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 Defendants' Opposition to Plaintiffs' Motion for Enlargement of Time to Respond to Defendants' Joint Motion to Dismiss and to File a Second Amended Complaint


In re: African-American Slave Descendants Litigation. MDL-1491. No. 02-7764 (CRN). September 4, 2003. United States District Court, N.D. Illinois, Eastern Division. Judge Charles R. Norgle, Sr.


Defendants, by and through their counsel, respectfully oppose the “Motion for an Enlargement of Time to File Response to Defendants' Joint Motion to Dismiss First Consolidated and Amended Complaint Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure,” which Plaintiffs predictably filed just as their time to oppose Defendants' Joint Motion to Dismiss was about to expire. In support of their Opposition, Defendants state as follows:

1. These cases began nearly 1 1/2 years ago, and since that time Plaintiffs have made every effort to thwart having a court address the fatal legal flaws in their complaint. The present motion is simply another attempt by Plaintiffs to avoid having their claims tested under applicable law. Plaintiffs would not be prejudiced by proceeding with the briefing schedule set by the Court, and Defendants are entitled to adjudication of whether the claims brought against them are legally sufficient. There is no basis for yet another delay of these proceedings, and Plaintiffs' Motion should be denied.



2. On March 26, 2002, Plaintiffs filed the first three of these suits, with attendant publicity, in the Eastern District of New York (“E.D.N.Y.”). Plaintiffs waited 3-1/2 months, until mid-July 2002 (just before expiration of the 120-day deadline for service under the federal rules), to serve the three entities named as defendants in each of those cases. Defendants in the E.D.N.Y. cases promptly prepared motions to dismiss and, because the local rules required a pre-motion conference before the motions could be filed, requested such a conference.

3. Meanwhile, in a case Plaintiffs had filed in the District of New Jersey (“D.N.J.”), defendant Norfolk Southern Railway Company (“Norfolk Southern”) filed a motion to dismiss and an answer on July 26, 2002, before having been served with the complaint. Plaintiffs then moved the Judicial Panel on Multidistrict Litigation (“JPML”) for consolidation of the virtually identical complaints that they were filing in various jurisdictions.

4. At the pre-motion conference in the E.D.N.Y. cases on July 31, 2002, Plaintiffs announced that they were filing similar complaints in other courts around the country and seeking consolidation before the Judicial Panel on Multidistrict Litigation (“JPML”). On that basis, Plaintiffs were able to delay the filing of and briefing on motions to dismiss the original E.D.N.Y. complaints. On the same basis, they were able to obtain a stay of any briefing on Norfolk Southern's motion to dismiss in the D.N.J. case.

5. Plaintiffs used the same approach in their other cases: They waited months to serve the other complaints (never properly serving some defendants). Then, having manufactured the need for consolidation by filing virtually identical complaints in several courts around the country, they used the consolidation process to delay briefing on any motion to dismiss.

6. On October 25, 2002, the JPML ordered consolidation of Plaintiffs' cases and transferred the cases to this Court. After allowing time for transfer, this Court held an organizing conference on February 26, 2003. At the conference, Plaintiffs advised the Court that they intended to file an amended complaint to govern all the actions. Although their motion to consolidate had been granted five months earlier - during which time Plaintiffs could have prepared an amended complaint - Plaintiffs said they needed more than 90 additional days to file the amended complaint.

7. Plaintiffs requested and received over 90 days - until June 3, 2003 - to file their amended complaint. Nevertheless, at the next status conference on May 7, 2003, Plaintiffs requested yet another extension of time. The Court granted Plaintiffs an additional 7 days, until June 10, 2003, to file their amended complaint.

8. On June 6, 2003 - four days before their amended complaint was due - Plaintiffs filed an emergency motion for yet another extension of time. The Court granted Plaintiffs' motion, giving Plaintiffs an additional 7 days to file their amended complaint. Plaintiffs finally filed their First Consolidated and Amended Complaint (“First Amended Complaint”) on June 17, 2003.

9. Defendants timely filed their Joint Motion to Dismiss thirty days later, on July 18, 2003. Pursuant to the briefing schedule set by the Court, Plaintiffs' Opposition is due on September 9, 2003, and Defendants' Reply is due on October 10, 2003.

10. On Friday, August 29, 2003 - six business days before the due date for their Opposition (and six weeks after they were served with Defendants' Motion) - Plaintiffs filed the present motion, seeking a four-month extension of time to oppose Defendants' Joint Motion to Dismiss “or file a Second Amended Complaint.” (Pls.' Mot. at 3-4.)

11. Plaintiffs attempt to justify their request for an extension on the following grounds: first, because they want to “open estates for their deceased ancestors” (Pl.'s Mot. „ 6); second, because they “wish to amend their complaint to address Defendants' concern on Consumer Fraud claim[s], Stat[utes] of Limitations and allegations relating to individual harms suffered by Plaintiffs and other alleged defects” in the Complaint (id. „ 8); and third, because they wish to effect service on certain Defendants (id. at „ 10). None of these vague justifications provides any reason to delay the briefing schedule on Defendants' Joint Motion to Dismiss.



12. Plaintiffs had ample time to prepare their amended complaint and have had ample time to respond to Defendants' Joint Motion to Dismiss. No further extension is warranted, and Plaintiffs' Motion should be denied.


Plaintiffs' Motion Fails To Comply With The Requirements For Seeking Leave To Amend Their Complaint.

13. Though styled as a motion for enlargement of time, Plaintiffs offer no reason why they need additional time to complete their opposition to Defendants' Joint Motion to Dismiss. Instead, Plaintiffs' Motion is, in effect, a request for leave to possibly file a Second Amended Complaint some four months from now. Plaintiffs, however, had the burden of pleading cognizable claims when they filed these actions in the first place, and they had the opportunity to cure any defects when they prepared their First Amended Complaint. There is no justification to allow Plaintiffs, in the middle of the Court-ordered briefing schedule, to explore whether they can further amend their complaint. See Hindo v. University of Health Sci./The Chi. Med. Sch., 65 F.3d 608, 614 (7th Cir. 1995) (“Seeking to amend one's complaint when it appears that the current one is a sure loser is not unusual; nor is the denial of leave to file that amended complaint.”).

14. In any event, Plaintiffs have not even attempted to comply with, let alone satisfy, the requirements associated with seeking leave to file another amended complaint. See Moore v. State of Ind., 999 F.2d 1125, 1131 (7th Cir. 1993) (proper motion for leave to amend complaint must set forth contents of the proposed amendments); Twohy v. First Nat. Bank of Chicago, 758 F.2d 1185, 1197 (7th Cir 1985) (failure to submit draft amended complaint with motion to amend indicated a lack of due diligence and good faith); Chicago District Council of Carpenters Pension Fund v. G & A Installations, Inc., No. 95C6524, 1996 WL 288629, at *2 (N.D. Ill. May 30, 1996) (Kocoras, J.) (recognizing that “vague factual assertions” are insufficient to warrant granting leave to file an amended complaint) (Ex. A).


Plaintiffs Fail To Show That Future Amendment Could Cure The Core Legal Deficiencies In The First Amended Complaint

15. Even if the Court were to treat Plaintiffs' Motion for an extension of time as a request (albeit an improper one) for leave to file a Second Amended Complaint in January of 2004, the Motion still should be denied because Plaintiffs cannot cure the defects in the First Amended Complaint through amendment. Plaintiffs' Motion only refers to issues peripheral to Defendants' Joint Motion to Dismiss and fails to meaningfully address the core legal deficiencies Defendants identified in Plaintiffs' complaint: non-justiciability, standing, statutes of limitations, and failure to state a claim.

16. First, nothing in Plaintiffs' Motion explains how they would overcome the non-justiciability of their claims under the political question doctrine, which commits the reparations issue to the executive and legislative branches of government. (See Mem. In Supp. Of Defs.' Jt. Mot. to Dismiss at 27-37.) The political question doctrine bars all of Plaintiffs' claims, and amendment of the complaint cannot cure this threshold defect.

17. Second, nothing in Plaintiffs' Motion explains how they would overcome the statutes of limitation bar to their claims. Although Plaintiffs mention that in the future they wish to address the statutes of limitation issue, they fail to specify how an extension of time or eventual amendment of the complaint would allow them to do so. Plaintiffs have been aware of this issue at least since the filing of Norfolk Southern's Motion to Dismiss in the District of New Jersey case - over one year ago - and have had ample time to explore any facts relevant to their contention that their claims are not time barred. Their Motion does not specify any facts (or even theories) to suggest that additional time or amendment of the complaint will allow them to overcome the applicable statutes of limitation.

18. Third, nothing in Plaintiffs' Motion explains how they would show standing to pursue the claims in the First Amended Complaint. In particular, there is no merit to Plaintiffs' newly minted theory that they could overcome their third-party standing deficiencies by “open[ing] estates for their deceased ancestor [s].” (See Pls.' Mot. „ 7.) As a threshold matter, Plaintiffs offer no explanation for why they waited until now to raise this issue. More fundamentally, Plaintiffs' request for time to “open estates” ignores that there are multiple defects in their standing to sue on behalf of their ancestors. Specifically, even if Plaintiffs could open estates for their ancestors and be appointed as representatives of these estates, two dubious propositions, Plaintiffs still would fail to meet the following separate and independent prerequisites for third-party standing in federal court: (1) the First Amended Complaint does not identify any conduct by any Defendant that is fairly traceable to any injury suffered by any one of Plaintiffs' ancestors; (2) Plaintiffs cannot demonstrate that they have suffered any injury-in-fact; and (3) there are no allegations that these Plaintiffs' ancestors sought to and were prevented from ever asserting their own rights. (See Mem. In Supp. Of Defs.' Jt. Mot. to Dismiss at 12-16.) Thus, lack of standing is a yet another fundamental deficiency in all of Plaintiffs' claims, and that deficiency cannot be overcome by the “cure” Plaintiffs purport to need time to effect.

19. In addition, even if Plaintiffs' claims were not already barred through lack of standing, untimeliness, and non-justiciability, Plaintiffs have failed to state a claim on each and every count in the First Amended Complaint. (See Mem. In Supp. of Defs.' Jt. Mot. to Dismiss at Pt. IV.) Plaintiffs' Motion is silent as to how they could “cure” this problem through amendment.

20. When faced with circumstances strikingly similar to those presented here, this Court previously has recognized that leave to amend should be denied. Specifically, in Collier v. Cicero, this Court denied leave to amend where, as here, plaintiff filed a complaint, defendants moved to dismiss the complaint, plaintiff had not yet responded to defendants' motions, and the proposed amended complaint would not cure the deficiencies identified by the motions to dismiss. Collier v. Cicero, No. 98 C 8071, 1999 WL 1046414, at *1 (N.D. Ill. Nov. 10, 1999) (Norgle, J.) (Ex. B). Because leave to amend would have been futile, the Court ruled on the defendants' motions. Id. See also Perkins v. Silverstein, 939 F.2d 463, 472 (7th Cir.1991) (“a district court may deny leave to amend if the proposed amendment fails to cure the deficiencies in the original pleading, or could not survive a second motion to dismiss”). Similarly, there is no justification here for a four-month postponement in briefing Defendants' Joint Motion to Dismiss to allow Plaintiffs to explore possible amendments to the First Amended Complaint.



For the above reasons, Defendants respectfully request that Plaintiffs' Motion for an Enlargement of Time to File Response to Defendants' Joint Motion to Dismiss First Consolidated and Amended Complaint Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure be denied, and that Plaintiffs remain ordered to file and serve their Opposition to Defendants' Joint Motion to Dismiss on September 9, 2003.




Defendants include: Aetna Inc.; Brown Brothers Harriman & Co.; Brown & Williamson Tobacco Corporation; Canadian National Railway Company; CSX Corporation; FleetBoston Financial Corporation; Lehman Brothers Inc.; New York Life Insurance Company; Norfolk Southern Railway Company; R.J. Reynolds Tobacco Company; Union Pacific Corporation and Union Pacific Railroad Co. All the aforementioned defendants are involved in one or more of the underlying actions. This filing is not a consent to jurisdiction by any defendant in any of the underlying cases or in this MDL action.


That motion to dismiss - like Defendants' Joint Motion in this MDL proceeding - remains pending and unanswered.


Plaintiffs provide absolutely no authority to support their contention that they can open the estates of ancestors who have been deceased for many decades at least (and perhaps for over a century) and become appointed as legal representatives.


Plaintiffs' contention that they need an extension to serve Defendants Canadian National and Loews Corporation is a red herring. There is no reason to delay briefing and adjudication of the substantive issues raised in Defendants' Joint Motion to Dismiss simply because Plaintiffs failed properly to serve two Defendants within the time allowed by Federal Rule 4(m). Moreover, Defendants Canadian National and Loews Corporation demonstrated not merely lack of proper service, but also lack of personal jurisdiction - a threshold defect that any additional time for service will not cure.