FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 30, 2013
Elisabeth A. Shumaker
Clerk of Court
RAYMOND L. ZISUMBO,
Plaintiff-Appellant,
v. No. 12-4191
(D.C. No. 1:12-CV-00091-TS)
OGDEN REGIONAL MEDICAL (D. Utah)
CENTER; ANTHONY RODEBUSH,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
This appeal concerns the proper interplay between two lawsuits.
In the first suit, Raymond Zisumbo alleged that his former employer violated
Title VII. Long after the court’s deadline for the filing of any amended pleadings,
Mr. Zisumbo sought to do just that. He presented a motion seeking leave to file an
amended complaint in order to add a new legal theory and a new defendant. The
district court denied the motion, explaining that Mr. Zisumbo easily could have filed
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
his amended complaint before the deadline, that he had offered no cogent explanation
for his delay, and that permitting the amendment now would prejudice the defense.
That brings us to the second suit. After Mr. Zisumbo lost his motion to amend
in his first suit he decided to bring a second. The complaint in this second suit turned
out to be essentially identical to the amendment he had wanted to make in the first
suit. Next, Mr. Zisumbo filed a motion in the second lawsuit seeking to consolidate
it with the first. Quite plainly, Mr. Zisumbo sought to achieve indirectly what he
couldn’t achieve directly. Seeing this, the defendants opposed the motion to
consolidate and filed a motion to dismiss. In the end, the district court agreed with
the defendants, denying the motion to consolidate and dismissing the second suit.
These are the rulings now at issue before us, and we can find no fault with
them. When it dismissed Mr. Zisumbo’s second suit, the district court relied on the
long-settled rule against claim-splitting. In order to conserve public judicial
resources, that rule usually requires plaintiffs to assert and pursue all of their causes
of action arising from a common set of facts in a single lawsuit. Katz v. Gerardi,
655 F.3d 1212, 1217 (10th Cir. 2011). When a district court dismisses duplicative
litigation from its docket on claim-splitting grounds, our review looks only for abuses
of discretion. Id. Here, we can discern none. Mr. Zisumbo doesn’t deny that his
second suit is based on the same facts as his first. Neither does he challenge the
district court’s application of our claim-splitting precedents.
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Instead, Mr. Zisumbo argues that the outcome is inequitable because the
claim-splitting problem could have been solved just as easily by granting his motion
to consolidate. As the district court explained, however, if any inequity arises in
these circumstances it is when parties seek to “use the tactic of filing two
substantially identical complaints to expand the procedural rights [they] would have
otherwise enjoyed.” Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp.,
296 F.3d 982, 990 (10th Cir. 2002) (quotation marks omitted). If Mr. Zisumbo thinks
the district court erred when it denied his motion to amend, his remedy lies in a
properly presented appeal. That’s the equitable and legally prescribed route for
seeking to achieve his goal; as the district court held, the evasive claims-splitting
maneuver he attempted is not.
Affirmed.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
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