Langford v. Physicians Mutual Insurance Company

Filing 13

MEMORANDUM AND ORDER - The plaintiff's complaint is dismissed without prejudice. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HOWARD L. LANGFORD,
Plaintiff,
vs.

8:16-CV-531
MEMORANDUM AND ORDER

PHYSICIANS MUTUAL
INSURANCE COMPANY,
Defendant.
This matter is before the Court on the plaintiff's response (filing 10) to
the Court's order to show cause (filing 7) why the case should not be
dismissed as duplicative. The Court finds that this case is substantially
identical to another pending case between the same parties, and therefore
should be dismissed.
As the Court previously observed, this case is functionally identical to
another, earlier-filed case that the plaintiff has pending against the
defendant in this Court, No. 8:16-cv-16. Compare filing 1 with No. 8:16-cv-16
filing 26. But, as a general policy, duplicative litigation in federal courts
should be avoided. Missouri ex rel. Nixon v. Prudential Health Care Plan,
Inc., 259 F.3d 949, 953 (8th Cir. 2001) (citing Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). Plaintiffs may
not pursue multiple federal suits against the same party involving the same
controversy at the same time. Id. at 954. And federal courts may decline to
exercise their jurisdiction in order to prevent duplicative litigation. Id. at 952.
Specifically, "a district court may, for reasons of wise judicial administration,
dismiss one of two identical, pending actions." Id. at 953 (quotation omitted);
see Parker v. Matthews, 71 F. App'x 613, 614 (8th Cir. 2003). A plaintiff has
no right to maintain two separate actions involving the same subject matter
at the same time in the same court and against the same defendant. See id.
Accordingly, the Court ordered the plaintiff to show cause why this case
should not be dismissed in favor of the earlier-filed case. Filing 7. The
plaintiff's response (filing 10), as best the Court can tell, sets forth two
arguments. First, the plaintiff asserts that the two cases are premised on
different EEOC right-to-sue letters. Filing 10 at 2. Second, and relatedly, the
plaintiff contends that while both cases contain race discrimination claims,
No. 8:16-cv-16 includes retaliation, age, and whistleblower claims, while No.

8:16-cv-531 omits those claims and includes a disability discrimination claim.
Filing 10 at 3.
The Court finds those contentions difficult to square with the
pleadings. Literally the only addition to the complaint in this case from the
operative complaint in No. 8:16-cv-16 is a citation to the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), a citation to the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq., and the attachment of an EEOC rightto-sue letter disposing of a charge that had been attached to the complaint in
No. 8:16-cv-16. Compare filing 1 with No. 8:16-cv-16 filing 26. It is difficult to
see from the pleadings how No. 8:16-cv-531 is meaningfully different.
Equally problematic is that, despite the plaintiff's claim that No. 8:16cv-531 is meant to assert a disability discrimination claim, the complaint
arguably fails to do that. The complaints in both cases refer to an injury to
the plaintiff's left arm, but has not alleged facts from which a "disability," for
ADA purposes, could be inferred or identified, or that the plaintiff was a
"qualified individual" under the ADA. See Scruggs v. Pulaski Cnty., Ark., 817
F.3d 1087, 1092 (8th Cir. 2016). In other words, the complaints are
essentially identical in the extent to which they state an ADA claim.
But the real problem is more fundamental: the plaintiff has filed a
second lawsuit that is nearly identical to the first, instead of seeking to file
an amended complaint in No. 8:16-cv-16.1 The plaintiff had already sought
and obtained leave to file his amended complaint in No. 8:16-cv-16 so,
perhaps, leave would have been denied pursuant to Fed. R. Civ. P. 15(a)(2).
But "the court must insure that the plaintiff does not use the incorrect
procedure of filing duplicative complaints for the purpose of circumventing
the rules pertaining to the amendment of complaints[.]" Walton v. Eaton
Corp., 563 F.2d 66, 71 (3d Cir. 1977); see, Adams v. California Dep't of Health
Servs., 487 F.3d 684, 688 (9th Cir. 2007); Oliney v. Gardner, 771 F.2d 856,
859 (5th Cir. 1985). The requirement that a plaintiff seek leave to amend his
pleading would be meaningless if he could simply file a new case and start
over. Plaintiffs may not file duplicative complaints in order to expand their
legal rights. Curtis v. Citibank, N.A., 226 F.3d 133, 140 (2d Cir. 2000).
The plaintiff, in fact, argues at length that amendment of his complaint
in No. 8:16-cv-16 is warranted. Filing 10 at 5-11. But that is exactly the
point. If the plaintiff wants to amend his operative complaint in No. 8:16-cv16, he should move for leave to do so in that case, and explain why leave

The Court notes that even though No. 8:16-cv-16 was filed before the plaintiff obtained his
September 6, 2016 right-to-sue letter, receipt of the letter after the action has commenced
cures the defect. See Jones v. Am. State Bank, 857 F.2d 494, 499-500 (8th Cir. 1988).
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should be given.2 See, Rule 15(a)(2); Kozlov v. Associated Wholesale Grocers,
Inc., 818 F.3d 380, 395 (8th Cir. 2016), reh'g denied (May 4, 2016). But this
duplicative case will be dismissed in favor of the earlier-filed No. 8:16-cv-16.
See Nixon, 259 F.3d at 953; cf. Anheuser-Busch, Inc. v. Supreme Int'l Corp.,
167 F.3d 417, 419 n.3 (8th Cir. 1999); cf. also Parker v. Matthews, 71 F. App'x
613, 614 (8th Cir. 2003).
IT IS ORDERED:
1.

The plaintiff's complaint is dismissed without prejudice.

2.

A separate judgment will be entered.

Dated this 8th day of March, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

The Court notes that pursuant to the progression order in No. 8:16-cv-16, the deadline for
moving to amend pleadings does not elapse until May 7, 2017. No. 8:16-cv-16 filing 37 at 1.
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