Aguirre et al v. Valerus Field Solutions LP et al
OPINION AND ORDER denying 15 Motion to Sever.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
ELIZABETH AGUIRRE, et al,
VALERUS FIELD SOLUTIONS LP, et al,
July 13, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:15-CV-03722
OPINION AND ORDER
Before the Court is Defendants’ Motion to Sever (Doc. 15), as well as Plaintiffs’
Response (Doc. 18) and Defendants’ Reply (Doc. 19). Upon review and consideration of the
Motion, Response, Reply, the relevant legal authority, and for the reasons explained below, the
Court finds that Defendants’ Motion should be denied.
Plaintiffs Elizabeth Aguirre (“Aguirre”), Abid Momin (“Momin”), and Kassirim Onyeri
(“Onyeri”) (collectively, “Plaintiffs”) were formerly employed by Valerus Field Solutions L.P.
(“Defendant Valerus”), each working various positions in the company throughout his or her
employment period. Doc. 1 ¶¶ 3–17. Plaintiffs allege that Defendant Valerus, as well as Garland
King and Lawrence McKinnon (collectively, “Defendants”) discriminated against them on the
basis of their race or national origin and retaliated against Plaintiffs for engaging in activities
protected by Title VII. Id. ¶¶ 17–29.
Specifically, Aguirre and Onyeri contend that Defendants discriminated and retaliated
against them on the basis of their sex. Id. ¶¶ 18–27. Aguirre and Onyeri also allege violations of
the Equal Pay Act and retaliation under the Equal Pay Act. Id. Solely, Onyeri argues that
Defendants discriminated against her on the basis of a disability. Id. ¶¶ 27–28. In sum,
Defendants are faced with three individual Plaintiffs asserting a total of at least eighteen claims
against them in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 29
U.S.C. § 206 (the Equal Pay Act), and 42 U.S.C. § 12101 (the Americans with Disabilities Act).
II. Standard of Review
Federal Rule of Civil Procedure 21 provides: “Misjoinder of parties is not a ground for
dismissing an action. On motion or on its own, the court may at any time, on just terms, add or
drop a party. The court may also sever any claim against a party.” The district court has broad
discretion to sever claims and parties in a lawsuit. Anderson v. Red River Waterway Comm’n,
231 F.3d 211, 214 (5th Cir. 2000). Under Rules 21, severance creates “two separate actions or
suits where previously there was but one.” United States v. O’Neill, 709 F.2d 361, 268 (5th Cir.
1983). The severed claims proceed as independent actions, and a court may render a final
judgment in either one of the resulting two actions “notwithstanding the continued existence of
unresolved claims in the other.” Id. When deciding whether parties were properly joined under
Rule 20(a), the Court considers (1) whether the right to relief arises “out of the same transaction,
occurrence, or series of transactions or occurrences,” and (2) whether there is a question of law
or fact common to both plaintiffs. See Fed. R. Civ. P. 20(a). Joinder of parties is strongly
encouraged. See, e.g., Blum v. General Elec. Co., 547 F.Supp.2d 717, 722 (W.D. Tex. 2008).
This is particularly true in the employment discrimination context. See Castillo v. Lennar Corp.,
2008 WL 4425298, at *1 (S.D. Tex. Sept. 23, 2008) (citing Alexander v. Fulton Cnty., 207 F.3d
1303, 1322 (11th Cir. 2000) (en banc)).
Similarly, Rule 42(b) provides that a court has discretion to order separate trials of claims
“in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to
expedition and economy.” Fed. R. Civ. P. 42(b). “Thus, the two primary factors to be considered
in determining whether to order separate trials are efficient judicial administration and potential
prejudice.” Divine Restoration Apostolic Church v. Nationwide Mut. Ins. Co., 2010 WL
1064727, at *2 (S.D. Tex. 2010). Separation of issues for separate trials is “not the usual course
that should be followed.” McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 304 (5th Cir. 1993).
In In re Rolls Royce Corp., the Fifth Circuit acknowledged that while it has not yet
adopted a test for severance, a number of its district courts have applied the five-factor test of
Paragon Office Services, LLC v. United Healthcare Insurance Co.: whether (1) the claims arise
out of the same transaction or occurrence; (2) the claims present some common question of law
or fact; (3) settlement of the claims or judicial economy would be facilitated; (4) prejudice would
be avoided if severance were granted; and (5) different witnesses and documentary proof are
required for the separate claims. 755 F.3d 671, 680 n.40 (5th Cir. 2014) (citing 2012 WL
444236, at *1 (N.D. Tex. Sept. 26, 2012)). “‘[S]everance will be refused if the court believes that
it only will result in delay, inconvenience, or added expense.’” Id. (quoting Wright & Miller,
Fed. Prac. & Proc. § 1689 (3d ed. 2004)). The impulse is towards considering the broadest
possible scope of action consistent with fairness to the parties. HC4, Inc. Emp. Stock Ownership
Plan v. HC4, Inc., 2016 WL 109880, at *6 (S.D. Tex. Jan. 11, 2016) (citing United Mine
Workers v. Gibbs, 383 U.S. 714, 724, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)). Accordingly,
“joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers, 383 U.S.
Although the Fifth Circuit has not adopted a particular test to decide what is “the same
transaction or occurrence” under the first factor, Carter v. Diamond URS Huntsville, LLC, 175 F.
Supp. 3d 711, 727 (S.D. Tex. 2016), several of its district courts employ the Eighth Circuit’s
“logically related” test. See, e.g., Stinnette v. Medtronic, Inc., 2010 WL 767558, at *1 (S.D. Tex.
Mar. 3, 2010). Under this test, “all ‘logically related’ events entitling a person to institute a legal
action against another generally are regarded as comprising a transaction or occurrence.” Mosely
v. GMC, 497 F.2d 1330, 1333 (8th Cir. 1974) (citing 7 C. Wright, Fed. Prac. and Proc. § 1653 at
270 (1972)). As the Eight Circuit explained, “as used in Rule 20 [the terms] would permit all
reasonably related claims for relief by or against different parties to be tried in a single
proceeding. Absolute identity of all events is unnecessary.” Id.
Under the second Paragon Office factor, a number of courts have held that the “common
question” can be satisfied by the presence of only a single one. Carter, 175 F. Supp. 3d at 727
(citing Tex. Instruments, Inc. v. Citigroup Global Markets, Inc., 266 F.R.D. 143, 148 (N.D. Tex.
2010) (“[D]efendants may be joined together in the same action only if (1) ‘there is asserted
against them jointly, severally, or in the alternative any right to relief in respect of or arising out
of the same transaction, occurrence, or series of transactions or occurrences;’ and (2) at least one
‘question of law or fact common to all of them will arise in the action.”’)). However, the “mere
fact that all Plaintiffs’ claims arise under the same general law” is insufficient for a finding of a
common question of law or fact. Castro v. Freeman, 2011 WL 13140728, at *10 (S.D. Tex.
April 26, 2011) (citing Coughlin v. Rogers, 130 F.3d 1348, 1349 (9th Cir. 1997)).
A. Same Transaction or Occurrence
Defendants maintain that Plaintiffs’ claims are “highly individualized and . . . based on
discrete occurrences involving different legal issues, standards, and procedures.” Doc. 15 at 14.
Plaintiffs were affected by the alleged discrimination in different ways, and each Plaintiff raises
different claims against Defendants. Id. Moreover, many of the alleged similar incidents cited by
Plaintiffs occurred several years apart, involved different supervisors, and concerned different
job positions. Id. at 15–16.
In response, Plaintiffs claim that Defendants “subjected each Plaintiff to similar and, as a
group, specific occurrence of discrimination during their employment . . . while under the
immediate supervision of the same individuals.” Doc. 18 at 2. Plaintiffs maintain that they shared
the same employer, supervisors, division, and similar comparators. Id. Therefore, according to
Plaintiffs, joinder was proper. Id.
Plaintiffs’ Original Complaint describes in detail the alleged discriminatory acts by
Defendants Scott McKinnon and Bryan King toward Plaintiffs during their periods of
employment at Valerus. Doc. 1 ¶¶ 3–17. Apart from Plaintiff Onyeri’s claim of disability
discrimination, at least two Plaintiffs share every claim of discrimination against Defendants, and
assert that McKinnon and King, in their supervisory positions in the Supply Chain division at
Valerus, were the primary actors. Id. ¶¶ 17–29. While some of the alleged incidents involve
additional supervisors, were in relation to different job positions, or occurred on separate
occasions over several years, they arose due to the behavior of McKinnon and King. Id. ¶¶ 3–17.
Additionally, Defendants’ “stipulation that deposition testimony and discovery responses for
each matter may be conducted at the same time and offered in every action interchangeably” in
an effort to cure concerns about duplicative discovery contradicts their argument that Plaintiffs’
claims are so individualized as to necessitate separate actions. Doc. 19 at 1. Accordingly, the
Court concludes that the claims against Defendants are logically related and, therefore, arise out
of the same series of transactions or occurrences.
B. Common Question of Law or Fact
Defendants urge the Court to sever this action into three lawsuits because “Plaintiffs have
lumped together at least eighteen . . . distinct causes of action.” Doc. 15 at 2–3. Plaintiffs do not
uniformly share the claims and each “allege different adverse employment actions at different
points in time.” Id. According to Defendants, at least one but not all of the Plaintiffs allege they
were subjected to a hostile work environment on the basis of sex, retaliated against for
complaining about unequal pay, constructively discharged, or denied requests for sick leave. Id.
at 6–14. Thus, Defendants insist that Plaintiffs’ claims do not share any common questions of
law or fact. Id. at 5. In their Response, Plaintiffs contend that the “common question” prong is
satisfied by the Plaintiffs’ claims under Title VII and § 1981. Doc. 18 at 11.
The Court concludes that the claims asserted by Plaintiffs share at least one common
question of law or fact. Plaintiffs all worked in the Supply Chain division at Defendant Valerus,
were employed by Valerus at the same facility in the Houston area during roughly the same
period of time between 2009 and 2011, and were all under the supervision of McKinnon and
King during their employment periods. Doc. 1 at 3–17. The Court finds that while Plaintiffs’
claims are individualized to some extent, the majority of Plaintiffs’ claims involve questions
relating to McKinnon and King in their supervisory capacities at Valerus. See Doc. 1 ¶¶ 17–29.
The factual similarity of some of the claims made by Plaintiffs weighs heavily against the
severing of their claims. Id.; Doc. 18-1 at 2–3 (Valerus supervisor fails to give Plaintiffs and
other minorities increased pay that is owed; Plaintiffs passed over for work opportunities in favor
of white employees; “King tells [Plaintiff] he likes to keep ‘blacks with blacks and browns with
browns.’”). Because of these common questions of law and fact, judicial economy would be
served by trying all claims together. Accordingly, the Court concludes that joinder of the claims
These first two Paragon Office factors—whether the claims arise out of the same
transaction or occurrence and whether the claims present a common question of law or fact—
taken alone support a finding that the parties were properly joined. However, “under Rules 20
and 21, the district court has the discretion to sever an action if it is misjoined or might otherwise
cause delay or prejudice.” Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 574 (5th Cir.
1995) (emphasis added). The final Paragon Office factors consider such delay or prejudice.
Paragon Office Servs., 2012 WL 444236, at *1.
C. Settlement and Judicial Economy
Defendants conclusorily allege that a single trial “will not promote efficiency,” but fail to
provide any reasoning for their assertion. Doc. 15 at 14. In contrast, Plaintiffs contend that
severance would “undermine the likelihood of settlement and judicial economy” by requiring
multiple witnesses to testify in three separate cases and increasing “by threefold the required
number of juries and case/clerk files,” resulting in “delay, inconvenience, and added expense”
and “more work for the clerk’s office and court.” Doc. 18 at 11–12. The Court finds Plaintiffs’
argument persuasive that severance of this matter into three separate actions will likely result in
delay, inconvenience, and an overall lack of judicial economy.
Defendants urge that, even if Plaintiffs’ claims meet the requirements for joinder, the
claims should be severed into separate matters because “the jury would likely be confused and
Defendants would be substantially prejudiced if the claims were tried together.” Doc. 15 at 15.
Defendants argue that a single trial of Plaintiffs’ claims would likely involve a large number of
witnesses testifying about Defendants’ conduct. Id. at 16. “[U]nique circumstances or
unfavorable facts in one Plaintiff’s case may be unfairly impugned to Defendants with respect to
other Plaintiffs’ claims.” Id. Plaintiffs respond that severance is not required to avoid prejudice.
Doc. 18 at 12.
Defendants rely heavily upon Henderson v. AT & T Corp., 918 F. Supp. 1059 (S.D. Tex.
1996), abrogated on other grounds by Holmes v. Energy Catering Servs., LLC, 270 F. Supp. 2d
882 (2003). In that case, the court found the possibility of prejudice that could result from joinder
of much greater concern than the other Paragon Office factors. Id. at 1063. The court granted
severance on the basis that the defendant would be substantially prejudiced by a single trial
because the “confusion that would be engendered . . . [was] simply too great, and would
substantially threaten [the defendant’s] right to a fair trial.” Id. at 1064. In that case, five
plaintiffs alleged discrimination against a single defendant, the plaintiffs were “residents of five
different cities and four different states who worked in four separate . . . offices,” and “were
directly supervised by different managers in each office.” Id. at 1061. Additionally, the
Henderson plaintiffs “worked on separate teams in separate offices.” Id. at 1063. Here, in
contrast, all Plaintiffs worked in the same city, office, division, and under the same supervisors.
Doc. 1 ¶¶ 17–29. Defendants argue that certain evidence relevant to one Plaintiff’s case may be
irrelevant and prejudicial in another Plaintiff’s case. However, Defendants’ stipulation that
deposition testimony and discovery responses for each matter may be conducted at the same time
and offered in every action interchangeably leads the Court to conclude that joinder will not
result in prejudice to Defendants.
E. Witnesses and Documentary Proof
According to Defendants, evidence that is admissible and relevant to one Plaintiff’s case
would likely be irrelevant to another Plaintiff’s case. Doc. 15 at 15. However, as the Court has
already noted, Defendants’ subsequent stipulation regarding deposition testimony and discovery
responses contradicts their argument. See Doc. 19 at 1. As previously stated, much of the
discovery in the case and many of the witnesses will be the same for all Plaintiffs. Thus,
duplicative witnesses and documentary proof weigh in favor of joinder.
The Court finds no reason to burden the court system with three separate but similar trials
when all of Plaintiffs’ claims can be resolved in a single adjudication. “If a greater risk of
prejudice arises at a later stage of the litigation, this Court has discretion to order separate trials
as provided by Fed. R. Civ. P. 42(b) in order to minimize such risk.” El Aguila Food Prods., Inc.
v. Gruma Corp., 167 F. Supp. 2d 955, 961 (S.D. Tex. 2001).
Accordingly, the Court hereby
ORDERS that Defendants’ Motion to Sever (Doc. 15) is DENIED.
SIGNED at Houston, Texas, this 13th day of July, 2017.
UNITED STATES DISTRICT JUDGE
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