Forgione v. Trustees of Boston University

Filing 13

Judge Richard G. Stearns: MEMORANDUM AND ORDER entered: Civil Action No. 13-12294-RGS is CONSOLIDATED with the Lead Case, Civil Action No. 13-11934-RGS. Civil Action No. 13-12294-RGS shall be closed on the courts dockets, and all further filings by the parties shall be made only in Civil Action No. 13-11934-RGS. Defendants Motion to Dismiss for Failure to State a Claim (Docket No. 8 in Civil Action No. 13-11934-RGS) is DENIED without prejudice to renew within 21 days of the date of this Memorandum and Order. Associated Cases: 1:13-cv-11934-RGS, 1:13-cv-12294-RGS(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-11934-RGS
PERRY J. FORGIONE,
v.
TRUSTEES OF BOSTON UNIVERSITY.

CIVIL ACTION NO. 13-12294-RGS
PERRY J. FORGIONE,
v.
TRUSTEES OF BOSTON UNIVERSITY.

MEMORANDUM AND ORDER
October 17, 2013
STEARNS, D.J.
BACKGROUND
On September 17, 2013, this court entered an Electronic Order (Docket No. 5) finding it
unclear why plaintiff Perry J. Forgione (Forgione) filed the second action (Forgione v. Trustees of
Boston University, Civil Action No. 13-12294-RGS) as a new action rather than as a supplement or
amendment to the Complaint filed in his earlier lawsuit, Forgione v. Trustees of Boston University,
Civil Action No. 13-11934-RGS. In light of this uncertainty, this court directed Forgione to
demonstrate good cause by October 8, 2013 why this second case should not be consolidated with
the prior lawsuit, and/or why his Complaint should not be construed as an Amended Complaint in
that earlier lawsuit. Additionally, the defendant Trustees of Boston University was permitted an
opportunity to file its position statement with respect to consolidation and/or construction of
Forigione’s Complaint as an Amended Complaint.

DISCUSSION
Forgione has not filed a timely response with respect to the consolidation issue as directed.
The Trustees of Boston University has filed a Response (Docket No. 7) contending that this case
should be consolidated with Civil Action No. 13-11934-RGS and the Complaint in Civil Action No.
13-12294-RGS should be deemed to be a “supplement” to the Complaint rather than an Amended
Complaint.
This court agrees with the Trustees of Boston University. Accordingly, Civil Action No.
13-12294-RGS shall be CONSOLIDATED with the Lead Case, Civil Action No. 13-11934-RGS.
Civil Action No. 13-12294-RGS shall be closed on the court’s dockets, and all further filings by the
parties shall be made only in Civil Action No. 13-11934-RGS.
Further, in light of the consolidation of the two actions, the Motion to Dismiss for Failure
to State a Claim (Docket No. 8) will be DENIED without prejudice. The Trustees of Boston
University may renew a Motion to Dismiss with respect to all claims, including claims set forth in
the Complaint in Civil Action No. 12294-RGS, within 21 days from the date of this Memorandum
and Order.
Should a renewed motion be filed based on grounds of res judicata, the Trustees of Boston
University shall explain how res judicata can apply to Forgione’s claims of violation of federal
discrimination statutes, where his lawsuit in the Suffolk Superior Court commenced on October 18,
2012, but the U.S. Equal Employment Opportunity Commission did not adopt the conclusions of
the Massachusetts Commission Against Discrimination until almost seven (7) months later, May 13,
2013 (which established exhaustion of administrative remedies and gave Forgione the right to sue
in court). In other words, the Trustees of Boston University shall address how Forgione could have
brought his federal claims in the state court action, where the federal claims had not been
administratively exhausted. Similarly, the Trustees of Boston University must explain why res
judicata should be applied Forgione’s claims in Civil Action No. 13-12294-RGS, where it has
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argued that the claims are not viable at this time because Forgione has not exhausted his
administrative remedies.
Finally, in any response to a renewed Motion to Dismiss, Forgione shall address the
argument that he is unable to establish a causal connection between the alleged refusal to reinstate
or rehire and the alleged discrimination or retaliation where, per Order of the Suffolk Superior Court
based on a statutory calculation under worker’s compensation law, he was legally deemed to be
incapacitated from work until December, 2014. Forgione also shall address the contention that he
is foreclosed from arguing the date of presumed incapacity because of a miscalculation by the
Suffolk Superior Court by using the net amount of settlement rather than the gross amount.
CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.

Civil Action No. 13-12294-RGS is CONSOLIDATED with the Lead Case, Civil Action No.
13-11934-RGS.

2.

Civil Action No. 13-12294-RGS shall be closed on the court’s dockets, and all further filings
by the parties shall be made only in Civil Action No. 13-11934-RGS.

3.

Defendant’s Motion to Dismiss for Failure to State a Claim (Docket No. 8 in Civil Action
No. 13-11934-RGS) is DENIED without prejudice to renew within 21 days of the date of
this Memorandum and Order.

SO ORDERED.
/s/ Richard G. Stearns
RICHARD G. STEARNS
UNITED STATES DISTRICT JUDGE

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