                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
BETTY CLAYTON,                 )
                               )
          Plaintiff,           )
                               )
          v.                   ) Civil Action No. 13-1316 (RWR)
                               )
DISTRICT OF COLUMBIA, et al., )
                               )
          Defendants.          )
_____________________________ )

                         MEMORANDUM ORDER

     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
                                -2-
¶¶ 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, 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.
                                 -3-
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

(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
                               -4-
Railway Co. and treated consolidated actions as separate in

character, with each requiring a separate judgment).

     In considering whether to consolidate actions:

     [T]he court should consider whether judicial efficiency
     is best served by consolidation. The court generally
     weighs the saving of time and effort that consolidation
     would produce against any inconvenience, delay, or
     expense that consolidation would cause.      Courts also
     consider   (1)   whether   the   relief   sought   varies
     substantially between the two actions; (2) whether
     defendants are being sued in different capacities; and
     (3) what would be gained by consolidation and what injury
     would be suffered by failure to consolidate.


Frederick v. S. Star Cent. Gas Pipeline, Inc., No. 10-1063-JAR-

DJW, 2010 WL 4386911, at *2 (D. Kan. Oct. 29, 2010).   When

multiple cases involving the same parties and same issues are

pending simultaneously in the same court, one solution is to

consolidate them.   Nat’l Ass’n of Mortg. Brokers v. Bd. of

Governors of Fed. Reserve Sys., 770 F. Supp. 2d 283, 286 (D.D.C.

2011) (citing Miller v. U.S. Postal Serv., 729 F.2d 1033, 1036

(5th Cir. 1984)).   However, a district court is not required to

consolidate actions; the court can generally decide instead to

dismiss a duplicative and later-filed action, stay a later-filed

action pending resolution of the previously filed action, or

enjoin the parties from proceeding with a later-filed action.    In

re Consolidated Salmon Cases, 688 F. Supp. 2d 1001, 1007 (E.D.

Cal. 2010) (citing Adams v. Cal. Dep’t of Health Servs., 487 F.3d

684 (9th Cir. 2010), overruled on other grounds by Taylor v.

Sturgell, 553 U.S. 880, 904 (2008)).   “The party requesting
                               -5-
consolidation bears the burden of showing that the balance weighs

in favor of consolidation.”   Frederick, 2010 WL 4386911, at *2.

     In addition, a plaintiff should not engage in “claim-

splitting,” in which the plaintiff seeks “to maintain two actions

on the same subject in the same court, against the same defendant

at the same time.”   Katz v. Gerardi, 655 F.3d 1212, 1217 (10th

Cir. 2011) (quoting Curtis v. Citibank, N.A., 226 F.3d 133, 139

(2d Cir. 2000)).   The restriction enables the court “to ensure

fairness to litigants and to conserve judicial resources.”

Greene v. H & R Block E. Enters., Inc., 727 F. Supp. 2d 1363,

1367 (S.D. Fla. 2010).   To determine whether a plaintiff is

claim-splitting, “[t]he proper question is whether, assuming the

first suit was already final, the second suit would be precluded

under res judicata analysis.”    Katz, 655 F.3d at 1219; cf.

Kanciper v. Suffolk Cnty. Soc. for the Prevention of Cruelty to

Animals, Inc., 722 F.3d 88, 92-93 (2d Cir. 2013) (indicating its

support of the Katz test for claim-splitting when analyzing two

cases filed in the same district court, but stating that the test

is not relevant when the two actions are filed in a federal

district court and a state court).

     “District courts have discretion to control their dockets by

dismissing duplicative cases.”    Katz, 655 F.3d at 1217.1   If an

     1
        See also Wash. Metro. Area Transit Auth. v. Ragonese, 617
F.2d 828, 830 (D.C. Cir. 1980) (noting that “‘[w]here two cases
between the same parties on the same cause of action are
commenced in two different Federal courts, the one which is
commenced first is to be allowed to proceed to its conclusion
                               -6-
action is dismissed because of claim-splitting, the dismissed

party can still assert its claim through the remaining action

against the same defendants regarding the same issues.     Id. at

1219.

     The District argues that Clayton I and Clayton II should not

be consolidated, but rather, Clayton II should be dismissed

because Clayton is claim splitting.2    Def.’s Omnibus Mem. at 2-3.

The District avers that Clayton II has underlying facts that are

“identical” to those in Clayton I.     Clayton II, Mem. P. & A.

Supp. Def.’s Mot. Dismiss at 12 (“Def.’s Mem. Supp. Dismiss”).

Indeed, in support of her motion to consolidate, Clayton argues

that “the cases will involve ‘substantially the same witnesses’




first . . . .’” (quoting Speed Prods. Co. v. Tinnerman, 171 F.2d
727, 729 (D.C. Cir. 1948))). Sua sponte dismissal of an action
duplicative of a parallel action already pending in another
federal court is allowable as an exercise of “‘wise judicial
administration . . . .’” Mendlow v. Library of Congress, No. 98-
5165, 1999 WL 187762, at *1 (D.C. Cir. Feb. 17, 1999)
(unpublished table opinion) (quoting Serlin v. Arthur Anderson &
Co., 3 F.3d 221, 223 (7th Cir. 1993)).

     2
       The District argues that Clayton II should be dismissed
for claim-splitting, and describes the rule against claim-
splitting as “part of the doctrine of res judicata.” Clayton II,
Def.’s Mem. Supp. Dismiss at 9-12. In refuting the District’s
argument, Clayton states that Clayton II should not be dismissed
because the principle of res judicata would only apply if there
had been a final judgment on Clayton I. Clayton II, Pl.’s Resp.
Def. District of Columbia’s Mot. Dismiss Mem. P. & A. Supp. &
Req. Hr’g at 3. Although “we analyze claim-splitting as an
aspect of res judicata, the claim-splitting doctrine does not
fall within a conventional res judicata analysis.” Katz, 655
F.3d at 1218. “[A] final judgment is not a necessary component
of the claim-splitting analysis . . . .” Id.
                               -7-
and arise from precisely the same facts and events.”   Pl.’s Mem.

Supp. Consolidation at 3.

     Given the common facts supporting the claims in both actions

and that both actions are before the same court, consolidation of

Clayton I and Clayton II could conserve judicial resources,

including time and effort.   The District opposes the motion on

substantive legal grounds, not practical grounds, and gives the

court no reason to expect consolidation of the actions would

result in any inconvenience, delay, or additional expense.3     The

requested relief does not vary between actions, in that Clayton

demands a jury trial and compensatory damages in both Clayton I

and Clayton II.4   Neither is Clayton suing the defendants in

different capacities; the defendants are the same in both

actions.   At first blush, consolidation could seem appropriate.

     However, under the Katz test for claim splitting, Clayton II

would be precluded.   “Claim preclusion prevents parties from

relitigating issues they raised or could have raised in a prior

action on the same claim.”   NextWave Personal Commc’ns, Inc. v.

FCC, 254 F.3d 130, 143 (D.C. Cir 2001) (emphasis added).    The

facts alleged in the complaints in both Clayton I and Clayton II

     3
       The second defendant to both actions, the District of
Columbia National Guard, does not oppose the Motion to
Consolidate.

     4
       Plaintiff also sought a declaratory judgment in her as-
applied challenge to the constitutionality of a District of
Columbia statute in her first action. However, the court
dismissed this claim against both defendants. See Clayton I,
2013 WL 6118682 (D.D.C. Nov. 21, 2013).
                                 -8-
are identical.    The two Title VII causes of action based on those

facts that Clayton raises in Clayton II she has now added to

Clayton I.

     The usual enforcement mechanism against claim splitting is

that a judgment reached in one action has a preclusive effect on

the remaining action.    See Twaddle v. Diem, 200 F. App’x 435, 439

(6th Cir. 2006); see also Rogers v. Desiderio, 58 F.3d 299, 300

(7th Cir. 1995) (“To discourage the tactic [of claim splitting],

judges award plaintiffs not the better outcome but the first

outcome:   whichever suit goes to judgment first is dispositive,

and the doctrine of claim preclusion (res judicata) requires the

other court to dismiss the litigation.”).    However, this is not

the only option a court has at its disposal.    In Serlin, the

Seventh Circuit affirmed the dismissal of a duplicative action,

filed because the plaintiff was concerned the statute of

limitations would run on his claims in his first action while the

defendant’s motion to dismiss was pending.    See Serlin v. Arthur

Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993).    In the second

action, the plaintiff sued identical parties, sought identical

remedies, and alleged claims that were not “significant[ly]

differen[t]” than those in the plaintiff’s previously filed

lawsuit.   Id.   In summarizing its reasoning, the court stated

that “[a]s there are no significant differences between the

claims, parties, and available relief in the two suits, the trial

judge did not err in finding them duplicative.”    Id. at 224.    The
                               -9-
similarities between Serlin and the instant case suggest a

similar outcome.

     Dismissal of Clayton II will not adversely impact Clayton.

Clayton maintains an avenue through an amended Clayton I to seek

redress of her additional Title VII claims.      Dismissal of Clayton

II is fully warranted.   Clayton I, amended to include Clayton’s

additional claims, is the proper vehicle for airing the

additional claims, not the consolidation of duplicative

lawsuits.5   Thus, because Clayton I and Clayton II are

duplicative actions, Clayton’s Motion to Consolidate will be

denied and Clayton II will be dismissed.   Accordingly, it is

hereby

     ORDERED that Clayton’s motion [9] for consolidation be, and

hereby is, DENIED.   It is further

     ORDERED that the District’s motion [13] to dismiss Clayton

II be, and hereby is, GRANTED.   It is further

     ORDERED that Clayton II is dismissed sua sponte as to the

Defendant, the District of Columbia National Guard.




     5
        Clayton states that “[s]o long as all of the plaintiff’s
claims are deemed timely-filed, Plaintiff consents to having all
of her claims proceed in one action.” Clayton II, Pl.’s Resp.
Def. District of Columbia’s Mot. Dismiss & Mem. P. & A. Supp. &
Req. Hr’g at 1. Clayton I, amended to include Clayton’s Title
VII claims, accomplishes this end.
                         -10-


SIGNED this 10th day of April, 2014.




                                           /s/
                                   RICHARD W. ROBERTS
                                   Chief Judge
