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.
Valerie R. White, Eva Juneau, and Peter Betancourt seek leave
to amend their operative complaint yet again. This time
Plaintiffs propose adding a further plaintiff, Darryl
Hemphill, to remedy a potential defect in their proposed
representation of a putative subclass. See Pls.'
Mot. for Leave to Amend Compl. to Add Additional Named
Representative, ECF No. 58, at 1-3 & n.2. Yet, an
examination of one factor for the Court's
consideration-the amendment's futility-indicates that
Plaintiffs are unable to prevail, though for a reason not
squarely addressed by Plaintiffs or Defendant Hilton entities
and executives. The Court need not reach Plaintiffs'
request, in the alternative, for Mr. Hemphill's
intervention. Upon consideration of the briefing,
relevant legal authorities, and the record as a whole, the
Court shall, in an exercise of its discretion,
DENY Plaintiffs'  Motion for Leave
to Amend Complaint to Add Additional Named Representative.
bring this putative class action under the Employee Income
Security Act of 1974 (“ERISA”) with respect to
certain vesting determinations made by the Hilton Hotels
Retirement Plan (the “Plan”). This matter was
noticed as related to Kifafi v. Hilton Hotels Retirement
Plan, No. 98-cv-1517 (CKK) (D.D.C.)
(“Kifafi”), an action over which the
Court concluded its jurisdiction in December 2015, after more
than 17 years of litigation. See Kifafi, 752
Fed.Appx. 8, 9 (D.C. Cir. Feb. 15, 2019) (Mem.) (per curiam);
Order at ECF p. 3, Kifafi, ECF No.
In Kifafi, the Court certified a benefit-accrual
class and certain vesting subclasses. See Kifafi,
701 F.3d 718, 723-24 (D.C. Cir. 2012); Kifafi, 616
F.Supp.2d 7, 10 (D.D.C. 2009).
Second Amended Complaint, ECF No. 50, is replete with
allegations that the legal issues underlying this new
putative class action have already been decided by the Court
in Kifafi, and that such determinations are binding
under the doctrines of res judicata and offensive collateral
Court addressed those legal issues in varying degrees when it
granted-in-part and denied-in-part Defendants' motion to
dismiss the (First) Amended Complaint, and granted
Plaintiffs' motion for leave to file the Second Amended
Complaint. See Mem. Op. and Order, White v.
Hilton Hotels Retirement Plan, 263 F.Supp.3d 8 (D.D.C.
2017), ECF No. 21; Mem. Op., ECF No. 49. In the former
instance, the Court touched on Kifafi but focused on
the viability of Plaintiffs' individual claims, rather
than those of the subclasses they proposed to represent.
See White, 263 F.Supp.3d at 9, 11-12. When
it later considered the motion to amend, the Court expressly
refrained from diving into the Kifafi depths:
Defendants effectively ask this Court to decide these and
other disputes [related in part to Kifafi] 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 [associated with a putative
subclass other than the proposed “non-participating
service” subclass], and accordingly the litigation
shall proceed on the basis of their Second Amended Complaint.
Mem. Op., ECF No. 49, at 2-3. Despite the fact that the
presently pending motion also seeks leave to amend, or in the
alternative to intervene, the Court now finds that attention
to Kifafi is crucial. And because of the
intersection between the latest proposed amendment and one of
the proposed subclasses, the Court denied the motion for
class certification without prejudice pending the Court's
decision as to this motion. Order, ECF No. 62.
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, ”
which should be “freely give[n] . . . 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”);
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
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)).
that have found an undue delay in filing [a proposed amended
complaint] have generally confronted cases in which the
movants failed to promptly allege a claim for which they
already possessed evidence.” United States ex rel.
Westrick v. Second Chance Body Armor, Inc., 301 F.R.D.
5, 9 (D.D.C. 2013). An amendment would be unduly prejudicial
if it “substantially changes the theory on which the
case has been proceeding and is proposed late enough so that
the opponent would be required to engage in significant new
preparation”; it would “put [the opponent] to
added expense and the burden of a more complicated and
lengthy trial”; or it raises “issues . . . [that]
are remote from the other issues in the case.”
Djourabchi v. Self, 240 F.R.D. 5, 13 (D.D.C. 2006)
(quoting 6 Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure § 1487 (2d ed.
1990)) (internal quotation marks omitted). With respect to
the futility of an amendment, 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).
“With respect to bad faith, courts generally consider
the length of the delay between the latest pleading and the
amendment sought. However, delay alone is an insufficient
ground to deny the motion unless it prejudices the opposing
party.” Djourabchi, 240 F.R.D. at 13 (citing
Wright, Miller & Kane, supra, § 1488).
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).
Undue Delay, Prejudice, and ...