Hill v. City of Aurora, Colorado

Filing 91

ORDER. Plaintiff's 77 Motion for Leave to File (Amended) Complaint filed inCivil Action No. 10-cv-01134-PAB-KMT is denied as moot. Plaintiff's Motion for Leave to File (Amended) Complaint filed in Civil Action No. 11-cv-00010-MSK-KMT (Doc . No. 19) is denied as moot. No later than 6/21/2011, Plaintiff shall file an amended complaint consolidating the factual allegations and causes of action previously contained in the complaints from both Hill I (10-cv-01134-PAB-KMT, Doc. No. 1 ) and Hill II (11-cv-00010-MSK-KMT, Doc. No. 1). after filing such a consolidated complaint, Plaintiff may again seek leave to add his proposed amendments by filing a motion to amend no later than 6/28/2011. By Magistrate Judge Kathleen M. Tafoya on 6/14/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10–cv–01134–PAB–KMT (consolidated with 11–cv–00010–MSK–KMT)
GEORG K. HILL,
Plaintiff,
v.
THE CITY OF AURORA, COLORADO, a municipal corporation,
Defendant.

ORDER

This matter is before the court on Plaintiff’s “Motion for Leave to File (Amended)
Complaint” filed in Civil Action No. 10-cv-01134-PAB-KMT (Hill I) (Doc. No. 77) and
Plaintiff’s “Motion for Leave to File (Amended) Complaint” filed in Civil Action No. 11-cv00010-MSK-KMT (Hill II) (Doc. No. 19).
Plaintiff filed suit against the City of Aurora on May 14, 2010 in Hill I. (See Hill I, Doc.
No. 1 [Compl.].) He asserts three Title VII claims for disparate treatment, harassment, and
retaliation arising out of his employment as a courtroom assistant for the City of Aurora’s
judicial department. Plaintiff seeks lost wages and benefits, compensatory damages for future
pecuniary loss, humiliation, emotional pain, inconvenience, mental anguish, loss of enjoyment of
life, punitive damages, costs, and attorney’s fees. (Id. at 17.)

On January 3, 2011, Plaintiff filed a second suit against the City of Aurora in Hill II.
(See Hill II, Doc. No. 1.) In the second suit he alleges substantially similar facts as in Hill I,
asserts the same three Title VII claims and seeks the same relief. In addition, the Hill II
Complaint includes factual allegations involving defense counsel, Timothy Schimberg, and
asserts that these allegations support his retaliation claim.
On March 7, 2011, Defendant filed in Hill I “Defendant’s Rule 42(a) Motion to
Consolidate” the two actions, arguing that they are duplicative, as they involve the same claims
against the same defendant in the same court. (Hill I, Doc. No. 72 [Motion to Consolidate] at ¶
4.) Defendant asserted that the only difference in the two actions was the inclusion of
allegations regarding defense counsel, which Defendant contends are designed to “besmirch and
disqualify” defense counsel and place economic pressure on Defendant by raising the possibility
of substitute counsel. (Id. at ¶ 5.) Defendant suggested that, rather than file a second lawsuit,
the proper procedure was for Plaintiff to seek leave to amend his complaint in Hill I to add the
factual allegations. (Id. at ¶ 8.) Defendant simultaneously filed in Hill II “Defendant’s
Combined Rule 12(f) Motion to Strike, Rule 12(b)(6) Motion to Dismiss, § 1927 Motion for
Costs, and Notice of the Motion to Consolidate.” (Hill II, Doc. No. 8 [Motion to Strike].)
Defendant sought to have Plaintiff’s entire complaint in Hill II stricken as redundant of the
complaint in Hill I, or dismissed for violating the judicial rule against claim splitting, or in the
alternative, consolidated with Hill I.
Rather than respond to Defendant’s Motion to Consolidate in Hill I, or Motion to Strike
in Hill II, Plaintiff filed motions to amend the complaint in both actions. Plaintiff asserts that he
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filed the motions to amend in both cases “[i]n order to address the ‘issues’ raised in [Defendant’s
Motion to Consolidate and Motion to Dismiss], as well as clarify the factual and cause of action
differences between [the two cases].” (Hill I, Doc. No. 77 at 2; Hill II, Doc. No. 19 at 2.) As to
the Motion to Amend in Hill I, Defendant argues that it “is another transparent and
impermissible attempt to split his interrelated Title VII claims against the City of Aurora into
two separate actions,” and notes that, rather than add new allegations to the Hill I complaint,
Plaintiff seeks to remove allegations regarding Plaintiff’s termination from employment from the
Hill I Complaint and assert them in Hill II. (Hill I, Doc. No. 80 at 2.) Defendant suggests that
an order consolidating the two cases renders the proposed amendments futile. (Id.) As to the
Motion to Amend in Hill II, Defendant contends that the only change in Plaintiff’s proposed
complaint in Hill II is that Plaintiff adds a fourth claim for relief under Title VII for wrongful
termination. (Hill II, Doc. No. 22 at 2.) Defendant argues that Plaintiff already incorporated
facts regarding his termination into his third claim for relief based on retaliation so wrongful
termination claim is entirely subsumed within his prior retaliation claim and the amendment is
unnecessary. (Id. at 3.) Defendant also argues that, because Hill II is duplicative and should be
stricken or dismissed in its entirety, the amendment is futile. (Id. at 4.)
On June 8, 2011, District Judge Phillip A. Brimmer granted Defendant’s Motion to
Consolidate. (Hill I, Doc. No. 90.) The consolidation of the two actions renders moot Plaintiff’s
motions to amend for purposes of “clarify[ing] the factual and cause of action differences
between [the two cases].” Therefore, it is

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ORDERED that Plaintiff’s “Motion for Leave to File (Amended) Complaint” filed in
Civil Action No. 10-cv-01134-PAB-KMT(Doc. No. 77) is DENIED AS MOOT; it is further
ORDERED that Plaintiff’s “Motion for Leave to File (Amended) Complaint” filed in
Civil Action No. 11-cv-00010-MSK-KMT (Doc. No. 19) is DENIED AS MOOT; it is further
ORDERED that, no later than June 21, 2011, Plaintiff shall file an amended complaint
consolidating the factual allegations and causes of action previously contained in the complaints
from both Hill I (10-cv-01134-PAB-KMT, Doc. No. 1) and Hill II (11-cv-00010-MSK-KMT
Doc. No. 1). This consolidated complaint will become the operative complaint in this matter.
Plaintiff is advised that this order does not constitute leave to include the amendments he
proposed in his motions to amend, and the court will strike the amended complaint if it
determines that such amendments have been included; it is further
ORDERED that, after filing such a consolidated complaint, Plaintiff may again seek
leave to add his proposed amendments by filing a motion to amend no later than June 28, 2011.
Dated this 14th day of June, 2011.

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