12-3491-cv
Davis v. Norwalk Econ. Opportunity Now, Inc.


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 29th day of August, two thousand thirteen.

PRESENT: JON O. NEWMAN,
                 REENA RAGGI,
                 GERARD E. LYNCH,
                                 Circuit Judges.
----------------------------------------------------------------------
SUSAN DAVIS,
                                 Plaintiff-Appellant,

                               v.                                          No. 12-3491-cv

NORWALK ECONOMIC OPPORTUNITY NOW, INC.,
                                 Defendant-Appellee.
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                           CHRISTOPHER N. PARLATO, DeSanto and
                                                   Parlato, Guttenberg, New Jersey.

APPEARING FOR APPELLEE:                            MICHAEL BAYONNE (Janine W. Hodgson,
                                                   on the brief), Durant, Nichols, Houston,
                                                   Hodgson & Cortese-Costa, P.C., Bridgeport,
                                                   Connecticut.




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       Appeal from a judgment of the United States District Court for the District of

Connecticut (Mark R. Kravitz, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on July 25, 2012, is AFFIRMED.

       Susan Davis appeals from the dismissal of her complaint against her former

employer Norwalk Economic Opportunity Now, Inc. (“Norwalk”), alleging retaliatory

harassment, intimidation, and discharge in violation of the False Claims Act (“FCA”), see

31 U.S.C. § 3730(h), for reporting food stamp misappropriation by fellow employees.

The district court dismissed Davis’s complaint as duplicative of her pending Title VII

action against Norwalk, which alleged that the same adverse employment actions were

taken in retaliation for her complaints of race discrimination. See 42 U.S.C. § 2000e et

seq. We review a district court’s dismissal based on duplicative litigation for abuse of

discretion. See Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). We assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

       “As 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.” Id. While the rule against

duplicative litigation is distinct from claim preclusion, see id., the former analysis borrows

from the latter to “assess whether the second suit raises issues that should have been

brought in the first,” id. at 139–40. Here, Davis asserts that the district court abused its

discretion in dismissing her FCA complaint as duplicative of her Title VII complaint

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because the two actions did not have identical facts, legal theories, and remedies. The

argument fails because claim preclusion does not require that all aspects of the new and

prior suits be identical but rather, focuses on whether the two claims arise from the same

“nucleus of operative fact.” Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir.

2000) (internal quotation marks omitted). To make this determination, a court properly

considers “whether the underlying facts are related in time, space, origin, or motivation,

whether they form a convenient trial unit, and whether their treatment as a unit conforms to

the parties’ expectations.” Id. (internal quotation marks omitted).

       The record here shows that in both her FCA and Title VII complaints, Davis alleged

that she reported co-worker misconduct to the same individuals, at the same time, and

suffered the same adverse employment actions in retaliation for her complaints. In short,

the facts alleged in the two complaints are not simply related in time, space and origin.

They are nearly identical. Cf. Proctor v. LeClaire, 715 F.3d 402, 413 (2d Cir. 2013)

(holding that claim preclusion did not bar prisoner’s second due process complaint

stemming from confinement in special housing unit where two actions focused on separate

decisions made by different individuals at distinct times). Further, both actions share a

common inquiry: whether Norwalk had a legitimate and lawful reason for taking the

adverse employment actions of which Davis complains. Thus, the two suits would have

formed a “convenient trial unit,” and addressing the two causes of action in one litigation

would have “conform[ed] to the parties’ expectations.” Waldman v. Vill. of Kiryas Joel,

207 F.3d at 108.

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       No different conclusion is warranted because the complaints allege different

retaliatory motives consistent with the distinct legal theories of the FCA and Title VII.

See Cieszkowska v. Gray Line New York, 295 F.3d 204, 206 (2d Cir. 2002) (affirming

dismissal of complaint as duplicative despite plaintiff’s raising new theory of national

origin discrimination because “factual predicates of plaintiff’s allegations in the first and

second complaints involve[d] the same events concerning her employment, pay history,

and termination,” and therefore new claims could have been brought in prior action);

Woods v. Dunlop Tire Corp., 972 F.2d 36, 40–41 (2d Cir. 1992) (holding that Title VII suit

for discharge based on race and gender arose from same transaction as prior complaint

seeking relief under Labor Management Relations Act for discharge in alleged violation of

collective bargaining agreement); see also Northern Assurance Co. of Am. v. Square D

Co., 201 F.3d 84, 87 (2d Cir. 2000) (observing that under principles of claim preclusion,

claims arising out of same facts are barred “even if based upon different legal theories or

seeking different relief on issues which were or might have been litigated in the prior action

but were not” (internal quotation marks omitted)).

       Davis nevertheless maintains that her FCA complaint should not have been

dismissed because she could not have amended her Title VII complaint to add an FCA

claim before the October 7, 2011 amendment deadline. Specifically, Davis asserts that

she did not discover that Norwalk management had engaged in conduct prohibited by the

FCA until March 2012. Although claim preclusion “does not preclude litigation of events

arising after the filing of the complaint that formed the basis of the first lawsuit,” Curtis v.

                                               4
Citibank, N.A., 226 F.3d at 139, this argument is not available to Davis because an FCA

retaliation cause of action accrues “when the retaliatory action occurs,” see Graham Cnty.

Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 419 (2005),

not when a plaintiff discovers additional evidence of a prohibited motivation. Here, the

alleged adverse employment actions resulting from Davis’s complaint of misappropriation

of government funds concluded with her termination on August 20, 2010, which occurred

over a year before the October 7, 2011 deadline to amend her Title VII complaint, and

more than a year and a half before the filing of her subsequent FCA complaint. In light of

the ample time Davis had to assert her FCA retaliation claim, we identify no error in the

district court’s determination that Davis’s second filing was an attempt to avoid the

consequences of delay in amending her initial complaint.1 Nor do we identify abuse of

discretion in its dismissal of the second complaint as duplicative.

       We have considered Davis’s remaining arguments on appeal and conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O=HAGAN WOLFE, Clerk of Court




1
  The day after the district court dismissed her complaint, Davis filed a motion to amend
her complaint in the first suit to add her FCA cause of action. The district court denied the
motion for failure to show “good cause” required by Fed. R. Civ. P. 16. Because this
decision is not currently before us, we need not decide whether the district court should
have permitted Davis to amend the complaint.

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