Morgan v. Napolitano

Filing 116

ORDER signed by Judge Lawrence K. Karlton on 10/3/12 ORDERING 1 Morgan v. Napolitano, case no. 2:09-cv-02649, and Morgan v. Napolitano, case no. 2:12-cv-01287, are hereby CONSOLIDATED. The complaint currently filed in case no. 2:12-cv-012 87 (docket no. 1) shall become the operative complaint in the consolidated action. Plaintiff is granted leave to file an amended complaint within 7 days of entry of this order solely to allege an additional cause of action under the Age Discrimi nation in Employment Act (currently pleaded in the Fifth Amended Complaint in case no. 2:09-cv- 02649 57 , but not pleaded in the complaint in case no. 2:12-cv-01287 (docket no. 1)). Defendant shall file a response to the consolidated compla int (whether amended by plaintiff or not) within 21 days of entry of this order. Any motion filed by defendant in response to the consolidated complaint may only address new matter pleaded in the consolidated complaint and not pleaded in the Fifth Amended Complaint currently filed in case no. 2:09-cv-02649 57 . Plaintiff's cause of action for judicial review of the Merit Systems Protection Board order dated April 13, 2012 shall be tried to the court separately following trial on all other causes of action herein. The parties may not refer to the proceedings that led to this order, or the order itself, in any proceedings before a jury herein. Plaintiff's and defendant's motions to amend the statu s (pretrial scheduling) order currently in effect in case no. 2:09-cv-02649 68 are DENIED as moot. The status (pretrial scheduling) order currently in effect in case no. 2:09-cv-02649 68 is VACATED. A status (pretrial scheduling) conference is set for November 13, 2013 at 11:00 a.m. The parties shall file status reports no later than 14 days before the status conference.(Matson, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN P. MORGAN,
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Plaintiff,
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v.

NO.

CIV.

S-09-2649

LKK/DAD

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JANET NAPOLITANO, SECRETARY,
U.S. DEPARTMENT OF HOMELAND
SECURITY, IMMIGRATION AND
CUSTOMS ENFORCEMENT, FEDERAL
PROTECTIVE SERVICE,

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Defendants.
/

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JOHN P. MORGAN,
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Plaintiff,
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v.

NO. CIV. S-12-1287 LKK/DAD

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JANET NAPOLITANO, SECRETARY,
U.S. DEPARTMENT OF HOMELAND
SECURITY,

O R D E R

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Defendants.
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/

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This is an employment discrimination case against the

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Department of Homeland Security, with claims arising under Title

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VII, the Americans with Disabilities Act (“ADA”), and the Age

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Discrimination in Employment Act (“ADEA”). Three motions came on
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for hearing on October 1, 2012:
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Civ. P. 42(a).1

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2.

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Defendant’s motion to consolidate cases under Fed. R.

Plaintiff’s motion to amend the pretrial scheduling
order to extend the discovery deadline.

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Defendant’s motion to amend the pretrial scheduling

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order

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deadlines.

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Having

to

extend

considered

the

the

discovery

matter,

the

and

Court

law

&

motion

hereby

GRANTS

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defendant’s motion to consolidate and DENIES both motions to amend

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the pretrial scheduling order as moot, for the reasons set forth

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below.

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I. BACKGROUND

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A. Factual & Procedural Background re: Motion to Consolidate Cases

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On September 21, 2009, plaintiff filed Morgan v. Napolitano,

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case no. 2:09-cv-02649, an employment discrimination case against

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the Department of Homeland Security (“DHS”) (Morgan I). On May 12,

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2012, plaintiff filed a second such case, Morgan v. Napolitano,

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case no. 2:12-cv-01287 (Morgan II). On May 15, 2012, the court

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entered a Related Case Order finding the cases related within the

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meaning of Local Rule 123(a). On July 30, 2012, the court ordered

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defendant to bring this motion to consolidate the cases.

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The Fifth Amended Complaint in Morgan I (docket no. 56)

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alleges four causes of action: (1) retaliation for plaintiff’s

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Hereinafter, the term “Rule” refers to the applicable
Federal Rule of Civil Procedure.
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wife’s

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discrimination claims against the agency; (2) retaliation for

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plaintiff’s

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representation of those employees; (3) retaliation for plaintiff’s

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filing

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assistance to co-workers in also filing discrimination claims; and

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(4) age discrimination against plaintiff. Among the remedies

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plaintiff seeks in the Morgan I complaint are retroactive promotion

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to the position he was denied due to retaliation, back pay, and

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role

of

as

an

attorney

perceived

representing

aiding

discrimination

and

claims

on

DHS

abetting

his

own

employees

of

his

behalf,

in

wife’s

and

his

front pay.
The Morgan II complaint alleges the following facts not

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included in the Morgan I complaint:

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•

DHS allegedly removed plaintiff from federal service on

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January

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regarding the removal.

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•

•

Plaintiff’s

union

invoked

arbitration

By written decision dated July 31, 2009, the arbitrator

Plaintiff then filed a request for review of the arbitrator’s
decision with the Merit Systems Protection Board (“MSPB”).

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2009.

denied the grievance and affirmed plaintiff’s removal.

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6,

•

By final order dated April 13, 2012 (“MSPB Decision”), the

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MSPB affirmed two of the four charges against plaintiff and

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affirmed DHS’s removal action.

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(Morgan II docket no. 1 ¶¶ 7-11.)

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In place of the fourth claim in the Morgan I complaint, for

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age discrimination, the Morgan II complaint seeks judicial review

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of the MSPB Decision. As an additional remedy, plaintiff seeks
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retroactive restoration to his position with DHS. But in most

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substantive respects, the Morgan I and Morgan II complaints are

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identical.

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B. Factual & Procedural Background re: Motions to Extend Discovery

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and Law & Motion Deadlines

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On June 27, 2012, the court entered an order extending the

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discovery deadline in Morgan I from July 11, 2012 to September 11,

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2012. (Morgan I docket no. 90.) The court simultaneously extended

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the law & motion deadline to November 9, 2011, delayed the final

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pretrial

conference

to

February

11,

2012,

and

postponed

the

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commencement of trial to May 14, 2013. The parties jointly sought

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this extension due to an illness in counsel’s family. (See Morgan

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I docket no. 89.)

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Defendant now moves the court to further extend the discovery

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and law & motion deadlines, arguing good cause therefor. (Morgan

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I docket no. 108.) Plaintiff opposes this motion. (Morgan I docket

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no. 111.) Plaintiff separately moves to extend the discovery

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deadline, also arguing good cause. (Morgan I docket no. 109.)

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Plaintiff’s motion is unopposed.

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II. STANDARD

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Rule 42(a) provides:

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If actions before the court involve a common question of
law or fact, the court may:

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(1) join for hearing or trial any or all matters at
issue in the actions;

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(2) consolidate the actions; or

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(3) issue any other orders to avoid unnecessary cost or
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delay.

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The court has broad power under this rule to consolidate

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cases. Investors Research Co. v. U.S. Dist. Ct. for Cent. Dist. of

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Cal., 877 F.2d. 777 (9th Cir. 1989).

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burden of persuading the court that consolidation is warranted.

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Internet Law Library, Inc. v. Southridge Capital Management, LLC,

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208 F.R.D. 59, 61 (S.D.N.Y. 2002)

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The moving party bears the

Under the most common standard adopted by federal courts in
deciding motions to consolidate,

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[t]he critical question [is] whether the specific risks
of prejudice and possible confusion were overborne by
the risk of inconsistent adjudications of common factual
and legal issues, the burden on parties, witnesses and
available judicial resources posed by multiple lawsuits,
the length of time required to conclude multiple suits
as against a single one, and the relative expense to all
concerned
of
the
single-trial,
multiple-trial
alternatives.

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Arnold v. Eastern Airlines, 681 F.2d 186, 193 (4th Cir. 1982). See

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Charles Alan Wright & Arthur R. Miller, Federal Practice and

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Procedure § 2383 (3d. ed. 2012) (discussing this standard with

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approval). Ultimately, considerations of convenience and economy

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must yield to a paramount concern for a fair and impartial trial.

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Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990).

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III. ANALYSIS

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There is little question that nearly every factor weighs in

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favor of consolidating Morgan I and Morgan II. The facts alleged

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in the two complaints are virtually identical; Morgan II simply

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adds details about plaintiff’s subsequent termination and his

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exhaustion of administrative remedies. The legal issues are also
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nearly identical; Morgan II merely pleads additional remedies

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stemming from plaintiff’s termination, adds a claim for review of

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the MSPB Decision, and includes a reference in the Third Claim for

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Relief to assisting one Michael Conrad in making a discrimination

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complaint. Two trials would therefore present a significant risk

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of inconsistent verdicts.2

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Given the factual and legal identities between the matters,

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a

second

lawsuit

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expenditure of effort and resources by the parties, the witnesses,

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and the court. This is especially true if, as defendant claims,

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“[m]ost of the witnesses are from outside the Sacramento area,

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including witnesses in Washington DC, Chicago, Denver, Oregon,

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southern California and San Francisco.” (Reply, docket no. 112,

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p.4.)

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individuals to testify at a second trial on the termination issues

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raised in Morgan II.

There

would

seems

also

little

mean

merit

in

a

tremendously

requiring

duplicative

these

far-flung

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Plaintiff also argues that the court’s review of the MSPB

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Decision in Morgan II would prejudice the jury as to his remaining

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claims. He appears concerned that the court may uphold the MSPB

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Decision, e.g., on a motion for summary judgment, and that this

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decision would then be communicated to the jury at trial. This

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concern can be properly addressed by bifurcating plaintiff’s cause

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While it is possible, as plaintiff argues, that many of the
issues in Morgan II could be disposed of through claim preclusion
and issue preclusion, any such efficiency gains would undoubtedly
be outweighed by the costs of maintaining a second nearly-identical
action.
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of

action

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consideration of this cause of action until after the remaining

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issues in this case are decided.

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for

Plaintiff’s

review

only

of

the

MSPB

meritorious

Decision,

argument

is

and

postponing

that

allowing

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additional discovery to address the new factual and legal matter

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pleaded in Morgan II will further delay trial. Three years have

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passed since plaintiff filed Morgan I, and trial is not scheduled

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to begin until May 14, 2013. If the cases are consolidated, trial

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will be delayed even further. Still, a consolidated trial will take

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place sooner than a standalone Morgan II trial would. Given that

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plaintiff must be reinstated (a remedy he seeks in Morgan II)

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before he can be promoted (a remedy he seeks in Morgan I), it seems

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prudent to try the cases together despite the unfortunate delay.

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The court therefore grants defendant’s motion to consolidate

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Morgan I and Morgan II. Consolidating these cases will require a

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new status conference to set discovery and law & motion deadlines,

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and dates for the final pretrial conference and trial. Accordingly,

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the court will vacate the existing status (pretrial scheduling)

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order, and set a new status conference. The effect will be to

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vacate the current discovery and law & motion deadlines, rendering

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the parties’ respective motions to amend the pretrial scheduling

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order moot. The court urges the parties to take advantage of this

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one-time “get out of jail free” card and complete discovery. It is

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exceedingly

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extensions.

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////

unlikely

that

the

court

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will

grant

any

further

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IV. CONCLUSION
The court hereby orders as follows:

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[1] Morgan v. Napolitano, case no. 2:09-cv-02649, and

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Morgan v. Napolitano, case no. 2:12-cv-01287, are hereby

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CONSOLIDATED.

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[2]

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no.

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operative complaint in the consolidated action.

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[3]

The

complaint

2:12-cv-01287

Plaintiff

is

currently

(docket

granted

no.

leave

filed

1)

to

in

case

shall

become

the

file

an

amended

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complaint within seven (7) days of entry of this order

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solely to allege an additional cause of action under the

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Age Discrimination in Employment Act (currently pleaded

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in the Fifth Amended Complaint in case no. 2:09-cv-02649

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(docket no. 57), but not pleaded in the complaint in

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case no. 2:12-cv-01287 (docket no. 1)).

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[4] Defendant shall file a response to the consolidated

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complaint (whether amended by plaintiff or not) within

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twenty-one (21) days of entry of this order. Any motion

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filed by defendant under Fed. R. Civ. P. 12(b)(6) in

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response to the consolidated complaint may only address

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new matter pleaded in the consolidated complaint and not

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pleaded in the Fifth Amended Complaint currently filed

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in case no. 2:09-cv-02649 (docket no. 57).

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[5] Plaintiff’s cause of action for judicial review of

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the Merit Systems Protection Board order dated April 13,

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2012 shall be tried to the court separately following

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trial on all other causes of action herein. The parties

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may not refer to the proceedings that led to this order,

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or the order itself, in any proceedings before a jury

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herein.

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[6] Plaintiff’s and defendant’s motions to amend the

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status (pretrial scheduling) order currently in effect

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in case no. 2:09-cv-02649 (docket no. 68) are DENIED as

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moot.

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[7] The status (pretrial scheduling) order currently in

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effect in case no. 2:09-cv-02649 (docket no. 68) is

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VACATED.

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[8] A status (pretrial scheduling) conference is set for

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November 13, 2013 at 11:00 a.m. The parties shall file

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status reports no later than 14 days before the status

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conference.

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IT IS SO ORDERED.

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DATED:

October 3, 2012.

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