The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.
Presently before the Court is the motion of the defendant Hygrade Food
Products ("Hygrade") to dismiss the hiring, promotion and termination
claims of plaintiffs James C. Miller, Ralph Brown, Vincent Gray, Charles
Knight, Michael Jones, Harold G. Williams, Jerry Hemingway, Barry C.
James and Dwayne Jackson (Document No. 24) for lack of standing, the
motion of Hygrade for a protective Order limiting the scope of plaintiffs
written discovery related to plaintiffs' hiring, promotion and
termination claims (Document No. 38), and the motion of Hygrade for a
protective Order limiting the temporal scope of plaintiffs written
discovery (Document No. 37), as well as the responses and replies
thereto. Also before the Court is the motion of plaintiffs to join
additional parties (Document No. 35) and the response thereto. For the
reasons set forth below, the motion of Hygrade to dismiss the hiring,
promotion and termination claims for lack of standing will be denied.
Accordingly, the motion for a protective Order limiting the scope of the
plaintiffs' written discovery will also be denied. The motion for a
protective Order limiting the temporal scope of the plaintiffs' written
discovery will be granted. Finally, the motion to join additional parties
will be denied.
Hygrade employs approximately 300 employees at its Philadelphia
facility, approximately 58% of whom are minorities. Hygrade produces and
packages hot dogs, bacon and ham at its Philadelphia facility. Nine
current employees at Hygrade's Philadelphia facility initiated this
lawsuit, seeking to represent a broad-based class of all
African-Americans employed at or who have sought employment at the
Philadelphia facility during the last decade. Plaintiffs allege that
Hygrade has engaged in a pattern and practice of race discrimination and
racial harassment. Specifically, plaintiffs allege that Hygrade has
discriminated against African-Americans with regard to hiring,
promotion, compensation, work assignments, training and disciplinary
practices, including discharge. The complaint contains factual allegations
describing discrimination against African-Americans in different job
categories and in different forms. Many of the factual allegations
describe situations in which African-American employees were treated
differently than similarly situated white employees.
In a charge filed with the EEOC by named plaintiff Miller (and which is
representative of the type of charge filed by other named plaintiffs),
Miller alleges that Hygrade has "engaged, and continue to engage, in a
pattern and practice of racial discrimination and racial harassment
against African-American employees with regard to the terms and
conditions of their employment." (Plaintiffs Answer to Defendant
Hygrade's Motion to Dismiss Plaintiffs Hiring, Promotion and Termination
Claims and Plaintiffs Cross-Motion to Join Additional Parties,
("Plt.Mem."), Exh. G, ¶ 2). Miller also alleges that "the pattern and
practice of discrimination and racial harassment has created, and
continues to create, a hostile and abusive work environment." (Id.).
Miller further alleges that the defendants "have discriminated against
African-American employees because of their race with regard to
supervisory or managerial positions, work assignments and discipline."
(Id., at ¶ 3). Finally, Miller asserts that he has filed the charge
as a representative of and on behalf of all African-American employees at
the Philadelphia plant. (Id. at ¶ 1).
Article III of the United States Constitution confines the jurisdiction
of federal courts to "Cases" and "Controversies." Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To
present a justiciable "case" or "controversy" over which the federal
courts have subject matter jurisdiction, a plaintiff must have standing.
Id. at 560-61, 112 S.Ct. 2130 (standing is an "indispensable part of the
plaintiffs case" and "must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof"). Standing is
the determination of whether a specific person is the proper party to
bring a particular matter to a federal court for adjudication. Warth v.
Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Standing
involves a blend of constitutional requirements and prudential
considerations. Valley Forge Christian College v. Americans United for
Separation of Church & State, 454 U.S. 464, 471, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982). The "irreducible constitutional minimum" of standing
contains three elements:
First, the plaintiff must have suffered an "injury
in fact" — an invasion of a legally protected
interest which is (a) concrete and particularized,
and (b) "actual or imminent, not `conjectural' or
`hypothetical.'" Second, there must be a causal
connection between the injury and the conduct
complained of — the injury has to be "fairly
. . . trace[able] to the challenged action of the
defendant, and not the result [of the independent
action of some third party not before the court."
Third, it must be "likely," as opposed to merely
"speculative," that the injury will be "redressed by
a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130
(internal citations omitted, brackets and omissions in original).*fn1
The party invoking federal jurisdiction has the burden of establishing
these elements. Id. at 561, 112 S.Ct. 2130.
A challenge to the standing of a party raises the issue of
justiciability and implicates the subject matter jurisdiction of a
federal district court. Therefore, a motion to dismiss for want of
standing is properly brought pursuant to Fed.R.Civ. Pro. 12(b)(1).
Tri-County Concerned Citizens Assoc. v. Carr, 1998 WL 966019, at *3
(E.D.Pa. Nov.20, 1998); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION
§§ 2.1, 2.3 (1994); 13A CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD
H. COOPER, FEDERAL PRACTICE & PROCEDURE, CIVIL 2D, § 3531.15, at 95
n. 9 (2d ed. 1984). Generally, when ruling on a motion to dismiss
pursuant to Fed.R.Civ.Pro. 12(b)(1), "a district court is not limited to
the face of the pleadings. Rather, as long as the parties are given an
opportunity to contest the existence of federal jurisdiction, the court
`may inquire, by affidavit or otherwise, into the facts as they exist.'"
Armstrong World Indus. v. Adams, 961 F.2d 405, 410 n. 10 (3d Cir. 1992)
(quoting Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed.
1209 (1947) (citations omitted)). Nevertheless, for purposes of ruling on
to dismiss for want of standing, as here, the trial court "must accept as
true all material allegations of the complaint, and must construe the
complaint in favor of the complaining party." Warth, 422 U.S. at 501, 95
Finally, the standard for determining standing is not static. At the
pleading stage, as here, "general factual allegations of injury resulting
from the defendant's conduct may suffice, for on a motion to dismiss we
`presum[e] that general allegations embrace those specific facts that are
necessary to support the claim.'" Lujan v. Defenders of Wildlife,
504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan
v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 111
L.Ed.2d 695 (1990)); Anjelino v. New York Times Co., 200 F.3d 73, 90 (3d
Cir. 1999) (for purposes of standing, "nothing beyond a colorable
allegation of injury is required of the Title VII plaintiff" at the
pleading stage). In contrast, at summary judgment, "the plaintiff can no
longer rest on such `mere allegations,' but must `set forth' by affidavit
or other evidence `specific facts,' Fed.Rule Civ.Proc. 56(e), which for
purposes of the summary judgment motion will be taken to be true." Lujan,
504 U.S. at 561, 112 S.Ct. 2130.
Hygrade argues that the named plaintiffs, as current employees who have
not been denied a promotion, have not alleged an "injury in fact" as a
result of its hiring, termination or promotion practices and, therefore,
these claims should be dismissed. In conjunction with its motion to
dismiss, Hygrade also moves for a protective order from the plaintiffs
discovery requests with respect to their hiring, termination and
promotion practices. Plaintiffs counter by arguing that they have standing
to bring an "across-the-board" action and that Hygrade has conflated the
analysis of standing with the requirements of typicality and commonality
under Federal Rule of Civil Procedure 23. Nonetheless, in an abundance of
caution, plaintiffs also move to join additional parties.
1. Across-the-board Class Actions
The expansive "across-the-board" class action attack on employment
discrimination was first articulated by Court of Appeals for the Fifth
Circuit more than two decades ago. Johnson v. Georgia Highway Express,
Inc., 417 F.2d 1122, 1124 (5th Cir. 1969); see also Wagner v. Taylor,
836 F.2d 578, 588-90 (D.C.Cir. 1987) (collecting cases and discussing
"across-the-board" approach to Title VII class certification); Weizel v.
Liberty Mut. Ins. Co., 508 F.2d 239, 247 (3d Cir.), cert. denied
421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). This approach was
subsequently recognized by ...