KIROUAC v. DONAHOE

Filing 72

ORDER denying 53 Appeal from Magistrate Judge Decision to District Court By JUDGE JOHN A. WOODCOCK, JR. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CINDY L. KIROUAC,

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Plaintiff,
v.
PATRICK R. DONAHOE,

2:11-cv-00423-JAW

Defendant.
ORDER ON APPEAL OF MAGISTRATE JUDGE DECISION
In this hotly-contested civil action, Cindy L. Kirouac strenuously objects to
the Magistrate Judge’s dismissal without prejudice of Postmaster General Patrick
R. Donahoe’s (Postmaster) motion to dismiss. Appeal of Magistrate Judge’s Orders
(1) Striking without Prejudice Mot. for Issue Preclusion, and (2) Terminating Show
Cause Order (ECF No. 53) (Appeal).

This motion bears a word of explanation

because a party typically does not object to a court’s dismissal of her opponent’s
motion to dismiss.
On November 7, 2011, Ms. Kirouac filed a five-count complaint against the
Postmaster,

alleging

that

the

Postal

Service

had

engaged

in

disability

discrimination, had subjected her to a hostile work environment, and had retaliated
against her when she complained about sexual harassment and disability
discrimination. Compl. (ECF No. 1). After some discovery, on July 13, 2012, the
Postmaster filed a motion for issue preclusion regarding termination for just cause.
Mot. for Issue Preclusion (ECF No. 21). In its motion to dismiss, the Postmaster

attempted to raise the potential preclusive impact of a decision of Arbitrator
Michael Pecklers on the question of whether the Postal Service terminated Ms.
Kirouac’s employment for good cause. Id. at 1. In her 6-page response, Ms. Kirouac
questioned “what type of motion is before the Court.” Pl.’s Opp’n to Def.’s Mot. for
Issue Preclusion at 1 (ECF No. 35).

In particular, she wondered whether the

Postmaster was filing a motion for summary judgment under the guise of a motion
to dismiss. Id. On August 2, 2012, in Palmquist v. Shinseki, 689 F.3d 66 (1st Cir.
2012), the First Circuit adopted the view that the Rehabilitation Act “requires
retaliation to be the but-for cause of an adverse employment action in order for the
plaintiff to obtain a remedy.” Id. In light of Palmquist, the Postmaster conceded in
his reply that the Palmquist case “has effectively converted this non-dispositive
motion into a dispositive motion.” Reply to Resp. Regarding Issue Preclusion (ECF
No. 39).
The Postmaster’s comment provoked the Magistrate Judge to issue on August
20, 2012 an Order to Show Cause as to why the motion to dismiss should not be
struck. Order to Show Cause (ECF No. 43). On the same day, the Postmaster
quickly conceded that the question of collateral estoppel should be decided in the
context of a motion for summary judgment and agreed that the motion for issue
preclusion should be stricken without prejudice.

Resp. to Order to Show Cause

(ECF No. 44). The next day, the Magistrate Judge struck the motion for issue
preclusion without prejudice and terminated the Order to Show Cause. Order (ECF
No. 45, 46).

On the same day, the Postmaster filed a Notice of Intent to File

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Summary Judgment Motion. Notice of Intent to File Summary J. Mot. (ECF No.
48).
Surprisingly, Ms. Kirouac appealed the Magistrate Judge’s Order dismissing
the motion to dismiss without prejudice and terminating the Order to Show Cause.
Appeal at 1. Claiming that she expended “65 hours of attorney time,” she accused
the Postmaster of being “disingenuous” in claiming that Palmquist affected the type
of the motion that should have been filed, asserted that the Court has “routinely
denied with prejudice such motions because of procedural deficiencies and objects to
the Defendant being treated differently.” Id. at 3. On September 19, 2012, the
Postmaster responded. Resp. to Appeal of Magistrate Judge Decision (ECF No. 70).
It is difficult to understand why Ms. Kirouac is so irritated with the
Magistrate Judge’s decision to dismiss without prejudice the Postmaster’s motion to
dismiss. After all, the Magistrate Judge dismissed the motion to dismiss in her
favor. Even though she was required to respond to a motion that was ultimately
struck, most litigants would count the striking of such a motion as a victory and
move on.

Furthermore, the Postmaster is in the process of filing a motion for

summary judgment on the same theory and Ms. Kirouac has not claimed that she
cannot apply the attorney time she spent in responding to the motion to dismiss to
responding to the same issue raised in a motion for summary judgment.
What Ms. Kirouac seems to want is for the Court to punish the Postmaster
for filing a motion to dismiss on an issue the Postmaster and the Court later
determined would be more properly raised as a motion for summary judgment.

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First, the Court rejects Ms. Kirouac’s assertions of disingenuousness on the part of
the Postmaster.

It is not illogical for the Postmaster to have considered the

arbitration award to have been an extrinsic document the authenticity of which was
not disputed by the parties and that would have been subject to consideration in a
motion to dismiss. See Watterson v. Page. 987 F.2d 1, 3-4 (1st Cir. 1993) (“[C]ourts
have made narrow exceptions for documents the authenticity of which are not
disputed by the parties; for official public records; for documents central to the
plaintiffs’ claim; for documents sufficiently referred to in the complaint”). Second,
what if any legal effect the arbitration decision should have in this case is a serious
question and merits careful consideration. In this Court’s view, this issue should
not be foreclosed because the Postmaster determined that he filed the wrong
motion. Finally, as to Ms. Kirouac’s suggestion that if the Court does not do what
she says, the Court will be guilty of treating the Postmaster differently than other
litigants presumably because the Postal Service is an arm of the Government, the
Court firmly and unequivocally rejects any such implication.
In any event, whether to dismiss a motion with or without prejudice rests in
the sound discretion of the Court. See JRA Architects & Project Managers, P.S.C. v.
First Fin. Grp., Inc., 375 F. App’x 42, 43 (1st Cir. 2010); Hartford Accident and
Indem. Co. v. Irving Oil Corp., No. 1:11-cv-00075-JAW, 2011 U.S. Dist. LEXIS
113756, *4-5 (Sept. 30, 2011). Federal Rule of Civil Procedure 72(a) empowers a
magistrate judge to “hear and decide” non-dispositive pre-trial matters, FED. R. CIV.
P. 72(a), authority that echoes the magistrate judge’s statutory authority. 28 U.S.C.

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§ 636(b)(1)(A). If the matter is non-dispositive, to overturn the order the reviewing
court must determine that the order was “clearly erroneous or is contrary to law,”
an especially difficult burden when the magistrate judge has issued a discretionary
ruling. FED. R. CIV. P. 72(a). Here, the Magistrate Judge’s decision to strike the
motion to dismiss without prejudice is neither “clearly erroneous” nor “contrary to
law” and the Court affirms the Order.
The Court DENIES the Plaintiff’s Appeal of Magistrate Judge’s Orders (1)
Striking without Prejudice Motion for Issue Preclusion, and (2) Terminating Show
Cause Order (ECF No. 53) and AFFIRMS the Magistrate Judge’s Order (ECF No.
45) striking without prejudice the Defendant’s Motion for Issue Preclusion (ECF No.
21).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 25th day of September, 2012

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