On January 15, 2010, the following Motions to Dismiss were filed by Defendants pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6): (1) the Waste Management Defendants' Motion to Dismiss Counts I–V and Counts VII–IX [Dkt. No. 294]; (2) the Individual Waste Management Defendants' Motion to Dismiss Counts I–V [Dkt. No. 291]; and (3) Defendant State Street's Motion to Dismiss Counts XIII and XIV [Dkt. No. 292]. On June 10, 2010, the Court denied the Waste Management Defendants' Motion to Dismiss Counts I–V and VII–IX, and granted in part and denied in part the Individual Waste Defendants' Motion to Dismiss.Harris v. Koenig, 722 F.Supp.2d 44, 64–65 (D.D.C.2010) (“ Harris III”). Defendant State Street's Motion to Dismiss was granted with respect to Counts XIII and XIV. Id.
Although some courts have stated that a party may not plead inconsistent facts within a single claim for relief, see, e.g., Boyd v. Larregui, Civ. A. No. 3:19-cv-579 (CSH), 2020 WL 5820491, at *4 (D. Conn. Sept. 30, 2020); In re Livent, Inc. Noteholders Sec. Litig., 151 F.Supp.2d 371, 407 (S.D.N.Y. 2001), courts in this District have held that alternative factual pleading is permissible “in support of inconsistent theories of recovery, so long as [a plaintiff] is ‘legitimately in doubt as to what the evidence will show, '” Chambers v. NASA Fed. Credit Union, 222 F.Supp.3d 1, 16 (D.D.C. 2016) (quoting Harris v. Koenig, 722 F.Supp.2d 44, 54 (D.D.C. 2010)).
Id. Unfortunately for plaintiffs, these accusations fall far short of satisfying their burden under Federal Rule of Civil Procedure 12(b)(1). Once the Government introduced Murphy's declaration, the burden shifted to plaintiffs to prove "by a preponderance of the evidence that the [C]ourt has subject matter jurisdiction to hear the case." Harris v. Koenig , 722 F.Supp.2d 44, 49 (D.D.C. 2010). Plaintiffs, however, have not pointed to any evidence to contest Murphy's sworn statement that the bulk collection of Internet metadata was discontinued in 2011.
Under Federal Rule of Civil Procedure 8(d)(3), Chambers is entitled to plead inconsistent facts in support of inconsistent theories of recovery, so long as she is "legitimately in doubt as to what the evidence will show." Harris v. Koenig , 722 F.Supp.2d 44, 54 (D.D.C. 2010). In a short footnote, the Credit Union suggests that Chambers should be prohibited from pleading this alternative factual scenario, because a "reasonable inquiry" would dispel any legitimate doubt about whether she executed the opt-in agreement.
There is substantial authority to support defendants' position that the exception applies only to toll the running of the six-year period as to claims against those defendants alleged to have engaged in specific acts of fraud or concealment. See, e.g., Barker v. Am. Mobil Power Corp., 64 F.3d 1397, 1402 (9th Cir. 1995) (holding that "fraud or concealment" exception may toll ERISA's limitations period only as to defendants alleged to have committed fraud); Harris v. Koenig, 722 F. Supp. 2d 44, 60-61 (D.D.C. 2010) (holding that tolling of ERISA § 413 applies only to defendants alleged to have committed fraud or concealment as a matter of law); Griffin v. McNiff, 744 F. Supp. 1237, 1256 n.20 (S.D.N.Y. 1990) ("[T]he doctrine of fraudulent concealment tolls statute of limitations only as to those defendants who committed the concealment, and plaintiffs may not generally use the fraudulent concealment by one defendant as a means to toll the statute of limitations against other defendants."), aff'd, 996 F.2d 303 (2d Cir. 1993); O'Brien v. Nat'l PropertyAnalysts Partners, 719 F. Supp. 222, 232 (S.D.N.Y. 1989) ("Allegations that other defendants acted to deceive plaintiffs from filing suit do not plead fraudulent concealment against all defendants.") (emphasis in original); Moore v. Farley, 1989 WL 90176, at *3 (W.D. Pa. Mar. 25, 1989) (same). For example, in Barker, the plaintiffs were fully-vested participants in a company pension plan whose benefits claims were denied for depletion of funds.
See Answer & Countercl. ¶¶ 31–35, ECF No. 5. For the reasons discussed above, the Standards Act sets forth the applicable legal standard for the entire Moffett Award. See supra Part IV.A. Because WMATA did not answer Local 2's counterclaim or address the additional Award provisions in its dispositive motion briefing, the Court will treat Local 2's counterclaim to confirm parts B–C, E–G, and I–N of the Moffett Award (i.e., those not challenged in WMATA's petition) as conceded. See Harris v. Koenig, 722 F.Supp.2d 44, 62 n. 11 (D.D.C.2010). Accordingly, those provisions are confirmed.
As a result, the ERISA class period, and the scope of discovery that relates to that class period, may be different from that of the securities class period. See e.g.,Harris v. Koenig, 722 F.Supp.2d 44, 52-53 (D.D.C.2010) (" [A]lthough the two sets of claims are obviously similar, they differ in significant ways. The ERISA action alleges a longer Class Period than that alleged by the Illinois plaintiffs in their securities case: the ERISA action's Class Period dates back to January 1, 1990, while the Illinois Litigation's Class Period dated back only to November 3, 1994.
As a result, the ERISA class period, and the scope of discovery that relates to that class period, may be different from that of the securities class period. See e.g., Harris v. Koenig, 722 F. Supp. 2d 44, 52-53 (D.D.C. 2010) ("[A]lthough the two sets of claims are obviously similar, they differ in significant ways. The ERISA action alleges a longer Class Period than that alleged by the Illinois plaintiffs in their securities case: the ERISA action's Class Period dates back to January 1, 1990, while the Illinois Litigation's Class Period dated back only to November 3, 1994.").
See Opp. at 3. Harris v. Koenig, No. 02-CV-618, 2010 WL 2560038 (D.D.C. Jun. 10, 2010); Harris v. Koenig, 602 F.Supp.2d 39, 42-44 (D.D.C. 2009); Harris v. Koenig, No. 02-CV-618, ___ F.R.D. ____, 2010 WL 3909507 (D.D.C. Sept. 16, 2010). For present purposes, "Waste Management defendants" and "WM" refer to defendants Waste Management Holdings Inc., Waste Management Retirement Savings Plan, WMI Board of Directors, Waste Management Inc. Profit Sharing and Savings Plan Investment Committee, Waste Management Inc. Profit Sharing and Savings Plan Administrative Committee, and Investment Committee of the Waste Management Retirement Savings Plan. Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Protective Order to Prohibit Defendants' Proposed Deposition of Plaintiffs' Counsel Ellen M. Doyle [#395-1] at 1; Defendants' Opposition to Plaintiffs' Motion for Protective Order to Prohibit Deposition of Ellen M. Doyle ("Opp.") [#396] at 1.
In their January 15, 2010, Motion to Dismiss, the Waste Defendants argued that Plaintiffs cannot simultaneously allege that (1) the ERISA claims in Counts I-V are not subject to the terms of the Illinois Release; and (2) Defendants committed ERISA violations by releasing those same ERISA claims in the Illinois Litigation. This Court rejected that argument in its June 10, 2010, Memorandum Opinion denying the Waste Defendants' Motion to Dismiss, concluding that " Fed.R.Civ.P. 8(d)(3) permits plaintiffs to plead inconsistent claims in support of alternative theories of recovery" and that a fuller record was required to decide whether the release applies to Counts I-V. Harris v. Koenig, No. 02-cv-618, 722 F.Supp.2d 44, 54, 2010 WL 2560038, at *8 (D.D.C. June 10, 2010) (quoting Fed.R.Civ.P. 8(d)(3) (2009) (" A party may state as many separate claims or defenses as it has, regardless of consistency." )).