Opinion
Case No. 2:02-CV-598TC.
June 25, 2003.
ORDER
Defendant International Business Machines Corporation ("IBM") moves to dismiss Plaintiff Michael Saville's Complaint due to the rule against claim splitting. Mr. Saville, in turn, moves to consolidate this case with a previously filed case that is pending before the Honorable Dee Benson. For the reasons set forth below, IBM's Motion to Dismiss is GRANTED and Mr. Saville's Motion to Consolidate is DENIED.
The court accepts all the well-plead facts in the Complaint as true. See Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3568 (U.S. Dec. 16, 2002) (No. 02-1234) As regards the information concerning the case now-pending before Chief Judge Benson, the court takes judicial notice of the pleadings and other matters on file in that case. See, St. Louis Baptist Temple v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (court may take judicial notice of its records and files).
Mr. Saville was employed by IBM from the mid-1960s until October 31, 1998. On or about February 12, 1999, Mr. Saville filed charges of discrimination in employment on the basis of age with the Utah Anti-Discrimination Division ("UALD") and the United States Equal Opportunity Commission ("EEOC"). On August 24, 2000, Mr. Saville filed a Complaint in Case No. 2:00-CV-681B ("Saville I") alleging that IBM retaliated against him in violation of the Fair Labor Standards Act ("FLSA"). (Compl. inSaville I, attached as Ex. A to Def's Supp. Mem., ¶ 4.)Saville I is currently pending before Chief Judge Benson.
The EEOC issued Mr. Saville a Notice of Right to Sue letter (the "Notice of Right to Sue") on March 20, 2002. Mr. Saville filed the Complaint in the present case ("Saville II") on June 18, 2002, alleging (1) age discrimination in violation of the Age Discrimination Act of 1967 (the "ADEA"), 29 U.S.C. § 623(a) (2002), (2) unlawful retaliation in violation of the ADEA, and (3) breach of contract. Mr. Saville concedes for the purposes of this motion to dismiss that the two lawsuits he has filed are "based on the same set of underlying facts and transactions." (Def.'s Opp'n Mem. at 6.)
Discussion
Legal Standard
Rule 12(b)(6) authorizes a court to dismiss a complaint if it "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The court must also "view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed." Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). The Tenth Circuit has stated that a "motion to dismiss may be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery." Id.
IBM moves to dismiss the complaint on the ground that Mr. Saville's Complaint is barred by the rule against claim splitting. Mr. Saville opposes IBM's motion to dismiss, arguing that (1) there has been no final judgment in Saville I, as required by doctrine of claim preclusion; and (2) because he did not receive a Notice of Right to Sue from the EEOC until March 2002, he was statutorily prohibited from raising his Title VII claims in Saville I, and therefore, that he should not be barred from raising those claims in the present case. Mr. Saville further contends that the policies behind claim splitting — "avoiding the cost and vexation of multiple lawsuits, depletion of judicial resources, and reducing the possibility of inconsistent decisions" — can be satisfied by allowing him to consolidate the two cases. (Pl.'s Opp'n Mem. at 1-2.)
The rule against claim splitting "prohibits a plaintiff from prosecuting its case piecemeal, . . . and requires that all claims arising out of a single wrong be presented in one action." Myers v. Colgate-Polmolive Co., 102 F. Supp.2d 1208, 1224 (Kan. 2000) (citation omitted), aff'd on other grounds 26 Fed. Appx. 855, available at 2002 WL 27536 (10th Cir. 2002) (unpublished decision). Courts analyze the rule against claim splitting "as an aspect of res judicata," or claim preclusion.Hartsel Springs Ranch of Colorado. Inc. v. Bluegreen Corp., 296 F.3d 982, 986 (10th Cir. 2002). Under the doctrine of claim preclusion, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action."Wilkes v. Wyoming Dep't of Employment Div. of Labor Standards, 314 F.3d 501, 503-04 (10th Cir. 2002) (emphasis in original) (quoting Satsky v. Paramount Communications. Inc., 7 F.3d 1464, 1467-68 (10th Cir. 1993)). Specifically, to apply the doctrine of claim preclusion, "three elements must exist: (1) a [final] judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits." Wilkes, 314 F.3d at 504 (quoting King v. Union Oil Co. of California, 117 F.3d 443, 445 (10th Cir. 1997)). The Tenth Circuit has stated, however, that "a motion to dismiss based on improper claim-splitting need not — indeed, often cannot — wait until the first suit reaches final judgment." Hartsel Springs Ranch, 296 F.3d at 987 n. 1. "Thus, in the claim-splitting context, the appropriate inquiry is whether, assuming that the first suit were already final, the second suit could be precluded pursuant to claim preclusion." Id.
Appellate courts have stated that "[a]s part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit." Curtis v. Citibank. N.A., 226 F.3d 133, 138 (2d Cir. 2000); see Hartsel Springs Ranch, 296 F.3d at 985 (citingCurtis, 226 F.3d at 138). Consequently, the Tenth Circuit has stated that where a "dismissal for claim-splitting was premised in significant measure on the ability of the district court to manage its own docket, . . . the appellate court reviews the dismissal under an abuse of discretion standard." Hartsel Springs Ranch, 296 F.3d at 985; see also Serlin v. Arthur Andersen Co., 3 F.3d 221, 223 (7th Cir. 1993) (recognizing that a court may dismiss suit "for reasons of wise judicial administration . . . whenever it is duplicative of a parallel action already pending in another federal court" (internal quotation omitted) (omission in original)); but see Wilkes, 314 F.3d at 503 (stating that "[w]hether the doctrine of res judicata applies to the case before us is a question of law which we review under the de novo standard" (quoting Satsky v. Paramount Communications. Inc., 7 F.3d 1464, 1467-68 (10th Cir. 1993)).
1. Does the Lack of a Final Judgment on the Merits Preclude Dismissal Due to Claim Splitting?
Mr. Saville concedes that in the present case, "the parties are the same and . . . the suits are based on the same set of underlying facts and transactions." (Pl.'s Opp'n Mem. at 6.) He argues that the fact that Saville I has not proceeded to a final judgment on the merits precludes dismissal based on claim splitting.
The Tenth Circuit "repeatedly has held that all claims arising from the employment relationship constitute the same transaction or series of transactions for claim preclusion purposes.'" Wilkes, 314 F.3d at 504 (quoting Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1202 (10th Cir. 2000)).
As stated above, the Tenth Circuit in Hartsel Springs Ranch, stated that "in the claim-splitting context, the appropriate inquiry is whether, assuming that the first suit were already final, the second suit could be precluded pursuant to claim preclusion." Hartsel Springs Ranch, 296 F.3d at 987 n. 1; see also Myers, 102 F. Supp.2d at 1224 (dismissing a case on the basis of claim splitting where "different suits [were then] pending before the court"). Mr. Saville contends that Hartsel Springs Ranch does not
stand for the proposition that a court can dismiss a second suit because of the rule against claim splitting well before any dispositive motion is even filed in a first suit. Such a decision would eviscerate the public policies behind requiring administrative exhaustion of discrimination claims and would vitiate Federal Rule of Civil Procedure 15, allowing amendment to claims, and Federal Rule of Civil Procedure 42 allowing for consolidation of cases.
(Pl.'s Opp'n Mem. at 10-11); see Hartsel Springs Ranch, 296 F.3d at 987 n. 1. Mr. Saville has cited no case law that supports his claims.
Hartsel Springs Ranch establishes that the finality requirement under the doctrine of claim preclusion does not apply in the claim-splitting context. See Hartsel Springs Ranch, 296 F.3d at 987 n. 1.
2. Do Exhaustion of Remedies Requirements Preclude Dismissal Due to Claim Splitting?
Mr. Saville also contends that because he could not have raised his age discrimination claims before he received a Notice of Right to Sue, his claims are not barred by the rule against claim splitting. Recent Tenth Circuit case law, however, indicates that delays caused by the EEOC administrative process likely do not preclude a dismissal based on the rule against claim splitting. See Wilkes, 314 F.3d 501, 506 (10th Cir. 2002).
In Wilkes, the plaintiff sued her former employer, the Wyoming Department of Employment (the "Wyoming DOE"), under the Equal Pay Act of the FLSA, 29 U.S.C. § 206(d), and 42 U.S.C. § 1983. See Wilkes, 314 F.3d at 503. Shortly after judgment was entered against the defendants in the first suit, the EEOC issued the plaintiff a right-to-sue letter. See id. The plaintiff then filed a second action against the Wyoming DOE, "alleging violations of Title VII and the Wyoming Fair Employment Practice Act." Id. The district court "granted summary judgment in favor of Wyoming DOE on the basis of claim preclusion." Id.
On appeal, the Tenth Circuit rejected the plaintiff's argument "that claim preclusion should not bar her second suit because she was statutorily prohibited from bringing her Title VII claim until she received her right-to-sue letter from the EEOC." Id. at 505. The court explained that the First, Third, Sixth, Ninth, and Eleventh Circuits had rejected similar arguments. See id. (listing cases and discussing Woods v. Dunlop Tire Corp., 972 F.2d 36, 41 (2d Cir. 1992)). The court explained that the plaintiff
could have requested a right-to-sue notice after [the 180-day investigation period expired], and amended her complaint to add her Title VII claim. Alternatively, [the plaintiff] could have filed her equal pay claim against the Wyoming DOE and then sought a stay in the district court until completion of the EEOC administrative process. After receiving her right-to-sue letter, [the plaintiff] could have added her Title VII claim to her initial lawsuit by amending her complaint pursuant to Federal Rule of Civil Procedure 15.Id. Accordingly, the court held that the plaintiff's Title VII claim was barred by the doctrine of claim preclusion. Id. at 506; see also Meyers v. Colgate-Palmolive Co., 102 F. Supp.2d 1208, 1224 (Kan. 2000) (dismissing an ERISA case under the rule against claim splitting where the plaintiff had previously filed a case under the ADEA and Title VII, because the plaintiff "had an opportunity to amend her ADEA/Title VII complaint to add ERISA or other claims, but failed to do so"), aff'd on other grounds 26 Fed. Appx. 855, available at 2002 WL 27536 (10th Cir. 2002) (unpublished decision).
Wilkes involved claim preclusion, not claim splitting. See Wilkes, 314 F.3d at 506. As explained above, however, courts analyze claim splitting as an aspect of claim preclusion. See Hartsel Springs Ranch, 296 F.3d at 986. Consequently, theWilkes court's rejection of an exhaustion of remedies argument in the context of claim preclusion likely applies in the claim-splitting context, as well. See id.
In the present case, the EEOC did not issue the Notice of Right to Sue until March 20, 2002. Mr. Saville admits that after receiving his Notice of Right to Sue, he could have sought leave to amend the Complaint in Saville I or "file a separate action and move to consolidate the two cases." (See Pl.'s Opp'n Mem. at 8.) Mr. Saville says that he did not choose the former option due to the ninety-day window in which he could have filed a lawsuit after receiving the Notice of Right to Sue. (See id.); 42 U.S.C. § 2000e-5(f)(1) (providing that an aggrieved person may file a civil action "within ninety days" after receiving a notice of right to sue). Mr. Saville "did not want to run [the] risk" that the court would not act on his motion to amend prior to the expiration of the ninety-day period. (Pl.'s Opp'n Mem. at 8.) Instead, Mr. Saville states that he brought his age discrimination claims "[a]s soon as he had" a Notice of Right to Sue. (Id.)
As in Wilkes, Mr. Saville could have filed his breach of contract claim against IBM when he filed a Complaint in Saville I on August 24, 2000 "and then sought a stay in the district court until completion of the EEOC administrative process."Wilkes, 314 F.3d at 506. Mr. Saville also had the opportunity in late March 2002 to seek amendment of the Complaint inSaville I to add his ADEA discrimination and retaliation claims. See id.; (Notice of Right to Sue of 3/20/02, attached as last Ex. to Pl.'s Opp'n Mem.). Further, the timing of Mr. Saville's filings indicates that he did not act "out of an abundance of caution" or file a Complaint in Saville II "[a]s soon as he had authorization from the [appropriate] government agency," as he claims. (Pl.'s Opp'n Mem. at 8, 9.) After receiving the Notice of Right to Sue, Mr. Saville waited almost three months — during which time he engaged in mediation inSaville I — to file his age discrimination lawsuit. As IBM explains, Mr. Saville "chose to wait until June 18, 2002, the last possible day, and file the Complaint in IBM v. Saville II." (Def's Reply Mem. at 5.) Further, Mr. Saville did not move to consolidate Saville I and Saville II until after IBM moved to dismiss, which was more than four months after filing the Complaint in the present case.
Additionally, IBM explains that it "has already devoted significant resources reviewing voluminous documents, serving and responding to written discovery requests, and conducting a three-day deposition of Saville in Saville v. IBM I." (Def's Reply Mem. at 4.) IBM states that if it were "required to defend Saville's contract claim, it [would] have to start this process all over again." (Id.); see Myers, 102 F. Supp.2d at 1224 (stating that permitting a plaintiff to pursue claims brought in a second lawsuit would, among other things, "put the parties to the coset and vexation of multiple lawsuits [and] deplete judicial resources").
In sum, Wilkes indicates that Mr. Saville's exhaustion of claims argument — namely that claim splitting should not barSaville II from proceeding because Mr. Saville was statutorily prohibited from bringing his ADEA claims until he received a Notice of Right to Sue — does not preclude a dismissal due to claim splitting. See Wilkes, 314 F.3d at 506. Mr. Saville failed to include his breach of contract claim in Saville I and failed to amend the Saville I complaint to include his ADEA claims once he received the Notice of Right to Sue. Consequently, he "cannot now seek to remedy [these] defect[s] by bringing another suit naming the identical plaintiff, the identical defendant, and identical operative facts." Myers, 102 F. Supp.2d at 1224.
Accordingly, the court GRANTS IBM's Motion to Dismiss. Because this lawsuit is dismissed, the court DENIES Mr. Saville's Motion to Consolidate as moot.
IT IS SO ORDERED.