Zisumbo v. Ogden Regional Medical Center

Filing 53

MEMORANDUM DECISION denying 46 Motion to Stay Proceedings. Plaintiff is hereby directed to respond to Defendants Motion for Summary Judgment (DocketNo. 41) within twenty-eight (28) days. Failure to respond may result in dismissal of this case. Signed by Judge Ted Stewart on 12/13/12. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

RAYMOND L. ZISUMBO,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
STAY PROCEEDINGS

vs.

OGDEN REGIONAL MEDICAL CENTER,

Case No. 1:10-CV-73 TS

Defendant.

This matter is before the Court on Plaintiff Raymond L. Zisumbo’s Motion to Stay
Proceedings.1 For the reasons discussed below, the Court will deny the Motion.
I. BACKGROUND
Plaintiff filed his complaint in this matter on May 12, 2010, alleging that Defendant
Ogden Regional Medical Center (“ORMC”) maintained a hostile work environment in violation
of Title VII (“Zisumbo I”).2 On March 23, 2011, Plaintiff amended his complaint to allege
discrimination in violation of Title VII, retaliation in violation of Title VII, and breach of the

1

Docket No. 46.

2

Docket No. 2.
1

duty of good faith and fair dealing.3 On December 2, 2011, Plaintiff filed a complaint in the
Second District Court of the State of Utah alleging negligence, defamation, and interference with
economic relations (“State Zisumbo”).4 However, State Zisumbo was dismissed without
prejudice on January 20, 2012, because Plaintiff failed to pay the necessary filing fees.5
On February 3, 2012, Plaintiff filed a motion for leave to file a second amended
complaint in this case, requesting leave to add the claims dismissed in State Zisumbo and a claim
for discrimination in violation of 42 U.S.C. § 1981. In addition to supplementing his claims,
Plaintiff sought to add Plaintiff’s supervisor, Anthony Rhodebush, as a defendant in relation to
the discrimination claim under 42 U.S.C. § 1981.6 On March 30, 2012, the Magistrate Judge
denied Plaintiff’s motion to amend, finding that the proposed amendment was untimely,
prejudicial, and not supported by good cause.7
After Plaintiff’s motion to amend was denied, Plaintiff filed a complaint in a separate
case against ORMC and Rhodebush on April 2, 2012 (“Zisumbo II”).8 The complaint in
Zisumbo II contained factual allegations that are currently being considered in this case as well as
allegations related to claims for negligence, defamation, interference with economic relations,

3

Docket No. 13.

4

Zisumbo v. Ogden Reg’l Med. Ctr., 2012 WL 4795655, at *1 (D. Utah Oct. 9, 2012).

5

Id.

6

Docket No. 27.

7

Docket No. 33.

8

Complaint, Zisumbo v. Ogden Reg’l Med. Ctr., No. 1:10-CV-91 (D. Utah June 6, 2010),
ECF No. 2.
2

and Utah based claims that are not before the Court in Zisumbo I, the instant case.9 On June 7,
2012, Plaintiff filed a motion to consolidate Zisumbo II with Zisumbo I.10 On October 9, 2012,
the Court denied the motion to consolidate and dismissed Zisumbo II, finding that the § 1981
claims were barred by the rule against claim-splitting and the Court lacked jurisdiction to hear
the remaining claims.11 Plaintiff then filed an appeal of the Court’s decision in Zisumbo II on
November 8, 2012, and filed the Motion to Stay Zisumbo I—which is currently before the
Court—pending the outcome of his appeal in Zisumbo II.
II. DISCUSSION
The Court has inherent power to grant a stay pending the result of other proceedings.12
The Supreme Court has described this power as “incidental to the power inherent in every court
to control the disposition of the causes on its docket with economy of time and effort for itself,
for counsel, and for litigants.”13 Using this power “calls for the exercise of judgment, which
must weigh competing interests and maintain an even balance.”14 A party that seeks to stay
litigation pending the resolution of a different matter “must make out a clear case of hardship or

9

Id. ¶¶ 1–36.

10

Motion to Consolidate, Zisumbo v. Ogden Reg’l Med. Ctr., No. 1:10-CV-91 (D. Utah
June 6, 2010), ECF No. 7.
11

Zisumbo v. Ogden Reg’l Med. Ctr., 2012 WL 4795655, at *6.

12

Nederlandse ERTS-Tankersmaatchappij, N.V. v. Isbarndtsen Co., 339 F.2d 440, 441 (2d
Cir. 1964).
13

Landis v. North American Co., 299 U.S. 248, 254 (1936).

14

Id. at 254–55.
3

inequity in being required to go forward, if there is even a fair possibility that the stay for which
he prays will work damage to some one else.”15
The Court is guided by the following factors in determining whether to grant a stay: “(1)
whether a stay would promote judicial economy; (2) whether a stay would avoid confusion and
inconsistent results; and (3) whether a stay would unduly prejudice the parties or create undue
hardship.”16
The first factor, whether a stay is likely to promote judicial economy, turns on whether
Plaintiff is likely to succeed in his appeal of Zisumbo II. If Plaintiff wins that appeal, it would be
more efficient to stay the current matter so that it could be tried together with Plaintiff’s claims in
Zisumbo I, instead of having two separate trials on similar facts and issues. If Plaintiff does not
prevail, however, a stay would make the Court’s docket less predictable and less manageable,
thereby hindering judicial economy.
In this case, Plaintiff is unlikely to prevail in his appeal of Zisumbo I because the Court’s
decision to deny Plaintiff’s motion to consolidate and its decision to dismiss Zisumbo I were
based on well-settled law and will be subject to deferential review by the Tenth Circuit. In the
Court’s decision denying the motion to consolidate, the Court recognized that “it is well-settled
that a plaintiff may not use the tactic of filing two substantially identical complaints to expand

15

Landis, 299 U.S. at 255; see also Commodity Futures Trading Comm’n v. Portfolio
Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983) (“where a movant seeks relief that would
delay court proceedings by other litigants he must make a strong showing of necessity because
the relief would severely affect the rights of others”).
16

Evergreen Holdings, Inc. v. Sequoia Global, Inc., 2008 WL 4723008, at *2 (W.D. Okla.
Oct. 23, 2008).
4

the procedural rights he would have otherwise enjoyed.”17 Further, the denial of Plaintiff’s
motion to consolidate was within the Court’s discretion “and will not be reversed on appeal
absent clear error or exigent circumstances.”18 Next, the Court predicated the dismissal of
Zisumbo II on the well-settled rule “against claim splitting [that] requires a plaintiff to assert all
of its causes of action arising from a common set of facts in one lawsuit.”19 That dismissal was
within the Court’s discretion and is unlikely to be overturned on appeal when reviewed under the
applicable abuse of discretion standard.20 Accordingly, it is not likely that Plaintiff will prevail in
his appeal of Zisumbo II and a stay would only serve to make the Court’s docket less
manageable, thereby hindering judicial economy.
Under the second factor, a stay would not avoid confusion and inconsistent results. In the
event that the Tenth Circuit were to reverse the Court’s decision in Zisumbo II, on remand the
principles of res judicata would prevent this Court from arriving at results not consistent with any

17

Zisumbo, 2012 WL 4795655, at *3 (quoting Hartsel Springs Ranch of Colo., Inc. v.
Bluegreen Corp., 296 F.3d 982, 990 (10th Cir. 2002)).
18

Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978).

19

Zisumbo, 2012 WL 4795655, at *3.

20

See Hartsel Springs, 296 F.3d at 985 (“[Where] the dismissal for claim-splitting was
premised in significant measure on the ability of the district court to manage its own docket . . .
the appellate court reviews the dismissal under an abuse of discretion standard.”).
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decision the Court may have reached in Zisumbo I during the pendency of the appeal.21 Though a
court may, of course, reconsider any interlocutory orders prior to the entry of final judgment.
Finally, the Court finds that under the third factor, a stay would not unduly burden or
harm either of the parties. As a result, this factor does not cut in favor or against the stay.
III. CONCLUSION
Having considered all of Plaintiff’s arguments and balancing the factors proposed by
Plaintiff, the Court finds that Plaintiff has not met his burden to “make out a clear case of
hardship or inequity in being required to go forward”22 and Plaintiff’s Motion must be denied.
It is therefore
ORDERED that Plaintiff’s Motion to Stay Proceedings (Docket No. 46) is DENIED.
Plaintiff is hereby directed to respond to Defendant’s Motion for Summary Judgment (Docket
No. 41) within twenty-eight (28) days. Failure to respond may result in dismissal of this case.

21

See e.g., Borrero v. United Healthcare of New York, Inc., 610 F.3d 1296, 1307 (11th
Cir. 2010) (“One of the chief concerns of res judicata is the prevention of inconsistent results.”);
Dionne v. Mayor and City Council of Baltimore, 40 F.3d 677, 685 (“[I]ssue preclusion rules may
prevent the relitigation of factual issues already determined . . . and thus foreclose the possibility
of inconsistent results.”); Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) (“The
doctrine of res judicata . . . is designed to . . . avoid inconsistent results . . . .”).
22

Landis, 299 U.S. at 255.
6

DATED December 13, 2012.
BY THE COURT:

_________________________
TED STEWART
United States District Judge

7