Green et al v. Baltimore City Board of School Commissioners

Filing 28

MEMORANDUM AND ORDER granting Plaintiffs' Motion for Limited Class Discovery; and granting 21 Plaintiffs' Motion to Amend/Correct Complaint. Signed by Judge William M Nickerson on 6/17/2015. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ANNA D. GREEN, et al.

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v.
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Civil Action No. WMN-14-3132
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BALTIMORE CITY BOARD OF
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SCHOOL COMMISSIONERS
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MEMORANDUM AND ORDER
Before the Court are a motion to engage in limited class
discovery, ECF No. 18, and a Motion to Amend/Correct Complaint,
ECF No. 22, filed by Plaintiffs Anna D. Green and Carolyn
Richards.

Defendant Baltimore City Board of School Commissioners

(the Board) objects to both motions, which are now ripe.

Upon a

review of the papers, facts, and applicable law, the Court
determines that no hearing is necessary, Local Rule 105.6, and
that the motions shall be GRANTED.
Plaintiffs seek to amend their complaint to reflect the
following changes: (1) to substitute the Public Health Services
Act, 42 U.S.C. § 300bb-1 et seq. (PHSA) rather than the Employee
Retirement Income Security Act of 1974 as the foundation for
their claims and (2) to include a class action claim against the
Board (Count III).

In connection with the newly added class

action claim, Plaintiffs also seek a limited class discovery
period of 45 days, after which they may seek class certification.
The Board consents to the first purpose of submitting an Amended

Complaint, but objects to the inclusion of a class-action claim
and further objects to any discovery related to it.
Once a responsive pleading has been filed, Rule 15(a)(2) of
the Federal Rules of Civil Procedure provides that a party “may
amend its pleading only with the opposing party’s written consent
or the court’s leave.”

The Court, though, is instructed to

“freely give leave when justice so requires.”

Id.

Whether to

grant a motion for leave to amend is within the Court’s
discretion.

Foman v. Davis, 371 U.S. 178, 182 (1962).

“[L]eave

should be denied only when amending the pleading would prejudice
the opposing party, reward bad faith on the part of the moving
party, or would amount to futility.”

MTB Serv. v. Tuckman-Barbee

Const. Co., Civ. No. RDB-12-2109, 2013 WL 1819944, at *3 (D. Md.
Apr. 30, 2013).
In its Opposition to the Motion to Amend, the Board argues
against allowing Plaintiffs to add a class action claim on the
grounds of undue delay and impermissibility.

First, they urge

the Court to adopt the reasoning in Mogel v. UNUM Life Ins. Co.
of Am., 677 F. Supp. 2d 362 (D. Mass. 2009), and deny the leave
to amend because such amendment would “postpone a resolution of
the case” and there is an absence of “changed circumstances” to
justify amendment.

See ECF No. 26 ¶ 5.

appropriate guidance here.

Mogel does not provide

By the time plaintiff moved the court

to amend his complaint and re-seek class certification, a motion
2

to dismiss had been granted, an appeal taken and granted, and an
initial motion to certify class denied.

And although plaintiff

in that case filed a motion to amend the complaint, the “primary
goal [of the plaintiff] is the second half of the motion’s
lengthy title: ‘leave to file a renewed motion for class
certification . . . .”

677 F. Supp. 2d at 365.

As such, the

court analyzed plaintiff’s motion as one to grant leave to file a
successive class certification after the initial certification
motion had been denied on the merits.

The court concluded that,

in essence, the plaintiff was seeking modification of the Court’s
original denial of class certification. Id.
It is in this context that the Court concluded that, in the
light of prior procedural history and the lack of changed
circumstances,1 it would be futile and a waste of judicial
resources to allow an amended complaint that would require the
court to consider plaintiff’s request to have his class
certification evaluated under Rule 23(b)(3) rather than Rule
23(b)(2) of the Federal Rules of Civil Procedure.

Here, the

parties have just entered discovery, Plaintiffs have brought
their class action complaint for the first time, but have not yet
1

The Mogel Court looked to the Advisory Committee of the Federal
Rules of Civil Procedure in concluding that “changed
circumstances” was required in addition to Rule 15(a)(2)
standards in order to grant leave to Plaintiff. 677 F. Supp. 2d
at 365 (“The Advisory Committee has clarified, however, that [a]
determination once made can be altered or amended . . . if, upon
fuller development of the facts, the original determination
appears unsound.”).
3

sought to certify a class, and the Court has not considered the
merits of any such class.

There is no need for a change in

circumstances in order to grant Plaintiffs’ motion and allowing
Plaintiffs to allege a class claim would not cause undue delay.
Next, the Board contends that
“this Court permitted Plaintiffs to amend their Complaint to
be properly filed pursuant to PHSA instead of ERISA, not for
the purpose that they could amend their complaint to add a
class action, which this Court had the authority and
opportunity to do in its Memorandum and Order on March 17,
2015.”
ECF No. 26 ¶ 6.

A review of the Court’s previous Memorandum and

Order does not support such a conclusion.

The Court’s analysis

addressed the merits of withdrawing its prior opinion in light of
Plaintiffs’ disclosure of that the PHSA, not ERISA, was the
proper governing law of this action.

The Memorandum and Order

was silent as to the then-unripe issue of class certification,
except to suspend the briefing in light of the need to withdraw
the Memorandum and Order upon which the briefing was based.
Further, the Court did not direct Plaintiffs in any manner
regarding an amended complaint, except to order them to work with
the Board in creating a modified Scheduling Order that included a
deadline for amended pleadings.

The Court’s Memorandum and Order

from March 17, 2015, does not act as an outright bar to any
element of Plaintiffs’ proposed Amended Complaint.
Finally, the Board incorporates into its Opposition the same
grounds for opposing limited class action discovery.
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ECF No. 26

¶ 7.

In its opposition to the Motion for Limited Discovery, the

Board “contests any scheduling order that supports Plaintiffs’
proposed class action as this Court has not certified any class
and Plaintiffs have not met the requirements of Fed. R. Civ. P.
23 for a class action to be certified.”

ECF No. 23 at 1.

When

applied to whether to allow the Amended Complaint, the argument
that a class action claim cannot be allowed absent a
certification reverses procedure, as the Court cannot certify a
class in the absence of a complaint asserting a class action.
See Fed. R. Civ. P. 23(c)(1) (“At an early practicable time after
a person sues . . . as a class representative, the court must
determine by order whether to certify the action as a class
action.”)(emphasis added).
To the extent that the Board’s statement that “Plaintiffs
have not met the requirements of Fed. R. Civ. P. 23 for a class
action to be certified” constitutes an argument that amendment
would be futile, Plaintiffs have adequately plead a class that
could survive a Motion to Dismiss.

The Court refrains, at this

time, to reach the merits of Plaintiffs’ class claim in the
absence of a fully briefed motion to certify a class.

See

Presser v. Key Food Stores Co-Op., Inc., 218 F.R.D. 53, 57
(E.D.N.Y. 2003) (finding that the Court may “limit its inquiry”
into class action requirements and allow the amended complaint
when defendant’s arguments are more appropriately addressed at
5

the class certification stage).

To determine ultimately whether

the class claim may be certified and carried forward in this
litigation, Plaintiffs have requested limited class discovery
into individuals who may have been affected by Board policy in
violation of the PHSA.

It is within the Court’s discretion to

allow discovery and set the extent of such discovery.

Artis v.

Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011).
This action, although subject to a detour, is still in early
stages of litigation.

Plaintiffs are seeking for the first time

to bring a class action claim and the Court has yet to reach the
merits of certification.

Defendant has failed to demonstrate

that allowing Plaintiffs to file an Amended Complaint would
result in undue prejudice, constitute a reward of bad faith, or
that such amendment would be futile.

As such, the Court will

grant Plaintiffs’ Motion to Amend, set a forty-five day period in
which the parties may conduct limited class discovery, and a
deadline for filing any class certification motion of twenty days
following the close of the class discovery period.2
Accordingly, it is this 17th day of June, 2015, Ordered
that:

2

As both parties agree to forego Rule 26(a)(1) disclosures in
this case, the Court will not require the parties to make such
disclosures. See ECF No. 18 (“Plaintiffs suggest that the case
should proceed without Rule 26(a)(1) disclosures.”) and ECF No.
25 (“BCBSC would oppose such an order requiring Rule 26(a)(1)
disclosures in this case.”).
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(1)

Plaintiffs’ Motion for Limited Class Discovery, ECF No.
18, is GRANTED, in that
i. Plaintiffs shall have 45 days from the date of
this Order to conduct limited class discovery;
and,
ii. Plaintiffs shall have 20 days from the close of
class discovery to file any motion for class
certification;

(2)

Plaintiff’s Motion to Amend/Correct Complaint, ECF No.
21, is GRANTED, and the Amended Complaint is deemed
filed as of the date of this Order;3 and

(3)

The Clerk of Court shall transmit a copy of this
Memorandum and Order to all counsel of record.

______________/s/__________________
William M. Nickerson
Senior United States District Judge

3

The Court notes that the Amended Complaint continues to
inconsistently reference ERISA, but expects that all parties
fully understand that Plaintiffs’ claims are brought under the
PHSA.
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