-SKO Jackson v. Snow et al, No. 1:2011cv00055 - Document 138 (E.D. Cal. 2011)
Court Description: ORDER Granting Defendant's Motion to Sever; ORDER Denying 128 Motion to Dismiss signed by Magistrate Judge Sheila K. Oberto on 01/07/2011. (Flores, E)
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-SKO Jackson v. Snow et al Doc. 138 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION 10 11 KENNETH ROBINSON, et al., 12 Plaintiffs, 13 14 CASE NO. 1:05-cv-01258-LJO-SKO ORDER GRANTING DEFENDANT'S MOTION TO SEVER v. TIMOTHY GEITHNER, SECRETARY OF THE TREASURY, (Docket No.) 15 Defendant. 16 / 17 18 I. INTRODUCTION 19 This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., 20 brought by current and former employees of the Internal Revenue Service. When the complaint was 21 filed, the plaintiffs included Kenneth Robinson, Darryl DuChene,1 Tony Hawkins, Rudy Jackson, 22 Percy McIntosh, Rick Spight, Tyrone Watson, Nicole Williams, and Norman Alston (collectively 23 "Plaintiffs"). Plaintiffs' claims generally consisted of "disparate treatment in promotion, performance 24 evaluation and discipline" and retaliation on the basis of race. The named defendants included the 25 Secretary of the Treasury and the Internal Revenue Service.2 26 27 1 Mr. DuChene's claims were dismissed from the lawsuit on September 5, 2006. 2 The claims against the Internal Revenue Service were dismissed on March 23, 2010. 28 Dockets.Justia.com 1 On November 26, 2007, the district court dismissed Plaintiffs' claims for lack of subject 2 matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiffs appealed the 3 district court's order, and on November 13, 2009, the Ninth Circuit affirmed in part. The Ninth 4 Circuit held that the claims of Hawkins, Spight, and Williams were properly dismissed because they 5 failed to establish that their claims were within the scope of any administrative complaints. (Doc. 6 113.) The court also determined that Plaintiff Alston was not entitled to amend his complaint 7 because he had not filed an administrative complaint covering the claims in his second amended 8 complaint. (Doc. 113.) The Ninth Circuit also held that certain claims of Plaintiffs Kenneth 9 Robinson, Rudy Jackson, and Percy McIntosh were not subject to dismissal for lack of jurisdiction 10 and remanded the matter to the district court. (Doc. 113.) 11 Following remand, the Court issued a new scheduling order on January 14, 2010. On 12 October 29, 2010, the Secretary of the Treasury, Timothy Geithner, filed a Motion to Sever and 13 Dismiss as misjoined Plaintiffs Jackson's and McIntosh's claims pursuant to Federal Rule of Civil 14 Procedure 20 or, in the alternative, a Motion to Bifurcate each Plaintiff's claims for purposes of trial 15 pursuant to Federal Rule of Civil Procedure 42(a). A hearing was held on December 1, 2010, and 16 the matter was argued and submitted. (Doc. 134.) It is this motion that is pending before the Court. 17 II. 18 FACTUAL BACKGROUND The following factual background is based upon the complaint and discovery responses 19 provided by Plaintiffs during the course of the litigation. 20 A. 21 Plaintiff Kenneth Robinson Kenneth Robinson is the lead Plaintiff. He is an African-American who was hired by the 22 Fresno, California, branch of the IRS in 1985. (Doc. 42, Second Amended Complaint ("SAC") 23 ¶ 21.) In 2000, Robinson was denied a promotion to an EEO specialist position due to selection 24 criteria set by a selection committee, which were chosen for the purpose of excluding African- 25 American applicants. (Doc. 42, ¶ 22.) 26 In June 2000, Robinson received a thirty-day suspension and was removed from his 27 management position for an alleged offense for which other non African-American employees 28 received significantly more lenient discipline. (Doc. 42, ¶ 24.) 2 1 In February 2001, Robinson's job evaluation was reduced by the acting branch chief from 2 "distinguished" to "satisfactory" without any justification. (Doc. 42, ¶ 23.) In that same year, a non 3 African-American employee, Tommy Vilado, called him a liar and an idiot in front of other 4 employees, but that employee was not reprimanded. (Doc. 132-1, Plaintiff Kenneth Robinson's 5 Responses to Defendant's Interrogatories (Set 2), Response No. 2.) 6 In August 2002, Robinson was notified of his selection for an In Plant Liaison position. Later 7 that month, Robinson was notified of a training for that position that was to occur from October 21, 8 2002, through October 25, 2002. (Id.) His team leader, Connie Gonzalez, told Robinson he was not 9 being released to the In Plant Liaison position. (Id.) On September 5, 2002, Robinson requested to 10 be informed why he was not being released, and the response from his team leader was that he was 11 scheduled to receive phone and paper training for another position. (Id.) Despite this, Robinson 12 never received the scheduled training. (Id.) Robinson was subsequently informed that he was denied 13 the In Plant Liaison position because he had previously submitted improper travel vouchers. (Id.) 14 He asserts that other employees, including his supervisor, Sharon Brockbank, had trouble with these 15 vouchers but were not disciplined. (Id.) 16 In October 2002, Robinson was scheduled to move to another work unit, but Ms. Gonzalez, 17 his supervisor, repeatedly delayed evaluating him and refused to give him a departure rating. (Id.) 18 She eventually rated him as "minimally successful." (Id.) However, evaluations of his work before 19 and after this evaluation showed that he was rated as "fully successful." (Id.) 20 In March 2003, Robinson's manager, Janet Sharpe, removed him from overtime because of 21 alleged errors. 22 management position after he complained of racial discrimination to the Equal Employment 23 Opportunity ("EEO") office of the IRS. (Doc. 42, ¶ 29.) One of his managers, Janet Sharpe, was 24 aware of his EEO activity and criticized him for it. Robinson's employment was eventually 25 terminated entirely around 2005. (Doc. 42, ¶ 30.) 26 (Doc. 132-1, Response No. 4.) Ultimately, Robinson was removed from his During discovery, Robinson was asked to identify each and every person with knowledge of 27 facts relating to the allegations of his complaint. (Doc. 132-1, Interrogatory No. 1.) Robinson 28 identified the following individuals: (1) Coleen Gonzalez, Team Leader; (2) Emma Smith, 3 1 Department Manager; (3) Dawn Baxter, Human Resources Specialist; (4) Gloria Delgado, Team 2 Leader); Janet Sharpe, Manager; (5) Ellen Mooradian; (6) Glen Coles; (7) Rhonda Hon; (8) Karl 3 Meredith; (9) David Martin, IRS employee and Plaintiff's second-level manager; (10) Yvonne 4 McClain, IRS employee, Team Leader; (11) Tommy Vilado; (12) Sharon Brockbank; and 5 (13) Richard Freeman. (Doc. 132-1, Response No. 1.) 6 B. 7 Rudy Jackson Plaintiff Rudy Jackson was hired by the Fresno, California, branch of the IRS on February 8 2, 1972, as a "clerk." (Doc. 42, ¶ 52.) He was assigned to the Machine Services Unit. (Doc. 42, 9 ¶ 53.) While in that position, Jackson was subjected to racial slurs, and he was forced to perform 10 menial tasks unrelated to his job responsibilities as a form of harassment. (Doc. 42, ¶ 55.) 11 In the late 1980s, Jackson was assigned to the EEO Office as an assistant. (Doc. 42, ¶ 59.) 12 In or around 1991, Jackson was transferred to the position of Safety Officer, classified as a GS-8 13 position. (Doc. 42, ¶ 61.) In that position, Jackson was not given promotions because of his race, 14 while two lesser qualified non-African-Americans were given promotions. 15 In 1999, Jackson and another employee (Rosanna Rodriguez) applied for a GS-11 "Hazmat" 16 position. (Doc. 42, ¶ 67.) The position was cancelled, and Rodriguez received additional training; 17 when the position was reopened, Rodriguez was given the job. (Id.) Once Rodriguez vacated her 18 position to take the promotion, Barbara Mecca was moved into Rodriguez's old position. Mecca had 19 no safety experience, and Jackson's manager instructed him to provide Mecca with training. (Doc. 20 132-3, Response No. 2.) Mecca was promoted after two years in that position, while Jackson did 21 not receive any promotions. (Id.) 22 Mecca was given credit for his work, and Jackson claims that the IRS intentionally closed 23 positions for which Mecca was not qualified so that she might receive additional training and then 24 reapply for the positions. (Doc. 132-3, Response No. 2.) 25 In 2002, Jackson engaged in a dispute with a supervisor, Randall Severs. (Doc. 132-3, 26 Response No. 3.) When Jackson reported the dispute to his manager, management lowered his 27 performance evaluations. 28 subsequently, his leave hours were closely monitored, and he was denied leave for a medical (Id.) Another employee made comments about his leave hours; 4 1 appointment. (Id.) Jackson's employment was ultimately involuntarily terminated in 2006. (Doc. 2 42, ¶ 71.) 3 In discovery responses served by Jackson, he identified persons with knowledge of the facts 4 related to his allegations, which included the following: (1) Rosanna Rodriguez, IRS employee; 5 (2) Barbara Mecca; (3) Linda Holbrook; (4) Norris Walker, Area Manager; (5) Jack Royster; 6 (6) Tyehimba Muuwakkil, CAD Analyst; (7) Melinda Thompson, Safety and Security Unit 7 Supervisor; (8) Bonnie Lewis, Assistant Director of the Processing Division; (9) Margaret Frech, 8 Section Chief; (10) Jeff Cole; (11) Sandy Bailey, temporary Safety and Security Unit Supervisor; 9 (12) Randall Severs, Building Del Supervisor; (13) Dave Lindauer; (14) Larry M. Schleffer, Program 10 Manager; (15) Tina Kulinovich, Industrial Hygienist at Occupational Safety and Health 11 Administration; (16) Vickie McAlester; (17) Norma Perez; (18) Percy McIntosh; (19) Tyrone 12 Watson; and (20) Tony Hawkins. (Doc. 132-3, Response No. 1.) 13 C. Percy McIntosh 14 Plaintiff Percy McIntosh was hired by the IRS in or about 1988 (Doc. 42, ¶ 31.) McIntosh 15 applied for and was selected for a position as an EEO Specialist, effective August 13, 2000. (Doc. 16 132-2, Plaintiff Percy McIntosh's Responses to Defendant's Interrogatories (Set 2) Response No. 2.) 17 Prior to this, McIntosh had held a GS-11 Customer Service Supervisory Position for 20 months and 18 had worked as an EEO collateral duty counselor from 1993 through 1994, handling cases of 19 employees up to the GS-13 level. (Id.) At first, McIntosh was told that he was not qualified for the 20 EEO Specialist Position. (Id.) He was later told that, while he was qualified for the position, he was 21 only qualified at the GS-9 grade level because he lacked specialized experience. (Id.) However, 22 other non-African-American employees were selected at the GS-12 level with no prior EEO 23 experience. (Id.) Ultimately, McIntosh was offered the EEO Specialist position but only at the GS-9 24 level. (Id.) McIntosh complained about his GS status and was ultimately assigned a GS-11 status. 25 (Id.) 26 McIntosh claims that he was retaliated against for his EEO complaints by selecting official 27 Joe Leal and EAR Specialist Heather Sosnowsky. On or around November 24, 2004, McIntosh's 28 supervisor attempted to suspend him for alleged misconduct, but the allegations were "shown to be 5 1 groundless[,] and the suspension was withdrawn." (Doc. 42, ¶ 42.) 2 In response to interrogatories, McIntosh identified the individuals who have information to 3 support his claims, including the following: (1) Jim Grimes, Director of Compliance in Fresno; 4 (2) Ellen B. Mooradian, Submission Processing Field Director in Fresno branch; (3) Ronda Hon, 5 compliance Service Field director, Fresno; (4) Glen Coles, Accounts Management Field Director, 6 Fresno; (5) Diane Delgado, Personnel Chief, Treasury Department; (6) Gerald Steinhauer, 7 Supervisory Program analyst, Fresno; (7) Patricia Evans, Director of Field Services, Farmers Branch, 8 Texas; (8) Lorezno VanPelt, EEODFS Associate Director, Treasury Department; (9) Joe Leal, Equal 9 Employment Specialist, Fresno; (10) Linda Martin, Treasury Department; (11) Loletta Roberts, 10 Supervisory Human Resources Specialist, Fresno; (12) Emma Smith, Treasury Department; (13) Jodi 11 Davis, Department Manager, Fresno; (14) Debbie Nelson, Department Manager, Fresno; (15) Kelli 12 Key, Equal Employment Manager; and (16) Richard Slizeski, attorney. (Doc. 132-2, Plaintiff Percy 13 McIntosh's Responses to Defendant's Interrogatories (Set 2) Response No. 1.) 14 15 III. A. 16 17 18 DISCUSSION Legal Standard Federal Rule of Civil Procedure 20 provides that persons may join in one action as plaintiffs if: (A) 19 (B) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all plaintiffs will arise in the action. 20 The permissive joinder rule "is to be construed liberally in order to promote trial convenience 21 and to expedite the final determination of disputes, thereby preventing multiple lawsuits." League 22 to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1997). The 23 purpose of Rule 20(a) is to address the "broadest possible scope of action consistent with fairness 24 to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers 25 of Am. v. Gibbs, 383 U.S. 715, 724 (1966). 26 For there to be transactional relatedness under Rule 20(a)(1)(A), the claims must arise out 27 of the same transaction, occurrence, or series of transactions or occurrences. Fed. R. Civ. P. 28 6 1 20(a)(1)(A). There is no bright-line definition of "transaction," "occurrence," or "series." Instead, 2 courts assess the facts of each case individually to determine whether joinder is sensible in light of 3 the underlying policies of permissive party joinder. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th 4 Cir. 1997). Although there might be different occurrences, where the claims involve enough related 5 operative facts, joinder in a single case may be appropriate. 6 The second part of the joinder test requires commonality. Commonality under Rule 7 20(a)(1)(B) is not a particularly stringent test. Bridgeport Music, Inc. v. 11C Music, 202 F.R.D. 229, 8 231 (M.D. Tenn. 2001) ("the common question test[] is usually easy to satisfy"). The Rule requires 9 only a single common question, not multiple common questions. Fed. R. Civ. P. 20 ("any question 10 of law or fact common to . . . "). The common question may be one of fact or of law and need not 11 be the most important or predominant issue in the litigation. See Mosley v. Gen. Motors Corp., 12 497 F.2d 1330, 1333 (8th Cir. 1974) (Fed. R. Civ. P. 20(a) does not establish a quantitative or 13 qualitative test for commonality). 14 Federal Rule of Civil Procedure 21 provides that "[m]isjoinder of parties is not a ground for 15 dismissing an action. On motion or on its own motion, the court may at any time, on just terms, add 16 or drop a party. The court may also sever any claim against a party." 17 Thus, if the test for permissible joinder is not satisfied, a court, in its discretion, may sever the 18 misjoined parties, so long as no substantial right will be prejudiced by severance. Coughlin,130 F.3d 19 at 1350. In such a case the court can generally dismiss all but the first named plaintiff without 20 prejudice to the institution of new, separate lawsuits by the dropped plaintiffs "against some or all of 21 the present defendants based on the claims or claims attempted to be set forth in the present 22 complaint." Id. 23 B. Analysis 24 Defendant argues that Plaintiffs' claims are misjoined under Rule 20. Defendant also argues 25 that, even if Plaintiffs' claims are not misjoined, separate trials should be ordered pursuant to Rule 26 42(b) because Defendant will be prejudiced by having all the claims tried together. 27 Plaintiffs present no argument that their claims are properly joined. Rather, Plaintiffs 28 conceded during the hearing on December 1, 2010, that their claims are not properly joined under 7 1 Rule 20. Plaintiffs maintain, however, that the Court should not dismiss the claims of Plaintiffs 2 McIntosh and Percy, but should separate each of Plaintiffs' claims into different cases to be tried 3 separately. 4 1. 5 Plaintiffs argue that the Court should not entertain Defendant's motion because it is untimely. Defendant's Motion Is Timely 6 Plaintiffs complain that the litigation is nearing trial and that, given the stage of the case, the entire 7 motion should be denied as untimely. This argument fails for two reasons. First, despite the length 8 of time this case has been pending, the parties were provided a new schedule in January 2010 after 9 the case was remanded by the Ninth Circuit, which allowed Defendant until April 30, 2011, to file 10 pretrial motions. 11 Second, the factual basis for the claims has only been recently fleshed out in more detail 12 through depositions and discovery. For example, the depositions of Plaintiffs took place as recently 13 as October 19, 2010. Additionally, discovery responses that were helpful for framing the factual 14 dispute between the parties were served by Plaintiffs in May 2010. Although this case has been 15 pending since 2005, there is no evidence that Defendant has not been diligent in bringing its motion 16 to sever. For these reasons, Defendant's motion is not untimely. 17 18 2. Plaintiffs' Claims Are Misjoined a. Plaintiffs' Claims Do Not Arise Out of the Same Transaction or Occurrence 19 Permissive joinder requires that any joined claims "aris[e] out of the same transaction, 20 occurrence, or series of transactions or occurrences." Fed. R. Civ. P. 20(a)(1)(A). The Ninth Circuit 21 defines the term "transaction or occurrence" to mean "similarity in the factual background of a claim." 22 Bautista v. Los Angeles County, 216 F.3d 837, 842-43 (9th Cir. 2000). Claims that "'arise out of a 23 systematic pattern of events' arise from the same transaction or occurrence." Id. 24 In Coughlin, for example, forty-nine plaintiffs alleged that the Immigration and Naturalization 25 Service unreasonably delayed plaintiffs' separate applications and petitions in violation of the 26 Administrative Procedure Act and the U.S. Constitution. 130 F.3d at 1349. In affirming the district 27 court's conclusion that the claims did not satisfy the "same transaction" requirement, the Ninth Circuit 28 8 1 noted: 2 3 4 5 6 The first prong, the "same transaction" requirement, refers to similarity in the factual background of a claim. In this case, the basic connection among all the claims is the alleged procedural problem of delay. However, the mere allegation of general delay is not enough to create a common transaction or occurrence. Each Plaintiff has waited a different length of time, suffering a different duration of alleged delay. Furthermore, the delay is disputed in some instances and varies from case to case. And, most importantly, there may be numerous reasons for the alleged delay. Therefore, the existence of a common allegation of delay, in and of itself, does not suffice to create a common transaction or occurrence. 7 Id. at 1350. 8 In contrast, in Mosley, claims brought by ten plaintiffs alleging they had been injured by a 9 company-wide policy designed to discriminate against African-Americans were found by the Eighth 10 Circuit to have "arise[n] out of the same series of transactions or occurrences," a racially 11 discriminatory workplace. 497 F.2d at 1333-34. 12 Defendant points to a number of decisions in which the district court determined severance 13 is appropriate in employment cases under Title VII. For example, courts have severed plaintiffs' 14 claims where the plaintiffs were alleging discrimination on the part of a single defendant, but 15 plaintiffs could not point to one common decision-maker making the discriminatory employment 16 decisions. Generally, courts have concluded that the failure to point to a common decision-maker 17 amounts to a failure to meet the transactional relatedness test. 18 Defendant relies on Gammons v. Real Property Inv. Servs., Inc., No. CV-10-8081-PICT-LOA, 19 2010 WL 3156076 (D. Ariz. Aug. 9, 2010), asserting that courts routinely refuse to join multiple 20 plaintiffs who are alleging discriminatory practices of their employer. In Gammons, two joined 21 plaintiffs were employed to maintain and clean residential apartments owned by the defendant. The 22 first plaintiff asserted sexual harassment against the defendant, and the second plaintiff asserted racial 23 harassment. The two plaintiffs had at least one supervisor in common who committed the assertedly 24 discriminatory acts. However, the court found that the transactional relatedness test was not met 25 because general claims of discrimination are not enough to create a common transaction or 26 occurrence. The court pointed to the multiple factual differences between the two claims including 27 that they had (1) different job positions, (2) different direct supervisors, (3) named different principal 28 offenders, (4) asserted different reasons for leaving their employment, (5) different performance 9 1 issues, and (6) suffered different adverse employment actions when they complained about the 2 conduct. 3 Defendant also cites Klimaski v. Parexel Int'l, No. Civ. A. 05-298, 2005 WL 857350, at *3 4 (E.D. Pa. Apr. 4, 2005). In Klimaski, the district court distinguished Mosley on grounds that the 5 plaintiffs in that case were employees who were all discharged pursuant to a company-wide policy 6 of discrimination. In contrast, the plaintiffs in Klimaski stated claims that rested on distinct factual 7 circumstances, including that they were discharged by different decision-makers, under different 8 circumstances, or for allegedly different reasons. Thus, the court in Klimaski concluded that 9 plaintiffs' employment claims were misjoined under Rule 20. 10 Defendant notes that Plaintiffs' claims involve different time periods (Robinson – 2002; 11 McIntosh – 2000, and Jackson – 2002-05); different alleged discriminatory conduct 12 (Robinson – denied detail position, McIntosh – selected for position but at a lower GS grade level, 13 Jackson – job responsibilities given to others); different alleged supervisors or wrongdoers 14 (Robinson – Gonzalez/Lewis, McIntosh – non-Fresno personnel officer, Jackson – Thompson/Frech); 15 and different job positions or employed in different divisions (Robinson – unknown, McIntosh – non16 Fresno personnel office, Jackson – safety unit). (See Defendant's Br. at 10:1-8). Plaintiffs take no 17 issue with this characterization of their claims. 18 There are significant factual differences among each of Plaintiffs' claims under Title VII. Like 19 Gammons and Klimaski, Plaintiffs' claims involve different supervisors, Plaintiffs worked in different 20 job positions in different departments, and Plaintiffs allege different discriminatory conduct that 21 occurred at different time periods. The only unifying factor is that Plaintiffs all allege discriminatory 22 practices on the basis of race under Title VII against the same employer. However, unlike Mosley, 23 Plaintiffs do not point to one agency-wide policy under which they all suffered discrimination or one 24 policy-maker that was responsible for their discrimination. The incidents of alleged discrimination 25 do not stem from the application or the implementation of a particular policy – the complained of 26 conduct is distinct with regard to each claim. Plaintiffs' claims do not pass the transactional 27 relatedness test. 28 10 1 2 b. Plaintiffs' Claims Do Not Involve the Same Questions of Law or Fact Defendant argues that, pursuant to Coughlin, Bailey, and Grayson, Plaintiffs' claims do not 3 share a common question of fact or law despite the fact that the claims all arise out of employment 4 at the same IRS service center in Fresno and that all allege racial discrimination. 5 "[T]he mere fact that all Plaintiffs' claims arise under the same general law does not 6 necessarily establish a common question of law or fact." Coughlin, 130 F.3d at 1351. Where claims 7 require significant "individualized attention," they do not involve "common questions of law or fact." 8 Id. In Bailey, the plaintiffs were African-American females who worked for defendant Northern 9 Trust Company and were employed in the Special Assets Division within the company. Bailey v. N. 10 Trust Co., 196 F.R.D. 513, 518 (N.D. Ill. 2000). The court determined that the claims did not satisfy 11 the commonality requirement of Rule 20 because each decision affecting each plaintiff was a discrete 12 act by the defendant. Id. The court found there was no evidence that the claims were related in any 13 respect other than the fact that all plaintiffs worked for Northern Trust and that all claims were based 14 on race discrimination. Id. 15 In Grayson v. K-Mart Corp., 849 F. Supp. 785, 789-90 (N.D. Ga. 1994), eleven plaintiffs 16 were employed as former store managers of defendant K-Mart. The plaintiffs filed suit for age 17 discrimination under the Age Discrimination in Employment Act. Id. The court found that the claims 18 of each plaintiff were not transactionally related, as each plaintiff worked in a different store, was 19 geographically remote from the other plaintiffs, the decision to demote each plaintiff originated with 20 his district manager and was derived within the context of each plaintiff's store business 21 circumstances, and three different regional managers participated in the eleven demotion decisions 22 at issue. Id. The court found that commonality was also lacking because the claims were based upon 23 wholly separate acts of the defendant with respect to each plaintiff. Id. The court concluded that, 24 simply because the plaintiffs' claims were based on the same general theories of law, this was 25 insufficient to satisfy the commonality requirement. 26 In their opposition to Defendant's motion, Plaintiffs did not argue that there is commonality 27 of law or facts among their claims and, in fact, conceded during the December 1, 2010, hearing that 28 their claims were misjoined. Further, because these claims arise out of separate employment 11 1 decisions, in different divisions, with different supervisors, and Plaintiffs suffered different types of 2 adverse employment decisions, Plaintiffs' claims are factually distinct and do not satisfy the 3 commonality requirement. The fact that all the claims arise under Title VII is simply not enough. 4 3. 5 Under Rule 21, "[if] the test for permissive joinder is not satisfied, a court, in its discretion, Severance Would Not Prejudice a Substantial Right 6 may sever the misjoined parties, so long as no substantial right will be prejudiced by the severance." 7 Coughlin, 130 F.3d at 1350. Defendant asserts that severance of Plaintiffs McIntosh's and Jackson's 8 claims will not deprive them of any substantial right because they will still be able to pursue their 9 claims against the Defendant in separate cases. 10 While Plaintiffs did not raise the issue of the statute of limitations in their briefs, the issue was 11 addressed by the parties at the December 1, 2010, hearing. Plaintiffs and Defendant acknowledged 12 a potential statute of limitations issue with regard to McIntosh's and Jackson's claims if they were 13 forced to refile their complaints separately; the parties also noted that equitable tolling may apply to 14 McIntosh's and Jackson's claims. Whether any statute of limitations exists to bar Mcintosh and 15 Jackson from refiling their claims, several district courts have concluded that any prejudice resulting 16 from the statute of limitations is the risk assumed by the parties who caused the misjoinder. See, e.g., 17 Bravado Int'l Grp. Merch. Servs. v. Cha, No. CV 09-9066 PSG (CWX), at *6 (C.D. Cal., June 30, 18 2010) ("The possibility that a court may elect to drop misjoined parties is a risk assumed by the 19 plaintiff who chooses to prosecute an action in violation of Rule 20."); Funtanilla v. Tristan, 1:02-cv20 06001-OWW-GSA, 2010 WL 1267133, at *5 (E.D. Cal. Mar. 30, 2010). But see Marti v. Padilla, 21 No. 1:07-cv-00066-JMR, 2010 WL 1267120, at *1 (E.D. Cal. Mar. 30, 2010) (if statute of limitations 22 applies, plaintiffs would effectively be dismissed with prejudice, a result that contradicts Rule 21's 23 "just terms" requirement).3 24 /// 25 /// 26 27 28 3 Although the Court could dismiss Plaintiff McIntosh's and Jackson's claims and drop them from the lawsuit pursuant to Rule 21 despite a potential statute of limitations bar, as set forth below it will not elect to do so here. 12 1 4. Misjoined Claims Should Be Allowed to Proceed Separately Rather than Be Dismissed Without Prejudice 2 Defendant argues that the Court must dismiss all of Plaintiff McIntosh and Jackson's claims, 3 leaving only Plaintiff Robinson. Although this is an accepted practice under Rule 21, misjoinder does 4 not require dismissal. See DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006) (upon a finding 5 of misjoinder, a court "has two remedial options: (1) misjoined parties may be dropped 'on such terms 6 as are just'; or (2) any claims against misjoined parties 'may be severed and proceeded with 7 separately"); see generally Coalition for a Sustainable Delta v. U.S. Fish & Wildlife Serv., No. 1:098 cv-480-OWW-GSA, 2009 WL 3857417, at *8 (E.D. Cal. Nov. 17, 2009). 9 While dismissal at this late date is the risk that Plaintiffs assumed by filing a suit with 10 misjoined parties, the Court must consider the reasonableness of dismissing McIntosh's and Jackson's 11 claims. This case is nearly six years old, discovery is nearly complete, and a significant amount of 12 judicial resources has already been expended. Moreover, the practical effect of dismissing Plaintiff 13 McIntosh's and Jackson's claims could result in (1) additional lawsuits that would stand in a different 14 posture than the existing litigation, requiring both parties to expend additional resources; (2) the 15 creation of additional legal issues – e.g., upon filing new complaints, Plaintiffs McIntosh and Jackson 16 may be required to establish their time for filing suit should be equitably tolled; (3) subjecting the 17 parties to duplicative and repetitive procedural requirements; and (4) no saving of any judicial 18 resources. Therefore, the Court finds that it is more reasonable to sever Plaintiff McIntosh's and 19 Jackson's claims and allow them to proceed as two separate lawsuits, both of which should be 20 administratively managed with the lead Plaintiff's case, Kenneth Robinson. 21 IV. CONCLUSION 22 Accordingly, THE COURT HEREBY ORDERS THAT: 23 1. Defendant's Motion to Sever Plaintiffs' claims is GRANTED; 2. Defendant's Motion to Dismiss Plaintiff's claims without prejudice is DENIED; 3. The Clerk of the Court is directed to: 24 25 26 a. Sever the Plaintiff's claims into three distinct cases by opening two new cases 27 with consecutive numbers assigning one to Plaintiff McIntosh and the other 28 13 1 2 to Plaintiff Jackson; b. 3 4 5 Assign both new cases the same presiding and referral judges currently assigned to this case; and c. Relate all three cases for administrative efficiency. All scheduling dates assigned in this lead action shall be applied to the two new related cases. 6 7 IT IS SO ORDERED. 8 Dated: ie14hj 9 January 7, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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