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Coker v. Norfolk Southern Corp.

United States District Court, N.D. Alabama, Southern Division

January 31, 2019




         The defendants, Norfolk Southern Corporation (“NSC”), Norfolk Southern Railway Company, Inc., (“Railway”), and Todd Reynolds, bring this cause before the court on their motion to dismiss (doc. 10) the complaint on the basis that it is an impermissible “claim splitting” by the plaintiff. The motion has been fully briefed by the parties, and they have consented to the exercise of dispositive jurisdiction by the undersigned magistrate judge. (Doc. 15).

         I. Procedural Background

         Prior to the filing of the instant action, the plaintiff filed an earlier complaint in this court on July 17, 2018, styled Powell-Coker v. Norfolk Southern Railway Company, Inc., et al., No. 2:18-cv-1094-AKK. Herein, the court refers to this earlier action as Powell-Coker I. With leave of court, she filed an Amended Complaint in the action on August 23, 2018, in which the named defendants were Norfolk Southern Railway Company, Inc., and several of its employees, including Todd Reynolds. The Amended Complaint alleged two claims: (1) retaliation in violation of the Federal Rail Safety Act (“FRSA”), and (2) a claim of outrage under Alabama state law. (Doc. 16 in No. 18-1094). Her retaliation claim alleged generally that the named defendants retaliated against her, including by terminating her employment, because she reported internally that she had been instructed to falsify safety-related disciplinary files, thereby hiding the true safety record of the company. Her state-law claim of outrage alleged that defendant Reynolds intentionally or recklessly caused her to suffer emotional distress and mental anguish by sexually harassing her in several different ways, for which she sought damages from all of the defendants. (See Id.).

         On August 24, 2018, the day after the plaintiff filed her Amended Complaint in Powell-Coker I, she filed the pending complaint in the instant case, which the court will refer to as Powell Coker II. (See Doc. 1 in No. 18-1364). As mentioned above, the named defendants in the new complaint are NSC, Railway, and Reynolds, the latter two being defendants also in Powell-Coker I. The complaint in the instant action alleges state-law claims for invasion of privacy, assault and battery, outrage, and negligent supervision and training, and federal claims under Title VII for hostile work environment and retaliation. All of the claims pleaded in the instant action rest factually on sexual harassment by Reynolds and retaliation for plaintiff's complaints about it. (Id.).

         After the filing of the complaint in Powell Coker II and during its pendency, a motion to dismiss the Amended Complaint was filed in Powell-Coker I, challenging the claims against various defendants on various grounds, but not asserting “claim splitting” as a basis for dismissal. (Doc. 22 in No. 18-1094). On October 19, 2018, Judge Kallon granted the motion to dismiss in part, dismissing the FRSA claim against most defendants (except Railway and Rodney Moore) and dismissing without prejudice the outrage claim against all defendants. (Doc. 28 in No. 18-1094). On December 21, 2018, the plaintiff filed a motion in Powell-Coker I to consolidate the instant case into it. (Doc. 33 in No. 18-1094).

         On October 12, 2018, the defendants in the instant action filed their motion to dismiss, arguing that the action must be dismissed as an impermissible violation of the doctrine prohibiting “claim splitting” by a plaintiff. They contend that the claims alleged in Powell Coker II are all within the same factual events and transactions that make up the claim underlying Powell-Coker I, even though some of the parties are different and the legal theories of relief are different, and that the plaintiff is not permitted by the “claim splitting doctrine” to file a second lawsuit on legal theories that should have been included in Powell-Coker I. The plaintiff opposes the motion.

         II. Discussion

         The doctrine prohibiting claim splitting is one facet of the larger doctrine of res judicata or claim preclusion. Vanover v. NCO Financial Servs., Inc., 857 F.3d 833, 841 (11th Cir. 2017) (citing Davis v. Sun Oil Co., 148 F.3d 606, 613 (6th Cir. 1998) (per curiam)). Under the doctrine, a plaintiff has “no right to maintain two actions on the same subject in the same court, against the same defendant at the same time.” Curtis v. Citibank N.A., 226 F.3d 133, 139 (2d Cir. 2000); Vanover v. NCO Financial Servs., Inc., 857 F.3d 833, 841 (11th Cir. 2017). To determine whether a case violates claim splitting, the court is required to apply a two-factor test: “(1) whether the case involves the same parties and their privies, and (2) whether separate cases arise from the same transaction or series of transactions.” Vanover, at 841-842 (quoting Khan v. H & R Block E. Enters., Inc., No. 11-20335-Civ, 2011 WL 3269440, at *6 (S.D. Fla. July 29, 2011)). The requirement that the successive actions involve “the same parties and their privies, ” however, is limited to those parties over whom the court has personal jurisdiction. See Rumbough v. Comenity Capital Bank, No. 18-10155, 2018 WL 4293309, at *2 (11th Cir. Sept. 10, 2018) (unpublished). Where a party in a successive suit was never subject to the personal jurisdiction of the court in the earlier action, claim splitting cannot be invoked by that party. In Rumbough, the court of appeals concluded that it was error for the district court to dismiss the plaintiff's claim against Equifax (even though it affirmed the dismissal of claims against other defendants), because the court never established personal jurisdiction over it. The court explained:

The Rumbough I court dismissed Rumbough's claim against Equifax because Rumbough had failed to effect service within the 90 day period mandated by the Federal Rules of Civil Procedure. Because Equifax was never properly served, the Rumbough I court never had jurisdiction over it. See Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”). Absent jurisdiction, our claim-splitting rule does not preclude Rumbough's second suit against Equifax. See Borrero v. United Healthcare of New York, Inc., 610 F.3d 1296, 1307 (11th Cir. 2010) (quoting Aquatherm Indus., Inc. v. Fla. Power & Light Co., 84 F.3d 1388, 1392 (11th Cir. 1996)) (“It is well-established that the general rule against splitting causes of action does not apply when suit is brought in a court that does not have jurisdiction over all of a plaintiff's claims.”); see also Restatement (Second) of Judgments § 25 cmt. e (1982) (“If ... the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground ... then a second action in a competent court presenting the omitted theory or ground should be held not precluded.”).

Rumbough v. Comenity Capital Bank, No. 18-10155, 2018 WL 4293309, at *2 (11th Cir. Sept. 10, 2018). When the court in the first case has never exercised personal jurisdiction over a party, no judgment that might have been entered would be binding on that party. Because the doctrine prohibiting claim splitting is part of res judicata, “the test ‘is… whether the first suit, assuming it were final, would preclude the second suit.'” Rumbough v. Comenity Capital Bank, No. 18-10155, 2018 WL 4293309, at *1 (11th Cir. Sept. 10, 2018) (unpublished) (quoting Hatch v. Boulder Town Council, 471 F.3d 1142, 1150 (10th Cir. 2006)). Hence, the jurisdictional inability of a court to enter a binding judgment on an unserved or unnamed party precludes the application of the claim-splitting doctrine by that party in a subsequent suit.

         The second factor addresses whether the two lawsuits involve the same “claim.” The term “claim” is not limited merely to the actual legal theories of relief pleaded in the two cases. Rather, a “claim” in this sense is the “subject matter” of the controversy, whether the two cases arise from the same nucleus of events and transactions between the parties. The Eleventh Circuit Court of Appeals explained it this way:

Successive causes of action arise from the same transaction or series of transactions when the two actions are based on the same nucleus of operative facts. Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395-96 (5th Cir. 2004)…. The Fifth Circuit has adopted the transactional test of the Restatement (Second) of Judgments, § 24, which instructs the district court to consider the following factors:
What factual grouping constitutes a “transaction, ” and what groupings constitute a “series, ” are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. [Hence, ] “[t]he critical ...

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