United States District Court, D. Colorado
M. JAMES NASUTI, Plaintiff,
WHOLE FOODS MARKET a/k/a WFM-WO, INC., Defendant.
ORDER OF DISMISSAL WITHOUT PREJUDICE
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's response (ECF
No. 27) to the Court's Order (ECF No. 26) to show cause
why this action (Nasuti II) should not be dismissed
for violation of the stay order issued in 18-cv-03295-RM-KMT
(Nasuti I) and for improper claim splitting.
Plaintiff raises several arguments in response, which the
Court considers - and rejects - in turn.
Plaintiff appears to argue dismissal would be improper
because he has a Rule 65 motion pending which seeks a
preliminary and/or final RICO injunction. Plaintiff's
argument misses the mark - the issue is not what motions may
be pending but, rather, whether this case was improperly
brought in the first instance. Further, Plaintiff argues if
this Court dismisses this action, then it should do so as a
denial of the Rule 65 motion. But, any dismissal would render
the Rule 65 motion moot. Thus, Plaintiff's arguments fail to
show that dismissal is not warranted.
Plaintiff asserts the Order is somehow an abuse of this
Court's authority. Plaintiff is a licensed attorney but
provides no facts or legal authority to show it is so. On the
contrary, D.C.COLO.LCivR 41.1 (cited in the Order)
specifically authorizes the Court to issue show cause orders.
Moreover, it is well recognized that federal courts have
inherent authority “to impose sanctions to regulate
their docket, promote judicial efficiency and to deter
frivolous filings.” E.g., Schwarz v.
F.B.I., 1998 WL 667643, *3, 161 F.3d 18 (10th Cir. 1998)
(Table Decision) (citing Roadway Express, Inc. v.
Piper, 447 U.S. 752, 764-67 (1980); Van Sickle v.
Holloway, 791 F.2d 1431, 1437 (10th Cir. 1986));
Xlear, Inc. v. Focus Nutrition, LLC, 893 F.3d 1227,
1234 n.2 (10th Cir. 2018) (recognizing inherent powers of
federal court to sanction a party, including awarding
attorney's fees); Xyngular v. Schenkel, 890 F.3d
868, 873 (10th Cir. 2018), cert. denied sub nom. Schenkel
v. Xyngular Corp., 139 S.Ct. 803 (2019) (Stating a
district court “may exercise its inherent powers to
sanction bad-faith conduct that abuses the judicial process,
including pre-litigation acts that directly affect a
lawsuit.”). And, on this record, the Court finds the
sanction of dismissal without prejudice is
Plaintiff argues his actions in filing this lawsuit -
Nasuti II - does not violate the Magistrate
Judge's stay order in Nasuti I. The Court would
agree but for Plaintiff's admitted rationale for
filing Nasuti II - to “evade the discovery
ban” in Nasuti I.
Plaintiff contends because he openly admitted his intent to
evade the discovery ban ordered in Nasuti I before
he filed Nasuti II, this Court somehow
“approv[ed]” the filing of Nasuti II. In
other words, Plaintiff contends this Court implicitly or
tacitly gave Plaintiff free reign to ignore the Magistrate
Judge's stay order. This contention is specious; there
was no implicit or tacit imprimatur of any such conduct.
Plaintiff argues that if the Court dismisses Nasuti
II, it must then dismiss Nasuti I, as it is
allegedly too late to “add correct Defendants” to
Nasuti I. Plaintiff provides neither facts nor legal
authority to support this argument. Further, Plaintiff argues
the stay order in Nasuti I barred him from
amending but the record shows otherwise. The
Court's show cause order stated if Plaintiff wished to
amend, he should and could have sought leave to do so in
Nasuti I, but did not. While that is true
before Plaintiff filed Nasuti II, the
record shows Plaintiff did seek to do so after the
filing of Nasuti II showing he was well aware the
stay order did not constitute a wholesale motion ban in
Nasuti I. (Nasuti I, ECF No. 35
(Plaintiff's “motion to recaption”).) And,
Plaintiff's request to amend in Nasuti I was
denied not because of any motion or amendment ban but because
Plaintiff failed to comply with the applicable rules and meet
the applicable standards for amendment. (Nasuti I,
ECF No. 39 (order denying leave to recaption or amend).)
Finally, if Plaintiff wishes to dismiss Nasuti I,
there are mechanisms by which he may do so. That decision is
Court's inquiry, however, does not end with what
Plaintiff raises or addresses in his response. Instead, what
is telling is what Plaintiff fails to address. The
Order also directed Plaintiff to address claim splitting but
his response here is wanting. As stated in the Order, 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.
Plaintiff's response fails to show why this Court should
not dismiss Nasuti II as a duplicative case. Under
the applicable law, the Court finds Plaintiff's filing of
Nasuti II is subject to dismissal as it wastes
scarce judicial resources and undermines the efficient and
comprehensive disposition of cases. Katz v. Gerardi,
655 F.3d 1212, 1217 (10th Cir. 2011) (“District courts
have discretion to control their dockets by dismissing
duplicative cases.”); 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)).
Court needs go no further. For the reasons elucidated above,
it is ORDERED
(1) That the Order to show cause (ECF No. 26) is made
(2) That this action is dismissed without prejudice and the
Clerk shall enter judgment accordingly; and
(3) That the Clerk shall close this case.