United States District Court, District of Columbia
VALERIE R. WHITE, et al., Plaintiffs,
HILTON HOTELS RETIREMENT PLAN, et al., Defendants.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
to the Court's  Scheduling and Procedures Order,
Plaintiffs have filed their  Motion for Leave to Amend
Pursuant to FRCP 15(a)(2) (“Motion to Amend”) in
an effort to address certain deficiencies that led the Court
to dismiss Claim Three of Plaintiffs' Amended Complaint.
See Mem. Op. and Order, ECF No. 21, at 4-5. In
opposition, Defendants argue that Plaintiffs' attempt to
further amend would be futile, as it would not survive a
motion to dismiss. See Mem. of P&A in Supp. of
Defs.' Opp'n to Pls.' Mot. for Leave to Amend
(“Opp'n Mem.”), ECF No. 35, at 1, 2,
The parties disagree about the futility of an amendment in
part because of the complex litigation backdrop from which
the proposed claim is said to arise. “This matter was
noticed as related to Kifafi v. Hilton Hotels Retirement
Plan, No. 98-cv-1517 (CKK)
(‘Kifafi'), an action over which the Court
concluded its jurisdiction in December 2015, after more than
17 years of litigation.” Mem. Op. and Order, ECF No.
21, at 1 (citing Kifafi, Mem. Op., ECF No. 434, at
cases where plaintiffs have already amended their Complaint,
Federal Rule of Civil Procedure 15(a)(2) provides that
“a party may amend its pleading only with the opposing
party's written consent or the court's leave [and]
[t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2); see Willoughby v.
Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir.
1996) (finding that leave to amend a complaint is within the
court's discretion and “should be freely given
unless there is a good reason . . . to the contrary”),
cert den., 520 U.S. 1197 (1997); Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (noting
that “it is an abuse of discretion to deny leave to
amend unless there is sufficient reason”).
evaluating whether to grant leave to amend, the Court must
consider (1) undue delay; (2) prejudice to the opposing
party; (3) futility of the amendment; (4) bad faith; and (5)
whether the plaintiff has previously amended the
complaint.” Howell v. Gray, 843 F.Supp.2d 49,
54 (D.D.C. 2012) (citing Atchinson v. District of
Columbia, 73 F.3d 418 (D.C. Cir. 1996) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
Specifically with respect to the futility factor, a district
court may properly deny a motion to amend if “the
amended pleading would not survive a motion to
dismiss.” In re Interbank Funding Corp. Sec.
Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (citing,
e.g., Foman, 371 U.S. at 182). “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).
forego a number of the factors that this Court could consider
and instead focus only on one. Defendants do not argue that
Plaintiffs unduly delayed proposing their amendment, that
this amendment would prejudice Defendants, that Plaintiffs
make their proposal in bad faith, or that Plaintiffs should
not be permitted to amend in light of their previous
amendment, although it was of right. Rather, Defendants argue
that the Motion to Amend would be futile because it
“does not cure the deficiencies” that previously
warranted dismissal of Claim Three, and, relatedly, the
“new allegations fail to state a claim for
relief.” Opp'n Mem. at 1-2.
parties' arguments about futility quickly get into merits
freighted by Kifafi. The parties disagree regarding,
inter alia, whether “Pedro Betancourt, who was
[Plaintiff] Betancourt's father, became ‘newly
vested' as a result of the vesting claim process ordered
in the Kifafi litigation, ” such that Pedro
Betancourt allegedly now would be entitled to benefits that
he previously could not have claimed. Mot. to Amend at 4;
see also Opp'n Mem. at 6 (“[T]he proposed
[Second Amended Complaint], like the Amended Complaint, does
not and cannot allege that Pedro Betancourt was ‘newly
vested' because of relief awarded to one of
Kifafi's four vesting subclasses.”). They
also dispute whether Plaintiffs must allege in the Second
Amended Complaint that Plaintiff Betancourt is the executor
or an analogous official representative of his deceased
father's estate-or rather, the substitute representative
in place of his deceased mother-in order to qualify as a
beneficiary entitled to any “newly vested”
benefits owed to his father under Kifafi. See,
e.g., Opp'n Mem. at 9 (“Even where benefits
are still payable to deceased participants and beneficiaries,
only the executor(s) of the decedents' estates can seek
those benefits. . . . This is consistent with the common law
rule that only the executor or administrator of a
decedent's estate may sue on behalf of the
decedent.”); Reply Mem. at 8 (“While there is no
such specific pleading requirement, Class counsel could add
to the amended pleadings that he is the personal
representative of his mother's estate and can become the
personal representative of his father's if the Court
wants. But making this a pleading requirement is not
necessary and is not always practical.”).
effectively ask this Court to decide these and other disputes
in determining whether to grant the Motion to Amend. But they
cannot argue that the Court is required to resolve
such issues at this stage. In an exercise of this Court's
discretion under Federal Rule of Civil Procedure 15(a)(2),
the Court finds that the Motion to Amend is not the proper
posture to resolve these disputes. Plaintiffs have reasonably
attempted to address the reasons for which this Court
initially dismissed Claim Three, and accordingly the
litigation shall proceed on the basis of their Second Amended
of the foregoing reasons, in an exercise of the Court's
discretion, the Court GRANTS Plaintiffs'
 Motion for Leave to Amend Pursuant to FRCP 15(a)(2).
futility argument suggests that they intend to file a
dispositive motion with respect to the Second Amended
Complaint. It is not clear whether they would file a motion
to dismiss or a motion for summary judgment. The Court
observes that further factual development may be necessary
before a motion could resolve Claim Three. Defendants shall
file a notice with the Court by JANUARY 31,
2018, indicating whether they intend to file a
specific dispositive motion in response to the Second Amended
Complaint, and thereafter the Court shall set an appropriate
briefing schedule if applicable.
appropriate Order accompanies this Memorandum Opinion.
 In addition to considering the Motion
to Amend and Defendants' opposition, the Court considered
Plaintiffs' reply and their subsequent, unsolicited
filing identifying what they claim to be new evidence in
support of their motion. Pls.' Reply in Supp. of Mot. for
Leave to Amend, ECF No. 36 (“Reply Mem.”);
Pls.' Notice of New Evidence Related to Mot. for Leave to
Amend, ECF No. 37. At the Court's request, see
Min. Order of Dec. 15, 2017, Defendants submitted a response
to Plaintiffs' “new evidence” filing that
vigorously disputes its procedural propriety, Plaintiffs'
argument that the proposed amendment is not futile, and
Plaintiff Betancourt's exhaustion of administrative
remedies. Defs.' Resp. to “Plaintiffs' Notice
of New Evidence Related to Motion for Leave to Amend”,
ECF No. 39, at 2-4. While the Court shall ...