Opinion
CA No. 3:04-CV-960-R.
April 6, 2005
MEMORANDUM OPINION
Now before this Court is DEFENDANT'S MOTION TO DISMISS (filed May 25, 2004). For the reasons discussed herein, Plaintiff's motion is GRANTED.
I. BACKGROUND
In evaluating this motion, this Court must consider the content and chronology of two lawsuits that this Plaintiff, Michael Marak, has filed against this Defendant, Dallas/Forth Worth International Airport Board.A. The First Lawsuit
Plaintiff filed his first lawsuit against Defendant, Civil Action No. 3:03-CV-1883-R, on August 21, 2003 (the "First Lawsuit"). The First Lawsuit was assigned to this Court. In the Second Amended Complaint (filed November 17, 2003) from the First Lawsuit, Plaintiff made the following claims against the Defendant: (1) that the Defendant was liable under 42 U.S.C. § 1983 for violating Plaintiff's first amendment rights, (2) that the Defendant tortiously interfered with a contract, namely Plaintiff's retirement plan, (3) that Defendant terminated Plaintiff's employment in violation of the Texas Commission on Human Rights Act and the Age Discrimination in Employment Act, and (4) that Defendant violated Plaintiff's rights under the Family and Medical Leave Act.
Thereafter, Defendant timely filed a Motion to Dismiss to which Plaintiff never responded. Plaintiff obtained several extensions of time and twice represented that a Response would be filed, yet Plaintiff never filed a response to the Motion to Dismiss in the First Lawsuit. As a result, in response to Defendant's Notice of Plaintiff's Default (filed March 10, 2004), this Court signed an Order dismissing the First Lawsuit. This Court denied Defendant's Motion for Leave to Amend (filed March 25, 2004) and Motion for Reconsideration (filed March 29, 2004) and issued a Final Judgment of Dismissal Without Prejudice on April 28, 2004.
As spelled out to the parties in the Scheduling Order (entered October 1, 2003), this Court requires a Joint Submission of Dispositive Motions. Plaintiff adhered to the rules in serving Defendant with its motion simultaneously with filing notice of its motion with the Clerk of the Court on December 8, 2003.
Rather than voluntarily terminating the First Lawsuit and refiling suit against the Defendant, Plaintiff persisted efforts in the First Lawsuit. Plaintiff first filed a Motion to Amend Judgment (May 5, 2004), which this Court denied (entered June 15, 2004), and subsequently filed Notice of Appeal (July 15, 2004). Record of the First Lawsuit went on appeal before the United States Court of Appeals for the Fifth Circuit, styled USCA Case No. 04-10845. On March 2, 2005, the Fifth Circuit reversed this Court's dismissal of the First Lawsuit. In accordance with the Fifth Circuit's ruling, this Court re-opened the First Lawsuit, Civil Action No. 3:03-cv-1883.
B. The Present Lawsuit
Plaintiff filed his complaint in the lawsuit presently before this Court, Civil Action No. 3:04cv-0960-R, (the "Present Lawsuit") on May 5, 2004, the same day he filed Motion to Amend Judgment in the First Lawsuit. The Present Lawsuit was originally assigned to Judge Godbey and later transferred this Court. In his Complaint, Plaintiff makes only two claims against Defendant, both which he asserted word-for-word in his Second Amended Complaint of the First Lawsuit.
Count One of the Complaint in the Present Lawsuit alleges that Defendant terminated Plaintiff's employment in violation of the Texas Commission on Human Rights Act and the Age Discrimination in Employment Act, and Count Two alleges Defendant violated Plaintiff's rights under the Family and Medical Leave Act. In Plaintiff's Second Amended Complaint from the First Lawsuit, these two claims were entitled Count Three and Count Four, respectively.
II. ANALYSIS
Defendant seeks dismissal of this action on the grounds that Plaintiff has "no right to maintain two separate actions involving the same subject matter at the same time in the same court against the same Defendant." Defendant argues that because (1) all facts alleged and prayers for relief in the Present Lawsuit are identical to those made in the First Lawsuit and because (2) the First Lawsuit is still pending while Plaintiff seeks appeal, all Defendant's claims in the Present Lawsuit should be dismissed.A. Standard of Review
In considering Defendant's motion, this Court must accept all well-pleaded facts as true and view the facts in the light most favorable to Marak. See Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). "[A] claim may not be dismissed unless it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
B. Plaintiff's Choice to Maintain Pendency of First Lawsuit
A district court has the authority to dismiss a duplicative claim filed by the same plaintiff. Friends of the Earth v. Crown Central Petroleum, 95 F.3d 358, 362 (5th Cir. 1996). A plaintiff simply does not have the right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant. Walton v. Eaton Corp, 563 F.2d 66, 70 (3rd Cir. 1977). "When a plaintiff files a second complaint alleging the same cause of action as a prior, pending, related action, the second complaint may be dismissed." Oliney v. Gardner, 771 F.2d 856, 859 (5th Cir. 1985). As a matter of policy, "There is no reason why a court should be bothered or a litigant harassed with duplicating lawsuits on the same docket." Walton, 563 F.2d at 70 (citing Sutcliffe Storage and Warehouse Co. v. United States, 162 F.2d 849, 851 (1st Cir. 1947)).
The Present Lawsuit is clearly duplicative of the First Lawsuit. Mr. Marak's Complaint in the Present Lawsuit alleges no different cause of action from the First Lawsuit, it involves the identical subject matter, and it was filed in the same court against the same defendant. The Complaint of the Present Lawsuit so clearly arises from the first case that a more fitting title for it might be "Third Amended Complaint." This Complaint simply drops two of the claims asserted in the Second Original Complaint of the First Lawsuit. Plaintiff neither brings any new claim nor alters any claim asserted in the First Lawsuit.
Tracking changes from the Second Amended Complaint in the First Lawsuit to the Original Complaint of the Present Lawsuit two, Plaintiff simply drops two claims. Besides the two dropped counts, and elimination of background info relevant to the dropped counts, the only other identifiable change is the change in the name of the law firm representing the Plaintiff.
In his Response to Defendant's Motion to Dismiss (filed June 14, 2004), Plaintiff rests his argument for denying this motion on the grounds that the First Lawsuit was dismissed without prejudice. Granted, this Court dismissed the First Lawsuit without prejudice. Had Plaintiff at that point voluntarily terminated that case, he would have been free to re-file his claims as a new action. Instead, Plaintiff chose to appeal Final Judgment. The Fifth Circuit has spoken, and the First Lawsuit is again alive and pending in district court. Plaintiff has no right to maintain both suits — Plaintiff made his choice in filing the appeal.
Because the 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, this Court finds that the Present Lawsuit should be dismissed.
III. CONCLUSION
For all the foregoing reasons, Defendant's Motion to Dismiss is hereby GRANTED. Plaintiff's claims against Dallas/Fort Worth International Airport Board are hereby DISMISSED WITH PREJUDICE. Each party shall bear its own costs.
IT IS SO ORDERED.