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Otte v. Umb Bank, N.A.

United States District Court, D. Kansas

December 13, 2019

DANIELLE OTTE, et al., Plaintiffs,
v.
UMB BANK, N.A., Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on three motions: 1) Defendant UMB Bank's Motion to Sever the Parties (ECF No. 7); 2) Plaintiffs' Motion to Amend Complaint (ECF No. 11); and 3) Defendant's unopposed Motion to Continue Scheduling Conference (ECF No. 18). On November 22, 2019, the Court held a status conference to address scheduling and the three pending motions. Plaintiffs appeared through counsel, Albert Kuhl. Defendant appeared through counsel, Melody Rayl and Jessie Fox Bustamante. After thorough discussion of all pending motions, the Court orally denied Defendant's motion to sever (ECF No. 7), granted Plaintiff's motion to amend (ECF No. 11), and granted in part and denied in part Defendant's motion to continue scheduling (ECF No. 18). (See Order, ECF No. 22.) This written opinion memorializes those rulings.

         I. Background[1]

         Plaintiffs Danielle Otte and Amber Kay filed this employment discrimination and retaliation lawsuit against their former employer, UMB Bank, N.A. (“UMB”). Both Otte and Kay were branch managers for UMB. Otte worked in the Atchison, Kansas branch where she was employed from 2006 to June 28, 2018. Otte served as branch manager from 2016-2018. A Senior Vice President, Kristine Batch, made the decision to terminate Otte's employment. (See Affidavit, Ex. A, ECF No. 7-1.)

         Kay worked in the Pony Express branch in St. Joseph, Missouri from 2013 to May 2018, when she was assigned as a dual Branch Manager for the 6th and Minnesota and Parallel Parkway branches of UMB in Kansas City, Kansas. Kay held that position until she was terminated on January 23, 2019. Cory Stone, Vice President/Regional Delivery Manager, ultimately made the decision to terminate Kay's employment. (Id.) Otte and Kay never worked together, had different supervisors, and were terminated by different people.

         On June 27, 2019, Otte and Kay filed this lawsuit, stating four counts of state and federal employment claims: (1) Public Policy Retaliation in Violation of Kansas Law (both Plaintiffs, for complaining about unsafe staffing levels) (Count I); (2) Retaliation (for her opposition of race-based discrimination) in Violation of 42 U.S.C. 1981 (Kay only) (Count II); (3) Unlawful Gender Discrimination in Violation of 42 U.S.C. 2000e (Otte only) (Count III); and (4) Unlawful Gender-Based Retaliation in Violation of 42 U.S.C. 2000e (Otte only) (Count IV).

         Defendant UMB answered on September 17, 2019, and the case was set for a scheduling conference on November 22. (Initial Order, ECF No. 14.) But before the Court could move forward with full scheduling, a variety of motions were filed. Those motions included the three motions addressed herein and Defendant's partial motion to dismiss (ECF No. 6), related only to Count I, the state law public policy wrongful discharge claim, for failure to state a claim. Judge Murguia denied the motion to dismiss without prejudice to refiling, in light of Plaintiffs' motion to amend. (Order, ECF No. 17.) The scheduling conference was converted to a status conference (Order, ECF No. 19), and each pending motion, as well as the schedule, were addressed in the November 22 conference. Each motion is discussed below.

         II. Defendant's Motion to Sever Claims (ECF No. 7)

         In its motion, Defendant argues Plaintiffs' claims do not arise from the same occurrence, and their claims arise from entirely different facts and violations of different federal law. Although Plaintiffs' Count I state law claims are identical, Defendant seeks to dismiss those claims and argues the Court should not rely on that claim as a basis for joinder. Defendant reasons Plaintiffs did not work at the same UMB location, never worked together, did not have the same supervisor, and were discharged months apart for different reasons. Although they may have voiced similar complaints to their employer, they did so through entirely different reporting chains.

         Defendant contends because Plaintiffs' claims are improperly joined, they must be severed into two separate cases. Defendant argues there would be “virtually no common witnesses or evidence such that conducting separate trials would result in duplicative testimony or overlapping proof.” (ECF No. 7 at 5.) Defendant examines Fed.R.Civ.P. 20 regarding proper joinder of parties and claims but does not fully analyze Fed.R.Civ.P. 21, dealing with severance of claims.

         Plaintiffs cite no authority in their response (ECF No. 12); they simply argue the nature of their claims to assert the claims should not be severed. They argue the two Plaintiffs were both terminated by the same employer. They maintain both Plaintiffs complained to upper management at UMB specifically regarding serious staff shortages and its effects on workplace safety, which was a systemic issue within UMB's organization. They claim both Plaintiffs were terminated after complaining to management about staffing shortages, so although the Plaintiffs had different immediate supervisors, the issues are the same. Plaintiffs argue despite the different termination dates and different decisionmakers, they were both wrongfully terminated for raising identical concerns to the same employer. (ECF No. 12.)

         A. Legal Standard

         Rules 20 and 21 of the Federal Rules of Civil Procedure govern the joinder and misjoinder of parties, respectively.[2] Regarding proper joinder, Rule 20(a)(1) states:

Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.

         “The purpose of Rule 20(a) is ‘to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits.'”[3] “The Supreme Court has recognized that, under the Rules of Civil Procedure, ‘joinder of claims, parties and remedies is strongly encouraged.'”[4]

         Rule 21 gives “district courts discretion to sever any claim against a party and proceed with the claim or claims separately.”[5] The Court can “sever unrelated claims and afford them separate treatment when to do so would be in the interest of some of the parties, ” would serve the interests of justice, and would further the prompt and efficient disposition of litigation.[6] The Court weighs the potential prejudice to the movant if severance is denied against the potential prejudice to the nonmovant if severance is granted.[7]

         “When determining whether severance is appropriate under Rule 21, the court considers the convenience of the parties, avoiding prejudice, promoting expedition and economy, and the separability of law and logic.”[8] “A logical relationship exists if there is some nucleus of operative facts or law.”[9]

         B. Discussion

         Neither party analyzes the specific factors outlined above (convenience, prejudice, economy, logical relationship) for determining whether severance is appropriate under Rule 21, aside from more than a passing mention. Most importantly, neither party outlines what prejudice would occur if the opposing party is granted relief, although Defendant does cite a case saying the “prejudicial effect of other parties' discriminatory experiences may outweigh their probative value where the timing of the acts is different, the supervisory authority is different, or the location is different.”[10] Defendant argues all these things are present: timing of employment and termination; different supervisors and locations; therefore, the prejudicial effect would outweigh any probative value of combining the claims.

         Defendant cites to Perkins v. Rent-A-Ctr., Inc., [11] a 2004 District of Kansas case where the Court granted defendant's motion to sever four of the five plaintiffs' employment claims. In Perkins, one plaintiff worked in Kansas, while two worked in New York and two in Oklahoma. In addition to their locations, the plaintiffs' employment dates differed, as did the positions each held. Finding the claims did not meet the two-part test of Rule 20, the Court ordered severance of the New York plaintiffs' claims and the Oklahoma plaintiffs' claims, and transferred venue of those claims to the respective courts in the states where the plaintiffs had been employed. The court noted, “Severance is particularly appropriate where . . . the court determines venue should be transferred as to some claims or parties.”[12] The court transferred venue after determining the convenience of parties and witnesses favored separate trials in each venue. The court found, “The fact that all of the claims revolve around alleged discrimination, even a pattern and practice of discrimination, simply is not enough to outweigh the practical difficulties that a single trial in Kansas presents.”[13]

         But such practical difficulties are not evident here. In this case, there are only two plaintiffs, and the locations of their employment are within 50 miles[14] of one another, with a trial in Kansas City being the most convenient location for a trial related to either place of employment. If separate trials were to be ordered, the two trials would likely occur in the same courthouse.

         And, more similar to the facts of the instant case is the Wagoner v. Pfizer[15] case cited by Defendant. In Wagoner, the three plaintiffs were all former Pfizer employees. One worked for 26 years in the Wichita, Kansas area; one for approximately 17 years in the Southern Oklahoma area; and one for approximately three years in the Tucson, Arizona area.[16] Each plaintiff reported to different supervisors, and each was ultimately terminated from his position. Each plaintiff claimed discrimination under the ADEA, and two plaintiffs also claimed intentional infliction of emotional distress.[17] Noting severance is discretionary, the Court found:

. . . while the plaintiffs worked in different places and were fired at different times, the allegation that Pfizer pursued a discriminatory policy satisfies Rule 20's two-part standard. As such, at least at this pretrial juncture, the court finds that it is proper to join the plaintiffs' claims against Pfizer.
Discovery is nearing an end and the dispositive motion deadline rapidly is approaching. The parties may raise this issue in connection with the final pretrial conference, an approach other courts have adopted.[18]

         Similarly, in Roman v. Kellogg Co., [19] Judge Robinson ...


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