HINTON v. DIAL CORPORATION

Filing 10

MEMORANDUM AND OPINION re: Defendant's 5 MOTION to Dismiss Plaintiff's Claims. Signed by Judge Robert L. Wilkins on 1/23/2013. (tcb)

SUMMARY MEMORANDUM AND OPINION;
NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KENN HINTON,
Plaintiff,
v.

DIAL CORPORATION,
Defendant.

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Civil Action No. 12-1131 (RLW)

MEMORANDUM OPINION1
Before the Court is defendant's motion to dismiss. Defendant argues that this case must
be dismissed pursuant to the "first-to-file rule" because "a case already pending in California –
Margolis, et al. v. The Dial Corp., No. 12-cv-288-JLS (WVG) (S.D. Cal. filed Mar 9, 2012) –
challenges the same conduct by the same defendant, on behalf of a proposed class of consumers
that includes Plaintiff Kenn Hinton, and seeks the same relief based on analogous state law
claims as Mr. Hinton does. . . ." Def.’s Reply Mem. in Supp. of Its Mot. to Dismiss [Dkt # 8] at
1. Plaintiff does not dispute that he is a member of the putative class that is defined in the
Margolis litigation. Furthermore, it appears from a review of the complaints that plaintiff has

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This unpublished memorandum opinion is intended solely to inform the parties and any
reviewing court of the basis for the instant ruling, or alternatively, to assist in any potential future
analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court has
designated this opinion as “not intended for publication,” but this Court cannot prevent or
prohibit the publication of this opinion in the various and sundry electronic and legal databases
(as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion
by counsel. Cf. Fed. R. App. P. 32.1. Nonetheless, as stated in the operational handbook adopted
by our Court of Appeals, “counsel are reminded that the Court's decision to issue an unpublished
disposition means that the Court sees no precedential value in that disposition.” D.C. Circuit
Handbook of Practice and Internal Procedures 43 (2011).

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SUMMARY MEMORANDUM AND OPINION;
NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS.

basically copied the allegations of the Margolis litigation, and it is undisputed that there are no
material differences in the claims raised by the plaintiff in this case and the claims that are
pending in the earlier-filed litigation.
A further equitable consideration that can be considered by the Court is that plaintiff has
been admonished several times in the past by numerous courts for engaging in repetitive and
meritless litigation. See Hinton v. Naked Juice Co., Civ. Action No. 8:11-cv-03740-AW, 2012
WL 1552873 (D.Md. Apr. 30, 2012) (observing that “[o]ne court has pegged Plaintiff as a
frequent flyer in the United States judicial system . . . . For Plaintiff ha[s] filed at least forty-three
other federal civil lawsuits, all of which were dismissed, including at least fourteen [of] which
were dismissed as frivolous or by orders indicating that any appeal would be considered in bad
faith.”) (citations and internal quotation marks omitted) (alterations in original). Therefore, this
Court will avoid duplicative litigation by deferring to the United States District Court for the
Southern District of California to resolve this case. Hence, for reasons of comity and judicial
economy, the Court will grant defendant’s motion and will dismiss this case without prejudice.
See, e.g. Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 349-50 (D.C. Cir. 2003);
Furniture Brands Int’l, Inc. v. U.S. Int’l Trade Comm’n, 804 F. Supp. 2d 1, 4 (D.D.C. 2011). A
separate Order accompanies this Memorandum Opinion.
Digitally signed by Judge Robert L.
Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court, ou=Chambers
of Honorable Robert L. Wilkins,
email=[e-mail], c=US
Date: 2013.01.23 10:16:23 -05'00'

____________________
ROBERT L. WILKINS
United States District Judge
Date: January 23, 2013

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