United States District Court, D. Colorado
M. JAMES NASUTI, Plaintiff,
WHOLE FOODS MARKET a/k/a WFM-WO, INC., Defendant.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
if Plaintiff wished to amend his complaint, he should and
could have sought relief from the stay to do
He did not. Instead, he apparently contends that any claim
splitting argument has been waived by
Defendant. The Court finds the issue remains alive.
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)).
(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 ...