Dewhurst et al v. Century Aluminum Company et al
Filing
110
MEMORANDUM OPINION AND ORDER denying without prejudice defendants' 92 MOTION to Dismiss; granting 101 MOTION to Withdraw as Attorney by John Stember; granting plaintiffs' 104 MOTION for Leave to File, giving defendants leave unt il 1/16/2012 to move pursuant to Rule 12 (b)(6) as to the Second Amended Complaint, with any response and reply due in accordance with Local Rules; and denying as moot plaintiffs' 109 MOTION for Leave to File Surreply. Signed by Judge John T. Copenhaver, Jr. on 12/29/2011. (cc: attys; any unrepresented parties) (cbo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
HAROLD DEWHURST and DAVID BRYAN,
on behalf of themselves
and all other persons
similarly situated, and
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION,
Plaintiffs
v.
Civil Action No. 2:09-1546
CENTURY ALUMINUM COMPANY,
CENTURY ALUMINUM OF
WEST VIRGINIA, INC.,
CENTURY ALUMINUM MASTER WELFARE BENEFIT PLAN,
DOES 1 THROUGH 20,
Defendants
MEMORANDUM OPINION AND ORDER
Pending are (1) defendants’ motions to dismiss the
First Amended Complaint (“motion to dismiss”) and to stay
discovery pending a ruling on the motion to dismiss (“motion to
stay”), filed October 14, 2011, (2) plaintiffs’ motion for leave
to file a Second Amended Complaint, filed November 14, 2011, (3)
the motion to withdraw, filed November 14, 2011, by plaintiffs’
counsel John Stember (“motion to withdraw”), and (4) plaintiff’s
unopposed motion to file a surreply as to the motion to dismiss,
filed December 19, 2011.1
The motion to dismiss otherwise would have ripened with the
filing of defendants’ reply on December 6, 2011.
1
The court first addresses plaintiff’s motion for leave
to file a Second Amended Complaint and defendants’ motion to
dismiss.
Plaintiffs assert that the Second Amended Complaint
“include[s] more specific allegations in response to” defendants’
motion to dismiss.
(Mot. to Am. at 1; Pls.’ Mem. in Supp. at 1-2
(“Plaintiffs submit their proposed Second Amended Complaint in
response to Defendants’ Motion to Dismiss First Amended Complaint
. . . .
While Plaintiffs . . . believe that their First Amended
Complaint . . . sufficiently states claims upon which relief may
be granted, Retirees expand on these allegations in the proposed
Second Amended Complaint in order to specifically cite certain
matters already of record in this case in connection with
preliminary injunction proceedings.”)).
Plaintiffs’ intentions are unclear.
At one point in
their supporting memorandum they appear to make the amendment
request contingently, “in the event that the Court concludes that
the allegations in Retirees’ First Amended Complaint are
insufficient.” (Pls.’ Mem. in Supp. at 2).
A page later in that
same memorandum, however, they state as follows: “Out of an
abundance of caution, to ensure that the Court properly may
consider the evidence that already is of record, Retirees submit
the proposed Second Amended Complaint which specifically cites”
2
certain evidence upon which they wish the court to rely.
3).
(Id. at
Defendants do not, in any event, oppose the motion to amend.
The court, accordingly, ORDERS that the motion to amend
be, and it hereby is, granted.
It is further ORDERED that the
Second Amended Complaint be, and it hereby is, filed this same
day.
Respecting the motion to dismiss, it is the better course
to permit defendants to seek relief pursuant to Rule 12(b)(6) as
to the Second Amended Complaint, which is now the operative
pleading herein.
1.
It is, accordingly, ORDERED as follows:
That defendants’ motion to dismiss be, and it hereby
is, denied without prejudice;
2.
That plaintiffs’ unopposed motion to file a surreply
be, and it hereby is, denied as moot; and
3.
That defendants be, and they hereby are, given leave
until January 16, 2012, to move pursuant to Rule
12(b)(6) as to the Second Amended Complaint, with any
response and reply due in accordance with the Local
Rules.2
Counsel need not, however, file anew any
Counsel should endeavor to raise all arguments in their
opening brief so as to avoid the necessity of surreply briefing.
The court will consider any subsequently filed motion to dismiss
to be fully submitted upon the filing of defendants’ reply brief,
if any.
2
3
exhibits previously attached to their briefing
respecting the motion to dismiss that is denied without
prejudice today.
The court will deem those previously
filed exhibits fully applicable to the briefing
respecting any forthcoming motion to dismiss, as if
originally filed with such briefing.
Respecting the motion to stay, defendants assert the
case should be halted inasmuch as a Rule 12(b)(6) challenge to
the operative pleading might end this action, and the
corresponding need for discovery.
request.
Plaintiffs oppose the stay
They note, inter alia, as follows:
[A]s explained at length in Retirees’ dismissal
response, Retirees believe that they are highly likely
to prevail on the dismissal motion. Obviously, if
discovery is not allowed to proceed during the months
that the parties are awaiting decision on the dismissal
motion and then the dismissal motion is in fact denied
(as Retirees anticipate), then much time would have
been wasted, further delaying ultimate resolution of
this dispute. For this additional reason, discovery
should not be stayed.
(Resp. at 6, 5 (stating defendants “can better withstand the
costs of beginning discovery than low-income class members can
withstand the deprivation of their health care benefits.”)).
In
their reply, defendants assert, inter alia, that plaintiffs
themselves requested a stay previously in this case in order to
appeal the denial of a preliminary injunction.
4
The court deems a stay both unnecessary and
inadvisable.
A prompt decision on any Rule 12(b)(6) request will
address the concerns expressed by defendants.
Once fully
briefed, the court would expect to rule seasonably.
In the
meantime, discovery may proceed according to the terms of the
scheduling order entered this same day.
Respecting the motion to withdraw, Mr. Stember asserts
that he is no longer working on this case in light of obligations
to other clients.
Other counsel for plaintiffs, however, remain
actively engaged in working on this matter, namely, William T.
Payne of Stember Feinstein Doyle & Payne, and Joseph P.
Stuligross, Associate General Counsel for the United
Steelworkers.
The court, accordingly, ORDERS that the motion to
withdraw be, and it hereby is, granted.
The Clerk is directed to forward copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
DATED:
December 29, 2011
John T. Copenhaver, Jr.
United States District Judge
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