United States District Court, D. Nebraska
HOWARD L. LANGFORD, Plaintiff,
PHYSICIANS MUTUAL INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the plaintiff's response
(filing 10) to the Court's order to show cause (filing 7)
why the case should not be dismissed as duplicative. The
Court finds that this case is substantially identical to
another pending case between the same parties, and therefore
should be dismissed.
Court previously observed, this case is functionally
identical to another, earlier-filed case that the plaintiff
has pending against the defendant in this Court, No.
8:16-cv-16. Compare filing 1 with No.
8:16-cv-16 filing 26. But, as a general policy, duplicative
litigation in federal courts should be avoided. Missouri
ex rel. Nixon v. Prudential Health Care Plan, Inc., 259
F.3d 949, 953 (8th Cir. 2001) (citing Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800,
817 (1976)). Plaintiffs may not pursue multiple federal suits
against the same party involving the same controversy at the
same time. Id. at 954. And federal courts may
decline to exercise their jurisdiction in order to prevent
duplicative litigation. Id. at 952. Specifically,
"a district court may, for reasons of wise judicial
administration, dismiss one of two identical, pending
actions." Id. at 953 (quotation omitted);
see Parker v. Matthews, 71 F.App'x 613, 614 (8th
Cir. 2003). A plaintiff has no right to maintain two separate
actions involving the same subject matter at the same time in
the same court and against the same defendant. See
the Court ordered the plaintiff to show cause why this case
should not be dismissed in favor of the earlier-filed case.
Filing 7. The plaintiff's response (filing 10), as best
the Court can tell, sets forth two arguments. First, the
plaintiff asserts that the two cases are premised on
different EEOC right-to-sue letters. Filing 10 at 2. Second,
and relatedly, the plaintiff contends that while both cases
contain race discrimination claims, No. 8:16-cv-16 includes
retaliation, age, and whistleblower claims, while No.
8:16-cv-531 omits those claims and includes a disability
discrimination claim. Filing 10 at 3.
Court finds those contentions difficult to square with the
pleadings. Literally the only addition to the complaint in
this case from the operative complaint in No. 8:16-cv-16 is a
citation to the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. (ADA), a citation to the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq.,
and the attachment of an EEOC right-to-sue letter disposing
of a charge that had been attached to the complaint in No.
8:16-cv-16. Comparefiling 1 with No.
8:16-cv-16 filing 26. It is difficult to see from the
pleadings how No. 8:16-cv-531 is meaningfully different.
problematic is that, despite the plaintiff's claim that
No. 8:16-cv-531 is meant to assert a disability
discrimination claim, the complaint arguably fails to do
that. The complaints in both cases refer to an injury to the
plaintiff's left arm, but has not alleged facts from
which a "disability, " for ADA purposes, could be
inferred or identified, or that the plaintiff was a
"qualified individual" under the ADA. See
Scruggs v. Pulaski Cnty., Ark., 817 F.3d 1087, 1092
(8th Cir. 2016).In other words, the complaints are
essentially identical in the extent to which they state an
real problem is more fundamental: the plaintiff has filed a
second lawsuit that is nearly identical to the first, instead
of seeking to file an amended complaint in No.
8:16-cv-16. The plaintiff had already sought and
obtained leave to file his amended complaint in No.
8:16-cv-16 so, perhaps, leave would have been denied pursuant
to Fed.R.Civ.P. 15(a)(2). But "the court must insure
that the plaintiff does not use the incorrect procedure of
filing duplicative complaints for the purpose of
circumventing the rules pertaining to the amendment of
complaints[.]" Walton v. Eaton Corp., 563 F.2d
66, 71 (3d Cir. 1977); see, Adams v. California
Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir.
2007); Oliney v. Gardner, 771 F.2d 856, 859 (5th
Cir. 1985). The requirement that a plaintiff seek leave to
amend his pleading would be meaningless if he could simply
file a new case and start over. Plaintiffs may not file
duplicative complaints in order to expand their legal rights.
Curtis v. Citibank, N.A., 226 F.3d 133, 140 (2d Cir.
plaintiff, in fact, argues at length that amendment of his
complaint in No. 8:16-cv-16 is warranted. Filing 10 at 5-11.
But that is exactly the point. If the plaintiff wants to
amend his operative complaint in No. 8:16-cv-16, he should
move for leave to do so in that case, and explain why leave
should be given. See, Rule 15(a)(2); Kozlov v.
Associated Wholesale Grocers, Inc., 818 F.3d 380, 395
(8th Cir. 2016), reh'g denied (May 4, 2016). But
this duplicative case will be dismissed in favor of the
earlier-filed No. 8:16-cv-16. See Nixon, 259 F.3d at
953; cf. Anheuser-Busch, Inc. v. Supreme Int'l
Corp., 167 F.3d 417, 419 n.3 (8th Cir. 1999); cf.
also Parker v. Matthews, 71 F.App'x 613,
614 (8th Cir. 2003).
plaintiffs complaint is dismissed without prejudice.
separate judgment will be entered.
 The Court notes that even though No.
8:16-cv-16 was filed before the plaintiff obtained his
September 6, 2016 right-to-sue letter, receipt of the letter
after the action has commenced cures the defect. See
Jones v. Am. State ...