Jama et al v. GCA Services Group, Inc.

REPLY

W.D. Wash.October 13, 2017

PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS - 1 2:16-cv-00331-RSL BA DGLEY MUL L I NS TURN ER PL LC 1 9 9 29 Ba l l i n g e r W a y N E , S u i t e 2 00 Se a t t l e , W A 9 8 1 5 5 T E L 20 6 . 62 1 . 65 66 F A X 20 6 . 6 2 1 . 9 6 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Honorable Robert S. Lasnik UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON ABDIKHADAR JAMA, an individual, ANEB ABDINOR HIREY, an individual, ROGIYA DIGALE, and individual, ABDISALAM MOHAMED, an individual, JASHIR GREWAL, an individual, UDHAM SINGH, an individual, SUKDEV SINGH BASRA, an individual, KHALIF MAHAMAD, an individual, JAMA DIRIA, an individual, AHMED F. GELLE, an individual, and LUL SALAD, an individual, Plaintiffs, v. GCA SERVICES GROUP, INC., a foreign corporation, and AVIS BUDGET GROUP, INC., a foreign corporation, and AVIS RENT A CAR SYSTEM LLC, a foreign limited liability company. Defendants. No. 2:16-cv-00331-RSL PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS Noting Date: October 12, 2017 Case 2:16-cv-00331-RSL Document 74 Filed 10/13/17 Page 1 of 8 PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS - 2 2:16-cv-00331-RSL BA DGLEY MUL L I NS TURN ER PL LC 1 9 9 29 Ba l l i n g e r W a y N E , S u i t e 2 00 Se a t t l e , W A 9 8 1 5 5 T E L 20 6 . 62 1 . 65 66 F A X 20 6 . 6 2 1 . 9 6 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. INTRODUCTION. Plaintiffs submit this Reply to Defendants Avis Budget Group, Inc. and Avis Rent A Car System, LLC’s (“Avis-Budget”) Response to Motion for Leave to Amend and to Dismiss, filed on October 10, 2017. Dkt. #72. In their Response, Avis-Budget again argues the same core issues relating to Plaintiffs’ Motion for Class Certification. Dkt. #41. The Plaintiffs seek to resolve those issues by dismissing Avis-Budget and adding Avis Budget Car Rental, LLC. II. FACTS. On January 4, 2017, the Court authorized Plaintiffs to file an amended complaint adding Avis Budget Car Rental, LLC. In their Amended Complaint, Plaintiffs mistakenly added two other Avis-Budget entities intimately related to Avis Budget Car Rental, LLC.1 On May 11, 2017, the Plaintiffs moved the Court for class certification. Dkt. #41. In their Response, Avis-Budget argued that the Plaintiffs had added the wrong entities and demanded sanctions. In reply, the Plaintiffs noted “[i]f Avis Budget Car Rental, LLC is truly the operator of the Avis-Budget’s rental services at STIA, then Plaintiffs will move for leave to add this entity at the proper time.” Dkt. #58, pg. 13. The Court has not yet ruled on Plaintiffs’ Motion for Class Certification. On August 17, 2017, the Plaintiffs asked the Court to continue the trial date to provide time for amending their complaint and adding Avis Budget Car Rental, LLC. Dkt. #64. In their Response, Avis-Budget presented nearly the same arguments as on class certification, and asked the Court to award sanctions. Dkt. #65. On the August 31, the Court continued the trial date and set an October 10, 2017 deadline for amending pleadings. Dkt. #70. 1 As previously discussed in Plaintiff’s Reply on Class Certification (Dkt. #58) and Reply on Motion to Continue (Dkt. #69), it appears that Avis Budget Car Rental, LLC is a subsidiary of Avis Budget Group, Inc. and a parent- entity to Avis Rent-A-Car System, LLC. Case 2:16-cv-00331-RSL Document 74 Filed 10/13/17 Page 2 of 8 PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS - 3 2:16-cv-00331-RSL BA DGLEY MUL L I NS TURN ER PL LC 1 9 9 29 Ba l l i n g e r W a y N E , S u i t e 2 00 Se a t t l e , W A 9 8 1 5 5 T E L 20 6 . 62 1 . 65 66 F A X 20 6 . 6 2 1 . 9 6 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 On September 28, 2017, Plaintiffs filed their Motion for Leave to Amend and Dismiss. Dkt. #71. As before, Avis-Budget’s Response asks the Court to deny Plaintiff’s Motion and award sanctions. III. ARGUMENT AND AUTHORITY. A. Plaintiff’s Motion Does Not Violate Any Case Schedule. First, Avis-Budget claims the proposed amendment would violate the Court’s August 17, 2016 joinder deadline. This claim ignores the complex procedural history of this case. In January 2017, the Court authorized Plaintiffs to add Avis Budget Car Rental, LLC. When the Avis-Budget entities were subsequently added, they did not object regarding the joinder deadline. Further, the Court granted Plaintiffs’ Motion to Continue which was premised on obtaining more time to add Avis Budget Car Rental, LLC. Second, Avis-Budget claims the Plaintiffs have violated the June 10, 2017 deadline for amending pleadings. Here, the Plaintiffs moved the Court to modify the case schedule so Avis Budget Car Rental, LLC could be added. Dkt. #64. The Court granted that motion and reset a deadline for amending pleadings to October 10, 2017. Dkt. #70. Plaintiffs filed their Motion for Leave to Amend (Dkt. #71) on September 28, 2017. Thus, no case schedule was violated. Finally, Avis-Budget argues that Plaintiffs violated the case schedule by noting their motion after the October 10, 2017 deadline to amend pleadings. This Court has previously rejected this interpretation. Toungate v. Konica Minolta Bus. Solutions, USA, Inc., 2009 U.S. Dist. LEXIS 17937 * (case schedules set deadlines for party submissions.) Avis-Budget’s interpretation of the case schedule would impose deadlines on the Court, rather than the Parties. Case 2:16-cv-00331-RSL Document 74 Filed 10/13/17 Page 3 of 8 PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS - 4 2:16-cv-00331-RSL BA DGLEY MUL L I NS TURN ER PL LC 1 9 9 29 Ba l l i n g e r W a y N E , S u i t e 2 00 Se a t t l e , W A 9 8 1 5 5 T E L 20 6 . 62 1 . 65 66 F A X 20 6 . 6 2 1 . 9 6 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The proposed amendment does not require modification of the case schedule, and thus Avis-Budget’s demand that Plaintiffs’ show “good cause” is irrelevant. Dkt. #72, pg. 5. The Plaintiffs already demonstrated good cause in their Motion to Continue. (Dkt. #64 and #69). B. The Proposed Amendment Is Warranted and Was Previously Authorized By The Court. The Plaintiffs’ proposed amendment seeks to add Avis Budget Car Rental, LLC, a step already authorized by the Court in January 2017. Regardless, the Avis-Budget entities spend much of their Response objecting to the proposed amendment on Avis Budget Car Rental’s behalf. This objection reveals the intimate relationship between all three entities and the coordinated litigation strategy they have executed. 1. The Proposed Amendment Is Timely, Non-Prejudicial, and In Good Faith. Although this case is eighteen months old, it is still in a very preliminary stage. The Court has not certified a class and very little substantive discovery has taken place. Instead, the Plaintiffs intentionally minimized the attorney’s fees and costs incurred by all Parties until the relationship between the Avis-Budget entities was clarified or Avis Budget Car Rental, LLC was added. The proposed amendment would resolve this issue and move the case forward. If added to this case, Avis Budget Car Rental would benefit from counsel already familiar with this action and numerous depositions conducted by Avis-Budget. Because the Plaintiffs have chosen to postpone substantive discovery until the Parties’ were clarified, there would be no duplicative defense fees. Thus, no prejudice exists. Finally, the proposed amendment is not brought in bad faith. The Plaintiffs have provided ample evidence regarding the omission to add Avis Budget Rental Car. Plaintiffs’ Counsel firmly believes the last five months of motions practice could have been avoided by a simple email and professional courtesy. Contrary to Avis-Budget’s maligning, the Plaintiffs’ Case 2:16-cv-00331-RSL Document 74 Filed 10/13/17 Page 4 of 8 PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS - 5 2:16-cv-00331-RSL BA DGLEY MUL L I NS TURN ER PL LC 1 9 9 29 Ba l l i n g e r W a y N E , S u i t e 2 00 Se a t t l e , W A 9 8 1 5 5 T E L 20 6 . 62 1 . 65 66 F A X 20 6 . 6 2 1 . 9 6 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 actions indicate no desire or intent to mislead the Court or waste resources. With the proposed amendment, the Plaintiffs seek to ensure this case moves forward. 2. Plaintiffs’ Claims Are Materially The Same As Those Already Raised. There is a strong policy in favor of allowing amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). The futility of a proposed amendment is one of five factors considered when determining whether to grant leave. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) By characterizing the Plaintiffs’ proposed amendment as futile, Avis-Budget attempts to argue the merits of the Plaintiffs’ claims and to obtain a preemptive dismissal on behalf of Avis Budget Car Rental, which is not yet a party to this action. For example, Avis-Budget’s Response asks the Court to make broad legal and factual determinations, some of which are controverted by the Plaintiffs’ sworn testimony. In addition, Avis-Budget asked the Court to accept, without question, the factual representations of Avis-Budget and GCA executives, thereby depriving the Plaintiffs an opportunity for discovery or rebuttal. Finally, Avis-Budget presents defensive arguments on behalf of Avis Budget Car Rental, and asks the Court to interpret facts and statutes to determine no viable claim exists. By doing so, Avis-Budget has effectively converted their Response into a motion for summary judgment, and wrongly ask the Court to view each question in the light most favorable to moving party.2 Avis-Budget admits that determining joint-employment requires resolving questions of fact and law (Dkt. 72, pg. 13), and thus, the proposed in-depth analysis and rulings are totally premature at this preliminary stage. It’s important to note that neither Avis-Budget entity brought Fed. R. Civ. Pro. 12(b)(6) motions when Plaintiffs raised substantially similar claims 2 Due to the present page limit, Plaintiffs are unable to address item-by-item each assertion made in Avis-Budget’s discussion of futility. Regardless, Plaintiffs do not concede any question of law or fact at this time. Case 2:16-cv-00331-RSL Document 74 Filed 10/13/17 Page 5 of 8 PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS - 6 2:16-cv-00331-RSL BA DGLEY MUL L I NS TURN ER PL LC 1 9 9 29 Ba l l i n g e r W a y N E , S u i t e 2 00 Se a t t l e , W A 9 8 1 5 5 T E L 20 6 . 62 1 . 65 66 F A X 20 6 . 6 2 1 . 9 6 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 against them. Rather, they’ve raised this issue because Plaintiffs seek to add Avis Budget Car Rental, the liable party. C. Plaintiff’s Requested Dismissals Should Be Granted Without Prejudice. In their Motion, Plaintiffs seek to voluntarily dismiss defendants Avis Budget Group, Inc. and Avis Rent A Car System, LLC, and plaintiff Abdikhadar Jama, without prejudice. Avis-Budget has requested the Court grant Plaintiffs’ voluntary dismissals with prejudice. Under Fed. R. Civ. P. 41(a)(2), voluntary dismissals are customarily without prejudice. To justify dismissal with prejudice, the defendant must suffer prejudice to a legal interest, legal claim, or legal argument. Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 1982); Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996). The burden is on the defendant to show this prejudice. City of Blaine v. Golder Assocs., No. C03-0813L, 2007 U.S. Dist. LEXIS 18756, at *7 (W.D. Wash. Mar. 16, 2007).3 Here, Avis-Budget has not identified a specific prejudice that would arise from the proposed dismissal. Rather, Avis-Budget points to the age of the case and time elapsed since Plaintiffs filed their Amended Complaint. The time elapsed does not accurately portray the still- preliminary nature of this case. Thus, the request should be denied. D. Avis-Budget’s Third Request for Sanctions Violates Rule 11. In their Response, Avis-Budget again demands attorney’s fees and costs as a sanction against Plaintiffs’ Counsel under Fed. R. Civ. P. 11. Avis-Budget made nearly identical requests in their Response on Class Certification (Dkt. #55) and Response on Motion to Continue (Dkt. #65.) In each case, Avis-Budget has disregarded the plain-language requirements of Rule 11 by 3 Other appellate jurisdictions forbid sua sponte dismissals with prejudice unless the plaintiff is provided notice and the opportunity to withdraw their motion. See Mich. Surgery Inv., LLC v. Arman, 627 F.3d 572, 575 (6th Cir. 2010); Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995). Case 2:16-cv-00331-RSL Document 74 Filed 10/13/17 Page 6 of 8 PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS - 7 2:16-cv-00331-RSL BA DGLEY MUL L I NS TURN ER PL LC 1 9 9 29 Ba l l i n g e r W a y N E , S u i t e 2 00 Se a t t l e , W A 9 8 1 5 5 T E L 20 6 . 62 1 . 65 66 F A X 20 6 . 6 2 1 . 9 6 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 failing to provide notice of the sanction request and by failing to make the request in a separate motion.4 Fed. R. Civ. P. 11(c). As discussed in prior briefing, Avis-Budget’s sanction requests are a frivolous attempt to shift the financial burden of their aggressive litigation posture and voluminous briefing onto the Plaintiffs and their counsel. Here, Avis-Budget’s request for sanctions is based on the same exact conduct underlying the other two requests, and which this motion seeks to correct. In this Motion, the Plaintiffs seek to voluntary dismiss Avis-Budget and to add the entity previously authorized by the Court: Avis Budget Car Rental, LLC. For all these reasons, Avis-Budget’s request for sanctions is procedurally improper and unwarranted, and thus, should be denied. DATED this 13th day of October, 2017. BADGLEY MULLINS TURNER PLLC s/ Duncan C. Turner Duncan C. Turner, WSBA #20597 19929 Ballinger Way NE, Suite 200 Seattle, WA 98155 Telephone: (206) 621-6566 Facsimile: (206) 621-9686 Email: duncanturner@badgleymullins.com Attorneys for Plaintiffs LAW OFFICE OF DANIEL R. WHITMORE s/ Daniel R. Whitmore Daniel R. Whitmore, WSBA #24012 2626 15th Avenue West, Suite 200 Seattle, WA 98119 Telephone: (206) 329-8400 Facsimile: (206) 329-84001 Email: dan@whitmorelawfirm.com Attorneys for Plaintiffs 4 Avis-Budget’s conduct begs the question, at what point does repeatedly and improperly requesting sanctions itself become sanctionable? Case 2:16-cv-00331-RSL Document 74 Filed 10/13/17 Page 7 of 8 PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO AMEND AND TO DISMISS - 8 2:16-cv-00331-RSL BA DGLEY MUL L I NS TURN ER PL LC 1 9 9 29 Ba l l i n g e r W a y N E , S u i t e 2 00 Se a t t l e , W A 9 8 1 5 5 T E L 20 6 . 62 1 . 65 66 F A X 20 6 . 6 2 1 . 9 6 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE I hereby certify that on October 13, 2017, I served a copy of the foregoing on the following parties via ECF filing: Daniel P. Hurley, WSBA #32842 Patrick M. Madden, WSBA #21356 Mark S. Filipini, WSBA #32501 K&L GATES LLP 925 Fourth Avenue, suite 2900 Seattle, WA 98104-1158 Telephone: 206-623-7580 Email: daniel.hurley@klgates.com Email: patrick.madden@klgates.com Email: mark.filipini@klgates.com Attorneys for Defendants Avis Budget Group, Inc., a Foreign Corporation, and Avis Rent a Car System LLC, a Foreign Limited Liability Company s/ Mark A. Trivett WSBA #46375 Case 2:16-cv-00331-RSL Document 74 Filed 10/13/17 Page 8 of 8