Roberts v. Target Corporation
Filing
89
ORDER granting 53 and 55 ...plaintiff's Rule 23 class claims and the claim for injunctive relief are dismissed with prejudice...all allegations with respect to Robert Lovio, Joe Marotta and Janice Watson are stricken...as the amended complain t contains not allegations regarding constructive discharge once those allegations are stricken, defendant's motion for judgment on the pleadings with respect to any constructive discharge claim is also granted. See order for further specifics. Signed by Honorable Joe Heaton on 06/20/2012. (lam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LINDA ROBERTS,
Plaintiff,
v.
TARGET CORPORATION,
Defendant.
)
)
)
)
)
)
)
)
)
NO. CIV-11-951-HE
ORDER
Plaintiff, Linda Roberts, filed this action seeking relief for “herself and other similarly
situated individuals”1 pursuant to the Age Discrimination in Employment Act (“ADEA”) on
August 23, 2011. Complaint at ¶ 1.01. In addition to her federal claim, plaintiff also
purported to bring a state law claim pursuant to Burk v. K-Mart Corp., 770 P.2d 24 (Okla.
1989). On September 19, 2011, defendant filed an answer to the complaint and also filed a
motion to dismiss plaintiff’s Rule 23 class action and constructive discharge claims.
Thereafter, plaintiff filed motions to amend the complaint and to join 33 additional party
plaintiffs.
On February 17, 2012, the court issued an order granting defendant’s motion to
dismiss the Rule 23 class action and the constructive discharge and Burk claims. The court
found:
To the extent plaintiff seeks to present a state law claim, she has
not done so. Other than mentioning a Burk tort, she has not
alleged such a claim for relief either on her own behalf or in a
1
Complaint at 1 [Doc. #1].
representative capacity. Moreover, to the extent she seeks to
present such a claim in a representative capacity, she must do so
pursuant to Fed. R. Civ. P. 23. Plaintiff’s complaint, however,
contains no facts in support of any of the elements of a class
action claim under Rule 23. While the complaint mentions
typicality and adequacy of representation, it does not even
mention numerosity and commonality, much less plead any facts
in support. Likewise, although the complaint mentions
constructive discharge, it contains no allegations that plaintiff
suffered a constructive discharge.
Order at 3 [Doc. #50]. The court concluded, “[a]s these defects may be cured by amendment
and plaintiff has requested leave to amend, the court will grant plaintiff leave to amend her
complaint within ten (10) days of the date of this order.” Id. (emphasis in original). In the
same order, the court denied plaintiff’s motions to join additional party plaintiffs. The court
found all but three of the putative plaintiffs’ claims were time-barred and therefore it would
be futile to grant plaintiff leave to join them as party plaintiffs. Id. at 4-5. With respect to
the individuals2 whose claims were not time-barred, the court found plaintiff failed to
demonstrate that joinder was permissible pursuant to Fed. R. Civ. P. 20. Id. at 5.
On February 27, 2012, plaintiff filed an amended complaint. Contrary to the court’s
order denying the motions to join party plaintiffs, the amended complaint named Lovio,
Marotta, and Watson as party plaintiffs. In the section entitled “Class Action Allegations”,
the amended complaint alleges:
Plaintiffs bring this action for age discrimination and retaliation
alleging unlawful discharge on behalf of herself and members
2
These individuals are Robert Lovio, Joe Marotta, and Janice Watson. Order at 4, n.4 (Doc.
No. 50).
2
of the prospective class of discharged employees who worked
for Defendant in the United States for five (5) years or longer
and were forty (40) years of age or older as of the last date of
discriminatory actions taken against them. As an alternative,
Plaintiffs bring this action on behalf of herself (sic) and such
sub-classes that this Court deems appropriate, including a Subclass of such employees residing in Oklahoma (collective “subclasses”).
Amended Complaint at ¶ 5.01 [Doc. #51].
This matter is before the court on Defendant’s Motion for Judgment on the Pleadings.
Defendant seeks an order dismissing the state law class claims and any claims for
constructive discharge. In addition, defendant asserts that plaintiff does not have standing
to bring claims for declaratory and injunctive relief. Rule 12(c) of the Federal Rules of Civil
Procedure provides that “[a]fter the pleadings are closed – but early enough not to delay trial
– a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standards
that govern motions to dismiss for failure to state a claim also govern motions made pursuant
to Rule 12(c). Brown v. Montoya, 662 F.3d 1152, 1160 n.4 (10th Cir. 2011). A claim should
not be dismissed for failure to state a claim unless it fails to contain sufficient factual
allegations “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In assessing whether a claim is plausible, the court
must construe the complaint in the light most favorable to the plaintiff and must presume all
factual allegations to be true.3 Id. at 556; Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
3
In response to defendant’s motion, plaintiff presented matters outside the pleadings. The
court did not consider such matters and therefore declines to convert defendant’s motion for
judgment on the pleadings into one for summary judgment. See Fed. R. Civ. P. 12(d).
3
As the Court held in Twombly, the pleading standard Rule 8
announces does not require “detailed factual allegations,” but it
demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation. A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of “further factual
enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citations omitted).
Defendant contends plaintiff has not alleged sufficient facts to plead a claim for class
certification pursuant to Rule 23. Rule 23 provides that:
One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members
is impracticable;
(2) there are questions of law or fact common to the
class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a). Furthermore, as the United States Supreme Court recently reiterated:
The class action is “an exception to the usual rule that litigation
is conducted by and on behalf of the individual named parties
only.” In order to justify a departure from that rule, “a class
representative must be part of the class and ‘possess the same
interest and suffer the same injury’ as the class members.” Rule
23(a) ensures that the named plaintiffs are appropriate
representatives of the class whose claims they wish to litigate.
The Rule’s four requirements – numerosity, commonality,
typicality, and adequate representation – “effectively ‘limit the
4
class claims to those fairly encompassed by the named
plaintiff’s claims.’”
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (citations omitted).
Although the amended complaint is not clear, plaintiff now concedes that the Rule 23
class relates solely to the Burk claim and that Roberts is the sole class representative.4 She
asserts that “the prospective class Roberts seeks to represent (in association with her statelaw, class claim) is limited to employees, over age forty, who were discharged in the State
of Oklahoma.”5 Plaintiff’s Response at 6 n.2. The amended complaint, however, contains
no factual allegations regarding numerosity of the Oklahoma class; rather, the amended
complaint merely alleges “[t]here are thousands of members of the Class and Sub-classes
who are geographically dispersed throughout the United States.” Amended Complaint at ¶
5.03. This is patently insufficient as it provides no factual information with respect to the
Oklahoma class. Plaintiff presents no allegations regarding the number of stores operated
by defendant in Oklahoma, the number of employees at those stores, or an estimate of the
number of individuals who might meet the class definition. While plaintiff does not need to
allege numerosity with mathematical precision, she does need to allege some facts that would
support this claim.6 Furthermore, with respect to the impracticability prong of the numerosity
4
Plaintiffs Response in Opposition to Defendant’s Motion for Partial Judgment on the
Pleadings at 6 n.2 [Doc. #60] [hereinafter cited as “Plaintiff’s Response”].
5
This class definition is both broader and narrower than the description contained in the
amended complaint, which sought certification of a nationwide class, but limited the class to
individuals who had worked for defendant for five or more years.
6
In her response to defendant’s motion, plaintiff argues – based on materials outside the
pleadings – that
[d]efendant operates approximately 1,750 stores. [Doc. No. 51,
¶4.06]. And, it employs more than 360,000 employees. See Ex. 10,
Target Fast Facts. Hence, in Oklahoma alone, Defendant employs
approximately 2,460 employees at any given time. Therefore, it is
certainly plausible to suggest that the number of over-age forty (40)
employees discharged in Oklahoma (which would comprise the
5
element,7 plaintiff merely parrots the language of Rule 23 by alleging “[t]he Class and Subclass of persons described above is so numerous that the joinder of all members in one action
is impracticable.” Id. As this bare assertion amounts “to nothing more than a ‘formulaic
recitation of the elements’”8 necessary for class certification, it does not state a plausible
claim for maintenance of a class.
Defendant also asserts that plaintiff has not sufficiently alleged commonality,
typicality, and adequacy. While defendant may well be correct, the court need not discuss
the remaining Rule 23(a) elements as all four elements must be adequately alleged to state
a plausible claim. Plaintiff has been on notice of the deficiencies in her class allegations
since defendant filed its motion to dismiss on September 19, 2011. The court likewise noted
these deficiencies and granted plaintiff leave to amend specifically to cure these defects.
Plaintiff’s amended pleading, however, is also deficient. As plaintiff has been given the
prospective class) would include hundreds of employees. In fact,
based on Defendant’s own (albeit skewed) statistical analysis (as
presented in Lachney v. Target Corp., CIV-06-1389-HE, 13.2% of
over age forty employees were terminated from their employment
with Defendant in approximately a one (1) year period of time. Thus,
it can be inferred that the prospective class at issue would encompass
more than 300 employees.
Plaintiff’s Response at 8. The fact that plaintiff cites to information received in the Lachney case
indicates that she had sufficient information to plead facts relating to numerosity when she filed the
amended complaint. And yet, plaintiff did not do so.
7
It is not sufficient under Rule 23 that the class consist of a certain number of individuals;
rather, the class must be so numerous that joinder of those individuals into one action would be
unworkable. In Trevizo v. Adams, 455 F.3d 1155 (10th Cir. 2006), the Court of Appeals for the
Tenth Circuit affirmed the trial court’s finding that a class of 84 “was not such an overwhelmingly
large number as to be prohibitive of joinder” particularly since the names and addresses of the
potential plaintiffs were readily available. Id. at 1162. In this case, plaintiff has pled no facts, so
the class could be anywhere from one to one thousand, and there are no allegations that identifying
the names and addresses of the potential plaintiffs – however many there may be – would be
difficult.
8
Iqbal, 129 S. Ct. at 1951 (quoting Twombly, 550 U.S. at 555).
6
opportunity to cure the defects and has not done so, the court finds dismissal of the Rule 23
class allegations is warranted. Plaintiff may prosecute her state law Burk claim solely in her
individual capacity.
The court also finds dismissal of plaintiff’s claim for injunctive relief is warranted.
Defendant correctly notes that former employees do not have standing to seek prospective
injunctive relief,9 and plaintiff does not contest this in her response. Plaintiff’s request for
injunctive relief is therefore dismissed for lack of standing. Defendant also seeks dismissal
of plaintiff’s claim for declaratory relief. That claim, however, is retrospective in nature, not
prospective; plaintiff seeks a declaration that “Defendant engaged in willful age
discrimination and/or retaliation”. Amended Complaint at 22 (emphasis added). As plaintiff
is seeking a declaration about defendant’s actions during her term of employment, she has
standing to seek such relief.
This matter is also before the court on defendant’s motion to strike Lovio, Marotta,
and Watson from the amended complaint. Defendant asserts that inclusion of these
individuals as party plaintiffs was not only without leave of court, but also was in direct
contravention of the court’s prior ruling denying plaintiff’s motion to add them as party
plaintiffs. Plaintiff counters that defendant’s motion should be denied as untimely, and that
the court’s prior order “did not expressly prohibit Plaintiff Roberts from naming Marotta,
Lovio and Watson as party plaintiffs in her Amended Complaint.” Plaintiffs’ Response in
Opposition to Defendant’s Motion to Strike Additional Plaintiffs from Amended Complaint
at 2 [Doc. #62]. Finally, plaintiff argues that Lovio, Marotta, and Watson are proper
plaintiffs pursuant to Fed. R. Civ. P. 20.
Rule 12(f) provides that “[t]he court may strike from a pleading . . . any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). While plaintiff is
9
See Dukes, 131 S. Ct. at 2560; Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cit.
2011).
7
technically correct that defendant’s motion to strike was filed one day late,10 the court has
discretion to ignore a late filing, particularly given that the court may strike matters from a
pleading on its own initiative. See Burnham v. Humphrey Hospitality Reit Trust, Inc., 403
F.3d 709, 712 (10th Cir. 2005); Fed. R. Civ. P. 12(f)(1). Plaintiff’s suggestion that the court
deny the motion as untimely is thus denied.
Having reviewed the parties’ briefs, the court finds that plaintiff’s inclusion of Lovio,
Marotta, and Watson was directly in contravention of the court’s February 7, 2012 order.
The court’s order granting plaintiff leave to amend was solely with respect to the state law
class allegations and the constructive discharge claim. Indeed, that is the only relief
requested by plaintiff in her motions to amend.11 Moreover, the court clearly denied
plaintiff’s motions to join Lovio, Marotta, and Watson. For her to add them after that express
denial is unjustified. Plaintiff’s assertion that joinder is proper merely restates arguments
already addressed by the court and found wanting. The court therefore orders that all
allegations with respect to Lovio, Marotta, and Watson be stricken.
In sum, Defendant’s Motion for Judgment on the Pleadings [Doc. #53] is GRANTED.
Plaintiff’s Rule 23 class claims and the claim for injunctive relief are dismissed with
prejudice. Defendant’s Motion to Strike Additional Plaintiffs from Amended Complaint
[Doc. #55] is also GRANTED. All allegations with respect to Robert Lovio, Joe Marotta,
and Janice Watson are STRICKEN. As the amended complaint contains no allegations
10
Plaintiff is not, however, correct that defendant’s answer was untimely. Defendant was
served with the amended complaint on February 17, 2012; its answer was therefore due March 5,
2012. Fed. R. Civ. P. 15(a)(3) (response to amended complaint due “within 14 days after service”)
(emphasis added); Fed. R. Civ. P. 6(d) (party granted 3 additional days to respond when service was
by mail and time is calculated from date of service under the circumstances referenced in Fed. R.
Civ. P. 5(2)(b)(C)-(F)). Therefore, defendant’s answer, which was filed on March 5, 2012, was
timely. Fed. R. Civ. P. 12(f)(2) provides that motions to strike should be filed “either before
responding to the pleading or, . . . within 21 days after being served with the pleading.” As the
motion to strike was filed one day after defendant filed its answer, it was not timely.
11
Plaintiff’s Unopposed Motion for Leave to File an Amended Complaint at 1 [Doc. #21];
Plaintiff’s Amended Motion for Leave to File an Amended Complaint at 3 [Doc. #22].
8
regarding constructive discharge once those allegations are stricken, defendant’s motion for
judgment on the pleadings with respect to any constructive discharge claim is also
GRANTED.
IT IS SO ORDERED.
Dated this 20th day of June, 2012.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?