Radtka et al v. Wal-Mart Stores, Inc.

Filing 33

ORDER granting 15 Motion to Sever and Directing Clerk to Take Action. Each Plaintiff is hereby severed from this action without prejudice to the Plaintiffs' rights to pursue their claims on an individual basis. All pending motions are denie d as moot. Without charging a filing fee, the Clerk is directed to open and assign to the Undersigned thirty-four new civil cases bearing the style of [INDIVIDUAL PLAINTIFF'S NAME] vs. Wal-Mart Stores, Inc. The Clerk is further directed to fil e the Plaintiffs' Complaint (ECF No. 1 ) as the first docket entry in each new civil case. The Clerk is directed to close this case. Signed by Judge Robert N. Scola, Jr on 7/12/2019. See attached document for full details. (mc)

United States District Court
for the
Southern District of Florida
Francine Radtka and others,
Plaintiffs,
v.
Wal-Mart Stores, Inc., Defendant.

)
)
)
) Civil Action No. 19-80153-Civ-Scola
)
)

Order Granting Motion To Sever and Directing Clerk to Take Action
This matter is before the Court on Defendant Wal-Mart Stores’ Motion to
Sever (ECF No. 15). The Plaintiffs responded (ECF No. 24) and Wal-Mart timely
replied (ECF No. 27). The Defendant’s motion requests that the Court sever the
34 individual Plaintiffs and their claims into separate actions. Having considered
the record, the applicable law, and being otherwise duly advised, the Court
grants the Defendant’s motion. (ECF No. 15.)
I.

Legal Standard

Rule 21 provides that “the court may at any time, on just terms, add or
drop a party,” and “[t]he court may also sever any claim against a party.” Fed. R.
Civ. P. 21. Although severance is generally “related to the misjoinder of parties,
it is not so limited.” Essex Ins. Co. v. Kart Const. Inc., 14-cv-356-T-23TGW, 2015
WL 628782, at *5 (M.D. Fla. Feb. 12, 2015). “A district court has broad discretion
when deciding whether to sever claims under Rule 21 and may consider factors
such as judicial economy, case management, prejudice to parties, and
fundamental fairness.” Id. District courts consider several factors including,
whether the claims arise out of the same transaction or occurrence, whether the
claims present different issues of fact or law, whether the settlement of claims or
judicial economy would be facilitated, whether prejudice would be avoided if
severance were granted, and whether different witnesses and documentary proof
would be required. Id.
II.

Analysis

In the instant case, which is not a putative class action, 34 Plaintiffs, who
each worked at various Wal-Mart stores, during different time periods, under
different policies and supervisors, have filed a complaint against Wal-Mart for

gender-based discriminatory employment practices.1 (ECF No. 1.) Notably, none
of the counts in the complaint are tailored to individual Plaintiffs or sub-sets of
Plaintiffs. Instead, Plaintiffs each identify themselves by listing which years they
worked for Wal-Mart and at which store they worked. (See id. at ¶¶ 18-52.) The
Plaintiffs later provide a brief summary of the alleged discriminatory practices
that they claim affected them, usually, but not always, concluding with
something along the lines of: “Upon information and belief, [the Plaintiff] believes
she was paid less than other similarly situated men during her employment
within Region [X].” (E.g., id. at ¶¶ 139, 143, 149, 155, etc.) Some Plaintiffs include
as few as three brief sentences of allegations, while others provide a full page of
details. (Id. at ¶¶ 132-322.) The allegations include hourly pay discrimination,
promotion discrimination, management pay discrimination, discriminatory
stereotypes, and Wal-Mart’s ineffective anti-discrimination efforts. Some of the
policies that created these conditions existed before 2004 and others were
implemented afterwards. The Plaintiffs each worked at different stores, in
different positions, during different time periods, under different policies, and
under different supervisors.
The Defendant moves for severance arguing that the Plaintiffs’ claims are
“so individualized that they necessarily implicate different witnesses whose
testimony relates only to their unique claims.” (ECF No. 15 at 5.) The Plaintiffs
worked in “56 different stores in 6 states” throughout the country. (Id.)
Proceeding with this case in its current form would be burdensome for the Court
and the Defendant. In response, the Plaintiffs argue that joinder is appropriate
because the Plaintiffs’ claims arise out of common transactions or occurrences
and share common questions of law or fact. (ECF No. 24 at 6–8.) The Court
disagrees with the Plaintiffs.
“None of these claims arise out of the same transaction or occurrence.
Each Plaintiff alleges a [slightly] different form of discrimination resulting from
different actions by different actors over different time periods.” Edwards-Bennet
v. H. Lee Moffitt Cancer and Research Institute, Inc., No. 13-cv-00853-T-27TGW,
2013 WL 3197041, at *1 (M.D. Fla. June 21, 2013) (granting motion to sever).
The Plaintiffs point out that their discrimination is a result of Wal-Mart’s
company wide policies, not individual decision-making. However, the Plaintiffs
concede that the “managers throughout the regions were permitted to arbitrarily
set workers’ compensation.” (ECF No. 24 at 6.) For a group of claims to arise out
of the same transaction or occurrence, the claims must “share operative facts.”
Another group of 45 Plaintiffs filed a similar lawsuit on the same day styled Price et al.
v. Wal-Mart Stores, Inc., Case No. 19-cv-80152-RNS. Contemporaneously with this
Order, the Court is also granting Wal-Mart’s motion to sever in the Price case.

1

Rhodes v. Target Corp., 313 F.R.D. 656, 659 (M.D. Fla. 2016). Here, there is no
common policy, practice, or set of facts that applied to every Plaintiff. While it is
true that all Plaintiffs share the same cause of action, gender discrimination in
violation of Title VII, “similar issues of liability alone are not sufficient to warrant
joinder.” Id.
In Bozek v. Wal-Mart Stores, Inc., an Illinois district court severed a similar
lawsuit filed by three plaintiffs against Wal-Mart. No. 15-cv-10, 2015 WL
3818984, at *3 (N.D. Ill. June 17, 2015). As is the case here, the Bozek plaintiffs’
allegations “d[id] not establish a company-wide policy of discrimination or that
their accused supervisors acted in concert with each other. Rather . . . they have
alleged different time periods, different supervisors, and different adverse
actions.” Id. Accordingly, the Court finds that severance is warranted.
III.

Conclusion

The Court grants Wal-Mart’s motion to sever. (ECF No. 15.) Each Plaintiff
is hereby severed from this action without prejudice to the Plaintiffs’ rights to
pursue their claims on an individual basis. All pending motions are denied as
moot.
Without charging a filing fee, the Clerk is directed to open and assign to
the Undersigned thirty-four new civil cases bearing the style of [INDIVIDUAL
PLAINTIFF’S NAME] vs. Wal-Mart Stores, Inc. The individual Plaintiffs in each
action shall be as follows:
1. Gretchen Adams
2. Valerie Blackshear
3. Yolanda Borras
4. Catherine Busalacchi
5. Teresa Evans Cluff
6. Tonya Colson
7. Jamie Estevez
8. Maggie Gibbs
9. Kathleen Gravedoni
10. Jane Hatten
11. Catherine Hern
12. Jenny Hicks
13. Sherry Hue
14. Catherine Jacobson
15. Diane Johnson
16. Melissa Koferl
17. Anne Mantello

18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.

Vanessa McKever
Linda Medlin
Korby Miller
Betty Moore
Ann Mowrey
Laura Parsons
Tina Powell
Francine Radtka
Teresa Rainey
Kimberly P. Roberts
Lisa Rohdy
Cynthia Simmons
Kimberly Sparks
Rhonda Waters
Pamela Williams
Tanisha Williams
Lisa Youman

The Clerk is further directed to file the Plaintiffs’ Complaint (ECF No. 1)
as the first docket entry in each new civil case.
The Plaintiffs who would like to pursue their claims on an individual basis
shall follow the below schedule when filing their respective Amended Complaints.
a. Those Plaintiffs whose surnames begin with the letters A, B, and C
shall have until and including July 31, 2019 to file an Amended
Complaint in each of their individual actions.
b. Those Plaintiffs whose surnames begin with letters D, E, F, G, and H
shall have until and including August 14, 2019 to file an Amended
Complaint in each of their individual actions.
c. Those Plaintiffs whose surnames begin with letters I, J, K, L, M, and
N shall have until and including August 28, 2019 to file an Amended
Complaint in each of their individual actions.
d. Those Plaintiffs whose surnames begin with letters O, P, Q, R, and S
shall have until and including September 11, 2019 to file an Amended
Complaint in each of their individual actions.
e. Those Plaintiffs whose surnames begin with letters T, U, V, W, X, Y,
and Z shall have until and including September 25, 2019 to file an
Amended Complaint in each of their individual actions.
Failure to timely file the individual amended complaints in accordance with this
Order will result in the dismissal of the respective individual actions. Wal-Mart

is deemed to have been validly served with respect to all of the Plaintiffs listed
above.
The Clerk is directed to close this case.
Done and ordered at Miami, Florida, on July 12, 2019.
________________________________
Robert N. Scola, Jr.
United States District Judge