Henley et al v. Turner Broadcasting System, Inc. et al

MOTION to Dismiss , MOTION to Strike 1 Complaint, , MOTION for More Definite Statement

N.D. Ga.February 7, 2017

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Celeslie Henley and Ernest Colbert, Jr., Plaintiffs, v. Turner Broadcasting System, Inc., Time Warner, Inc., Cable News Network, Inc., and Turner Services, Inc., Defendants. CIVIL ACTION FILE NO. 1:16-cv-04506-WSD DEFENDANTS’ MOTION TO DISMISS, STRIKE, AND/OR FOR MORE DEFINITE STATEMENT OF PLAINTIFFS’ COMPLAINT Pursuant to Fed. R. Civ. P. 12 and 23, Defendants Turner Broadcasting System, Inc., Time Warner, Inc., Cable News Network, Inc., and Turner Services, Inc. (collectively, “Defendants”) respectfully move to dismiss or strike all of Plaintiffs’ individual and class claims,1 and/or for more definite statement, for the 1 Plaintiffs’ Complaint purports to set forth the following claims:  “Count One: Discrimination Against the Named Plaintiffs and the Class in Violation of Section 1981”  “Count Two: Intentional Discrimination Against Plaintiffs Colbert and Henley in Violation of Title VII”  “Count Three: Racially Disparate Impact in Violation of Title VII” (Compl. p. 37-39.) Case 1:16-cv-04506-WSD Document 17 Filed 02/07/17 Page 1 of 5 2 reasons detailed in Defendants’ accompanying Memorandum of Law:  Plaintiffs’ individual and class Title VII claims (Counts Two and Three) should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) because Plaintiffs failed to exhaust their administrative remedies and/or their Title VII claims now are time-barred;  Plaintiffs’ Section 1981 claims (Count One) for alleged discrimination occurring before December 6, 2012 (i.e., four years before the filing of the Complaint) should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) as such claims are barred by the statute of limitations;  Plaintiffs’ Section 1981 disparate impact claims (Count One) should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because Section 1981 does not create a cause of action for disparate impact claims;  Plaintiffs’ class claims (Counts One and Three) should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) or stricken pursuant to Fed. R. Civ. P. 12(f) and 23(d)(1)(D) because the Complaint (i) fails to comply with Local Rule 23.1(A); (ii) does not allege an ascertainable class; (iii) does not allege that Plaintiffs are adequate class representatives; and (iv) does not allege common issues of law and fact; and  Alternatively, Defendants move pursuant to Fed. R. Civ. P. 12(e) and Local Case 1:16-cv-04506-WSD Document 17 Filed 02/07/17 Page 2 of 5 3 Rule 23.1 for a more definite statement of Plaintiffs’ class definition and individual and class claims (Counts One, Two, and Three) because these claims are unascertainable. Respectfully submitted, this 7th day of February, 2017. /s/ Leslie A. Dent Leslie A. Dent, GA Bar No. 218566 ldent@littler.com Dionysia Johnson-Massie, GA Bar No. 393323 djmassie@littler.com Amy M. Palesch, GA Bar No. 866827 apalesch@littler.com LITTLER MENDELSON, P.C. 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326.4803 Telephone: 404.233.0330 Facsimile: 404.233.2361 James A. Lamberth, GA Bar No. 431851 james.lamberth@troutmansanders.com TROUTMAN SANDERS LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308-2216 Telephone: 404.885.3000 Facsimile: 404.962.6611 Attorneys for Defendants Turner Broadcasting System, Inc., Time Warner, Inc., Cable News Network, Inc., and Turner Services, Inc. Case 1:16-cv-04506-WSD Document 17 Filed 02/07/17 Page 3 of 5 4 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Celeslie Henley and Ernest Colbert, Jr., Plaintiffs, v. Turner Broadcasting System, Inc., Time Warner, Inc., Cable News Network, Inc., and Turner Services, Inc., Defendants. CIVIL ACTION FILE NO. 1:16-cv-04506-WSD CERTIFICATE OF SERVICE I hereby certify that on February 7, 2017, I electronically filed the foregoing DEFENDANTS’ MOTION TO DISMISS, STRIKE, AND/OR FOR MORE DEFINITE STATEMENT OF PLAINTIFFS’ COMPLAINT with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Daniel R. Meachum Daniel R. Meachum & Associates, LLC 44 Broad Street NW, Suite 805 Atlanta, GA 30303 dmeachum@dmeachumlaw.com Mario Bernard Williams Williams Oinonen, LLC 44 Broad Street NW, Suite 200 Atlanta, GA 30303 mario@goodgeorgialawyer.com Case 1:16-cv-04506-WSD Document 17 Filed 02/07/17 Page 4 of 5 5 James E. Voyles The Voyles Milhollin Law Firm 600 Village Trace, Suite 200 Marietta, Georgia 30067 jvoyles@voyleslaw.com Attorneys for Plaintiffs /s/ Leslie A. Dent Leslie A. Dent Attorneys for Defendants Case 1:16-cv-04506-WSD Document 17 Filed 02/07/17 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Celeslie Henley and Ernest Colbert, Jr., Plaintiffs, v. Turner Broadcasting System, Inc., Time Warner Inc., Cable News Network, Inc., and Turner Services, Inc., Defendants. CIVIL ACTION FILE NO. 1:16-cv-04506-WSD DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS, STRIKE, AND/OR FOR MORE DEFINITE STATEMENT OF PLAINTIFFS’ COMPLAINT Pursuant to Fed. R. Civ. P. 12 and 23, Defendants Turner Broadcasting System, Inc. (“TBS, Inc.”), Time Warner Inc. (“TW”), Cable News Network, Inc. (“CNN, Inc.”), and Turner Services, Inc. (“TSI”) (collectively, “Defendants”) respectfully move to dismiss or strike all of Plaintiffs’ individual and class claims,1 1 Plaintiffs’ Complaint purports to set forth the following claims:  “Count One: Discrimination Against the Named Plaintiffs and the Class in Violation of Section 1981”  “Count Two: Intentional Discrimination Against Plaintiffs Colbert and Henley in Violation of Title VII”  “Count Three: Racially Disparate Impact in Violation of Title VII” Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 1 of 29 2 and/or for a more definite statement on the following grounds:2  Plaintiffs’ individual and class Title VII claims (Counts Two and Three) should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) because Plaintiffs failed to exhaust their administrative remedies and/or their Title VII claims now are time-barred;  Plaintiffs’ Section 1981 claims (Count One) for alleged discrimination occurring before December 6, 2012 (i.e., four years before the filing of the Complaint) should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) as such claims are barred by the statute of limitations; (Compl. p. 37-39.) Plaintiffs filed their Complaint on December 6, 2016 (see Dkt. No. 1) and served it on January 3, 2017 (see Dkt. Nos. 5-8). 2 Because Defendants are moving to dismiss the Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6) and/or for a more definite statement of Plaintiffs’ class claims pursuant to Fed. R. Civ. P. 12(e), Defendants’ Answer to the Complaint is stayed until after this Court rules on this Motion. See Fed. R. Civ. P. 12(a)(4) (“[S]erving a motion under this rule alters [the time for serving a responsive pleading] as follows: (A) if the court denies the motion . . . the responsive pleading must be served within 14 days after notice of the court’s action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.”); Lawrence v. Bank of America, N.A., 2016 WL 6678060, at *17 (N.D. Ga. June 23, 2016) (“[A]ny Defendant who has filed a Motion to Dismiss is not required to file an Answer until the Court issues a final ruling on its Motion to Dismiss that is not dispositive of all claims.”); Abrams v. CIBA Specialty Chems. Corp., 2008 WL 4183344, at *2 n.4 (S.D. Ala. Sept. 10, 2008) (“The Federal Rules of Civil Procedure are quite clear that the filing of a motion to dismiss or a motion for more definite statement extends the deadline for filing an answer.”). Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 2 of 29 3  Plaintiffs’ Section 1981 disparate impact claims (Count One) should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because Section 1981 does not create a cause of action for disparate impact claims;  Plaintiffs’ class claims (Counts One and Three) should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) or stricken pursuant to Fed. R. Civ. P. 12(f) and 23(d)(1)(D) because the Complaint (i) fails to comply with Local Rule 23.1(A); (ii) does not allege an ascertainable class; (iii) does not allege that Plaintiffs are adequate class representatives; and (iv) does not allege common issues of law and fact; and  Alternatively, Defendants move pursuant to Fed. R. Civ. P. 12(e) and Local Rule 23.1 for a more definite statement of Plaintiffs’ class definition and individual and class claims (Counts One, Two, and Three) because the claims are unascertainable. I. INTRODUCTION Plaintiffs assert sweeping claims for disparate treatment and/or disparate impact race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. § 1981 (“Section 1981”) on behalf of themselves and a vague, unascertainable putative class of: [a]ll African-American persons employed by Defendants in salaried positions and mid-level managerial positions (specifically, managerial Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 3 of 29 4 positions inferior to the Director, Vice President, Senior Vice President positions) in the United States at any time from April of 1997, to the present, who are subject to Defendants’ employment and human resources policies and practices . . . who have been, continue to be, or may in the future be, adversely affected by Defendants’ racially discriminatory employment policies and practices . . . .” (Compl. ¶ 17.) Yet Plaintiffs’ claims are merely conclusory, failing to put Defendants on reasonable notice of the specific allegations being asserted against them or upon which a plausible claim for relief is based. Without identifying any specific policies or practices, Plaintiffs allege generally that all four Defendants maintain racially-discriminatory “written and unwritten policies and practices” regarding evaluations, compensation, and/or promotions. (Compl. ¶ 26.) Plaintiff Celeslie Henley alleges that she is a former secretarial employee of CNN, Inc. (Compl. ¶ 9), but does not allege that she is a member of the putative class she seeks to represent. Plaintiff Ernest Colbert, Jr. alleges that he is a current management employee of TBS, Inc. (Compl. ¶ 10.) While the Complaint names four corporate defendants, Defendants are at a loss to determine exactly which class claim(s) are being asserted against which Defendant(s),3 and which claim(s) are brought individually or on behalf of the unascertainable, undefined class. Plaintiff Henley also asserts an individual retaliation claim under Title VII, and makes a vague reference to being discriminated against due to her sex and 3 There are no specific allegations of discriminatory conduct by TW or TSI. Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 4 of 29 5 pregnancy. (Compl. ¶¶ 9, 78.) As discussed below, Plaintiffs also assert Title VII claims that are barred by the statutes of limitations. Specifically, Plaintiff Henley does not (and cannot) allege that she timely filed a lawsuit regarding her Title VII claims. Plaintiff Colbert does not (and cannot) allege that he timely filed an administrative charge, much less that he exhausted his administrative remedies. Plaintiffs also purport to bring claims for alleged discrimination over the last 20 years or more, but the longest statute of limitations under Section 1981 is four years. Defendants respectfully ask this Court to apply fundamental requirements of federal law and procedure to the Complaint to dismiss, strike, or require a more definite statement of the vague, imprecise claims and allegations contained therein. II. PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED OR STRICKEN A. Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 23 Standards. To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a complaint must allege facts that, if true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible when the plaintiff alleges facts that “allow [ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court need not accept legal conclusions or Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 5 of 29 6 conclusions disguised as factual allegations. S. Pan Servs. Co. v. Harris, 2014 WL 11970540, at *2 (N.D. Ga. July 28, 2014) (citing Powell v. Thomas, 643 F. 3d 1300, 1302 (11th Cir. 2011)). A plaintiff must allege sufficient facts “‘to raise a right to relief above the speculative level.’” Burnett v. City of Jacksonville, FL, 376 F. App’x 905, 906 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. Regarding class action allegations, Fed. R. Civ. P. 23(c)(1)(A) states that “[a]t an early practicable time . . . the court must determine by order whether to certify the action as a class action.” This “early practicable time” directive allows courts to address a plaintiff’s class action allegations when the complaint is facially defective and definitively establishes that a class action cannot be maintained. See Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008) (citing Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1006 (11th Cir. 1997)) (“In some instances, the propriety vel non of class certification can be gleaned from the face of the pleadings.”). Furthermore, Fed. R. Civ. P. 23(d)(1)(D) expressly authorizes a motion to strike class allegations: “the court may issue orders that . . . require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.” Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 6 of 29 7 B. Plaintiffs’ Title VII Individual and Class Claims (Counts Two and Three) Are Time-Barred and Must Be Dismissed. It is well-settled that a Title VII plaintiff must satisfy the statute’s administrative exhaustion requirement before filing a judicial complaint. “Prior to filing a Title VII action . . . a plaintiff first must file a charge of discrimination with the EEOC.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970)). Indeed, “[n]o action alleging a violation of Title VII may be brought unless the alleged discrimination has been made the subject of a timely-filed EEOC charge.” Thomas v. Miami Dade Pub. Health Trust, 369 F. App’x 19, 22 (11th Cir. 2010); Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999) (administrative exhaustion is a jurisdictional prerequisite to Title VII claims). The purpose of Title VII’s administrative exhaustion requirement is to give the EEOC “the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts.” Gregory, 355 F.3d at 1279 (citing Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983)). Plaintiffs bear the burden of proving that they timely filed valid EEOC charges and received statutory notice from the EEOC of their right to sue before they filed their Title VII claims in this action. See Burnett, 376 F. App’x at 906 Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 7 of 29 8 (citing Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir.1996); 42 U.S.C. § 2000e-5(f)(1)); Rizo v. Ala. Dep’t of Human Res., 228 F. App’x 832, 836 (11th Cir. 2007); Owens v. Omni Hotels Mgmt. Corp., 2012 WL 1454082, at *5 (N.D. Ga. Mar. 27, 2012). The Complaint contains no allegations whatsoever that Plaintiffs filed timely charges of Title VII race discrimination and/or retaliation against Defendants with the EEOC, much less that they received notices of their right to sue from the EEOC and then timely filed this lawsuit. Plaintiff Colbert has never filed a charge of discrimination with the EEOC against any Defendant, including TBS, Inc. On May 30, 2014, Plaintiff Henley filed an EEOC charge of race, sex, and age discrimination and retaliation against TBS, Inc. arising from the termination of her employment on January 14, 2014. See Exhibit 1.4 The EEOC issued its Dismissal and Notice of Rights for Plaintiff 4 Generally, if a court considers matters outside the pleadings when ruling on a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the motion must be treated as a Fed. R. Civ. P. 56 motion for summary judgment. Horne v. Potter, 392 F. App’x 800, 802 n.1 (11th Cir. 2010) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)). A court, however, may consider documents attached to the complaint and/or documents filed in connection with a motion to dismiss without converting the motion to one for summary judgment if those documents are central to the complaint and not in dispute. See Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999); see also Horne, 392 F. App’x at 802. Moreover, when considering a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to exhaust administrative remedies, “‘it is proper for a judge to consider facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 8 of 29 9 Henley’s Charge on May 7, 2015. See Exhibit 2. Therefore, Plaintiff Henley had until approximately August 5, 2015 (i.e., 90 days after May 7, 2015) to file a Title VII lawsuit. See Patel v. Georgia Dep’t of Behavioral Health & Developmental Disabilities, 517 F. App’x 750, 752 (11th Cir. 2013) (citing 42 U.S.C. § 2000e- 5(f)(1); Green v. Union Foundry Co., 281 F.3d 1229, 1233-34 (11th Cir. 2002)) (plaintiff must file Title VII case within 90 days of receiving his EEOC notice of right to sue). Yet, Plaintiff Henley did not file this Title VII lawsuit until December 6, 2016 (see Compl.), more than one year after her deadline. Plaintiff Henley is now forever time-barred from bringing any Title VII claim against Defendants, and her Title VII claims must be dismissed with prejudice. See Patel, 517 F. App’x at 752 (affirming dismissal of Title VII complaint as time-barred). Therefore, both Plaintiffs’ individual Title VII claims must be dismissed. See Burnett, 376 F. App’x at 907 (affirming dismissal of Title VII claims where plaintiff completely failed to allege in her complaint that she exhausted her administrative remedies). Plaintiffs’ Title VII class claims must also be dismissed. “A plaintiff who seeks to represent a class in a private Title VII suit must have standing to raise the develop a record.’” Tillery v. U.S. Dep’t of Homeland Sec., 402 F. App’x 421, 424 (11th Cir. 2010) (quoting Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)). Thus, this Court may consider Exhibits 1 and 2 as they are undisputed administrative records central to Plaintiffs’ Title VII claims and relevant to the issue of Plaintiffs’ failure to exhaust their administrative remedies. Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 9 of 29 10 class claims and must satisfy the procedural requirements of Title VII.” Carter v. W. Pub. Co., 225 F.3d 1258, 1263 (11th Cir. 2000) (citing Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987)); see City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002); Davis v. Infinity Ins. Co., 2016 WL 4507122, at *3 (N.D. Ala. Aug. 29, 2016); Bates v. United Parcel Serv., 511 F.3d 974, 985 (9th Cir. 2007). Here, Plaintiffs have not pled that they have standing to bring their individual Title VII claims. Without standing to bring their individual Title VII claims, Plaintiffs also lack standing to bring Title VII class claims, and those class claims must be dismissed. See Davis, 2016 WL 4507122, at *3 (denying motion to amend complaint on futility grounds; as plaintiff did not allege sufficient facts in the proposed amended complaint to establish her standing for her individual Title VII claims, she would also not be able to show that she had standing to raise those claims on behalf of the putative class); Trevino v. Holly Sugar Corp., 811 F.2d 896, 906 (5th Cir. 1987) (plaintiff whose individual claim was dismissed no longer had a nexus with the class, thus the motion for certification was properly denied). C. Plaintiffs’ Section 1981 Claims (Count One) for Alleged Discrimination Occurring Before December 6, 2012 (i.e., Four Years Before the Filing of this Lawsuit) Must Be Dismissed or Stricken. Generally, “a § 1981 action must be filed within the four-year statute of Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 10 of 29 11 limitations prescribed by 28 U.S.C. § 1658.” Chandler v. Volunteers of Am., N. Ala., Inc., 598 F. App’x 655, 665 (11th Cir. 2015) (citing Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1338-39 (11th Cir. 2008)). As the Eleventh Circuit recently explained: Prior to 1991, we applied “the most appropriate or analogous state statute of limitations” to claims brought under § 1981. Here, that would be Georgia’s two-year statute of limitations for personal injury actions. Congress has since enacted 28 U.S.C. § 1658, which provides a four- year statute of limitations for civil actions arising under federal statutes enacted after December 1, 1990. In 1991, Congress amended § 1981 to broaden the definition of the term “make and enforce contracts.” Whereas prior to 1991 this phrase referred narrowly to “discrimination in the making and enforcement of contracts alone,” . . . after the 1991 amendment, the statute also covered post-formation conduct, such as the imposition of discriminatory working conditions. Thus, we apply a four-year statute of limitations to any § 1981 claim that is cognizable only because of the 1991 amendment and otherwise apply the analogous state statute of limitations. Grimes v. Bd. of Regents of Univ. Sys. of Georgia, 650 F. App’x 647, 651 (11th Cir. 2016), cert. denied Grimes v. Todd, 2017 WL 69477 (U.S. Jan. 9, 2017) (citations omitted). To the extent Plaintiffs purport to assert Section 1981 individual and/or class claims for race discrimination that fall within the pre-amendment version of Section 1981 and allegedly occurred before December 6, 2014 (i.e., two years before the filing of the Complaint), such claims are time-barred and should be Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 11 of 29 12 dismissed or stricken from the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), 12(f), or 23(d)(1)(D). Likewise, any Section 1981 claims that fall within the post- amendment version of Section 1981 and allegedly occurred before December 6, 2012 (i.e., four years before the filing of the Complaint) are also time-barred and should be dismissed or stricken from the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) or 23(d)(1)(D). D. Plaintiffs’ Disparate Impact Section 1981 Claims (Count One) Must Be Dismissed or Stricken. Defendants cannot discern whether Plaintiffs have sought to allege disparate impact claims in the Complaint. To the extent Plaintiffs allege disparate impact in support of their Title VII claims, as shown above, those claims are barred by the statutes of limitations and by Plaintiffs’ failure to exhaust their administrative remedies. Nor can Plaintiffs allege viable disparate impact claims under Section 1981, because the law is clear that Section 1981 claims require a showing of discriminatory intent. It is well settled that “a showing of disparate impact through a neutral practice is insufficient to prove a Section 1981 violation because proof of discriminatory intent is essential.” Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999) (citing Gen. Bldg. Contractors Ass’n v. Pa., 458 U.S. 375, 388 (1982)); Spidell v. Publix Super Markets, Inc., 2016 WL 3543334, at *4 (N.D. Ala. Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 12 of 29 13 June 29, 2016) (“Section 1981 liability must be founded on purposeful discrimination,” and “[a] showing of disparate impact through a neutral practice is insufficient to prove a § 1981 violation because proof of discriminatory intent is essential.”)). Therefore, Plaintiffs’ alleged individual and/or class claims based upon a disparate impact theory of discrimination under Section 1981 must be dismissed as a matter of law pursuant to Fed. R. Civ. P. 12(b)(6). See Price v. M&H Valve Co., 177 F. App’x 1, 14 (11th Cir. 2006) (affirming dismissal of Section 1981 disparate impact claim because only “direct or inferential modes of proving intentional discrimination are available”); Ross v. Dep’t of Children Fla., 2014 WL 12625122, at *4 (M.D. Fla. Apr. 28, 2014) (dismissing disparate impact claim because Section 1981 “requires proof of intentional discrimination and by its nature a claim of disparate impact is unintentional”); Cooper v. Elmore Cnty. Bd. of Educ., 2012 WL 252410, at *8 (M.D. Ala. Jan. 26, 2012) (granting summary judgment on plaintiff’s disparate impact claim because Section 1981 requires “a showing of purposeful discrimination”). E. Plaintiffs’ Class Claims (Counts One and Three) Must Be Dismissed or Stricken For Failure to Comply with Local Rule 23.1(A). The Complaint does not even meet the basic pleading requirements of Local Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 13 of 29 14 Rule 23.1(A).5 This rule establishes that class certification “is proper only when claims are brought in a representative capacity and when a plaintiff satisfies certain enumerated, basic requirements.” Huff v. DeKalb Cnty., Ga., 2006 WL 449153, at *1 (N.D. Ga. Feb. 23, 2006) (J. Duffey). Plaintiffs fail to include a “Class Action Allegations” section setting forth allegations sufficient to comply with the basic requirements of Fed. R. Civ. P. 23. Accordingly, any motion to certify a class based on this defective pleading inevitably would have to be denied, and Plaintiffs’ class allegations should be stricken. See Huff, 2006 WL 449153, at *1 (denying motion for class certification where plaintiffs did not bring claims representative of a class, failed to style the action as a “Class Action,” did not set forth allegations satisfying Fed. R. Civ. P. 23’s requirements, and did not include a section titled “Class Action Allegations”); Johnson v. Jaguar Cars, Inc., 2006 WL 1627125, at *2 (N.D. Ga. June 6, 2006) (noting the court’s previous denial of class certification because of plaintiff’s failure to comply with Local Rule 23.1); Burdette v. Fed. Exp. Corp., 1998 WL 190275, at *1 (N.D. Ga. Feb. 18, 1998) (dismissing class claims because (1) the class definition was “quite frankly, incomprehensible,” violating Local Rule 23.1, 5 Local Rule 23.1(A)(2) provides: “Under a separate heading titled ‘Class Action Allegations’, the complaint shall provide [the allegations satisfying the requirements for maintaining a class action under Fed. R. Civ. P. 23] . . . .” Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 14 of 29 15 and (2) the class action allegations showed that any common questions of fact or law would be heavily outweighed by individualized inquiries);6 see also Koger v. Texaco, Inc., 2007 WL 951752, at *1 n.1, *10 (N.D. Ga. Mar. 28, 2007) (treating the action as a single-plaintiff lawsuit, because plaintiff did not comply with the Local Rule 23.1). F. Plaintiffs’ Class Claims (Counts One and Three) Must Be Dismissed or Stricken Because the Putative Class is Unascertainable. “It is well-settled that a plaintiff bears the burden of establishing all prerequisites under the Federal Rules of Civil Procedure before a class action is proper in the district court.” Moore v. Walter Coke, Inc., 2012 WL 4731255, at *14 (N.D. Ala. Sept. 28, 2012) (citing Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.1984); Walker v. Jim Dandy Co., 747 F.2d 1360, 1363 (11th Cir.1984)). Foremost of the class action threshold requirements is that the plaintiff must plead an ascertainable class: “‘[C]ourts have universally recognized that the first essential ingredient to class treatment is the ascertainability of the class.’” Id. (emphasis in original) (citing Grimes v. Rave Motion Pictures Birmingham, L.L.C., 264 F.R.D. 659, 663 (N.D. Ala. 2010)). Thus, before a court can even address Fed. R. Civ. P. 23(a)’s requirements of numerosity, commonality, typicality, and 6 See discussion of Wal-Mart v. Dukes, at Section H. Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 15 of 29 16 adequacy to represent the class, the complaint’s class allegations must set the parameters of the proposed class - otherwise, the court should dismiss the class allegations. Id. (citing Earnest v. Gen. Motors Corp., 923 F. Supp. 1469, 1473-74 (N.D. Ala. 1996) (“[T]he class must meet a minimum standard of definiteness which will allow the trial court to determine membership in the proposed class” and “[f]ailure to meet this minimum standard entitles a court to dismiss the class allegations and proceed with the action on an individual basis”); John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“Where it is facially apparent from the pleadings that there is no ascertainable class, a district court may dismiss the class allegation on the pleadings.”)). Plaintiffs’ proposed class is not only imprecise and unascertainable, it is incomprehensible. First, Plaintiffs “define” the putative class they purport to represent in varying (and inconsistent) ways:  Compl. ¶¶ 2, 62, 75: “African-American salaried employees and mid-level managerial employees.”  Compl. ¶ 17: “All African-American persons employed by Defendants in salaried positions and mid-level managerial positions (specifically, managerial positions inferior to the Director, Vice President, Senior Vice President positions) in the United States at any time from April of 1997, to the present, who are subject to Defendants’ employment and human resources policies and practices, including, but not limited to, current or former salaried employees of Turner Broadcasting Systems, including Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 16 of 29 17 Turner’s subsidiaries, Time Warner Inc. and Turner Services, Inc., and who have been, continue to be, or may in the future be, adversely affected by Defendants’ racially discriminatory employment policies and practices (“the Class”). Plaintiffs reserve the right to amend the definition of the Class following discovery.”  Compl ¶ 19: alternately referencing all “African-American employees” and “the Class.”  Compl. ¶ 26: alternately referencing “African-American salaried employees and mid-level managerial employees (specifically, managerial positions inferior to the Director position)” and all “African-American employees.”  Compl. ¶¶ 28, 31, 33, 34, 39, 44, 45, 47, 61: generally referencing all “African-Americans” or “all African-American employees.”  Compl. ¶ 37, 81: “African-American salaried employees.”  Compl. ¶ 56, 80: “African-Americans who have worked in mid-level managerial positions.” Second, Plaintiff’s “definition” of the putative class at Paragraph 17 is impermissibly vague and prevents the Court and the parties from understanding which of each of the Defendants’ employees fall within the class definition. Describing the class as including African-American employees of Defendants “in salaried positions and mid-level managerial positions (specifically, managerial positions inferior to the Director, Vice President, Senior Vice President positions) Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 17 of 29 18 in the United States” provides no clarity or guidance, much less definiteness, on which specific positions in which of the hundreds of departments in which of the four separate Defendant companies are at issue and would form the putative nationwide class. The Complaint fails to define “salaried employees.” Does “salaried” refer to employees exempt from the FLSA’s overtime requirements? Does “salaried” refer to any employees, including non-exempt employees, who are paid a salary, as opposed to being paid by the hour? The Complaint also fails to define “mid-level managerial positions.” Which positions are in fact inferior to the Director, Vice President, and Senior Vice President positions? Which positions are “mid-level managerial” positions as opposed to lower-level managerial positions? These positions might even differ for each of the four Defendants. Significantly, the Complaint does not allege whether the named Plaintiffs were employed in the “salaried” positions and/or “mid-level managerial” positions contemplated by the class “definition.” (See Compl. ¶¶ 9-10, 42 (stating only that Plaintiff Henley formerly worked for CNN, Inc. “as an Executive Administrative Assistant” and that Plaintiff Colbert currently works for TBS, Inc. as a “Senior Manager,” and previously as a “mid-level Manager”).) The Complaint does not allege that Plaintiff Henley was a “salaried” employee or that she ever held a “mid- Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 18 of 29 19 level managerial” position. The law is clear, however, that a class representative must be a member of the class she seeks to represent. See, e.g., Gerber v. Delta Airlines, Inc., 1996 WL 557853, at *5 (N.D. Ga. Aug. 6, 1996) (citing Machella v. Cardenas, 653 F.2d 923, 927 (5th Cir.1981)) (“It is axiomatic that to be an adequate class representative, plaintiff must be a member of the class he seeks to represent.”); Gilchrist, 733 F.2d at 1555 (affirming denial of class certification because plaintiff, a nonsupervisory employee, could not adequately represent a class of supervisors). There are no allegations regarding the “mid-level managerial position” held by named Plaintiff Colbert, except that he alleges he was previously a manager in the Turner Entertainment Group. (Compl. ¶10.) In sum, the class definition is unascertainable because it requires this Court to make factual determinations in order to identify who falls within the class. See Moore, 2012 WL 4731255, at *15 (citing Earnest, 923 F. Supp. at 1473-74; Benefield v. Int’l Paper Co., 270 F.R.D. 640, 642-25 (M.D. Ala. 2010)) (dismissing class claims because the proposed class was not ascertainable; the class definition was too imprecise and required the court to make multiple factual determinations before it could even reach the express Rule 23 requirements); Lawson v. Life of the S. Ins. Co., 286 F.R.D. 689, 697-98 (M.D. Ga. Sept. 28, 2012) (granting defendant’s motion to strike class claims because the “sheer Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 19 of 29 20 number of factual determinations” that would have to be made were “incongruent with the nature of a class action lawsuit”); Mills v. Foremost Ins. Co., 269 F.R.D. 663, 682 (M.D. Fla. Sept. 29, 2010) (denying motion to certify a class because the class definition resulted in “the existence of individual inquires” that were “too great”); Adair v. Johnston, 221 F.R.D. 573, 578 (M.D. Ala. Apr. 27, 2004) (denying class certification where “individualized fact-finding” would be necessary to identify class members). G. Plaintiffs’ Class Claims (Counts One and Three) Must Be Dismissed or Stricken Because Plaintiffs Are Inadequate Class Representatives. In addition to the vague definition of the class, the allegations in the Complaint make clear that Plaintiffs cannot “fairly and adequately protect the interests of the class,” as required by Fed. R. Civ. P. 23(a)(4).7 Courts hold that the adequacy of representation analysis under Fed. R. Civ. P. 23(a)(4) encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” S. Pan Servs. Co. v. Harris, 2014 WL 11970540, at *3 (N.D. Ga. July 28, 2014) (citing Valley Drug Co. v. Geneva Pharm., Inc., 350 7 Plaintiffs allege that they have “retained skilled and experienced counsel to represent them in class litigation” without providing any specific information regarding counsel’s class action experience. (Compl. ¶ 21.) Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 20 of 29 21 F.3d 1181, 1189 (11th Cir. 2003)). As discussed above, the named Plaintiffs cannot be adequate class representatives if they do not even fall within the defined class. Moreover, the allegations of the Complaint illustrate that there are substantial conflicts of interest between the two named Plaintiffs and the alleged classes they seek to represent. The Complaint sets up potential class conflicts based upon gender by alleging that African-American males are “especially” discriminated against by Defendants (Compl. ¶¶ 3, 4, 5), and by also alleging that Plaintiff Henley was discriminated against based upon her gender and her pregnancy. (Compl. ¶ 9.) Plaintiff Henley’s gender and pregnancy discrimination claims are in conflict with the claims of the African-American males who were allegedly “especially discriminated” against by Defendants. These allegations create a larger conflict between the African-American males and African-American females who are alleged to be part of the same class. In addition, both Plaintiffs held non-management and management positions, respectively,8 and the Complaint fails to allege how their interests and those of the putative class members would be aligned. There will inevitably be 8 Plaintiff Henley alleges she was an administrative assistant at CNN, Inc., while Plaintiff Colbert alleges he is a Senior Manager with TBS, Inc. (Compl. ¶¶ 9-10, 42.) Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 21 of 29 22 conflicts among a class comprised of supervisory employees and those they supervise. See Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 571 (6th Cir. 2004) (affirming denial of class certification; plaintiffs did not show how hourly and salaried employees would have the same interests); Wagner v. Taylor, 836 F.2d 578, 591, 595 (D.C. Cir. 1987) (affirming denial of class certification in race discrimination case; “Supervisory employees are often inappropriate representatives of nonsupervisory employees because the structure of the workplace tends to cultivate distinctly different interests between the two groups . . . indeed, the very individual on whose behalf injunctive relief is sought in this case was allegedly discharged by a black employee who is a potential member of the class.”); see also Stone v. First Union Corp., 203 F.R.D. 532, 543 (S.D. Fla. 2001) (decertifying an ADEA collective action, in part, because the class mixed “employees with different job titles and from all levels of the organization”). These significant conflicts will prevent Plaintiffs from fairly and adequately protecting the interests of the class. Thus, their class claims should be dismissed or stricken. H. Plaintiffs’ Class Claims (Counts One and Three) Must Be Dismissed or Stricken Because the Complaint Does Not Allege Common Issues of Law Or Fact. Plaintiffs class allegations as pled in the Complaint show that any common Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 22 of 29 23 questions of fact or law, required by Fed. R. Civ. P. 23(a)(2) for class certification, will be grossly outweighed with individualized inquiries. Plaintiffs allege that Defendants’ written and unwritten policies and practices regarding evaluation, compensation, advancement in leadership and promotion subject the named Plaintiffs and the Class to ongoing disparate treatment,” and that “this discrimination represents a company-wide pattern and practice, rather than a series of isolated incidents. (Compl. ¶ 6.) Plaintiffs, however, do not identify a specific discriminatory employment policy or practice that ties together these otherwise individual, discrete employment decisions. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 353-54 (2011). Plaintiffs repeatedly reference generic, non-specific “written and unwritten policies and practices” of discrimination, without allegations that any such policies and/or practices uniformly exist across Defendants. (See Compl. ¶¶ 3, 5, 6, 11, 13, 17, 19, 26, 45, 48, 52, 61, 63, 80, 81.) Although the Complaint purports to allege “questions of law and fact common to the Class” in Paragraph 19, the listing of these questions is not enough to meet the standard set forth in Dukes: The crux of this case is commonality-the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2). That language is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’” [. . .] Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 23 of 29 24 “What matters to class certification ... is not the raising of common ‘questions’-even in droves-but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” 564 U.S. at 349-50 (citations omitted). III. ALTERNATIVELY, PLAINTIFFS SHOULD BE ORDERED TO PROVIDE A MORE DEFINITE STATEMENT OF THEIR INDIVIDUAL AND CLASS CLAIMS (COUNTS ONE, TWO AND THREE) Under Fed. R. Civ. P. 12(e), this Court has broad discretion to order a more definite statement. “Unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to administer justice.” Anderson v. Dist. Bd., 77 F.3d 364, 367 (11th Cir. 1996). The Complaint is poorly pled, and the individual and class claims are inextricably intertwined, making all of Plaintiffs’ claims impossible to answer. In the alternative to dismissing or striking Plaintiffs’ individual and class claims, Defendants respectfully request that this Court order a more definite statement of the class definition and of the individual and class allegations in a manner that meets Fed. R. Civ. P. 8(a)’s and Local Rule 23.1(A)’s requirements. See, e.g., Davis v. Coca- Cola Bottling Co. Consolidated, 516 F.3d 955, 984 (11th Cir. 2008), abrogated on other grounds by Iqbal, 556 U.S. 662 and Twombly, 550 U.S. 544 (noting that Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 24 of 29 25 when faced with a complaint purporting to combine in one count multiple claims of multiple plaintiffs, the necessity for moving for a more definite statement was “starkly apparent on reading the complaint”). IV. CONCLUSION For all of the above reasons, Defendants respectfully request that this Court (i) dismiss with prejudice Plaintiffs’ individual and class Title VII claims (Counts Two and Three); (ii) dismiss or strike Plaintiffs’ individual and class Section 1981 claims (Count One) for alleged discrimination that occurred outside the statute of limitations period(s); (iii) dismiss or strike Plaintiffs’ individual and class Section 1981 disparate impact claims (Count One); and (iv) dismiss or strike Plaintiffs’ class claims (Counts One and Three), or in the alternative, order Plaintiffs to provide a more definite statement of the class definition and their individual and class claims (Counts One, Two, and Three). Respectfully submitted, this 7th day of February, 2017. /s/ Leslie A. Dent Leslie A. Dent, GA Bar No. 218566 ldent@littler.com Dionysia Johnson-Massie, GA Bar No. 393323 djmassie@littler.com Amy M. Palesch, GA Bar No. 866827 apalesch@littler.com LITTLER MENDELSON, P.C. 3344 Peachtree Road N.E., Suite 1500 Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 25 of 29 26 Atlanta, GA 30326.4803 Telephone: 404.233.0330 Facsimile: 404.233.2361 James A. Lamberth, GA Bar No. 431851 james.lamberth@troutmansanders.com TROUTMAN SANDERS LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308-2216 Telephone: 404.885.3000 Facsimile: 404.962.6611 Attorneys for Defendants Turner Broadcasting System, Inc., Time Warner Inc., Cable News Network, Inc., and Turner Services, Inc. Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 26 of 29 27 LOCAL RULE 7.1D CERTIFICATION Pursuant to Local Rule 7.1D, the undersigned certifies that this motion complies with the font requirements of Local Rule 5.1C because this motion is prepared in Times New Roman, 14-point font. /s/ Leslie A. Dent Leslie A. Dent Attorneys for Defendants Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 27 of 29 28 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Celeslie Henley and Ernest Colbert, Jr., Plaintiffs, v. Turner Broadcasting System, Inc., Time Warner Inc., Cable News Network, Inc., and Turner Services, Inc., Defendants. CIVIL ACTION FILE NO. 1:16-cv-04506-WSD CERTIFICATE OF SERVICE I hereby certify that on February 7, 2017, I electronically filed the foregoing DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS, STRIKE, AND/OR FOR MORE DEFINITE STATEMENT OF PLAINTIFFS’ COMPLAINT with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Daniel R. Meachum Daniel R. Meachum & Associates, LLC 44 Broad Street NW, Suite 805 Atlanta, GA 30303 dmeachum@dmeachumlaw.com Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 28 of 29 29 Mario Bernard Williams Williams Oinonen, LLC 44 Broad Street NW, Suite 200 Atlanta, GA 30303 mario@goodgeorgialawyer.com James E. Voyles The Voyles Milhollin Law Firm 600 Village Trace, Suite 200 Marietta, Georgia 30067 jvoyles@voyleslaw.com Attorneys for Plaintiffs /s/ Leslie A. Dent Leslie A. Dent Attorneys for Defendants Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 29 of 29 EXHIBIT 1 Case 1:16-cv-04506-WSD Document 17-2 Filed 02/07/17 Page 1 of 2 Case 1:16-cv-04506-WSD Document 17-2 Filed 02/07/17 Page 2 of 2 EXHIBIT 2 Case 1:16-cv-04506-WSD Document 17-3 Filed 02/07/17 Page 1 of 2 Case 1:16-cv-04506-WSD Document 17-3 Filed 02/07/17 Page 2 of 2