Doe #1 v. Am. Fed'n of Gov't Emps.

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JOHN DOE #1, et al., Plaintiffs, v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Defendants.

Civil Action No. 20-1558 (JDB)

United States District Court, District of Columbia

September 13, 2022

MEMORANDUM OPINION

JOHN D. BATES UNITED STATES DISTRICT JUDGE

Plaintiffs have alleged that Jeffrey David Cox, the former National President of the American Federation of Government Employees (“AFGE”), committed serious misconduct while in office and that AFGE and many high-ranking AFGE officials failed to exercise their duties to prevent the alleged bad acts. See Second Am. Compl. [ECF No. 32] ¶¶ 822-944. Roughly one year ago, this Court issued a comprehensive Memorandum Opinion dismissing many of plaintiffs' claims and specifying precisely which claims could continue in this litigation. See Doe #1 v. Am Fed'n of Gov't Emps., 554 F.Supp.3d 75, 125 (D.D.C. 2021) (“The only claims that are not subject to dismissal and hence remain are ....”). In its accompanying Order, the Court instructed plaintiffs to file a third amended complaint “that is consistent with the accompanying Memorandum Opinion” and explicitly noted that this amended complaint “shall be limited to the claims that have not been dismissed from this lawsuit and the factual allegations supporting those claims.” Order Aug. 11, 2021 [ECF No. 59] (“Aug. 2021 Order”) at 2.

In blatant disregard of this directive, plaintiffs subsequently submitted several different third amended complaints, none of which comply with the Court's Order. See generally Am. Compl. [ECF No. 62] (“First Proposed Third Am. Compl.”); Third Am. Compl. [ECF No. 72] (“Second Proposed Third Am. Compl.”); Corrected Third Am. Compl. [ECF No. 73-1] (“Third Proposed Third Am. Compl.”); Third Am. Compl [ECF No. 74] (“Fourth Proposed Third Am. Compl.”). AFGE responded to plaintiffs' actions by filing two motions to strike and requesting both monetary sanctions and dismissal of plaintiffs' claims with prejudice. See generally Def. AFGE's Mot. to Strike First Proposed Third Am. Compl. [ECF No. 64] (“AFGE's First Mot to Strike & for Sanctions”); Def. AFGE's Mot. to Strike Pls.' Fourth Proposed Third Am. Compl. [ECF No. 78] (“AFGE's Second Mot. to Strike & for Dismissal”). Plaintiffs have filed a motion for leave to amend their first proposed third amended complaint, see generally Pls.' Mot. for Leave to Amend First Proposed Third Am. Compl. [ECF No. 63] (“Mot. to Amend First Proposed Third Am. Compl”), a cross motion for sanctions, see generally Pls.' Cross Mot. for Sanctions [ECF No. 77] (“Cross Mot. for Sanctions”), and-finally-a belated motion for reconsideration of this Court's August 2021 Order, see generally Pls.' Mot. for Recons. & for Leave to File a Fourth Am. Compl. [ECF No. 92] (“Mot. for Recons.”). For the reasons explained below, the Court will deny plaintiffs' motions and strike plaintiffs' fourth proposed third amended complaint. The Court will also grant AFGE certain sanctions but deny AFGE's request that the Court dismiss plaintiffs' clams with prejudice.

Background

I. Factual Background and the Court's August 2021 Memorandum Opinion

The Court thoroughly described the factual history of this litigation in its prior Memorandum Opinion, see Doe #1, 554 F.Supp.3d at 85-87, and the discussion here will hence be abbreviated. According to plaintiffs' second amended complaint, AFGE is the largest federal employee union in the United States. Second Am. Compl. ¶ 86. Cox is a former AFGE National President. Id. ¶ 88. “In fall 2019, news reports began circulating that Cox had sexually harassed multiple AFGE employees during his tenure as National President and that AFGE had failed for years to address complaints about inappropriate behavior by Cox and other elected union officials.” Doe #1, 554 F.Supp.3d at 86 (internal citations omitted); accord Second Am. Compl. ¶¶ 330, 333-34. The second amended complaint lists twelve plaintiffs, all of whom “are current or former AFGE employees, elected officials for local AFGE unions, AFGE members, employees of AFGE contractors, and family members.” Doe #1, 554 F.Supp.3d at 86 (citing Second Am. Compl. ¶¶ 58-84). Plaintiffs filed the second amended complaint against “Cox, AFGE, and thirteen AFGE officials and high-level staff members (the ‘Individual AFGE Defendants'), asserting claims under both federal and state law.” Id. at 85; see also Second Am. Compl. at 2-3.^[1]

AFGE and the Individual AFGE Defendants moved to dismiss almost all of plaintiffs' claims in the second amended complaint. See generally Mem. of Law. in Supp. of Def. AFGE & 13 Individual AFGE Defs.' Rule 12(b)(1) & 12(b)(6) Mot. to Dismiss All of the Claims Set Out in Pls.' Second Am. Compl. Except for Pl. Jocelynn Johnson's 42 U.S.C. § 1981 Claim Against AFGE [ECF No. 46-1] (“Mot. to Dismiss Second Am. Compl.”). In a lengthy Memorandum Opinion, the Court took great care to consider the viability of plaintiffs' numerous claims, see Doe #1, 554 F.Supp.3d at 91-121, and concluded:

[T]he entire complaint must be dismissed except for the following claims: [Annette] Wells's claim against Cox for misappropriating AFGE resources under section 501(b) [of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 501 (“LMRDA”)] (Count 7); [Jocelynn] Johnson's wrongful termination claims against AFGE and Cox under section 1981 (Count 5); and [Rocky] Kabir's racially hostile work environment claims against AFGE and Cox under section 1981 and the [D.C. Human Rights Act] (Counts 5 and 9).

Id. at 121; accord id. at 125. In the August 2021 Order accompanying this Memorandum Opinion, the Court again specified exactly which claims could proceed in this litigation and ordered the remaining plaintiffs to file a third amended complaint “that is consistent with the accompanying Memorandum Opinion” and “limited to the claims that have not been dismissed from this lawsuit and the factual allegations supporting those claims.” Aug. 2021 Order at 2.

II. Litigation After the August 2021 Memorandum Opinion

Plaintiffs filed their first proposed third amended complaint in September 2021. First Proposed Third Am. Compl. at 76. The complaint contains several claims other than those the Court identified as still viable in its August 2021 Order. For instance, count one includes Johnson's hostile work environment and retaliation claims-even though the Court explicitly rejected these claims in its prior Memorandum Opinion. Compare First Proposed Third Am. Compl. ¶ 485 (“[Defendants] discriminated against Plaintiff Jocelynn Johnson on the basis of her race by creating a hostile work environment for Ms. Johnson, retaliating against Ms. Johnson for engaging in protected activities . . . .”), with Doe #1, 554 F.Supp.3d at 106 (“Johnson's retaliation theory is waived because she failed to present it in the second amended complaint.”), and id. at 118 (“[A]s the Court has already explained, Johnson's wrongful termination amounts to a discrete incident that does not support a hostile work environment claim.”); see also id. at 107 n.16 (explaining why any hostile work environment claims brought by Johnson under § 1981 would fail). Count three of the first proposed third amended complaint likewise revives claims under § 501 of the LMRDA that the Court had previously rejected. Compare First Proposed Third Am. Compl. ¶¶ 500-02 (“Defendant Cox breached his duties to the labor organization . . . when [he] racially discriminated against, sexually harassed, sexually assaulted and battered [plaintiffs] . . . .”), with Doe #1, 554 F.Supp.3d at 94 (concluding that Cox could not be liable under § 501 for the alleged sexual misconduct because plaintiffs failed to “identif[y] any provision of the union constitution, bylaws, or other governing rules that imposed a duty on Cox to refrain from [the alleged wrongs]”). The complaint also contains entirely new claims not alleged in the second amended complaint or discussed in the August 2021 Memorandum Opinion. See, e.g., First Proposed Third Am. Compl. ¶ 494 (containing new retaliation and wrongful termination claims brought by Kabir).

On the same day that plaintiffs filed their first proposed third amended complaint, they also moved for leave to amend that complaint to add many of the Individual AFGE Defendants the Court had dismissed from the case. Mot. to Amend First Proposed Third Am. Compl. ¶¶ 2-3. Plaintiffs requested permission to add these defendants so that Johnson and Kabir could pursue § 1981 claims against them for failing “to exercise their supervisory authority to discipline or remove Cox.” Id. ¶¶ 13-14. Plaintiffs' motion does not acknowledge that the Court had previously rejected the § 1981 claims that Johnson and Kabir wished to bring against the Individual AFGE Defendants. See Doe #1, 554 F.Supp.3d at 106-07 (dismissing “Johnson's section 1981 claims against all Individual AFGE Defendants” because “the second amended complaint does not plausibly establish that they” were personally involved in her wrongful termination and because “a decision-making process that is ‘arbitrary' is not necessarily ‘racially discriminatory.'” (citation omitted)); id. at 109 (“Kabir has failed to state a section 1981 claim against any of [the Individual AFGE Defendants] because he does not allege that they ‘“directly participated” in the alleged discriminatory acts'-all of which were committed by Cox.” (citation omitted)).

AFGE responded to plaintiffs' filings by moving to strike the first proposed third amended complaint and requesting that the Court both impose monetary sanctions and warn plaintiffs that further non-compliance with the Court's August 2021 Order would result in dismissal of their claims against AFGE with prejudice. See AFGE's First Mot. to Strike & for Sanctions...