Ross v. Lockheed Martin Corp.

VERNON ROSS and DEBRA JOSEY, on behalf of themselves and all others similarly situated, Plaintiffs, v. LOCKHEED MARTIN CORP., Defendant.

No. 16-cv-2508 (KBJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 21, 2020

MEMORANDUM OPINION DENYING PLAINTIFFS' MOTION FOR PRE-CERTIFICATION DISCOVERY

This Court previously denied a motion for preliminary class certification and for preliminary approval of a settlement agreement that Plaintiffs Vernon Ross and Debra Josey ("Plaintiffs") filed along with their initial complaint, see Ross v. Lockheed Martin Corp. ("Ross I"), 267 F. Supp. 3d 174, 178 (D.D.C. 2017), and in the wake of that determination, Plaintiffs have filed a Second Amended Class Action Complaint, to provide additional details regarding the operation of Defendant Lockheed Martin's performance review process ("LM Commit") in support of their claim that Lockheed Martin has violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and also 42 U.S.C. § 1981, in a manner that can be established, and redressed, on a classwide basis. (See Second Am. Compl. ("Am. Compl."), ECF No. 34.) Plaintiffs have now also requested pre-certification discovery, ostensibly to gather additional information in support of their class claims.¹ (See Pls.' Mem. in Supp of Mot. for Class Discovery ("Pls.' Mot."), ECF No. 54, at 6, 26.)² For the reasons explained below, neither the additional details that Plaintiffs have provided in the Second Amended Complaint nor the information that Plaintiffs hope to gather prior to filing their motion for class certification is likely to assist them in making the required prima facie showing that their class action plausibly satisfies Rule 23's certification requirements. Consequently, this Court filed an Order on May 28, 2020, that DENIED Plaintiffs' discovery motion. (See Order, ECF No. 63.)

The instant Memorandum Opinion explains the reasons for that order. In short, the existence of a class action that is plausibly viable is a prerequisite to getting discovery in aid of a motion for class certification, and Plaintiffs bear the burden of demonstrating that discovery measures are likely to produce information that substantiates their contention that they have identified a viable class action. Under the circumstances presented here, Plaintiffs cannot carry that burden, as this Court made clear in Ross I, 267 F. Supp. 3d at 197 (holding that Plaintiffs failed to demonstrate commonality because they did not point to a "testing procedure or other companywideevaluation method that can be charged with bias[,]" nor did they offer "[s]ignificant proof that an employer operated under a general policy of discrimination" (internal quotation marks and citation omitted).) In other words, pre-certification discovery is not warranted because, regardless, the facts alleged in Plaintiffs' complaint concerning the operation of Lockheed Martin's performance review process make it manifestly implausible that the 5,000 African-American Lockheed Martin employees who are members of the putative class have suffered a common injury that can either be redressed through a single remedy on a classwide basis or be proven through common questions of fact that predominate over individualized proof of injury.

I. LEGAL STANDARDS

A. Motions For Pre-Certification Discovery

Courts must determine whether a legal action can be maintained as a class action as soon as is "practicable" after the complaint is filed. Fed. R. Civ. P. 23(c)(1). Pursuant to Rule 23, a class action is viable if plaintiffs can demonstrate that their putative class satisfies the four threshold requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation, see Amgen v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455, 460 (2013)—and also that the proposed class action fits one of the categories listed in Rule 23(b). As relevant here, one of the Rule 23(b) categories includes cases where "a single injunction or declaratory judgment would provide relief to each member of the class," Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (citing Fed. R. Civ. P. 23(b)(2)), and another type of Rule 23(b) class action is one in which "the questions of law or fact common to class members predominate over any questions affecting only individual members, and . . . a classaction is superior to other available methods for fairly and efficiently adjudicating the controversy[,]" Fed. R. Civ. P. 23(b)(3). Thus, plaintiffs seeking to litigate their claims as a class action must show (1) numerosity, commonality, typicality, and adequacy of representation, and (2) either indivisibility of the requested relief, or predominance and superiority. See, e.g., Wal-Mart, 564 U.S. at 360.

Courts have recognized that the exact "shape and form of a class action evolves only through the process of discovery." Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007) (internal citation and quotation marks omitted). Cf. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) ("[O]ften the pleadings alone will not resolve the question of class certification and [] some discovery will be warranted[.]"); Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008) (same); In Re Am. Med. Sys., Inc., 75 F.3d 1069, 1086 (6th Cir. 1996) (same). As a result, courts can permit plaintiffs to flesh out the contours of their proposed class action for certification purposes by engaging pre-certification discovery, and discovery is especially warranted in cases where, for example, getting more information about the plaintiffs' claims "will resolve factual issues" such as whether a "set of subclasses exist[,]" Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011), or where there is discoverable information that is "relevant to class certification [requirements] such as numerosity[,]" Dziennik v. Sealift, Inc., No. 05-cv-4659, 2006 WL 1455464, at *1 (E.D.N.Y. May 23, 2006).

But it is similarly well established that the simple filing of a classwide complaint does not automatically "unlock the doors of discovery for a plaintiff[.]" Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). In fact, trial courts "have broad powers to regulateor prevent discovery and such powers have always been freely exercised." Brennan v. Local Union No. 639, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers, 494 F.2d 1092, 1100 (D.C. Cir. 1974). Cf. Pilgrim v. Universal Health Card LLC, 660 F.3d 943 (6th Cir. 2011) (affirming a trial court's pre-discovery strike of class allegations). To be sure, some courts have historically been "hesitant to delve deep into the merits of [a] plaintiff's class allegations" when there has been "no discovery whatsoever." Smith v. Wash. Post Co., 962 F. Supp. 2d 79, 90 (D.D.C. 2013). However, recent developments in the law have also reflected the acknowledgment that proceeding to nationwide class action discovery "can be expensive[,]" and that "a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007) (internal citation and quotation marks omitted).

These pronouncements confirm that a class-action pleading must present plausible classwide claims before plaintiffs can proceed with class discovery. See id. at 558 (finding that "the costs of modern [nationwide] litigation and the increasing caseload of the federal courts counsel against sending parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint" (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984))). This means that, while "pre-certification discovery should ordinarily be available where a plaintiff has alleged a potentially viable class claim[,]" Burton v. District of Columbia, 277 F.R.D. 224, 230 (D.D.C. 2011), if "the complaint itself demonstrates that the requirements for maintaining a class action cannot be met," then it is reasonable to conclude that "no amount of discovery" can overcome thatdeficiency, Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., 284 F.R.D. 238, 245-46 (E.D. Pa. 2012). In other words, "when a nationwide class action is alleged involving potentially enormous discovery, plaintiff must advance a prima facie showing that discovery is likely to produce information substantiating the viability of a class[,]" Schager v. Union Fid. Life Ins. Co., No. 85-cv-8244, 1987 WL 13570, at *4 (N.D. Ill. July 6, 1987) (internal citation omitted)—i.e., the plaintiffs must "demonstrate that discovery measures are likely to produce persuasive information substantiating the class action allegations[,]" Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977); see, e.g., id. (finding no abuse of discretion where the district court had denied pre-certification discovery on the grounds that, "[r]egardless of the discovery that might have been undertaken, the numerosity and impracticable joinder requirements of section (a) of Rule 23 could never be met" and, "even if the preliminary prerequisites of section (a) were met, there was no reasonable possibility that any of the section (b) hurdles could be overcome").

Finally, and importantly, in order to determine whether pre-certification discovery is warranted, courts must refrain from going "beyond a consideration of a prima facie showing and into a consideration of Plaintiff's likelihood of success at the class certification stage." Kaminske v. JP Morgan Chase Bank N.A., No. 09-cv-918, 2010 WL 5782995, at *3 (C.D. Cal. May 21, 2010). At the same time, "speculation as to what the broad discovery that [plaintiffs] seek might show is insufficient to meet their burden of showing that additional discovery is likely to produce substantiation of the class allegations." Manigo v. Time...