United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Plaintiffs, current and former employees of the Baltimore Convention Center (the "Convention Center"), instituted this putative class action and collective action in July 2012 against the Convention Center and Peggy Daidakis, the Director of the Convention Center. ECF 1. Plaintiffs alleged that the defendants wrongfully withheld wages and overtime compensation from plaintiffs, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq. (Count I); the Maryland Wage and Hour Law ("MWHL"), Md. Code (2006 Repl. Vol, 2012 Supp.), Lab. & Empl. Article §§ 3-401 et seq. (Count II); and the Maryland Wage Payment and Collection Law ("MWPCL"), id. §§ 3-501 et seq. (Count III). Id. at 2-3. In addition, they complained that defendants withheld compensation and suspended employees without cause, in breach of the Baltimore Municipal Employees contract of employment with the City of Baltimore, dated July 1, 2008 ("2008 Contract") (Count IV). See ECF 1 at 3-6.
In December 2012, on defendants' motion, I dismissed Counts II, III, and IV of the Complaint. ECF 6 (motion to dismiss); ECF 16 (Order). Counts II and III were dismissed because municipalities and their agencies, such as the Convention Center, are not "employers" within the meaning of the MWHL or MWPCL. ECF 16 at 2 ("If the City is not an employer under [Maryland wage laws], neither are defendants."). I dismissed Count IV because plaintiffs had failed to exhaust remedies available under the 2008 Contract. Id. at 3. Specifically, I held that plaintiffs could not sue for breach of contract until they had exhausted the grievance procedure in the 2008 Contract. Id.
Accordingly, in January 2013, plaintiffs filed a grievance against the Convention Center and the Mayor and City [Council] of Baltimore, on behalf of "all other former and current employees" of the Convention Center (the "2013 Grievance"). See ECF 20-1 at 4-6 (grievance). The grievance was submitted to the Labor Commissioner for the City of Baltimore. Id. at 1. By joint motion filed in January of 2013, the parties sought to stay proceedings in this case pending resolution of the 2013 Grievance. See ECF 20. I granted that Motion. ECF 21 (Order granting stay). Thereafter, the parties twice sought to extend the stay. ECF 22 (filed July 2013); ECF 24 (filed October 2013). I approved both requests. ECF 23; ECF 25 (Orders).
The parties filed a joint status report in March 2014, in which they indicated that the grievance process had come to an end, that plaintiffs wanted to file an amended complaint, and that defendants opposed plaintiffs' proposed amendments. ECF 26 (status report). Plaintiffs anticipated filing their motion to amend within three weeks. Id. at 2. Nonetheless, plaintiffs subsequently filed two consent motions for extension of time to amend the complaint (ECF 27; ECF 31), which the Court approved. ECF 30; ECF 32.
On June 12, 2014, plaintiffs filed their "Motion for Leave to Amend Complaint" (ECF 33, the "Motion"), pursuant to Fed.R.Civ.P. 15, along with a proposed "First Amended Complaint" (ECF 28, "Proposed Amended Complaint"), and a redlined version, showing changes between the original and the proposed amended complaints. ECF 33-2 (redlined version). In their Motion, plaintiffs explain that the proposed amendments do two things. First, they seek to update "the original Complaint to reflect the current status of the claims and allegations and to implement the court's order." ECF 33 at 2. Second, they add two new claims, one for "breach of the negotiated agreement" ("Count V"), and one for breach of the duty of fair representation ("Count VI"). Id. at 3. Plaintiffs state: "These claims together constitute a hybrid action required for enforcement and implementation of the employees' rights under circumstances such as provided in this action." Id. (citing, e.g., Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563 (1976)). In light of Count VI, plaintiffs also seek to add as a defendant their union, AFL-CIO, Council No. 67, Local No. 44 (the "Union"). See ECF 33-2 at 2 (redlined version).
Defendants filed a response in opposition to plaintiffs' Motion on July 18, 2014. ECF 36 ("Opposition"). They argue that plaintiffs should not be permitted to add Counts V and VI because the amendments would be futile. ECF 36 at 6. Defendants assert that plaintiffs cannot sue the Convention Center via the "hybrid action" plaintiffs propose because states and "political subdivisions thereof" are expressly excluded from the definition of "employer" in the federal labor law upon which plaintiffs rely. Id. at 7. In addition, defendants state: "Even if there were statutory authority to consider Plaintiffs' claims in this case [against the Union, in Count VI], the proposed amendment should be denied as futile because it fails to plead facts supporting the claim that the Union violated its duty of fair representation." Id. at 11.
In response to defendants' Opposition, plaintiffs filed a motion for extension of time to file their reply (ECF 37), which I granted. ECF 38 (Order). However, as of the date of this Memorandum, plaintiffs have not filed a reply, and the time to do so has passed. See Local Rule 105.2(a).
The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will grant the Motion (ECF 33) in part and deny it in part. I will grant plaintiffs leave to file an amended complaint that includes changes reflecting the current status of the claims, following my Order of December 10, 2012, and any new facts. See ECF 16 (dismissing Counts II, III, and IV). But, I will deny leave to amend the complaint to include Counts V and VI, because the addition of either count would be futile. And, because I will deny leave to add Count VI, I will also deny leave to add the Union as a defendant.
As stated, plaintiffs filed their Complaint in July 2012. ECF 1. The Complaint names eight persons as plaintiffs: Anthony Lewis, William Weeks, Gregory Hall, Darrell Lilly, Louis Pilsch, Leonard Ward, Michael Ward, Jr., and Gratten Branch. ECF 1. The Proposed Amended Complaint names the same eight plaintiffs, but adds, in the caption, "all employees filing a Consent form to join the lawsuit." ECF 33-1 at 2. Plaintiffs' Motion states that there were, as of the date of the Motion, thirty-six plaintiffs in total. ECF 33 at 1. The docket reflects that, as of the date of this Memorandum, twenty-nine plaintiffs, in addition to the eight named in the caption, have filed affidavits consenting "to act as a plaintiff in this case, " pursuant to 29 U.S.C. § 216(b). ECF 12, 13, 15.
All plaintiffs, in both complaints, are alleged to be "hourly employees" of the Convention Center, ECF 1 at 3; ECF 33-1 ¶ 41, although some are former employees. See, e.g., ECF 33-1 ¶ 12. They are also members of the Union. ECF 1 at 3; ECF 33-1 at ¶ 67. The original Complaint does not describe plaintiffs' job titles or duties in any way. ECF 1. The Proposed Amended Complaint alleges that all putative class members are hourly employees in the Building Services and Client Services departments at the Convention Center. ECF 33-1 ¶ 29. The department position lists contain job titles such as Painters and Custodians, respectively. Id.
Defendant Convention Center is "a convention and exhibition hall" in Baltimore. ECF 1 ¶ 13. Both sides agree that the Convention Center "is municipally owned and operated by the City of Baltimore." Id.; ECF 6 at 1 (defendants' motion to dismiss). Indeed, defendants have previously asserted: "The correct name of the [plaintiffs'] employer is Mayor and City Council of Baltimore.' The Convention Center is not a separate legal entity." ECF 6 at 1. Similarly, plaintiffs allege: "The Baltimore Convention Center is a constituent agency of the Mayor and City Council of Baltimore, formed under Article 1, Subtitle 13 of the Baltimore City Code." ECF 1 ¶ 13; see also ECF 1 ¶ 3 ("This Court has personal jurisdiction over Defendants as a State entity of the State of Maryland....").
Defendant Daidakis is Director of the Convention Center. ECF 1 ¶ 14. Plaintiffs allege she is "authorized to direct and execute labor relations ordinances and policies of the Mayor and City Council on behalf of the Baltimore Convention Center." Id. Although Daidakis remains a named defendant in the Proposed Amended Complaint, none of the counts in the Proposed Amended Complaint is alleged against her. See ECF ...