McClain v. Hughey

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MELISSA McCLAIN, et al., )

)

Plaintiffs, )

)

v. ) Case No. CIV-22-1091-SLP

)

CANADIAN COUNTY ex rel. )

THE BOARD OF COUNTY )

COMMISSIONERS, et al., )

)

)

Defendants. )

O R D E R

Before the Court are several related motions. First, Defendant Judge Bobby Hughey

filed a Motion to Dismiss and Brief in Support, [Doc. No. 4], to which Plaintiffs Melissa

McClain, Erin Barton, Cassie Goodfellow, Donna Wehmuller, and Paul Hardaway

responded, see [Doc. No. 18], and Defendant Hughey replied, see [Doc. No. 21]. Second,

Defendants Board of County Commissioners of Canadian County (“the County”), Nacole

Majors, Melanie Johnson, and Cedric Mills filed a Motion to Dismiss Plaintiffs’ Complaint

and Brief in Support [Doc. No. 6]. Plaintiffs filed a Response [Doc. No. 17], and those

Defendants replied, see [Doc. No. 22].

Finally, Plaintiffs filed a Motion to Consolidate [Doc. No. 16]. The County and

Defendants Majors, Johnson, and Mills jointly filed a Response [Doc. No. 23]. Defendant

Hughey filed a separate Response [Doc. No. 24]. Plaintiffs did not reply, and the time to

do so has expired. For the following reasons, the Motions to Dismiss are GRANTED in

part, and the Motion to Consolidate is DENIED.

I. Procedural History

Before going any further, the Court must summarize the relevant procedural history

of this litigation—particularly with respect to the related case of Moss v. Board of County

Commissioners of Canadian County, No. 22-cv-127-SLP (W.D. Okla.). On December 21,

2020, Ronda Moss, Ms. McClain, Ms. Barton, Ms. Wehmuller, and Robert Fletcher filed

a state-court action in Canadian County. See Moss,1 [Doc. No. 1-1]. They amended their

state-court pleadings twice, eventually adding Ms. Goodfellow and Mr. Hardaway as

plaintiffs.2 See Moss, [Doc. Nos. 1-8, 1-23]. The Second Amended Petition, which is the

operative pleading in Moss, pursues relief against six defendants—the County, Daniel

Kern, Judge Hughey, Ms. Majors, Ms. Johnson, and Mr. Mills.3 See Moss, [Doc. No. 1-23].

The Moss defendants timely removed the action to this Court on February 14, 2022.

See Moss, [Doc. No. 1]. The seven Moss plaintiffs are all former employees of the

Canadian County Childrens Justice Center (“CCCJC”). At a high level, the claims in Moss

stem from Judge Hughey’s decision to hire Mr. Kern as the CCCJC facility director, Mr.

Kern’s alleged actions during his tenure, and the resulting fallout. See generally Moss,

[Doc. No. 1-23]. The operative pleading in Moss asserts 19 claims for relief. See id.

1 Citations to docket entries in Moss refer to the related case, No. 22-cv-127-SLP (W.D. Okla.).

Otherwise, document citations reference the CM/ECF docket in this action.

2 Ms. Moss and Mr. Fletcher are the only Moss plaintiffs not party to this action.

3 The County, Mr. Hughey, Ms. Majors, Ms. Johnson, and Mr. Mills are all named as defendants

in the instant matter. Mr. Kern is not.

On March 23, 2022, the Moss plaintiffs filed a Motion to for [sic] Extension of Time

to File an Amended Complaint Pursuant to Fed.R.Civ.P. 15(a)(1)(B). Moss, [Doc. No. 22].

They explained that the EEOC had recently issued Right to Sue letters for certain claims,

and that other claims still remained pending before the EEOC and were therefore

unexhausted. See id. at 11. As a result, the Moss plaintiffs asked the Court to extend their

deadline to file a Third Amended Complaint until May 9, 2022—after they would have

exhausted all administrative remedies. Id. They sought relief under Federal Rule of Civil

Procedure 15(a)(1)(B), claiming they could amend as a matter of course. See id. at 13. The

defendants opposed the request, arguing that because the Moss plaintiffs had already

amended the pleadings as a matter of course in state court, they could not do so again in

this Court. See Moss, [Doc. No. 26] at 4. The Court agreed with the defendants, concluding

the plaintiffs could amend their complaint only “with the Court’s leave or written consent

under Rule 15(a)(2).” Moss, [Doc. No. 32] at 2. Because the Moss plaintiffs had not

properly sought relief under Rule 15(a)(2), however, the Court did not analyze the request

under that Rule. The Court clarified that “[n]othing in [its] Order should be construed as

the Court taking a position on whether a properly filed motion to amend under Rule

15(a)(2) would be granted or denied.” Id. at 4, n.3.

But the Moss plaintiffs never sought leave to amend under Rule 15(a)(2). Instead,

on March 20, 2022, five of the seven Moss plaintiffs filed the instant action in Canadian

County state court, naming five of the six Moss defendants. The Defendants in this action

timely filed their removal notice, see [Doc. No. 1], and the case was transferred to the

undersigned because it is related to the pending Moss action. Defendants have now moved

to dismiss this action. See [Doc. Nos. 4, 6]. They argue, inter alia, that Plaintiffs engaged

in impermissible claim splitting by filing a second lawsuit instead of seeking leave to

amend the Moss pleadings under Rule 15(a)(2). See [Doc. No. 4] at 20–22; [Doc. No. 6]

at 13–15.

Before they responded to Defendants’ dismissal motions, Plaintiffs filed a motion

asking the Court to (1) consolidate Moss and McClain and (2) grant leave to amend to file

a consolidated amended complaint. See [Doc. No. 12]. The Court struck that motion, in

part because Plaintiffs included multiple requests for relief in a single motion, in violation

of Local Civil Rule 7.1(c). Thereafter, Plaintiffs filed the instant Motion, in which they

ask the Court to consolidate Moss and McClain, primarily to simplify the litigation.4 They

also claim they will “file a Motion to Amend the Consolidated Case upon the granting of

the granting of [sic] the Motion to Consolidate.” [Doc. No. 16] at 2, n.4. Defendants

oppose consolidation, arguing this action should be dismissed instead.

Although Plaintiffs ask the Court to “rule on Plaintiffs’ Motion to Consolidate and

anticipated Motion for Leave to File a Consolidated Amended Complaint before it

addresses” Defendants’ dismissal motions, [Doc. No. 17] at 7, this is an impossible ask.

The Court cannot rule on an “anticipated” motion that has not yet been filed. Accordingly,

the Court addresses the dismissal motions first before addressing the Motion to

Consolidate.

4 Plaintiffs filed a similar motion in the Moss action. See Moss, [Doc. No. 60].

II. Legal Standard

a. Claim Splitting

A plaintiff has an “obligation to bring all related claims together in the same action

[] under the common law rule of claim preclusion prohibiting the splitting of actions.”

Stone v. Dep’t of Aviation, 453 F.3d 1271, 1278 (10th Cir. 2006). The claim-splitting

doctrine empowers district courts to “control their dockets by dismissing duplicative

cases.” Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011). A later-filed action is

subject to dismissal for claim splitting if “the first suit, assuming it were final, would

preclude the second suit.”5 Id. at 1218. The second suit would be precluded where the

“identity of parties or privies” and the “identity of the cause of action in both suits” are the

same. Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir.

2017) (quoting King v. Union Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997)).

Causes of action share the same identity when they “arise from the same transaction,

event, or occurrence.” Nwosun v. Gen. Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th

Cir. 1997). “‘[A]ll claims arising from the same employment relationship constitute the

same transaction or series of transactions for claim preclusion purposes,’ at least when all

the facts underlying the later-filed suits ‘were in existence at the time the first suit was

filed.’” Gabriel v. Melton Truck Lines, No. 22-5008, 2022 WL 1275242, at *1 (10th Cir.

5 The Court has subject matter jurisdiction over both Moss and the instant action because Plaintiffs

seek relief under federal law. See 28 U.S.C. § 1331. Accordingly, the Court’s analysis relies on

federal preclusion law. See Taylor v. Sturgell, 553 U.S. 880, 891 (2008) (citing Semtek Int’l Inc.

v. Lockheed Martin Corp., 531 U.S. 497, 507–508 (2001)). The Court need not decide whether

state or federal preclusion law applies to the state-law claims present in this action because it

declines to exercise supplemental jurisdiction over those claims.

Apr. 29, 2022) (first quoting Wilkes v. Wyoming Dep’t of Emp. Div. of Lab. Standards, 314

F.3d 501, 504 (10th Cir. 2002); and then quoting Mitchell v. City of Moore, 218 F.3d 1190,

1202 (10th Cir. 2000)), cert. denied, 143 S. Ct. 232 (2022), and cert. denied, 143 S. Ct.

236 (2022).

b. Consolidation

Federal Rule of Civil Procedure 42(a) permits a district court to consolidate actions

that “involve a common question of law or fact.” The Court has discretion to determine

whether consolidation is appropriate, and may “weigh the saving of time and effort that

consolidation under Rule 42(a) would produce against any inconvenience, delay, or

expense that it would cause for the litigants and the trial judge.” 9A C. Wright & A. Miller,

Federal Practice and Procedure § 2383 (3d ed.); see also Yapp v. Excel Corp., 186 F.3d

1222, 1229 (10th Cir. 1999). When cases are consolidated, they “retain their separate

identities,” although “district courts may [] consolidate cases for ‘all purposes’ in

appropriate circumstances.” Hall v. Hall, 138 S. Ct. 1118, 1131 (2018).

III. Analysis

a. Claim Splitting

The federal claims in this action are subject to dismissal under the claim-splitting

doctrine. All five Plaintiffs and all five Defendants in this case are already party to the

earlier-filed Moss action. And the claims in both actions stem from the Plaintiffs’

employment with the CCCJC. In fact, Plaintiffs appear to concede that the elements of

claim splitting are met. When they unsuccessfully moved to amend the Moss pleadings as

a matter of course, Plaintiffs unequivocally claimed that “all of [their] claims arise out of

the same operative facts and circumstances,” such that “all of their individual tort and

EEOC claims may be brought in the same suit, not separately, under mandatory joinder

requirements.”6 Moss, [Doc. No. 22] at 5. They also describe this action as “a continuation

of the related Moss” case, explaining that “Moss concerns events that occurred during the

Plaintiffs’ employment” by the CCCJC, while “this case concerns later events, including

Plaintiffs’ terminations.” [Doc. No. 17] at 7. But because Plaintiffs’ terminations stem

from their employment with the CCCJC, they are not a separate transaction for preclusion

purposes.

Nevertheless, dismissal may not be warranted if the “facts giving rise to the second

lawsuit . . . were [not] in existence at the time the first suit was filed.” Mitchell, 218 F.3d

at 1202 (emphasis added). But Plaintiffs have not identified any facts that were unknown

at the time they filed their Second Amended Petition in Moss.7 Instead, Plaintiffs argue

that several of the legal claims asserted here were unexhausted when they filed the

operative Moss pleading. This argument, which has been routinely rejected, is unavailing.

See, e.g., Haynes v. Kansas, 261 F. App’x 87, 89 (10th Cir. 2008) (rejecting “argument that

EEOC filing requirements prevent plaintiffs from raising discrimination claims in an initial

suit”); Juarez-Galvan v. United Parcel Serv., No. 13-4046-SAC, 2014 WL 61467, at *7

6 Indeed, some of the language from the operative Moss pleading is nearly identical to that found

in the operative pleading here. Compare [Doc. No. 1-2] ¶¶ 869–889, with Moss, [Doc. No. 1-23]

¶¶ 928–948.

7 To the contrary, Plaintiffs’ Second Amended Petition in Moss makes clear that the factual basis

for the unexhausted claims was known. See Moss, [Doc. No. 1-23] at 10 (“As of the filing of this

Second Amended Petition[,] there are outstanding tort claims and EEOC Charges which will

necessitate the further amended of this document after service . . . .”).

(D. Kan. Jan. 8, 2014) (dismissing second action for claim splitting where plaintiff

“br[ought] sequential Title VII cases arising from the same employment relationship” and

could have “amend[ed] the first case to include claims based on subsequent events”);

Wilkes, 314 F.3d at 506 (affirming preclusive effect of earlier judgment on newly filed

Title VII action where plaintiff did not move to amend earlier pleading or seek a stay while

exhausting administrative remedies). The doctrine against claim splitting “requires a

plaintiff to join all claims together that the plaintiff has against the defendant whenever

during the course of the litigation related claims mature and are able to be maintained.”

Stone, 453 F.3d at 1278 (emphasis in original). “Thus, even if an additional claim does not

mature until well after the initial complaint has been filed, the plaintiff nevertheless must

seek to amend the complaint to add additional claims as a compulsory claim when the

additional claim can be brought.” Id. at 1278–79.

To be sure, Plaintiffs did seek leave to amend the Moss pleadings. See Moss, [Doc.

No. 22]. But the Court denied that motion on purely procedural grounds, ruling Plaintiffs

could not amend as a matter of course because they had already done so before removal.

See Moss, [Doc. No. 32] at 1–2. The Court never reached the merits of Plaintiffs’

substantive arguments in favor of amendment. Indeed, it expressly declined to weigh in

on whether those arguments would succeed if brought pursuant to Rule 15(a)(2)—the

proper procedural mechanism. See id. at 4, n.3. But Plaintiffs chose not to file a motion

under Rule 15(a)(2), opting instead to file a duplicative action in state court.8

8 Again, nothing in this Order should be construed as an opinion on the merits of a properly filed

Rule 15(a)(2) motion.

Plaintiffs claim they considered moving to amend the Moss pleadings but

“reasonably concluded that they would not likely receive a ruling on a motion for leave to

amend (which Defendants had already stated they opposed) before the expiration of the

administrative deadline.” [Doc. No. 17] at 14–15. The Court does not find this conclusion

to be reasonable, however. Even assuming the Court would not have ruled on a Rule

15(a)(2) motion before the administrative deadlines ran—a purely speculative assumption

since Plaintiffs never filed such a motion—the timing of the Court’s ruling is irrelevant.

A number of courts have addressed the situation where the petition for leave

to amend the complaint has been filed prior to expiration of the statute of

limitations, while the entry of the court order and the filing of the amended

complaint have occurred after the limitations period has expired. In such

cases, the amended complaint is deemed filed within the limitations period.

Mayes v. AT & T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir. 1989) (citing cases); see

also May v. Segovia, 929 F.3d 1223, 1232 (10th Cir. 2019); Plott v. Advanced Comfort

Techs., Inc., No. 1:18-CV-00048-TC, 2019 WL 7290487, at *2 (D. Utah Dec. 30, 2019).

Accordingly, the Court exercises its discretion to dismiss the federal claims in this later-

filed action on claim-splitting grounds.

In light of the dismissal of the federal claims, the Court declines to exercise

jurisdiction over the remaining state-law claims. A “district court[] may decline to exercise

supplemental jurisdiction over a claim” if, inter alia, it “has dismissed all claims over

which it has original jurisdiction.”9 28 U.S.C. § 1367(c)(3). “The Supreme Court has

encouraged the practice of dismissing state claims or remanding them to state court when

9 No party has suggested that the Court has original jurisdiction over the state-law claims.

the federal claims to which they are supplemental have dropped out before trial.” Barnett

v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir.

2020). Similarly, the Tenth Circuit has “repeatedly recognized that [declining

supplemental jurisdiction] is the preferred practice.” Gaston v. Ploeger, 297 F. App’x 738,

746 (10th Cir. 2008). The Court sees no reason to deviate from the preferred practice under

the circumstances presented here. See Jara v. Standard Parking, 753 F. App’x 558, 561

(10th Cir. 2018) (affirming district court’s declination of supplemental jurisdiction after it

dismissed federal claims on claim-splitting grounds).

b. Consolidation

For the reasons stated above, the Court will dismiss this action without prejudice.

Accordingly, Plaintiffs’ request to consolidate the cases is moot, as only one case remains.

But even if that were not the case, the Court is unconvinced that consolidation would be

appropriate under these circumstances. Plaintiffs’ argument in favor of consolidation

requires the Court to assume that their motion to amend will be granted, despite the fact

that no such motion has been filed. Further, Defendants apparently oppose amendment,

although it is not clear on what grounds. See [Doc. No. 16] at 7. Plaintiffs do not address

what would happen if the hypothetical motion were not granted—a troubling omission

given Defendants’ opposition. In short, the Court is unwilling to consolidate cases when

the primary justification for doing so hinges on an opposed motion which remains unfiled.

Finally, Plaintiffs claim they seek consolidation to “promote judicial economy” and

“creat[e] efficiencies in the litigation.” Id. at 3; see also [Doc. No. 18] at 14 (“Certainly,

Plaintiffs agree that, as a matter of efficiency, this case should be brought as one action

with Moss, hence the reason for Plaintiffs’ pending Motion to Consolidate and anticipated

Motion for Leave to file a Consolidated Amended Complaint.”). But this rationale ignores

the fact that Plaintiffs’ litigation tactics have caused the procedural complexities they now

wish to cure. Plaintiffs never sought leave to amend the Moss complaint under Rule

15(a)(2), electing instead to file a second action in state court.10 And Plaintiffs did not seek

to consolidate the actions until after Defendants raised the issue of claim splitting in their

dismissal motions. These tactical decisions have stalled this litigation and wasted time and

resources.11 Although Plaintiffs now appear to be attempting to clean up the procedural

mess they’ve made, it strains credulity to do so under the guise of efficiency.

IV. Conclusion

IT IS THEREFORE ORDERED that the Motion to Dismiss and Brief in Support

[Doc. No. 4] and Motion to Dismiss Plaintiffs’ Complaint and Brief in Support [Doc. No.

6] are GRANTED in part, as set forth herein. The federal claims in this action are

DISMISSED WITHOUT PREJUDICE. A separate judgment will be entered

contemporaneously with this Order.

IT IS FURTHER ORDERED the remaining state-law claims are REMANDED to

the District Court of Canadian County, State of Oklahoma, pursuant to 28 U.S.C.

§ 1367(c)(3). The Clerk of the Court is directed to take all necessary actions required to

10 Had Defendants not removed this action to federal court, it could not have been consolidated

with Moss. Thus, any claim that a second action was filed for efficiency purposes is dubious.

11 Plaintiffs decry the amount of time it takes federal district courts to rule on motions, see [Doc.

No. 18] at 13–14, yet their counsel’s conduct has undoubtedly impaired the Court’s ability to reach

the merits of their claims.

remand the remaining portion of this case to the District Court of Canadian County, State

of Oklahoma.

IT IS FURTHER ORDERED that the Motion to Consolidate [Doc. No. 16] is

DENIED as moot.

IT IS SO ORDERED this 24" day of January, 2024.

bp

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

12