Filed: Feb. 14, 2012
Latest Update: Feb. 22, 2020
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 14, 2012 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court LORI L. PARK, Plaintiff-Appellant, v. No. 11-1157 TD AMERITRADE TRUST (D.C. No. 1:10-CV-03136-ZLW) COMPANY, INC; TD AMERITRADE (D. Colo.) ONLINE HOLDINGS CORP.; TD AMERITRADE HOLDING CORPORATION; THE TORONTO-DOMINION BANK; JOSEPH H. MOGLIA; J. THOMAS BRADLEY, JR., Defendants-Appellees. ORDER AND JUDGMENT * Before KELLY, MURPHY, and HOLMES,
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 14, 2012 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court LORI L. PARK, Plaintiff-Appellant, v. No. 11-1157 TD AMERITRADE TRUST (D.C. No. 1:10-CV-03136-ZLW) COMPANY, INC; TD AMERITRADE (D. Colo.) ONLINE HOLDINGS CORP.; TD AMERITRADE HOLDING CORPORATION; THE TORONTO-DOMINION BANK; JOSEPH H. MOGLIA; J. THOMAS BRADLEY, JR., Defendants-Appellees. ORDER AND JUDGMENT * Before KELLY, MURPHY, and HOLMES, ..
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 14, 2012
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
LORI L. PARK,
Plaintiff-Appellant,
v.
No. 11-1157
TD AMERITRADE TRUST (D.C. No. 1:10-CV-03136-ZLW)
COMPANY, INC; TD AMERITRADE (D. Colo.)
ONLINE HOLDINGS CORP.; TD
AMERITRADE HOLDING
CORPORATION; THE
TORONTO-DOMINION BANK;
JOSEPH H. MOGLIA; J. THOMAS
BRADLEY, JR.,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and HOLMES, Circuit Judges.
On March 17, 2011, the district court dismissed this pro se Title VII action
without prejudice, finding that it was duplicative of another case that appellant
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Lori L. Park had filed against the same defendants. Ms. Park appeals from the
district court’s order of dismissal, raising a single issue. She asserts the district
court erred in dismissing the action before permitting her to obtain a waiver of
service from the defendants pursuant to Fed. R. Civ. P. 4(d). Because the district
court did not abuse its discretion in dismissing the action, we affirm.
In all, Ms. Park claims to have filed five discrimination charges and four
lawsuits, including the current action, involving her former employment with TD
Ameritrade. 1 On August 24, 2009, Ms. Park filed her first EEOC charge, in
which she asserted retaliation for her opposition to discrimination. The EEOC
issued her a right-to-sue letter. On October 18, 2010, she filed Case No.
10-cv-02599 in the United States District Court for the District of Colorado. In
her complaint, she included claims for retaliation, harassment, and hostile work
environment based on retaliation, as well as state law claims for promissory
estoppel and breach of contract, and negligence. Case No. 10-cv-02599 remains
pending in the district court.
On September 17, 2009, Ms. Park filed two more discrimination charges
with the EEOC. Her second charge alleged (1) retaliation, (2) discrimination
based on sex, and (3) “3rd Party & Bystander Harassment/Hostile Work
1
Two of Ms. Park’s lawsuits relative to her employment with TD
Ameritrade, one of which involved her fourth and fifth EEOC charges, were
apparently dismissed without appeal. See Aplee. Br. at 5.
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Environment, Etc.” R. at 68. Her third charge alleged retaliation and “Ethni[ci]ty
Bystander & Ethnicity Discrimination.” Id. at 69. The incidents alleged in these
charges dated from before she filed her initial lawsuit in Case No. 10-cv-02599.
The EEOC issued right-to-sue letters concerning these charges, and on December
27, 2010 Ms. Park filed the present suit (Case No. 10-cv-03136). She again
included claims for retaliation and sexual harassment and hostile work
environment as well as state claims for promissory estoppel and breach of
contract and negligence.
On February 10, 2011, the district court issued an order requiring Ms. Park
to show cause why Case No. 10-cv-03136 should not be dismissed for being
duplicative of Case No. 10-cv-02599. Ms. Park responded that Case No.
10-cv-03136 was based on a “fresh set of facts with different incident dates” that
established a claim for harassment and hostile work environment that had not
been pled in Case No. 10-cv-02599. Id. at 88. She followed up this response
with a pleading requesting that the district court order the United States Marshal’s
Office to serve waiver of service forms on the defendants in Case No.
10-cv-03136.
The district court rejected Ms. Park’s arguments and dismissed this action
as duplicative of Case No. 10-cv-02599, without ordering that waiver of service
forms be served on the defendants. It concluded that “[t]he Amended Title VII
Complaints in the two actions involve identical parties, assert the same claims
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under federal and state law, and seek the same remedies.” R. at 152. Ms. Park
subsequently filed a motion for reconsideration or for Fed. R. Civ. P. 60(b) relief,
which the district court denied. She then filed a second motion for
reconsideration, which the district court also denied. In its order denying the
second motion for reconsideration, the district court noted that Ms. Park had been
granted leave to amend her complaint in Case No. 10-cv-02559 to include all of
her Title VII claims, and that all existing deadlines had been vacated in that case.
Id. at 201.
After the district court denied her second motion for reconsideration,
Ms. Park filed the notice of appeal that established our jurisdiction. She appealed
only from the district court’s initial order of dismissal and not from the denial of
her reconsideration motions. Id. at 204.
Because Ms. Park is proceeding pro se, we construe her filings liberally.
Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). “District courts are
accorded a great deal of latitude and discretion in determining whether one action
is duplicative of another, but generally, a suit is duplicative if the claims, parties,
and available relief do not significantly differ between the two actions.” Serlin v.
Arthur Andersen & Co.,
3 F.3d 221, 223 (7th Cir. 1993) (internal quotation marks
omitted). A district court, as part of its general power to administer its docket,
“may stay or dismiss a suit that is duplicative of another federal court suit.”
Curtis v. Citibank, N.A.,
226 F.3d 133, 138 (2d Cir. 2000). We review for abuse
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of discretion a district court’s dismissal of a case as being duplicative of another
case pending before it. See id.; see also Hartsel Springs Ranch of Colo., Inc. v.
Bluegreen Corp., 296 F.3d 982, 985 (10th Cir. 2002) (“[H]ere the dismissal for
claim-splitting was premised in significant measure on the ability of the district
court to manage its own docket, and in that situation the appellate court reviews
the dismissal under an abuse of discretion standard.”).
Having reviewed the briefs, the record, and the applicable law, we discern
no abuse of discretion in the district court’s dismissal of Case No. 10-cv-03136 as
duplicative of Case No. 10-cv-02559. The judgment of the district court is
therefore AFFIRMED. Ms. Park’s motion to proceed in forma pauperis is
DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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