United States District Court, D. Columbia.
Decided April 10, 2014
For BETTY CLAYTON, Plaintiff: Levi S. Zaslow, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, MD.
For DISTRICT OF COLUMBIA, Defendant: Chad Alan Naso, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA, Washington, DC; Douglas Stuart Rosenbloom, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.
For DISTRICT OF COLUMBIA NATIONAL GUARD, Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC.
RICHARD W. ROBERTS, Chief United States District Judge.
In the instant action, Plaintiff Betty Clayton sues the District of Columbia (" the District" ) and the District of Columbia
National Guard alleging discrimination and retaliation under Title VII. Clayton moves under Federal Rule of Civil Procedure 42(a) to consolidate this action (" Clayton II" ) with Clayton v. District of Columbia, et al., Civil Action No. 11-1889 (RWR) (D.D.C., filed Oct. 26, 2011) (" Clayton I" ). Because Clayton is claim-splitting by raising two Title VII causes of action in Clayton II that have now been added in Clayton I, Clayton's motion for consolidation will be denied and Clayton II will be dismissed.
In Clayton I's first amended complaint, Clayton alleged the District of Columbia and the District of Columbia National Guard violated the District's Whistle Blower Protection Act, and made claims of retaliative termination, wrongful termination, and violation of due process rights. Clayton I, First Am. Compl. at ¶ ¶ 86-107. Additionally, Clayton requested a declaratory judgment stating that the District law that allowed an adverse change in her employment status is unconstitutional. Id. at ¶ ¶ 108-117. Clayton then received a right-to-sue letter to add Title VII claims to Clayton I. Clayton I, Mem. P. & A. Supp. Pl.'s Mot. Leave Amend Compl. at 1. She filed for leave to amend Clayton I to include Title VII claims of retaliation and sex discrimination. Id. While awaiting a decision on her request for leave to amend Clayton I, Clayton became concerned that the time allowed under her right to sue letter to add the Title VII claims would expire before she received leave to amend. Clayton II, Mem. P. & A. Supp. Pl.'s Mot. Consolidation at 1-2 (" Pl.'s Mem. Supp. Consolidation" ). As a precaution, Clayton filed Clayton II, which makes claims of retaliation and sex discrimination under Title VII based on the same facts as are alleged in Clayton I. Id. Clayton received leave to amend Clayton I on November 21, 2013, see Clayton I, 999 F.Supp.2d 178, 2013 WL 6118682 (D.D.C. Nov. 21, 2013), and filed a second amended complaint including the two Title VII claims on the same day. See Clayton I, Pl.'s Second Am. Compl.
The District has filed a motion to dismiss Clayton II, averring claim-splitting and failure to state a claim. See Clayton II, Def.'s Omnibus Mem. Supp. Mot. Dismiss. & Opp'n Pl.'s Mot. Consolidate (" Def.'s Omnibus Mem." ). Clayton then filed the instant motion to consolidate. See Clayton II, Pl.'s Mot. Consolidation. Clayton argues that consolidation is appropriate, expeditious, economical, and practicable because both cases arise from identical factual bases, will have substantially the same witnesses, and require the resolution of substantially similar factual and legal issues. See Clayton II, Pl.'s Mem. Supp. Consolidation.
The court has broad discretion in deciding whether to consolidate actions before it that involve " common question[s] of law or fact." Fed.R.Civ.P. 42(a);
Biochem Pharma, Inc. v. Emory Univ., 148 F.Supp.2d 11, 13 (D.D.C. 2001). " [C]onsolidation is a purely ministerial act which . . . relieves the parties and the Court of the burden of duplicative pleadings and Court orders."
New York v. Microsoft Corp., 209 F.Supp.2d 132, 148 (D.D.C. 2002). " [C]onsolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97, 53 S.Ct. 721, 77 L.Ed. 1331 (1933); see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Civil § 2382 (3d ed.) (explaining that although a strict reading of Rule 42(a) seems to allow several consolidated actions to be merged into one, losing their separate
identities and becoming a single action, the federal courts have followed the Supreme Court's statement in Manhattan Railway Co. and treated consolidated actions as separate in ...