                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-2008

McKenna v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4759




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                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 07-4759
                    ____________

             WILLIAM K. MCKENNA,

                          Appellant,


                          v.

            CITY OF PHILADELPHIA;
             SYLVESTER JOHNSON;
          THREE JOHN AND JANE DOES,

                          Appellees

                    ____________

    On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                (D.C. No. 06-cv-01705)
    District Judge: Honorable Mary A. McLaughlin
                     ____________

      Submitted Under Third Circuit LAR 34.1(a)
                 November 20, 2008

Before: FUENTES, HARDIMAN, GARTH, Circuit Judges.

             (Filed: November 25, 2008 )

                    ____________

             OPINION OF THE COURT
                  ____________
HARDIMAN, Circuit Judge.

       William McKenna appeals a summary judgment entered against him on all of his

civil rights claims against the City of Philadelphia and others. We will affirm.

                                              I.

       Although we write for the parties alone in this not precedential opinion, the prolix

nature of this and a related case in the same court requires us to review at some length the

procedural history.

       In 1999 several Philadelphia police officers, including McKenna, brought claims

against Philadelphia and others under 42 U.S.C. §§ 2000e (Title VII), 1983, and 1981.

The plaintiffs alleged discrimination and/or retaliation for opposing racially

discriminatory practices of the Philadelphia Police Department. See Moore v. City of

Philadelphia, No. 99-1163, Memorandum and Order Granting Summary Judgment for

Defendants (E.D. Pa. Jan. 16, 2003). We will refer to this case as McKenna I.

       In this first action, McKenna’s claims were based entirely on allegedly retaliatory

actions taken against him during his employ. Specifically, McKenna alleged that he was

pervasively ostracized by other officers and subjected to excessive and harassing

surveillance while on sick leave. McKenna I, at 15-17. In addition, McKenna stated in a

deposition that after the filing of the lawsuit, a sign with his photograph was posted in his

station house stating that he should not be admitted to the premises.




                                              2
       In 2001 McKenna attempted to amend his complaint to add a wrongful termination

claim under §§ 1981 and/or 1983. See Moore v. City of Philadelphia, No. 99-1163, Order

Denying Plaintiff’s Motion to Amend Complaint (E.D. Pa. Oct. 25, 2001). The District

Court denied the motion because the two-year statute of limitations had run and the claim

did not relate back to McKenna’s original, timely-filed claims. Id.

       In 2003 the District Court granted defendants summary judgment on all claims and

plaintiffs appealed to this Court. Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir.

2006). Significantly, neither McKenna nor his fellow plaintiffs appealed the District

Court’s denial of their wrongful termination claim.

       In April 2006, while McKenna I was pending on appeal, McKenna filed a pro se

complaint in the District Court, again alleging retaliation for his opposition to racial

discrimination in the Police Department. This is the case before us today, to which we

will refer as McKenna II. The complaint in McKenna II alleged facts which had been at

issue in McKenna I – general harassment including the posting of McKenna’s photograph

in the station house – but did not mention McKenna’s claims for termination or excessive

sick leave surveillance.

       In August 2006, a panel of this Court reversed the District Court’s grant of

summary judgment in McKenna I and remanded for trial, but only with respect to

plaintiffs’ Title VII retaliation claim. Moore, 461 F.3d at 352-53. Some three months

later, now with the assistance of counsel, McKenna filed an amended complaint in



                                              3
McKenna II alleging: (1) Title VII retaliation; (2) retaliation under § 1983; (3) denial of

state constitutional rights without due process under the Fourteenth Amendment and

§ 1983; and (4) intentional infliction of emotional distress under state law. In support of

his retaliation claims, McKenna alleged for the first time that his termination and the

posting of the sign with his photograph in his station house constituted adverse

employment actions.

       After McKenna I’s Title VII retaliation claim was remanded by this Court,

McKenna sought to include additional claims in that case. He argued that a separate

retaliation claim under § 1983 should be added because his opposition to discrimination

constituted protected speech under the First Amendment. The District Court rejected

McKenna’s attempt to cast his existing legal claim in this new light. Moore v. City of

Philadelphia, No. 99-1163, 511 F. Supp. 2d 518 (E.D. Pa. 2007) (finding that § 1983

claim was time-barred and did not relate back to the original complaint).

       The District Court also held that McKenna could not recover damages on the Title

VII retaliation claim based on his termination, stating: “To the extent that the plaintiffs

now wish to pursue damages for their wrongful termination, even as part of their existing

claims, they will need to show that pursuing these new claims will not cause undue or

prejudicial delay.” Id. at 528. “Given that this case is otherwise ready to proceed to trial .

. . [and] that the plaintiffs could have raised the issue of their terminations at any point




                                               4
earlier in this litigation,” the District Court deemed the plaintiffs’ “eleventh-hour request

to interject new claims and new damage theories” prejudicial. Id.

       The last piece of the puzzle fell into place when the District Court dismissed

McKenna II as duplicative of McKenna I. McKenna v. City of Philadelphia, No. 06-

1705, 2007 WL 4190687 (E.D. Pa. Nov. 21, 2007). In doing so, the District Court relied

on Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977), which prohibited a plaintiff

from “maintain[ing] two separate actions involving the same subject matter at the same

time in the same court and against the same defendant.” Walton requires district courts to

“carefully insure[] that the plaintiff does not use the tactic of filing two substantially

identical complaints to expand the procedural rights he would have otherwise enjoyed.”

Id. at 71. “In particular, the court must insure that the plaintiff does not use the incorrect

procedure of filing duplicative complaints for the purpose of circumventing the rules

pertaining to the amendment of complaints.” Id. It is this ruling that McKenna has

appealed and to which we now turn.1

                                               II

       We must first decide whether the District Court correctly ruled that McKenna I and

McKenna II “involve[d] the same subject matter at the same time and in the same court

and against the same defendant.” Walton, 563 F.2d at 70. If the two cases are governed




       1
         We note that McKenna I proceeded to trial and, on May 14, 2008, a judgment of
$10 million was entered by the District Court in favor of plaintiffs, including McKenna.

                                               5
by Walton, we must decide whether dismissal with prejudice was proper. If it was

improper, we must decide whether the District Court’s ruling can be upheld on other

grounds.

                                             A.

         Walton applies when two cases: (1) take place in the same court; (2) with the same

defendants; (3) involving the same subject matter. At issue here is only whether the

subject matter of both suits can be described as “the same.”

         Parallel complaints need not be completely identical to fall under Walton, which

proscribes “substantially identical complaints.” Walton, 563 F.2d at 71 (emphasis added).

In Walton, the original complaint alleged race and gender discrimination under Title VII

and expressly waived trial by jury. Id. at 69-70. The second complaint added a claim for

“emotional and mental injury” and sought compensatory damages as well as a jury trial.

Id. at 70. These differences were not sufficient to allow Walton to proceed with both

suits.

         McKenna concedes “there are similarities” between McKenna I and McKenna II,

but contends that Walton does not apply for two reasons. First, McKenna I involves a

Title VII retaliation claim based on McKenna’s opposition to illegal discrimination, while

McKenna II involves a § 1983 retaliation claim on account of McKenna’s free speech

under the First Amendment. Second, McKenna argues that his termination is at issue in




                                              6
McKenna II but not in McKenna I.2 We do not find these differences significant enough

to distinguish the two cases under Walton.

       First, the difference between the retaliation claims is purely semantic. McKenna’s

attempt to distinguish between his right to report unlawful discrimination under Title VII

and his right to free speech under the First Amendment and § 1983 is strained. Whether

McKenna bases his claim on Title VII or on § 1983, he relies on the same operative facts

and legal principles, viz., the defendants retaliated against him for reporting unlawful

discrimination. Nor does he point to any particular conduct that could be considered a

separate transaction or occurrence beyond the scope of McKenna I. In sum, recasting

McKenna’s Title VII claim as a First Amendment claim does not render Walton

inapposite.

       Second, McKenna’s attempt to expand the scope of damages to cover his wrongful

termination is analogous to Walton’s attempt to recover compensatory damages in her

second complaint. Doing so did nothing to change the fact that Walton’s second

complaint was little more than a thinly veiled attempt to circumvent the procedures for

amending her first complaint. The same is true for McKenna. Having failed to appeal the




       2
         McKenna II also differs in that McKenna added § 1983 due process and
intentional infliction of emotional distress claims. However, the District Court did not
consider these claims relevant in its analysis and McKenna seems to agree, confining his
argument on appeal to the distinctions between his retaliation claims and the issue of his
termination.

                                              7
District Court’s adverse judgment on the termination claim in McKenna I, McKenna

cannot revive that claim in this case.

                                             B.

       Because McKenna I and McKenna II involve the same subject matter, Walton

applies and the District Court should have stayed McKenna II, dismissed it without

prejudice, or consolidated it with McKenna I. Walton, 563 F.2d at 70-71. Instead, the

District Court dismissed McKenna I with prejudice.

       The District Court was bound by Walton to “insure[] that the plaintiff does not use

the tactic of filing two substantially identical complaints to expand the procedural rights

he would have otherwise enjoyed . . . [including] filing duplicative complaints for the

purpose of circumventing the rules pertaining to the amendment of complaints.” Walton,

563 F.2d at 71. This appears to be exactly what McKenna was trying to do insofar as the

District Court had already denied his motion to amend the McKenna I complaint to add a

wrongful termination claim.3 McKenna admits that the McKenna II complaint was

specifically intended to “address[] a denial to amend.” Appellant’s Br. at 13. The

manner in which McKenna chose to “address” the denial of his motion to amend is

exactly what Walton prohibits. As the District Court aptly noted:




       3
         Furthermore, McKenna moved to amend the McKenna I complaint to include the
§ 1983 retaliation claim and damages for termination within a month of amending the
McKenna II complaint to include the same claims.

                                              8
       McKenna has already sought to amend the complaint in his first-filed suit to
       add claims similar to those in this suit. Although this Court has denied the
       motion to amend, Mr. McKenna has filed a motion for reconsideration of
       that decision which remains pending. Under Walton, this motion practice in
       his first-filed suit is the only means for Mr. McKenna to seek to bring his
       additional allegations before the Court.

McKenna II Dismissal Order at 7. For the reasons stated by the District Court, the cases

should not have been consolidated.

       Had the District Court stayed McKenna II or dismissed it without prejudice,

McKenna theoretically could have proceeded forward upon the final disposition of

McKenna I. However, his attempt to resume or replead the § 1983-First Amendment

claim would have been thwarted by res judicata, which prohibits relitigation of claims

that have been, or could have been, decided on the merits. Mullarkey v. Tamboer, 536

F.3d 215, 225 (3d Cir. 2008). For res judicata purposes, “denial of a motion to amend a

complaint in one action is a final judgment on the merits barring the same complaint in a

later action.” Prof. Mgmt. Assoc. Inc. v. KPMG LLP, 345 F.3d 1030, 1031 (8th Cir.

2003). See also C HARLES A LAN W RIGHT, A RTHUR R. M ILLER & E DWARD H. C OOPER,

F EDERAL P RACTICE & P ROCEDURE § 4439 n.16 (2008) (citing Curtis v. Citibank, N.A.,

226 F.3d 133, 139-40 (2d Cir. 2000), for the proposition that denial of leave to amend has

preclusive effect only when denial is based on the merits).

       The District Court properly rejected McKenna’s repeated attempts to add new

§ 1983 claims to McKenna I because they were untimely, in effect constituting a ruling on




                                             9
the merits. Accordingly, McKenna’s attempts to add the same claims in McKenna II fail

as well.4

                                             C.

       Walton did not prescribe a stay or dismissal without prejudice merely to delay

duplicative litigation. Rather, the procedures it outlines for handling duplicative litigation

recognize the boundaries and effect of the preclusion doctrine. See Walton, 563 F.2d at

71 n.4 (noting that if the lower court had dismissed without prejudice, “[o]nce final

judgment was entered in the first action, res judicata would have barred the second

action”).

       Here, the District Court properly ruled that McKenna missed his opportunity to

litigate damages related to his termination years ago. If McKenna II had been filed after

final judgment was entered in McKenna I, then issue and claim preclusion would apply

and Walton would not apply. But res judicata and collateral estoppel apply only to final

judgments, and Walton was intended to fill the gap when duplicative claims are brought

in the course of ongoing litigation. Although the District Court should have stayed




       4
          Any attempt to relitigate the extent of damages to which McKenna is entitled on
his Title VII claim would likewise be barred by collateral estoppel, which provides that
“once a court has decided an issue of fact or law necessary to its judgment, that decision
may preclude relitigation of the issue in a suit on a different cause of action involving a
party to the first case.” Horsehead Indus., Inc. v. Paramount Commc’ns, Inc., 258 F.3d
132, 140 (3d. Cir. 2000) (citation and quotation marks omitted). Consequently, McKenna
would not be able to recover damages for his termination in subsequent litigation.

                                             10
McKenna’s duplicative suit or dismissed without prejudice, the end result is the same

because McKenna I now precludes the duplicative claims from being relitigated.

      For the foregoing reasons, we will affirm the judgment of the District Court.




                                           11
