Stancu v. Hyatt Corporation/Hyatt Regency Dallas

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN STANCU, §

§

Plaintiff, §

§

V. § No. 3:18-cv-1737-E-BN

§

HYATT CORPORATION/HYATT § (Consolidated with:

REGENCY DALLAS, § No. 3:18-cv-3383-E-BN;

§ No. 3:19-cv-1971-E)

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Three pro se employment actions filed by Plaintiff John Stancu – two that he

filed in federal court and one that he filed in state court that was removed to federal

court – are consolidated before the Court and referred to the undersigned United

States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a

standing order of reference from United States District Judge Ada Brown.

As ordered by the Court, Stancu filed an amended complaint solely against

Defendant Hyatt Corporation. See Dkt. No. 31. Hyatt answered. See Dkt. No. 33. And,

on August 5, 2020, the Court entered an initial scheduling order under the Civil

Justice Expense and Delay Reduction Plan for the Northern District of Texas and

Federal Rule of Civil Procedure 16(b). See Dkt. No. 37.

Hyatt now moves to dismiss this action under 28 U.S.C. § 1915(e)(2),

alternatively requesting that the Court further consolidate these consolidated cases

with an action that Stancu filed in 2020. See Dkt. No. 38. And, although Stancu has

not filed a response, he will not be prejudiced by the Court’s consideration of Hyatt’s

motion at this point, because the undersigned enters these findings of fact,

conclusions of law, and recommendation that the Court should deny the motion

without prejudice to the parties’ meeting and conferring and filing a joint proposal in

support of consolidation that would result in the administrative closure of these cases

in favor of litigating all claims Stancu now asserts against in Hyatt in the last-filed

matter.

Applicable Background

“Stancu accepted an entry-level, shift engineer position at Hyatt in October

2015.” Stancu v. Hyatt Corporation/Hyatt Regency Dallas, 791 F. App’x 446, 448 (5th

Cir. 2019) (per curiam). And, “[u]ntil March 6, 2020, [he] worked ‘as a shift engineer

at the Hyatt Regency Dallas…. Having filed about twenty lawsuits in the past thirty

years, he is also a prolific pro se litigant. Hyatt is his latest target.’” Stancu v. Hyatt

Corporation/Hyatt Regency Dallas, No. 3:20-cv-864-E-BN, 2021 WL 495883, at *1

(N.D. Tex. Jan. 26, 2021) (quoting Stancu, 791 F. App’x at 447; citation omitted), rec.

accepted, 2021 WL 487756 (N.D. Tex. Feb. 10, 2021).

Stancu has now filed six cases against Hyatt in this district: “The first two were

consolidated and dismissed, after the court granted Hyatt summary judgment on

Stancu’s claims. See Stancu v. Hyatt Corporation/Hyatt Regency Dallas, No. 3:17-cv-

675-S-BN (consol. with 3:17-cv-2918-L), 2018 WL 4471786 (N.D. Tex. Aug. 28, 2019),

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rec. accepted, 2018 WL 4471692 (N.D. Tex. Sept. 18, 2019), aff’d, 791 F. App’x 446

(5th Cir. 2019).” Id. This consolidated case, in which Stancu was granted leave to

proceed in forma pauperis (IFP), see Dkt. No. 9, comprises his third, fourth, and fifth

lawsuits. And Stancu paid the filing fee to bring case number six on April 14, 2020.

See Stancu v. Hyatt Corporation/Hyatt Regency Dallas, No. 3:20-cv-864-E-BN (N.D.

Tex.).

Stancu filed his first lawsuit against Hyatt on March 8, 2017. A

few months later, he moved to amend the complaint. That motion,

however, failed to comply with the court’s standing order on non-

dispositive motions and was accordingly stricken. Stancu filed a second

lawsuit against Hyatt on October 23, 2017. Around the same time, he

renewed his motion to amend the complaint in his first lawsuit. The

facts and claims in Stancu’s proposed amended complaint were

substantially similar to the facts and claims raised in the second

lawsuit. The district court consolidated the two cases and designated

Stancu’s proposed amended complaint as the consolidated complaint.

The consolidated complaint raised claims of unlawful discrimination

under the Age Discrimination in Employment Act (“ADEA”), unlawful

retaliation, violation of the Family and Medical Leave Act (“FMLA”),

creation of a hostile work environment under the ADEA, breach of

contract, and pattern-and-practice discrimination.

Stancu, 791 F. App’x at 448.

The amended complaint in Stancu’s first two (subsequently consolidated) cases

concerned two EEOC complaints: one alleging discriminatory conduct from October

23, 2015 to December 13, 2016 and a second alleging discriminatory conduct from

March 1, 2017 to July 31, 2017. See Stancu, No. 3:17-cv-675-S-BN, Dkt. No. 56 at 39-

40, 55, 82-83.

And, because Stancu is proceeding IFP in this consolidated case, the Court

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screened his claims at the time it ruled on a motion to dismiss filed by Defendant

Gallagher Bassett Services, Inc. See generally Stancu v. Hyatt Corporation/Hyatt

Regency Dallas, No. 3:18-cv-1737-E-BN (consol. with: Nos. 3:18-cv-3383-E-BN; 3:19-

cv-1971-E), 2020 WL 853859 (N.D. Tex. Jan. 30, 2020), rec. accepted, 2020 WL 833645

(N.D. Tex. Feb. 20, 2020). In doing so, the Court observed that

[t]hrough the [third] filed action, -1737, Mr. Stancu appears to raise

ADEA and FMLA retaliation claims against Hyatt based on an EEOC

complaint that he filed in May 2018, asserting that the alleged

discriminatory conduct occurred from April 10, 2018 to May 18, 2018.

See, e.g., Dkt. No. 3 at 1, 14-17. The [fourth] filed action, -3383, appears

to bring additional ADEA and FMLA retaliation claims against Hyatt

based on an EEOC complaint that Mr. Stancu filed in September 2018,

asserting that the alleged discriminatory conduct occurred from May 21,

2018 to September 24, 2018. See, e.g., No. 3:18-cv-3383, Dkt. No. 3 at 1,

17-21. And, in the action that Mr. Stancu filed in state court, he alleges

that he was injured on the job on August 23, 2018 and that his employer

continues to retaliate against him based on his pursuit of employment

discrimination litigation. See generally No. 3:19-cv-1971, Dkt. No. 2-2.

Id.

Stancu filed his sixth lawsuit after receiving a separate right-to-sue letter and

alleges that the facts underlying that lawsuit “occurred after the filing of the last

claim (August 16, 2019).” Stancu, No. 3:20-cv-864-E-BN (N.D. Tex.), Dkt. No. 3 at 4;

see also id. at 32-36. This date is also when he filed Stancu, No. 3:19-cv-1971-E (N.D.

Tex.). Through the latest suit, he again brings broad claims of discrimination and

retaliation in violation of the ADA, the ADEA, Title VII, and the FMLA. See Stancu,

No. 3:20-cv-864-E-BN (N.D. Tex.), Dkt. No. 3 at 4-30.

As this chronology reflects, while Stancu continued to bring many claims based

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on the same theories, of the lawsuits against Hyatt implicated by the current motion

to dismiss, each lawsuit concerned a separate time period. And, where possible, the

Court has consolidated his pending cases. At times, however, the progress of a

pending case (or cases) prevented consolidation with a new action filed by Stancu. Or

his failure to comply with a court order prevented his attempt to amend claims in a

pending case.

Legal Standards and Analysis

In support of dismissal under the IFP statute, Hyatt argues (1) that Stancu’s

allegation of poverty was demonstrably false “because he [subsequently] paid a filing

fee to sue Hyatt in a separate case”; (2) that this consolidated case is frivolous because

it is both “factually meritless and abuses the judicial process” and “duplicative of

[Stancu’s] prior litigation”; and (3) that this consolidated case is malicious “because

it disrespects the judiciary and abuses the judicial process.” Dkt. No. 38 at 4-13.

For the following reasons, Hyatt has not carried its burden to dismiss this

consolidated action under the IFP statute. Even so, the undersigned finds that the

prosecution and defense of these related cases has placed an undue burden on the

parties and the Court.

Stancu’s series of suits against Hyatt may be based on the same (or similar)

theories. And their narratives may overlap. But the suits also seem to cover distinct

times in his employment with Hyatt, an employment that has now ended. So, given

the relatedness of Stancu’s claims; that he no longer is employed by Hyatt; the age of

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these proceedings; the April 26, 2021 Memorandum Opinion and Order Denying

Defendant’s Unopposed First Motion to Extend Pending Deadlines [Dkt. No. 43]; and

the April 28, 2021 Scheduling Order for Trial [Dkt. No. 44], the undersigned finds

that Hyatt’s alternative request for consolidation – which may have merit with buy-

in from Stancu – should be denied without prejudice to the parties’ meeting and

conferring and filing a joint proposal in support of consolidation that would result in

the administrative closure of these cases in favor of litigating all claims Stancu now

asserts against Hyatt (spread around four complaints) in the last-filed matter.

I. Hyatt has not carried its burden to show that these actions should be dismissed

under Section 1915(e)(2)(A) based on an untrue allegation of poverty.

Section 1915 “was designed to ensure that litigants would not be deprived of

meaningful access to the federal judicial system due to their financial circumstances.”

Bucklew v. St. Clair, No. 3:18-cv-2117-N-BH, 2019 WL 2250886, at *2 (N.D. Tex. May

15, 2019) (citing Neitzke v. Williams, 490 U.S. 319, 324 (1989)), rec. accepted, 2019

WL 2249718 (N.D. Tex. May 24, 2019). But gaining access under the statute requires

“[a] litigant seeking IFP status [to] submit an affidavit identifying all assets he

possesses, as well as a statement that he is unable to pay the necessary fees of

bringing a federal civil action.” Smith-Garcia v. Harrison Cnty., 776 F. App’x 226, 227

(5th Cir. 2019) (per curiam) (citing 28 U.S.C. § 1915(a)(1)).

The governing statute further “specifies that ‘[n]otwithstanding any filing fee,

or any portion thereof, that may have been paid, the court shall dismiss the case at

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any time if [it] determines that ... the allegation of poverty is untrue.’” Nottingham v.

Warden, Bill Clements Unit, 837 F.3d 438, 441 (5th Cir. 2016) (quoting 28 U.S.C. §

1915(e)(2)(A)). And “[d]ismissal is mandatory if the court determines ‘at any time,’

even after the plaintiff pays the filing fee, that the contents of an IFP application are

false.” Id. (quoting 28 U.S.C. § 1915(e); citations omitted); see also Castillo v. Blanco,

330 F. App’x 463, 466 (5th Cir. 2009) (per curiam) (“Importantly, § 1915(e)(2) is

phrased in mandatory rather than permissive terms ….”).

The statute “does not define the word ‘untrue,’ but the fact that the penalty for

an ‘untrue’ allegation of poverty is not simply an order requiring full payment, but

instead is dismissal of the entire action, suggests,” at least to the United States Court

of Appeals for the Seventh Circuit, “that Congress meant something like ‘dishonest’

or ‘false,’ rather than simply ‘inaccurate.’” Robertson v. French, 949 F.3d 347, 351-52

(7th Cir. 2020) (further observing that “[o]ther circuits also understand it this way,”

citing Nottingham, 837 F.3d at 441; other citations omitted).

Consistent with this understanding, another judge of this Court has explained

that

[t]he United States Court of Appeals for the Fifth Circuit has approved

a dismissal with prejudice where the defendants “provided proof of many

inconsistencies” in the plaintiff’s in forma pauperis application. Castillo,

330 Fed. App’x at 467. The plaintiff in Castillo had claimed “(1) the only

autos or other valuable property he owned were an inoperable 1991 van

and a 1991 truck worth $200; (2) he had no cash or savings or checking

accounts; (3) he had been unemployed since 2005; and (4) he had not

received money from any source in the past year.” Id. But the defendants

presented evidence “that [the plaintiff] owns several vehicles, runs one

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or more businesses for which he was hiring employees, filled out a credit

application in 2007 claiming a $100,000 salary, drew several months’

rent from his checking account, and paid the $750 filing fee to run for

governor of Louisiana in September 2007.” Id. Courts have dismissed

with prejudice for much less. See, e.g., Lay v. Justices-Middle Dist.

Court, 811 F.2d 285 (5th Cir. 1987) (affirming dismissal with prejudice

where a prisoner submitted a true financial affidavit but forged the

signature of a prison official on it); Mathis v. New York Life Ins. Co., 133

F.3d 546, 547 (7th Cir. 1998) (affirming dismissal with prejudice where

plaintiff did not disclose ownership of a home with $14,000 of equity);

and Romesburg v. Trickey, 908 F.2d 258, 259 (8th Cir. 1990) (affirming

dismissal with prejudice where plaintiff did not disclose ownership of

four unencumbered real estate lots).

But dismissal is not warranted in every case of a false or incorrect

statement on an in forma pauperis application. See, e.g., Hunter v. Texas

Energy Services LP, Civ. A. No. 2:14-CV-142, 2014 WL 5426454, at *4

(S.D. Tex. Oct. 23, 2014) (granting in forma pauperis status even though

plaintiff had stated on his financial affidavit that he was unemployed

for the past twelve months instead of the past eight, which was the true

number); Camp v. Oliver, 798 F.2d 434, 437-38 (11th Cir. 1986)

(reversing district court’s dismissal with prejudice where the prisoner

plaintiff inaccurately claimed he had no cash or savings accounts on his

affidavit but attached a prison account balance sheet that contradicted

his claim). The United States Court of Appeals for the Eighth Circuit

has persuasively held that 28 U.S.C. § 1915(e)(2)(A)

does not mandate that the district court dismiss [the

plaintiff’s] claim if it finds that certain assertions in his

affidavit are untrue; instead, it requires the district court

to dismiss the claim if it finds that [the plaintiff] is not

sufficiently poor to qualify for in forma pauperis status

given the facts that are true. Indeed, “[t]he purpose of this

provision is to weed out the litigants who falsely understate

their net worth in order to obtain in forma pauperis status

when they are not entitled to that status based on their

true net worth.”

Lee v. McDonald’s Corp., 231 F.3d 456, 459 (8th Cir. 2000) (citing

Attwood v. Singletary, 105 F.3d 610, 613 (11th Cir. 1997)). To rule

otherwise would mean that any untrue statement on a financial

affidavit, even in the smallest amount, would require dismissal under

28 U.S.C. § 1915(e)(2)(A).

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Gill v. Bennett, No. 4:17-cv-611-O-BP, 2018 WL 3275494, at *2-*3 (N.D. Tex. Jan. 16,

2018), rec. accepted, 2018 WL 1663287 (N.D. Tex. Apr. 6, 2018); but see Bucklew, 2019

WL 2250886, at *2 (“In the Fifth Circuit, dismissal under the IFP statute is

predicated on the submission of false allegations in the affidavit rather than the

litigant’s actual financial status.” (citing Lay, 811 F.3d at 285-86)); id. (“Based on Lay,

courts in this circuit must dismiss a case based on a finding that the contents of an

IFP application are false, even if the litigant would still qualify as a pauper.”

(citations omitted)).

Here, Hyatt argues that, although Stancu was employed by Hyatt on July 3,

2018, when he filed the first of the three actions consolidated here, affirming that he

was unable to pay the filing fee, see Dkt. No. 4, “Stancu’s claimed inability to pay a

fee to file this case is demonstrably false” because, when Stancu filed his sixth case

on April 14, 2020, he “did not seek IFP status. To the contrary, he paid the filing fee.

This plainly contradicts Stancu’s purported inability to pay a filing fee in this case.”

Dkt. No. 38 at 4 (emphasis omitted).

That inconsistency is even more glaring considering the following.

In his latest separate proceeding, Stancu alleges that Hyatt terminated

his employment on March 6, 2020. Thus, at the time he paid the filing

fee to sue Hyatt for the sixth time on April 14, 2020, Stancu was

apparently unemployed. By contrast, at the time Stancu claimed under

oath he was unable to pay the filing fee in this case, Stancu was actively

employed by Hyatt. These situations are entirely incongruous. How can

one claim financial inability to pay a filing fee while employed, but then

pay a filing fee when unemployed?

Id. at 5 (citations and emphasis omitted).

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First, Hyatt fails to mention that when Stancu moved for leave to proceed IFP

on July 3, 2018, he affirmed that he had initiated bankruptcy proceedings in this

district on June 15, 2018. See Dkt. No. 4 at 5, 7. And, absent additional evidence

reflecting a litigant’s financial status (particularly over time), see, e.g., Castillo, 330

F. App’x at 466-67, the undersigned is not persuaded by the argument that an

employed litigant who recently filed for bankruptcy and certifies that he is a pauper

must have submitted a false IFP affidavit just because – some two years later – he

manages to pay the filing fee even though he lost his job some five weeks prior.

Regardless, Hyatt has not shown either that Stancu was not sufficiently poor

to proceed IFP in July 2018, see, e.g., Gill, 2018 WL 3275494, at *3, or that Stancu

submitted false allegations in his July 2018 affidavit, see, e.g., Bucklew, 2019 WL

2250886, at *2.

II. Hyatt has not carried its burden to show that these actions should be dismissed

as frivolous or as malicious under Section 1915(e)(2)(B)(i).

As the plain language of the IFP statute reflects, “[a] case is not frivolous

simply because it fails to state a claim.” Reddish v. J.P. Morgan Chase, No. SA-10-

CA-955-XR, 2011 WL 573413, at *2 (W.D. Tex. Jan. 3, 2011) (collecting cases), rec.

accepted, 2011 WL 573411 (W.D. Tex. Feb. 15, 2011); see 28 U.S.C. § 1915(e)(2)(B)

(providing for dismissal if the court determines that an action “(i) is frivolous or

malicious” or “(ii) fails to state a claim on which relief may be granted”). “The

language of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure

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12(b)(6).” Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam). And

courts generally apply the familiar Rule 12(b)(6) analysis to those dismissals, under

which dismissal “turns on the sufficiency of the ‘factual allegations’ in the complaint,”

Smith v. Bank of Am., N.A., 615 F. App’x 830, 833 (5th Cir. 2015) (per curiam)

(quoting Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam)), as

neither the IFP statute nor the Federal Rules of Civil Procedure “countenance

dismissal of a complaint for imperfect statement of the legal theory supporting the

claim asserted,” Johnson, 574 U.S. at 11.

But “[a] frivolous complaint ‘lacks an arguable basis in law or fact.’” Burnette

v. RateGenius Loan Servs., Inc., 671 F. App’x 889, 892 (5th Cir. 2016) (per curiam)

(quoting Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995); affirming dismissal of FMLA

interference and retaliation claims as frivolous). “‘A complaint lacks an arguable

basis in law if it is based on an indisputably meritless legal theory, such as if the

complaint alleges the violation of a legal interest which clearly does not exist,’” and

it “‘lacks an arguable basis in fact if, after providing the plaintiff the opportunity to

present additional facts when necessary, the facts alleged are clearly baseless.’”

Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (quoting Berry v. Brady, 192

F.3d 504, 507 (5th Cir. 1999)).

Here, Hyatt argues that

Stancu’s employment law claims have previously been brought before

this Court and were summarily dismissed because he was unable to

factually support his claims. In this latest action, Stancu merely seeks

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to regurgitate his prior accusations and seek duplicative relief from this

Court.

For instance, Stancu claims that he was subject to a “labor camp

style of scrutiny.” Among other meritless accusations, Stancu claims

that he was denied training and forced to do jobs that he is unqualified

for. He even claims that Hyatt attempted “several times to provoke

plaintiff, a 63 year old man, to a physical fight.” In sum, Stancu’s claims

are factually frivolous and are untethered from the facts and reality.

Even if the Court found that the accusations may have some weight, the

Court has already given Stancu ample chances to support these claims

in his other five lawsuits.

Stancu’s claims are “delusional” and “wholly incredible.”

Accordingly, Hyatt asks the Court to exercise its wide discretion and

dismiss Stancu’s claims.

Dkt. No. 38 at 6 (citations omitted).

Hyatt may argue that some facts that Stancu asserts are not credible and that

all facts alleged do not support recovery under the legal theories that Stancu

advances, but those theories themselves are not indisputably meritless. See, e.g.,

Reddish, 2011 WL 573413, at *2 (“Typical examples of claims which can be dismissed

pursuant to § 1915(e), or its predecessor, § 1915(d), include: (1) claims against which

it is clear that the defendants are immune from suit, (2) claims of infringement of a

legal interest that clearly does not exist, and (3) claims which are barred by

limitations.” (footnotes omitted)).

And, earlier in this case, the Court screened the facts alleged under the IFP

statute, concluding that Stancu had asserted claims for retaliation (under multiple

statutes):

Together, the three elements – engaging in a protected activity;

an adverse employment action; and a causal link between the two –

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make out a prime facie case of retaliation. A plaintiff need not establish

a prima facie case in order to survive judicial screening under Section

1915(e)(2)(B). Cf. Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762,

766 (5th Cir. 2019); Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir.

2013). But a plaintiff must “plead sufficient facts on all of the ultimate

elements of his claim to make his case plausible.” Chhim v. Univ. of Tex.

at Austin, 836 F.3d 467, 470 (5th Cir. 2016) (citations omitted); see also

Meadows v. City of Crowley, 731 F. App’x 317, 318 (5th Cir. 2018) (per

curiam) (“Raj, however, does not exempt a plaintiff from alleging facts

sufficient to establish the elements of her claims.” (citations omitted)).

Against this legal framework, it is unclear whether Mr. Stancu

has alleged facts to support each element, such that his claims as

currently pled survive judicial screening under Section 1915(e)(2)(B). To

cure this deficiency, the Court [granted] Gallagher Bassett’s motion to

dismiss without prejudice to Mr. Stancu’s filing one final consolidated

amended complaint containing sufficient factual information to allege a

plausible claim under any theory applicable to the employment-related

claims that he asserts across these three actions.

Stancu, 2020 WL 853859, at *4; 2020 WL 833645.

In response, Stancu filed an amended complaint. See Dkt. No. 31. And Hyatt

answered. See Dkt. No. 33.

Particularly against this background, Hyatt’s argument above does not

persuade the undersigned that Stancu’s amended complaint should now be dismissed

under Section 1915(e)(2)(B)(i) because the facts alleged are clearly baseless. But

Hyatt’s argument above does tie into its argument that dismissal is required because

these cases are duplicative of Stancu’s prior litigation. See Dkt. No. 38 at 7-8. And

this argument should be addressed under the malicious prong of the IFP statute.

“A complaint is malicious if it duplicates claims involving the same series of

events and allegations of many of the same facts asserted by the same plaintiff in

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prior or pending litigation.” Amrhein v. United States, 740 F. App’x 65, 66 (5th Cir.

2018) (per curiam) (citing, as applicable, Pittman v. Moore, 980 F.2d 994, 994-95 (5th

Cir. 1993)); see also Shakouri v. Davis, 923 F.3d 407, 410 (5th Cir. 2019) (“We have

repeatedly stated that a claim qualifies as malicious if it is virtually identical to and

based on the same series of events as a claim previously brought by the plaintiff.”

(citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988))). And, “[r]eading

Pittman and Wilson[ v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989),] in conjunction,

it is clear that the Court may dismiss an action as malicious when the complaint

raises claims that would be barred by the principles of res judicata, whether or not

the prior litigation has ended unsuccessfully for the plaintiff.” McGill v. Juanita Kraft

Postal Serv., No. 3:03-cv-1113-K, 2003 WL 21355439, at *1 (N.D. Tex. June 6, 2003),

rec. accepted, 2003 WL 21467745 (N.D. Tex. June 18, 2003).

Hyatt argues in sum that “[t]he instant action and the prior litigation appear

to be based upon the same general series of events, facts, and conditions. As such,

Stancu is seeking to have a second bite at the litigation apple, which is impermissible

under the IFP statute.” Dkt. No. 38 at 8. But Hyatt has not shown, at least on this

motion to dismiss, that these actions should be dismissed as malicious under the

principles of res judicata.

The key principle at issue here is that courts in this circuit apply “the

‘transactional test’ to determine if later-brought claims are precluded by an earlier-

brought lawsuit.” Murry v. GSA, 553 F. App’x 362, 365 (5th Cir. 2014) (per curiam)

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(citing Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004)); see

Nilsen v. City of Moss Point, 701 F.2d 556, 563 (5th Cir. 1983) (en banc) (“The doctrine

of res judicata contemplates, at a minimum, that courts be not required to adjudicate,

nor defendants to address, successive actions arising out of the same transaction,

asserting breach of the same duty.”).

“The critical issue under the transactional test is whether the two

actions are based on the ‘same nucleus of operative facts.’” “What

grouping of facts constitutes a ‘transaction’ or a ‘series of transactions’

must ‘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.”

Murry, 553 F. App’x at 365 (quoting Davis, 383 F.3d at 313 (quoting, in turn,

RESTATEMENT (SECOND) OF JUDGMENTS § 24(2) (1982))).

Under these principles, for instance, a plaintiff may not bring “a second Title

VII discrimination suit arising from events related to the discriminatory acts alleged

in an earlier Title VII suit.” ASARCO, L.L.C. v. Mont. Res., Inc., 858 F.3d 949, 957

(5th Cir. 2017) (citing Davis, 383 F.3d at 314). In rejecting the Davis plaintiffs’

argument “that although the conduct alleged in the second suit happened before they

filed the first one, they could not have asserted the claims in the earlier suit because

they had not cleared the procedural hurdle of exhaustion with the EEOC,” the Fifth

Circuit panel “emphasized that the operative facts alleged in the second case had

occurred before the first lawsuit was filed. The plaintiffs thus could have also alleged

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that conduct in the first suit and sought a stay of those claims pending receipt of a

right-to-sue letter from the EEOC.” Id. (citing Davis, 383 F.3d at 314-16).

So the key to determine if apparently serial litigation is malicious under res

judicata principles is whether “the claim asserted in the later suit had accrued at the

time of the first suit that did not include the claim.” Id. (citing Davis; Murry; Nilsen);

see, e.g., Munoz v. Aldridge, 894 F.2d 1489, 1495 (5th Cir. 1990) (“Manuel Munoz’s

individual claims in this case cannot be barred by his prior litigation of individual

claims based on earlier, different alleged instances of discrimination.”); Fenelon v.

U.S. Postal Serv., 43 F.3d 669, 1994 WL 724994, at *3 (5th Cir. Dec. 14, 1994) (per

curiam) (“All of the alleged instances of discrimination are ‘claims’ in support of

Fenelon’s ‘cause of action’ of handicap discrimination and reprisals. Fenelon was

discharged on February 27, 1991. The latest date of an alleged act of discrimination

was March 15, 1991, when her back pay was denied. All of the other alleged instances

occurred in the time period leading up to and resulting in her dismissal on February

27, 1991. Fenelon could and should have raised all those claims in a single

proceeding.”)1; cf. Ayissi v. Kroger Tex., L.P., Civ. A. No. H-20-227, 2020 WL 6703844,

1 See also Havercombe v. Dep’t of Educ. of Commw. of P.R., 250 F.3d 1, 4 (1st

Cir. 2001) (“In this case, Havercombe has already won a jury verdict in his favor,

albeit receiving a remitted award. Had he been suffering on-going discrimination of

the type he was in the process of actively litigating during the pendency of the first

trial, he has only himself to blame for not bringing it to the court’s attention and

amending his complaint accordingly. The trial commenced on February 9, 1999, a

time by which all of the discrimination alleged in Havercombe II had occurred.”);

Geter v. U.S. Gov’t Publ’g Office, 268 F. Supp. 3d 34, 42 (D.D.C. 2017) (“[E]even

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at *4 (S.D. Tex. Nov. 13, 2020) (“To the extent that Ayissi claims that her suit is

permitted as a ‘subsequent wrong,’ she is mistaken because all of the conduct

complained of in Ayissi II and the present suit occurred before the filing of Ayissi II.

Therefore, no claims in the present suit are “subsequent wrongs” to which res judicata

is inapplicable. Instead, the court must assess whether the transactional test is

satisfied.”).

Here, Stancu may duplicate many averments across his series of suits. But, as

established by the applicable background chronology, above, his subsequent lawsuits

are based (at least in some part) on subsequent facts, as evidenced by his subsequent

EEOC charges and subsequent right-to-sue letters. Cf. Welsh v. Ft. Bend Indep. Sch.

Dist., 860 F.3d 762, 766-67 (5th Cir. 2017) (examining Texas res judicata principles

and “reject[ing] FBISD’s argument that Welsh was required to amend her petition in

Welsh I to include claims that were not mature at the time of filing Welsh I. We

specifically reject the idea that every time something happens after a lawsuit is filed

the plaintiff must immediately amend or risk losing that claim forever. In the

assuming, arguendo, that the new claims are part of the same transaction as the

claims in Geter I, because the instant claims had not occurred when Geter I was

filed, Mr. Geter was not required to raise them in Geter I. The filing date is the cut-

off for claim preclusion.” (citations omitted)); Sims-Eiland v. Detroit Bd. of Educ.,

173 F. Supp. 2d 682, 687 (E.D. Mich. 2001) (“Because two Judgments have been

entered which involved conduct through April 14, 1997, the claims through that

date, including race, color, sex/gender, religion and national origin discrimination

and retaliation are barred by res judicata.”).

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employment context, FBISD’s proposed rule would require a plaintiff to repeatedly

amend her petition and then stay her initial lawsuit to file charges with the EEOC

for conduct that arises during that lawsuit. Such a rule is not feasible where a

plaintiff remains employed and is subject to discrimination maturing after the filing

date.” (footnote omitted); id. at 767 n.6 (“Although not determinative, we note that

many of our sister circuits have determined that federal res judicata law does not bar

claims based on facts that occurred after the filing of the first lawsuit.” (citations

omitted)).

Regardless, Hyatt has not carried its burden to show that these cases should

be dismissed as either malicious as that term in the IFP statute is commonly

understood (for the reasons set out above) or malicious under the authority that Hyatt

cites to support a Section 1915(e)(2)(B)(i) dismissal for being disrespectful of the

Court.

Recommendation

The Court should deny Defendant Hyatt Corporation’s motion to dismiss this

consolidated action under 28 U.S.C. § 1915(e)(2) that alternatively requests that the

Court further consolidate these consolidated cases with an action that Plaintiff John

Stancu filed in 2020 [Dkt. No. 38] without prejudice to the parties’ meeting and

conferring and filing a joint proposal in support of consolidation that would result in

the administrative closure of these cases in favor of litigating all claims Stancu now

asserts against in Hyatt in the last-filed matter.

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A copy of these findings, conclusions, and recommendation shall be served on

all parties in the manner provided by law. Any party who objects to any part of these

findings, conclusions, and recommendation must file specific written objections

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIv.

P. 72(b). In order to be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the objection, and

specify the place in the magistrate judge’s findings, conclusions, and recommendation

where the disputed determination is found. An objection that merely incorporates by

reference or refers to the briefing before the magistrate judge is not specific. Failure

to file specific written objections will bar the aggrieved party from appealing the

factual findings and legal conclusions of the magistrate judge that are accepted or

adopted by the district court, except upon grounds of plain error. See Douglass v.

United Servs. Auto. Assn, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: April 30, 2021

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

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