Wagner v. Akin Gump Strauss Hauer & Feld LLP
MEMORANDUM DECISION AND ORDER. Magistrate Judge Francis's Report and Recommendation is adopted. The Complaint is DISMISSED without prejudice. Plaintiff's motion for injunctive relief is DENIED. The Clerk of Court is directed to close the mo tions at ECF Nos. 8 and 20 and this case. So ordered. Re 24 Report and Recommendation, 20 Motion for Miscellaneous Relief filed by Kristy Wagner, 8 Motion to Dismiss filed by Akin Gump Strauss Hauer & Feld LLP. (Signed by Judge George B. Daniels on 1/17/2017) (rjm).
Case 1:16-cv-03532-GBD-JCF Document 25 Filed 01/17/17 Page 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-againstAKIN GUMP STRAUSS HAUER & FELD LLP,
16 Civ. 3532 (GBD) (JCF)
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GEORGE B. DANIELS, United States District Judge:
Pro se Plaintiff Kristy Wagner, an attorney, brought this action against her former
employer, Akin Gump Strauss Hauer & Feld LLP ("Akin Gump"), claiming that Akin Gump
violated her rights under the U.S. Constitution; the District of Columbia Human Rights Act, D.C.
Code§ 2-1401 et seq.; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the Equal Pay Act of 1963, 29
U.S.C. § 206(d). (Compl., ECF No. 1.) The Defendant moved to dismiss the Complaint in light
of Plaintiff's previously-filed case currently pending in the United States District Court for the
District of Columbia. (Def.'s Mot. to Dismiss, ECF No. 8.)
Before this Court is Magistrate Judge James C. Francis's November 28, 2016 Report and
Recommendation ("Report," (ECF No. 24)), recommending that Defendant's motion to dismiss
be granted, and that Plaintiff's motion for injunctive relief be denied. 1 (Report, at 7.) This Court
adopts those recommendations.
The relevant procedural and factual background is set forth in greater detail in the Report, and is
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LEGAL ST AND ARDS
This Court "may accept, reject, or modify, in whole or m part, the findings or
recommendations" set forth within a magistrate judge's report. 28 U.S.C. § 636(b )(1 ). The Court
must review de nova the portions of a magistrate judge's report to which a party properly objects.
Id. Portions of a magistrate judge's report to which no or merely perfunctory objections have been
made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y.
2006). Clear error is present only when "upon review of the entire record, [the court is] left with
the definite and firm conviction that a mistake has been committed." Brown v. Cunningham, No.
14-CV-3515, 2015 WL 3536615, at *4 (S.D.N.Y. June 4, 2015) (internal citations omitted).
Magistrate Judge Francis advised the parties that failure to file timely objections to the
Report would constitute a waiver of those objections on appeal. (Report, at 7-8.) No objection to
the Report has been filed.
"The first-filed rule is a well-established Second Circuit doctrine, based on the principle
that 'where there are two competing lawsuits, the first suit should have priority, absent the showing
of balance of convenience or special circumstances giving priority to the second."' Thomas v.
Apple-Metro, Inc., No. 14-CV-4120, 2015 WL 505384, at *2 (S.D.N.Y. Feb. 5, 2015) (quoting
First City Nat 'l Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989) (alterations, citations,
and internal quotation marks omitted)).
This presumption of "[ d]eference to the first filing
embodies considerations of judicial administration and conservation of resources and recognizes
that a party who first brings an issue into a court of competent jurisdiction should be free from the
vexation of concurrent litigation over the same subject matter." AEP Energy Servs. Gas Holding
Co. v. Bank ofAm., NA., 626 F.3d 699, 722 (2d Cir. 2010) (citations and internal quotation marks
omitted). For the presumption to apply, "[t]he lawsuits need not be identical, but the claims and
Case 1:16-cv-03532-GBD-JCF Document 25 Filed 01/17/17 Page 3 of 4
rights raised in the two actions must not differ substantially." Castillo v. Taco Bell of Am., LLC,
960 F. Supp. 2d 401, 404 (E.D.N.Y. 2013); see also Oleg Cassini, Inc. v. Serta, Inc., No. 11-CV8751, 2012 WL 844284, at *3 (S.D.N.Y. Mar. 13, 2012). In these circumstances, a district court
may "dismiss a lawsuit that is duplicative of a prior action," Castillo, 960 F. Supp. 2d at 404, or
instead choose to transfer or stay the second-filed action. See Wyler-Wittenberg v. MetLife Home
Loans, Inc., 899 F. Supp. 2d 235, 247-50 (E.D.N.Y. 2012).
THE S.D.N.Y. ACTION IS DISMISSED
According to the Defendant, Plaintiff resigned from Akin Gump in October 2014 to take a
position with another firm. (Report, at 1.) On March 25, 2016, she filed an action against the
Defendant in the United States District Court for the District of Columbia (the "D.D.C. Action.").
(Id. at 2.) Less than two months later, on May 11, 2016, she filed the instant action before this
Court, making substantially the same claims as she did in the D.D.C. Action. 2 (Id.)
The Report correct! y determined that Plaintiffs New York action should be dismissed
under the first-filed rule. As the Report found, the substantial similarity test is "easily met" here
because the parties are identical, Plaintiff has asserted claims under the same statutes in both cases,
and she has sought essentially the same monetary relief in both cases. (Id. at 3-4.)
Although the first-filed rule is a presumption that may be overridden where the "balance
of convenience" favors the second-filed action or where "special circumstances" warrant giving
priority to the second suit, neither exception applies here. The Report properly determined that
the "balance of convenience" factors support the first-filed presumption. (Id. at 5-6.) As described
in the Report, Plaintiff chose the District Court for the District of Columbia as the forum for her
Although Plaintiff never responded to Defendant's June 3, 2016 Motion to Dismiss, Plaintiff filed a
"Second Motion for Immediate Injunctive Relief' on September 19, 2016 (ECF No. 20.), which the Report
described as "largely incoherent." (Report, at 2.)
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initial action, and her claims have a substantial nexus with that district given that she worked for
a time in the Defendant's D.C. office. (Id. at 5.) She also asserted claims under the District of
Columbia Human Rights Act in both actions. (Id.) The convenience of witnesses, location of
relevant evidence, and locus of operative facts favor the D.D.C. Action because the alleged
discrimination occurred at least in part during Plaintiff's employment in the D.C. office, and she
resided in D.C. when she filed the first complaint. (Id. at 6.) The Report also properly concluded
that while the "convenience of the parties" is evenly balanced between New York and D.C.,
process is available to compel witnesses to testify in the D.D.C. Action. (Id.) Finally, while the
relative means of the parties favors this district because Plaintiff now resides here and has fewer
means than Akin Gump, the Report properly determined that this factor is outweighed by all others
favoring the D.D.C. Action. (Id.)
Finally, the Report properly concluded that neither a stay nor a transfer is appropriate here
given that the two actions are substantially identical. Thus, the proper relief is to dismiss this
action without prejudice to Plaintiff's proceeding with the D.D.C. Action. (Id. at 7.)
Magistrate Judge Francis's Report and Recommendation is adopted. The Complaint is
DISMISSED without prejudice. Plaintiff's motion for injunctive relief is DENIED.
The Clerk of Court is directed to close the motions at ECF Nos. 8 and 20 and this case.
Dated: New York, New York
January 17, 2017
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