United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
A. HOWELL CHIEF JUDGE
remand, the two remaining plaintiffs in this case, commercial
truck drivers Klint Mowrer and Fred Weaver, seek leave to
file an amended complaint against the defendants United
States Department of Transportation (“DOT”),
Elaine Chao, in her official capacity as Secretary of the DOT
(“Secretary”), the Federal Motor Carrier Safety
Administration (“FMCSA”), and Raymond P.
Martinez, in his official capacity as Administrator of the
FMCSA (collectively, “DOT” or
“defendants”). Pls.' Mot. Amend Compl.
(“Pls.' Mot”), ECF No. 89; see
Pls.' Prop. Second Amend. Compl. (“Prop.
SAC”), ECF No. 91-1. The proposed amended complaint would
simplify the complaint by eliminating dismissed parties,
including Owner-Operator Independent Drivers Association,
Inc. (“OOIDA”), an organization representing
professional truck drivers and small business trucking
companies, and several individual members, see OOIDA v.
U.S. Dep't of Transp., 879 F.3d 339, 340 (D.C. Cir.
2018) (affirming dismissal of certain plaintiffs and
reversing in part to hold that Mowrer and Weaver had
“standing to seek damages”), and add to their
existing claim for damages under the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. §§ 1681 et
seq., a claim for damages under the Privacy Act, 5
U.S.C. § 552a, see Prop. SAC ¶¶
111-40 (Count I Privacy Act claim), ¶¶ 141-56
(Count II FCRA claim). For the reasons below, the plaintiffs'
motion for leave to amend the complaint is denied, without
prejudice to seek leave to file, in accordance with this
Memorandum Opinion and Order and the D.C. Circuit's
mandate, an amended pleading limited to plaintiffs Mowrer and
Weaver's claim for damages under the FCRA.
to amend a complaint under Rule 15(a) ‘shall be freely
given when justice so requires.'” Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting
Fed.R.Civ.P. 15(a)); see also Schmidt v. United
States, 749 F.3d 1064, 1068 (D.C. Cir. 2014).
Nevertheless, such leave may be denied for various reasons,
including “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc ..... ” Foman v.
Davis, 371 U.S. 178, 182 (1962). “[T]he grant or
denial of leave to amend is committed to a district
court's discretion, ” Bode & Grenier, LLP
v. Knight, 808 F.3d 852, 860 (D.C. Cir. 2015) (quoting
Firestone, 76 F.3d at 1208), but the district court
must provide reasons for the decision, see Foman,
371 U.S. at 182 (“[O]utright refusal to grant the leave
without any justifying reason appearing for the denial is not
an exercise of discretion; it is merely abuse of that
discretion and inconsistent with the spirit of the Federal
Rules.”); Brink v. Cont'l Ins. Co., 787
F.3d 1120, 1129 (D.C. Cir. 2015) (finding “error in the
district court's complete failure to provide reasons for
refusing to grant leave to amend.” (quoting
Firestone, 76 F.3d at 1209)).
defendants have no objection to amending the complaint to
remove those plaintiffs whose dismissal has been affirmed by
the D.C. Circuit, see generally Defs.' Opp'n
Pls.' Mot. (“Defs.' Opp'n”), ECF No.
90, but oppose the addition of a Privacy Act claim on grounds
of dilatoriness and futility, id. at 2.
Specifically, the defendants argue that the plaintiffs have
known about potential Privacy Act claims since the initiation
of this litigation over six years ago and, in fact,
“asserted Privacy Act claims in 2012, and then
affirmatively eliminated those claims in 2014, ”
effectively waiving them. Defs.' Opp'n at
The plaintiffs counter that the D.C. Circuit “left open
the possibility that Plaintiffs' Article III injuries
could provide the basis for statutory claims beyond the
[FCRA].” Pls.' Reply Supp. Pls.' Mot
(“Pls.' Reply”) at 3, ECF No.
The Court agrees with the defendants that the proposed
Privacy Act claims may not now be added to the complaint.
noted, the plaintiffs alleged, in their 2012 complaint, that
the defendants had violated the Privacy Act through their
“intentional or willful disclosures and dissemination
of false, inaccurate and misleading records maintained by
Defendants, ” Compl. ¶ 187 (Count VI), ECF No. 1,
while also alleging a violation of the FCRA predicated, in
part, on the allegation that “FMCSA acted willfully and
negligently when it disseminated false, inaccurate,
imprecise, incomplete and misleading consumer reports to
third parties, ” id. ¶ 172 (Count V).
Their 2014 First Amended Complaint dropped the Privacy Act
claim, while continuing to allege that the defendants
violated the FCRA predicated on the identical allegation
initially asserted regarding the FMCSA's action. First
Amend. Compl. (“FAC”) ¶ 192 (Count V), ECF
No. 35. The proposed SAC alleges that the defendants violated
the FCRA “when they disseminated false, inaccurate,
imprecise, incomplete and misleading consumer reports to
third parties, ” Prop. SAC ¶ 155 (Count II), and
that they violated the Privacy Act “when they
disseminated false, inaccurate, imprecise, incomplete and
misleading data to third parties, ” id. ¶
132 (Count I).
evolution of the plaintiffs' claims makes clear, the
plaintiffs originally included a Privacy Act damages claim
against the defendants, but as part of the consolidation of
the actions, in 2014, successfully sought leave to file a
consolidated amended complaint that eliminated the Privacy
Act claim. See Pls.' Mot. to Amend/Correct
Compl., ECF No. 33; Pls.' Mot to Consolidate Cases, ECF
No. 34; Minute Orders (Apr. 29, 2014) (granting the motions).
Over the next four years, extensive litigation ensued,
including: the defendants' motion to dismiss the amended
complaint, ECF No. 37, which motion was denied, OOIDA v.
Foxx, No. CV 12-1158, 2015 WL 13651262 (D.D.C. Mar. 10,
2015); the defendants' answer to the FAC, ECF No. 48; the
filing of the list of contents of the Administrative Record,
ECF No. 49; the defendants' motion for summary judgment,
ECF No. 60, and the plaintiffs' cross-motion for summary
judgment, ECF No. 64, which, following the filing of the
joint appendix, ECF No. 75, were resolved by the dismissal of
the plaintiffs' claims, OOIDA v. U.S. Dep't of
Transp., 211 F.Supp.3d 252 (D.D.C. 2016); and remand by
the D.C. Circuit, OOIDA v. U.S. Dep't of
Transp., 879 F.3d 339. Now, four years after the
plaintiffs voluntarily dropped their Privacy Act claim in
their FAC, the plaintiffs seek leave to revive it.
delay in adding claims “is a sufficient reason for
denying leave to amend.” Atchinson v. Dist. of
Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996). The D.C.
Circuit has not articulated a bright line rule for what
constitutes “undue delay” such that leave to
amend may be denied, but cases from this Circuit leave no
doubt that the instant plaintiffs have waited too long. For
example, undue delay has been found when plaintiffs have
sought to add claims four or five years after litigation
commenced, particularly after the parties had engaged in
motion practice. See, e.g., Knight, 808
F.3d at 860 (“The motion to amend arrived four years
after litigation began, one year after summary judgment
motions were decided, eight months after filing an amended
answer and only days before trial. That is the very picture
of undue delay.”); Elkins v. Dist. of
Columbia, 690 F.3d 554, 565 (D.C. Cir. 2012) (finding
undue delay when the motion to amend was filed “five
years after the initial complaint and after discovery had
closed”); Knight, 808 F.3d at 860 (finding
undue delay when motion to amend was filed “seven years
after litigation began, when discovery had closed and the
court had decided summary judgment motions” (citing
Williamsburg Wax Museum, Inc. v. Historic Figures,
Inc., 810 F.2d 243, 247 (D.C. Cir. 1987))); Doe v.
McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977) (finding
undue delay when “complaint had been before the
district court, [the D.C. Circuit, ] and the Supreme Court
for over thirty-eight months, ” the plaintiffs
“gave no indication . . . of any potential change in
their theory of the case, ” and the record reflected
“no sound reason for the [plaintiffs'] failure to
seek amendment earlier”). The plaintiffs here
“had no reason to wait years before” resurrecting
their Privacy Act damages claim, Knight, 808 F.3d at
860, and the mere fact that they are not barred from doing so
by the D.C. Circuit's mandate does not excuse their
the elimination in 2014 in the plaintiffs' FAC of the
Privacy Act claim, compare Compl. ¶ 190,
with FAC generally, “operated as a
voluntary dismissal of th[at] claim, ” Halldorson
v. Sandi Grp., 934 F.Supp.2d 147, 156 (D.D.C. 2013).
Accord Lacey v. Maricopa County, 693 F.3d 896, 928
(9th Cir. 2012) (“[F]or any claims voluntarily
dismissed, we will consider those claims to be waived if not
repled.”). The plaintiffs' decision not to include
their Privacy Act damages claim in their FAC, even though the
FAC mentions the Privacy Act no fewer than thirteen times,
amounts to “the intentional relinquishment or
abandonment of a known right.” United States v.
Brice, 748 F.3d 1288, 1293 (D.C. Cir. 2014) (Williams,
J., concurring) (quoting United States v. Olano, 507
U.S. 725, 733 (1993)). In response to this waiver argument,
the plaintiffs in their reply argue only that their Privacy
Act claim is not barred by the mandate rule and that it does
not prejudice the defendants. Pls.' Reply at 3. Their
failure directly to rebut the waiver argument is telling, and
the plaintiffs are therefore not permitted to resurrect their
Privacy Act damages claim now. As the defendants correctly point
out, “[h]aving adopted th[eir] litigation strategy,
Plaintiffs should not be permitted to reassert the Privacy
Act claims years later.” Defs.' Opp'n at 7.
CONCLUSION AND ORDER
foregoing reasons, upon consideration of the plaintiffs Klint
Mowrer and Fred Weaver's Motion for Leave to File an
Amended Complaint, ECF No. 89, the related legal memoranda in
support of and opposition to this motion, and the entire
record herein, it is hereby
that the plaintiffs' Motion for Leave to File an Amended
Complaint is DENIED without prejudice; and it is further
that the plaintiffs shall, by September 24, 2018, file any
renewed motion to amend the complaint, consistent with this
Memorandum Opinion and Order ...