Nasuti v. Whole Foods Market

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 2, 2019
• Docket: 19-1128
• Status: Unpublished

Opinion

FILED United States Court of UNITED STATES COURT OF APPEALS Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ August 2, 2019

Elisabeth A. Shumaker M. JAMES NASUTI, Clerk of Court

Plaintiff - Appellant,

v. No. 19-1128 (D.C. No. 1:19-CV-00509-RM-KMT) WHOLE FOODS MARKET, a/k/a (D. Colo.) WFM-WO, INC.,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges. _________________________________

This appeal involves the relationship between two suits in district

court.

The first suit grew out of Mr. James Nasuti’s unsuccessful efforts to

obtain a job with Whole Foods Market. After twelve failed employment

applications, Mr. Nasuti sued in state court, identifying the defendant as

* Oral argument would not materially help us to decide this appeal, so we have decided the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). “Whole Foods Market, a/k/a WFM-WO, Inc., a Collective Trade Name for

Others Whose Ident[it]ies are Unknown.” Whole Foods Market removed

the action to federal court and moved for dismissal based on the failure to

state a valid claim. Mr. Nasuti moved for a remand to state court, and the

district court stayed during the pendency of Whole Foods Market’s motion

to dismiss and Mr. Nasuti’s motion to remand.

Mr. Nasuti feared that the stay might ultimately doom his suit if he

had sued the wrong Whole Foods entity, 1 and he expected the stay to eat up

the time that he would otherwise have to fix this defect. R. at 267. So he

filed a new suit. Id. (“Plaintiff has, in just the last few days, discovered a

way to evade the discovery ban and creatively name other likely

Defendants using Colorado law.”); see also id. at 305 (Mr. Nasuti’s

statement that the stay of further discovery and filing of motions prevented

him from amending his pleadings, leaving him no other choice than to file

a new suit in state court). The district court dismissed the second suit

without prejudice, viewing it as repetitive with the first suit and an abusive

effort to circumvent the stay in the first suit. Mr. Nasuti appeals the

dismissal of the second suit, and we affirm.

1 In the first amended complaint, he stated that he could not be sure “which Whole Foods entity(s) discriminated against him.” R. at 47.

2 I. Repetition of the Two Actions

The district court did not err in viewing the second suit as repetitive.

On this issue, we apply the abuse-of-discretion standard. Katz v. Gerardi,

655 F.3d 1212, 1217 (10th Cir. 2017). In applying this standard, we

consider the district court’s reasoning. The district court reasoned that the

second suit had grown out of the same core of facts underlying the first

suit. In both suits, the court reasoned, Mr. Nasuti was alleging age

discrimination based on his unsuccessful employment applications with

Whole Foods.

The court was concerned that Mr. Nasuti had tried to “split” the same

claims into two separate suits. Given this concern, the court ordered Mr.

Nasuti to address the issue. R. at 545–48. Mr. Nasuti responded, but the

response didn’t address the court’s concern. Mr. Nasuti instead attacked

the integrity of the judge, accusing him of trying to “bury” Whole Foods

Market’s “racketeering scandal.” Id. at 549. 2

We focus on the substance of the issue, not Mr. Nasuti’s personal

attack on the judge. The court had a legitimate interest in trying to prevent

a claimant from filing two virtually identical complaints to circumvent a

2 Mr. Nasuti called his response “Plaintiff’s Bewildered Response to the Court’s Sua Sponte, Ex Parte ‘Bury the Scandal’ Sanctions Order Thing.” R. at 549.

3 restriction on amending a complaint. Hartsel Springs Ranch of Colo., Inc.

v. Bluegreen Corp., 296 F.3d 982, 985 (10th Cir. 2002).

Mr. Nasuti does not deny that the second suit is repetitive. He

instead argues that he needed to file the second suit because of the stay in

the first suit. Rather than file a repetitive suit, however, Mr. Nasuti could

have moved to lift the stay, sought a writ of mandamus, appealed an

adverse ruling, or moved to amend the complaint (and argued that the

amendment should relate back to the original complaint for purposes of the

limitations period). Thus, the district court acted within its discretion in

dismissing the second suit as repetitive.

II. Sanction for Trying to Circumvent the Stay

The district court also dismissed the second suit as a sanction for

trying to circumvent the stay in the first suit. For this rationale, we again

apply the abuse-of-discretion standard. Nasious v. Two Unknown B.I.C.E.

Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1161 (10th Cir.

2007).

Though Mr. Nasuti is an attorney, 3 he is acting pro se. Irrespective of

his pro se status, he must comply with the same procedural rules applicable

to other litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,

3 He states that he does not currently practice law, but adds in the first amended complaint that he is “in good standing, with extensive experience in labor law, contracts, management, and safety issues.” R. at 46.

4 840 (10th Cir. 2005). 4 The district court had the authority to enforce its

stay order in the first suit, with or without a motion by one of the parties.

Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (discussing the

court’s authority to act sua sponte under Fed. R. Civ. P. 41(b)).

Mr. Nasuti protests that he had no choice because the limitations

period was about to expire on a claim against another Whole Foods entity

if he had mistakenly named the wrong party. But if the limitations period

had been about to expire, he had other options (as discussed above).

For the sake of argument, we might assume that the district court

could have credited Mr. Nasuti’s explanation for his filing of the second

suit. Even with this assumption, however, our issue is whether the district

court abused its discretion. In our view, the district court did not abuse its

discretion in the face of Mr. Nasuti’s admission that he had filed the

second suit to bypass the stay entered in the first suit.

III. Request for an Injunction

Mr. Nasuti asks us to enjoin Whole Foods Market from further

violations of RICO, arguing that we can act sua sponte to prevent a fraud

on the court or to issue a writ of mandamus. But Mr. Nasuti has not

4 We ordinarily interpret pro se filings with greater liberality than is afforded to filings by counselled parties. Comm. on the Conduct of Attorneys v. Oliver, 510 F.3d 1219, 1223 (10th Cir. 2007). But when the pro se party is an attorney, we interpret his or her filing just as we would in a counselled case. Id.

5 presented evidence of a fraud on our court or explained how we could

enjoin RICO violations as a remedy for such a fraud. Nor has he shown

how we could issue a writ of mandamus to prevent a party from violating

RICO. We thus deny Mr. Nasuti’s request for an injunction.

Affirmed.

Entered for the Court

Robert E. Bacharach Circuit Judge