Opinion
Civil Action 22-cv-00267-MEH
06-07-2022
DANIEL L. HERRICK, Plaintiff, v. VAIL CORP., Defendant.
ORDER
Michael E. Hegarty, United States Magistrate Judge
This matter comes before the Court sua sponte. Plaintiff, proceeding pro se, initiated two civil actions against Defendant Vail Corporation on the same day, January 31, 2022, to which the Clerk of Court assigned the case numbers of 22-cv-00266 and 22-cv-00267. In both lawsuits, Plaintiff raises the same claim of unlawful termination.
Plaintiff's employment with Defendant began in November 2018. Plaintiff alleges he suffers from depression of which Defendant first learned on January 8, 2021 when he requested sick leave. In early March 2021, he was working as a Ticket Seller when an angry customer treated him harshly. On March 10, 2021, he complained to Defendant's Human Resources department that his immediate supervisor did not help him with that situation. He requested a transfer to another work site with different supervisors. On March 16, 2021, Defendant's Human Resources department fired him. Thereafter, he twice wrote the Human Resources department, first on March 25, 2021 and again on September 10, 2021. Both communications resulted in visits by law enforcement. Ultimately, no criminal charges were brought, but Plaintiff remains subject of a lifelong ban from Defendant's property.
In both civil actions, Plaintiff sues Defendant for unlawful employment discrimination on the basis of disability in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. He alleges the failure to accommodate his disability, unlawful termination, retaliation, and use of law enforcement to harass and intimidate him. Plaintiff attaches to both complaints the same Dismissal and Notice of Rights letter from the U.S. Employment Opportunity Commission dated November 8, 2021.
The parties consented to magistrate trial jurisdiction. As a result-at ECF 18 filed in 22-cv-00266 and at ECF 18 filed in 22-cv-00267-U.S. Magistrate Judge Nina Y. Wang became the presiding judge over both cases. Thereafter, upon Judge Wang's recusal, the two cases were reassigned to the undersigned U.S. Magistrate Judge.
The Court notes that both lawsuits remain in the very early stage of development. Defendant has not yet answered either complaint, and no Scheduling Conferences have been held.
While not exact duplicates, a sua sponte review of the complaints show them to be nearly identical. They concern the same persons (litigants and non-parties) and the same employment grievances. However, “[a] plaintiff has no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.” Bradley v. Phila. Police Dep't, No. 20-cv-1016, et al., 2020 WL 1435125, at *9 (E.D. Penn. Mar. 24, 2020) (citing Walton v. Eaton Corp., 563 F.2d 66, 70 (3rd Cir. 1977) (internal citation omitted)). In such a situation, a court has the “power to dismiss or stay a duplicative lawsuit.” Id. The Court sees no need to maintain two parallel proceedings, and it presumes that Plaintiff commenced the second civil action in error. As such, the Court finds that the later-filed case of 22-cv-00267 should be closed for administrative purposes and that all litigation activity proceed in the first-filed case of 22-cv-00266, as was done in Lieblein v. Ersek, 14-cv-00144-MSK-KLM, et al., 2015 WL 73815, at *2 (D. Colo. Jan. 5, 2015) and LNC Communities II, LLC v. Am. Safety Risk Retention Grp., Inc., No. 11-cv-01839-MSK-KMT, 2011 WL 4443315, at *1-2 (D. Colo. Sept. 22, 2011).
Pursuant to the inherent authority to manage its docket that the above case law expresses and Fed.R.Civ.P. 42(a)(3), the Court directs the Clerk of Court to close Case No. 22-cv-00267-MEH for administrative purposes. The closure of that case is without prejudice to the parties' ability to litigate all claims and defenses from it as part of Case No. 22-cv-00266-MEH.
Defendant's Second Unopposed Motion for Extension of Time to Respond to Plaintiff's Complaint [filed June 6, 2022; ECF 28] is denied as moot.