Opinion
Civil Action No. 19-cv-00509-RM-KMT
03-18-2019
M. JAMES NASUTI, Plaintiff, v. WHOLE FOODS MARKET a/k/a WFM-WO, INC., Defendant.
ORDER
This matter is before the Court on Defendant's Notice of Motion to Consolidate (ECF No. 19), which advises that a Motion to Consolidate was filed in Civil Action No. 18-cv-03295-RM-KMT (Nasuti I) (Nasuti I, ECF No. 34) seeking to consolidate this Civil Action No. 19-cv-00509-RM-KMT (Nasuti II) with Nasuti I. Both cases were removed from state court to this federal court. The Court takes judicial notice of the record in Nasuti I. Upon consideration of the record in both cases and applicable law, and being otherwise fully advised, the Court issues an order to show cause as to why this action - Nasuti II - should not be dismissed for violation of the stay order in Nasuti I and for improper claim splitting.
There are now two complaints by the same Plaintiff against the same Defendant in the same court arising from the same core set of facts from which these actions arise - Defendant's alleged employment discrimination. Nasuti I, the first filed case, has been stayed pending resolution of Plaintiff's motion to remand and Defendant's motion to dismiss. Plaintiff's motion to remand has been denied; Defendant's motion to dismiss remains pending. Unhappy with the stay ordered in Nasuti I, Plaintiff filed a second action in state court, Nasuti II, which Defendant removed to this court. Plaintiff explained his action as follows:
As Plaintiff has been summarily barred from early, informal and Rule 26 discovery, the Court has placed him in a bind. Plaintiff has, in just the last few days, discovered a new way to evade the discovery ban and creatively name other likely Defendants using Colorado law.(Nasuti I, ECF No. 31, p. 3 n.1 (emphasis added).) Such action will not be countenanced.
The Court finds that Plaintiff's actions are an intentional violation of this court's stay order in Nasuti I and that Plaintiff is improperly splitting his cause of action, which this Court raises sua sponte, Alyeska Pipeline Serv. Co. v. United States, 688 F.2d 765, 771 (Ct. Cl. 1982). Under either scenario, Nasuti II is subject to dismissal.
Pursuant to D.C.COLO.LCivR 41.1, "[a] judicial officer may issue an order to show cause why a case should not be dismissed for ... failure to comply with these rules, the Federal Rules of Civil Procedure, or a court order. If good cause is not shown, a district judge ... may enter an order of dismissal with or without prejudice." By his own admission, Plaintiff filed Nasuti II to "evade" the stay ordered in Nasuti I.
But, that is not the only concern raised by Plaintiff's actions. "District courts have discretion to control their dockets by dismissing duplicative cases." Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011). "The rule against claim-splitting requires a plaintiff to assert all of its causes of action arising from a common set of facts in one lawsuit. By spreading claims around in multiple lawsuits in other courts or before other judges, parties waste 'scarce judicial resources' and undermine the efficient and comprehensive disposition of cases.'" Katz, 655 F.3d at 1217 (quoting Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 985 (10th Cir. 2002)). See Stone v. Dep't of Aviation, 453 F.3d 1271, 1278 (10th Cir. 2006) ("Critically, that doctrine requires a plaintiff to join all claims together that the plaintiff has against the defendant whenever during the course of the litigation related claims mature and are able to be maintained." (emphasis in original)).
Thus, if Plaintiff wished to amend his complaint, he should and could have sought relief from the stay to do so. He did not. Instead, he apparently contends that any claim splitting argument has been waived by Defendant. The Court finds the issue remains alive.
That is not to say that any amendment would have been, or would be, allowed absent a showing of compliance with all applicable federal and local rules and that leave to amend should be given.
Nasuti I, ECF No. 31, p. 1 n.1.
In summary, in light of the foregoing, the Court finds the complaint in Nasuti II is subject to dismissal. Katz, supra (affirming district court's dismissal based on improper claim splitting); see Stone, 453 F.3d at 1279 (recognizing "plaintiff's obligation to assert claims arising out of the same transaction continues throughout the course of the litigation" (emphasis added)).
It is therefore ORDERED
(1) That on or before Friday, March 29, 2019, Plaintiff shall SHOW CAUSE why this action should not be dismissed due to his violation of the stay order in Nasuti I and due to improper claim splitting of his case;
(2) That this action is stayed for all purposes other than a determination of the show cause order;
(3) That any party seeking relief from the stay for any reason must: (i) file a motion for relief from the stay; and (ii) attach any motion he/it wishes to file
in this case for consideration. The failure to do so will result in the motion being summarily denied;
(4) That the parties shall comply with all applicable rules and law relevant to any motion they seek to file, including meaningful conferral. Absent exigent circumstances, requesting the opposing party if he/it has any objection to a motion on the date in which the motion is filed does not constitute meaningful conferral and such motion will be summarily denied; and
(5) That Defendant's Motion to Stay Proceedings or, in the Alternative, for Extension of Time to File Responsive Pleading (ECF No. 25) is denied without prejudice as moot.
DATED this 18th day of March, 2019.
BY THE COURT:
/s/_________
RAYMOND P. MOORE
United States District Judge