Moore v. Shick et al

Filing 10

ORDER OF CONSOLIDATION - The Court orders that Plaintiff's Complaints be CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42 into the first filed case, 17-CV-3994. The Clerk of Court is DIRECTED to: (1) consolidate these actions; and ( 2) mark the Complaint assigned docket number 17-CV-7487 CLOSED. Any future filings are to be docketed in only 17-CV-3994. Finally, given that the time for full briefing of Defendants' motion to dismiss the Complaint in the First Action has not e xpired, the pending motion (Docket Entry 15) is DENIED WITHOUT PREJUDICE. After the Defendants notify the Court regarding service of the Complaint in the Second Action, Defendants may seek leave to file a motion to dismiss the Complaints in the Conso lidated Action, if so warranted. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is further directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 2/8/2018. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
RITA M. MOORE,
Plaintiff,

ORDER OF CONSOLIDATION
17-CV-3994(JS)(ARL)

-againstSCO FAMILY OF SERVICES; BRENDA
SHICK, Director; KATIA ANDRADE,
Assistant Director; CINDY POULIOT,
Case Manager; CHANDRA GROSSO,
Resident Assistant; and BRITTNEY
CHAPMON, Resident Assistant;
Defendants.
-----------------------------------X
RITA M. MOORE,
Plaintiff,
-against-

17-CV-7487(JS)(ARL)

SCO FAMILY OF SERVICES; BRENDA
SHICK, Director; KATIA ANDRADE,
Assistant Director; CINDY POULIOT,
Case Manager; CHANDRA GROSSO,
Resident Assistant; and BRITTNEY
CHAPMON, Resident Assistant;
Defendants.
-----------------------------------X
APPEARANCES:
For Plaintiff:
Rita M. Moore, pro se
807 N. Jefferson Street
Lindenhurst, NY 11757
For Defendants:

Ana Shields, Esq.
David S. Greenhaus, Esq.
Timothy James Domanick, Esq.
Jackson Lewis, P.C.
58 South Service Road, Ste. 250
Melville, NY 11747

SEYBERT, District Judge:
On

July

21,

2017,

pro

se

plaintiff

Rita

M.

Moore

(“Plaintiff”) filed a Complaint against SCO Family of Services,

Brenda Shick, Katia Andrade, Cindy Pouliot, Chandra Grosso, and
Brittney Chapmon (collectively, “Defendants”) pursuant to several
Federal, State, and local anti-employment discrimination statutes,
including Title VII of the Civil Rights Act of 1964 (“Title VII”),
as

codified,

42

U.S.C.

§§

2000e

to

2000e-17,

and

the

Age

Discrimination and Employment Act (“ADEA”), as codified, 29 U.S.C.
§§ 621-634, alleging discrimination in employment and retaliation
accompanied by an application to proceed in forma pauperis (the
“First Action”).

By Order dated October 11, 2017, Plaintiff’s

application to proceed in forma pauperis was granted and Defendants
were served with summonses and the Complaint on October 17, 2017.
(See Docket Entries 7, 9.)

On November 7, 2017, Defendants

requested a pre-motion conference in anticipation of filing a
motion to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).
By

(See Docket Entry 14.)

Electronic

Order

dated

November

21,

2017,

the

undersigned denied Defendants’ request for a pre-motion conference
and granted Defendants leave to move to dismiss the Complaint.
Defendants

were

ordered

to

file

their

motion

on

or

before

December 21, 2017 and Plaintiff’s opposition was ordered to be
filed on or before January 22, 2018. Defendants timely filed their
motion, but Plaintiff sought--and was granted--an extension of time
within which to file her opposition brief.
Elec. Order.)

(See Jan. 18, 2018

Plaintiff’s deadline to oppose the motion was
2

extended through February 5, 2018 and Defendants’ time to submit
a reply brief was extended through February 19, 2018.

Plaintiff

timely filed opposition to the motion to dismiss on February 5,
2018.
However, on December 29, 2017, Plaintiff filed a new in
forma pauperis Complaint (assigned Docket Number 17-CV-7487 (the
“Second Action”) against the same Defendants also alleging claims
of employment discrimination and retaliation pursuant to Title VII,
the ADEA, and

state law.

Upon review of Plaintiff’s declaration

in support of her application to proceed in forma pauperis, the
Court finds that Plaintiff’s financial status qualifies her to
commence the Second Action without prepayment of the filing fees.
See 28 U.S.C. § 1915(a)(1).

Accordingly, Plaintiff’s application

to proceed in forma pauperis is GRANTED.

Defendants are ORDERED

to apprise the Court on or before February 28, 2018 whether they
agree to waive service of the Complaint in the Second Action and
accept service thereof, thereby obviating the need for and expense
of service of the Complaint in the Second Action by the United
States Marshal Service (“USMS”).1
1

The Court notes that, by Letter dated January 31, 2018,
Defendants counsel in the First Action “address[ed] Plaintiff’s
stated intention to move to consolidate the [First and Second
Actions.] See Complaint in 17-CV-7487 at pages 7-8” and
requested that the Court schedule a pre-motion conference to
address Plaintiff’s anticipated motion.” (See Defs.’ Jan. 31,
2018 Letter, Docket Entry 22.) Given this Order of
Consolidation, Defendants’ request for a pre-motion conference
is DENIED AS MOOT.
3

In addition, under Federal Rule of Civil Procedure 42,
“[i]f actions before the court involve a common question of law or
fact, the court may: (1) join for hearing or trial any or all
matters at issue in the actions; (2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.”
FED. R. CIV. P. 42(a).
determine
Celotex

whether
Corp.,

“The trial court has broad discretion to

consolidation
899

F.2d

is

1281,

appropriate.”
1284-85

(2d

Johnson
Cir.

v.

1990).

Consolidation of cases with common questions of law or fact is
favored “to avoid unnecessary costs or delay,” Johnson, 899 F.2d
at

1284,

and

to

“expedite

trial

and

eliminate

unnecessary

repetition and confusion,” Devlin v. Transp. Commc’n Int’l Union,
175 F.3d 121, 130 (internal citations omitted).
“The Second Circuit has long adhered to the first-filed
doctrine

in

deciding

which

case

to

dismiss

where

there

are

competing litigations. Where there are several competing lawsuits,
the first suit should have priority, absent the showing of balance
of convenience or special circumstances giving priority to the
second.”
(S.D.N.Y.

Kellen Co. v. Calphalon Corp., 54 F. Supp. 2d 218, 221
1999)

(internal

quotation

marks,

alterations,

and

citations omitted); accord Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.
1991); First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d 76,
79 (2d Cir. 1989). The first-filed rule seeks to conserve judicial
resources and avoid duplicative litigation.
4

See Jacobs, 950 F.2d

at 92; First City Nat’l Bank & Trust Co., 878 F.2d at 80; Kellen,
54 F. Supp. 2d at 221.
Here, the Complaints filed by Plaintiff are against the
same Defendants and allege claims of employment discrimination and
retaliation pursuant to, inter alia, Title VII and the ADEA.

In

addition, the time periods and facts involved in the Complaints
largely overlap.
discretion,

the

Accordingly, in the sound exercise of its
Court

orders

that

Plaintiff’s

Complaints

be

CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42 into
the first filed case, 17-CV-3994.

The Clerk of Court is DIRECTED

to: (1) consolidate these actions; and (2) mark the Complaint
assigned docket number 17-CV-7487 CLOSED.

Any future filings are

to be docketed in only 17-CV-3994.
Finally,

given

that

the

time

for

full

briefing

of

Defendants’ motion to dismiss the Complaint in the First Action has
not expired, the pending motion (Docket Entry 15) is DENIED WITHOUT
PREJUDICE. After the Defendants notify the Court regarding service
of the Complaint in the Second Action, Defendants may seek leave
to file a motion to dismiss the Complaints in the Consolidated
Action, if so warranted.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose
of any appeal.

See Coppedge v. United States, 369 U.S. 438, 4445

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is further directed to mail a copy
of this Order to the pro se Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: February
8 , 2018
Central Islip, New York

6