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DiGennaro v. Whitehair

October 19, 2010

MARY DIGENNARO, INDIVIDUALLY AND AS LIMITED EXECUTRIX OF THE ESTATE OF ALBERT DIGENNARO, ON BEHALF OF ALL DISTRIBUTEES, PLAINTIFF,
v.
LT GORDON WHITEHAIR, INDIVIDUALLY AND AS A POLICE OFFICER OF THE TOWN OF GATES, TOWN OF GATES POLICE DEPARTMENT, AND THE TOWN OF GATES, DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

This civil rights case is before the Court on the application of defendant Gordon Whitehair (Whitehair) to dismiss (Docket No. 10), and motion (Docket No. 13) for summary judgment. For the reasons stated below, the motion to dismiss is granted and the motion for summary judgment is denied as moot.

BACKGROUND

The case arises in part from the circumstances surrounding the Gates Police Department's execution of an arrest warrant on November 1, 2006, for Plaintiff's son, Rex, who was living at her home, which she also shared with her late husband, Albert. Albert DiGennaro, then 80 years old, answered the door when the police officers knocked, demanded to see the warrant, and an altercation ensued. Albert was sprayed with pepper spray, twice, and subsequently died. The medical examiner ruled his death a homicide.

On August 29, 2007, Plaintiff filed a separate lawsuit against the Town, its police department, and others, arising from the same situation that underlies the lawsuit in this case. That matter, DiGennaro v. Town of Gates Police Dep't, et al., No. 07-CV-6426 (W.D.N.Y.), was referred by the undersigned to United States Magistrate Judge Marion W. Payson for pretrial matters. On November 28, 2007, Judge Payson entered a Scheduling Order, which, inter alia, set a deadline of March 3, 2008, for "[a]ll motions to join other parties and to amend the pleadings.." (Scheduling Order, DiGennaro v. Town of Gates Police Dep't, No. 07-CV-6426-CJS-MWP (W.D.N.Y. Mar. 3, 2008). That Scheduling Order has been amended several times, but not with respect to the March 3, 2008, deadline for adding parties and amending the original complaint. As of February 16, 2010, discovery has closed in the 2007 lawsuit. As part of the discovery in that case, the parties have deposed sixteen witnesses and exchanged extensive written discovery. (Defendants' Memorandum of Law in Opposition to Plaintiff's Motions to Consolidate and Amend, DiGennaro v. Town of Gates Police Dep't, No. 07-CV-6426 (W.D.N.Y. May 24, 2010), at 2.) On October 30, 2009, Plaintiff filed the present lawsuit under a new docket number, 09-CV-6551. Thereafter, on April 20, 2010, Plaintiff moved to amend, correct and consolidate complaints in the 2007 case (Docket No. 33) and the 2009 case, which the Defendants opposed. On August 5, 2010, Judge Payson denied the motion to consolidate without prejudice, and granted in part, and reserved in part, on the motion to amend. (Minute Entry, DiGennaro v. Town of Gates Police Dep't, No. 07-CV-6426 (W.D.N.Y. Aug. 5, 2010).)

In the subject application before the Court, Whitehair has moved to dismiss the 2009 action on the ground that it is duplicative of the first lawsuit and is nothing more than an attempt to avoid the "good cause" under Federal Rule of Civil Procedure 16(b)(4).

STANDARDS OF LAW

Motion to dismiss

A motion to dismiss a complaint as duplicative invokes the Court's inherent power to control its docket. Curtis v. Citibank, N.A., 226 F.3d 133, 138--39 (2d Cir. 2000). As the Second Circuit observed in Curtis:

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. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) ("As between federal district courts,.though no precise rule has evolved, the general principle is to avoid duplicative litigation."); Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir. 1991); Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977) (in banc). The complex problems that can arise from multiple federal filings do not lend themselves to a rigid test, but require instead that the district court consider the equities of the situation when exercising its discretion. See Colorado River, 424 U.S. at 817; Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-84 (1952) (affirming stays of declaratory judgment action on patents' validity in Delaware while patent infringement suit in Illinois proceeded); First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 76, 80 (2d Cir. 1989). We review the exercise of this power for abuse of discretion. See Adam, 950 F.2d at 92.

The rule against duplicative litigation is distinct from but related to the doctrine of claim preclusion or res judicata. As the Supreme Court stated over 100 years ago in United States v. The Haytian Republic, 154 U.S. 118 (1894), "The true test of the sufficiency of a plea of 'other suit pending' in another forum is the legal efficacy of the first suit, when finally disposed of, as 'the thing adjudged,' regarding the matters at issue in the second suit." Id. at 124. The two doctrines serve some of the same policies. The power to dismiss a duplicative lawsuit is meant to foster judicial economy and the "comprehensive disposition of litigation." Kerotest Mfg., 342 U.S. at 183. The doctrine is also meant to protect parties from "the vexation of concurrent litigation over the same subject matter." Adam, 950 F.2d at 93.

Id. at 138. It is well settled that "a plaintiff must bring suit against the same defendant on all claims that relate to the same conduct, transaction or event at the same time." Id., at 139. The "court must assess whether the second suit raises issues that should have been brought in the first." Id., at 140.

"To determine whether a suit is duplicative, we borrow from the test for claim preclusion." Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007); see also Curtis, 226 F.3d 133, at 138 ("The rule against duplicative litigation is distinct from but related to the doctrine of claim preclusion or res judicata."). "Thus, in assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as ...


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