting it as needed regardless of the stage of

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litigation. There is no reason to indulge such a strategy, or even to believe that, if indulged, it

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would end here. As the Court indicated at the January 26 hearing, plaintiffs are not entitled to

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as many bites as they want at the proverbial apple (see Dkt. No. 169 at 53:12–53:20).

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Plaintiffs’ reply clarifies that they seek an extension of time to file their second amended

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complaint only if they are permitted to add Rogers as a new party (Dkt. No. 174 at 1). Because

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this order declines to grant such permission, plaintiffs’ requested extension is unnecessary.

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CONCLUSION
For the foregoing reasons, plaintiffs’ motion is DENIED.

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IT IS SO ORDERED.

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Dated: February 21, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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