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Barrios v. Elmore

United States District Court, W.D. Kentucky, Louisville Division

July 30, 2018

FRANCIS BARRIOS, Plaintiff,
v.
CALEB ELMORE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge United States District Court

         Plaintiff Francis Barrios, a former professor at Bellarmine University, alleges that a Bellarmine student, Defendant Caleb Elmore, threatened to kill him and destroy his career. Barrios asserts claims for terroristic threatening, assault, intentional infliction of emotional distress, defamation, and abuse of process against Elmore. (Docket No. 1-3) Barrios also asserts claims for abuse of process and defamation against Elmore's parents, Reza Rashidian and Dayna Elmore. (Id.) Caleb Elmore has moved to consolidate this action with another action pending in this district, Elmore v. Bellarmine University, No. 3:18-cv-53. (D.N. 4) Defendants have moved to dismiss all claims except the terroristic-threatening and assault claims against Caleb Elmore. (D.N. 6; see D.N. 1-3) For the reasons set forth below, Caleb Elmore's motion to consolidate will be denied, and Defendants' motion to dismiss will be granted in part and denied in part.

         I.

         Barrios alleges the following facts in the complaint, which the Court will accept as true for purposes of the motion to dismiss. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Caleb Elmore, an undergraduate student at Bellarmine University, worked as a research assistant for Barrios, a chemistry professor at Bellarmine. (D.N. 1-3, PageID # 13-14) In September 2017, Elmore and Barrios met on campus in Barrios's office. (Id., PageID # 14) During the meeting, Elmore advised Barrios that he planned to seek “double credit” for a foreign study program. (Id., PageID # 15) Barrios refused to acquiesce in Elmore's plan. (Id.) As a result, Elmore became increasingly hostile toward Barrios, eventually threatening to destroy Barrios's career and to “kill him by taking a knife to his throat.” (Id.) Elmore's threats left Barrios “shaken and distraught.” (Id.)

         Barrios filed a formal incident report with Bellarmine concerning Elmore's death threats. (Id., PageID # 16-17) In response, Bellarmine opened a formal investigation into the matter. (Id., PageID # 17) Realizing that the investigation could jeopardize his plans to attend medical school, Elmore solicited the help of his parents and filed a sexual-harassment claim against Barrios in order to subvert Bellarmine's investigation into his own conduct. (Id., PageID # 18) At that time, Bellarmine “tabled” the investigation into Elmore's death threats and began an investigation into his sexual-harassment claim against Barrios. (Id.) During that investigation, Elmore admitted that the sexual-harassment claim against Barrios was meritless and that it was brought to “divert attention away from” his own misconduct in threatening Barrios's life. (Id., PageID # 20)

         Bellarmine's investigators ultimately determined that there was no evidence to support Elmore's claim of sexual harassment. (Id., PageID # 21) Bellarmine nonetheless terminated Barrios's employment after finding that he exchanged inappropriate text messages with Elmore and failed to report Elmore's threats of violence against another faculty member. (Id.) Elmore and his parents pressured Bellarmine to “drop” the investigation into Elmore's death threats, but Bellarmine resumed the investigation. (Id.) Bellarmine concluded that Elmore had, in fact, threatened violence against two professors. (Id., PageID # 22) Elmore's parents wrote a letter to Bellarmine officials, threatening to sue the university if it took any disciplinary action against their son. (Id.) But Bellarmine proceeded to punish Elmore for his threatening conduct. (Id.)

         Elmore's parents thereafter retained counsel, and Elmore filed suit against Bellarmine. (Id., PageID # 23) Although that lawsuit does not name Barrios as a defendant, it “recounts an elaborate and fictitious tale of alleged sexual harassment” by Barrios and claims that Bellarmine and Barrios “conspired to falsely accuse Elmore of threatening violence” to cover up Barrios's alleged sexual harassment. (Id.)

         Barrios filed this action in Jefferson Circuit Court (id., PageID # 8), and Caleb Elmore removed it to this Court on March 5, 2018 (D.N. 1). Barrios asserts claims for terroristic threatening, assault, intentional infliction of emotional distress, defamation, and abuse of process against Caleb Elmore and claims for abuse of process and defamation against Elmore's parents, Rashidian and Dayna Elmore. (D.N. 1-3) Caleb Elmore seeks to consolidate this action with his lawsuit against Bellarmine, which is also pending in this district. (D.N. 4) Defendants seek dismissal of the claims for intentional infliction of emotional distress, defamation, and abuse of process pursuant to Federal Rule of Civil Procedure 12(b)(6). (D.N. 6; see D.N. 1-3)

         II.

         Federal Rule of Civil Procedure 42 provides that “[i]f actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.” Fed.R.Civ.P. 42(a).

A court deciding whether to consolidate actions must consider whether “the specific risks of prejudice and possible confusion [are] overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives.”

Choi v. Stevenson Co., No. 3:08-CV-0057-S, 2011 WL 1625055, at *1 (W.D. Ky. Apr. 28, 2011) (alteration in original) (quoting Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993)). “Whether to consolidate cases involving the same factual and legal questions is a [matter] within the discretion of the trial court.” Id. (citing Cantrell, 999 F.2d at 1011).

         In order to determine whether consolidation of this action with No. 3:18-cv-53 is appropriate, the Court must briefly address the factual allegations in that case. In No. 3:18-cv-53, Caleb Elmore is suing one defendant, Bellarmine University, for breach of contract, promissory estoppel, and negligence. Elmore v. Bellarmine Univ., No. 3:18-cv-53-RGJ-DW, Docket No. 29 (W.D. Ky. Mar. 11, 2018). Elmore also seeks to hold Bellarmine liable under Title IX for sexual harassment and retaliation. Id. Specifically, Elmore alleges that Bellarmine (1) maintained a flawed student disciplinary process that led to his placement on academic probation for threatening Barrios, (2) failed to take appropriate remedial action in response to his sexual-harassment complaint against Barrios, and (3) retaliated against him for bringing a sexual-harassment complaint against Barrios. See Id. By contrast, Barrios alleges in this action that Caleb Elmore threatened him both professionally and personally and that Elmore and his parents defamed him and brought a sexual-harassment complaint against him in order to distract from Bellarmine's investigation into Elmore's threatening behavior. (D.N. 1-3)

         The Court finds that although there may be some factual overlap between the two cases, consolidation is not appropriate here. First, the parties involved in the two suits are not the same. Indeed, Caleb Elmore is the only party involved in both suits. It is likely that consolidation will cause the other parties to suffer prejudice in the form of additional costs. See Adkisson v. Jacobs Eng'g Grp., Inc., Nos. 3:13-CV-505-TAV-HBG, 3:13-CV-666-TAV-HBG, 3:14-CV-20-TAV-HBG, 3:14-CV-472-TAV-HBG, 3:15-CV-17-TAV-HBG, 3:15-CV-274-TAV-HBG, 3:15-CV-420-TAV-HBG, 3:15-CV-460-TAV-HBG, 3:15-CV-462-TAV-HBG, 2016 WL 1465363, at *2 (E.D. Tenn. Apr. 14, 2016) (“If the cases were consolidated, therefore, the cost to [a party involved in only one case] for discovery and motion hearings, among other things, would increase substantially.”); Butz v. Clayton, No. 2:15-CV-12232, 2016 WL 1253272, at *3 (E.D. Mich. Mar. 31, 2016) (denying motion to consolidate where “an additional party [was] added in the second of the two cases”).

         Second, the claims raised in each case are legally and factually distinct from those raised in the other. The claims raised in this case concern the actions of Caleb Elmore and his parents, whereas the claims in the other case involve the conduct of Bellarmine-namely, its student disciplinary process and procedures for handling sexual-harassment complaints. The Court finds that consolidation would cause unnecessary confusion given these substantial differences in claims and parties. See Lewis v. Walker, No. 3:16-cv-00486-TAV-HBG, 2017 WL 1274094, at *3 (E.D. Tenn. Apr. 4, 2017) (finding that “consolidation would only confuse the jury” where “the cases [were] too dissimilar”); see also Star Constr. & Restoration, LLC v. Gratiot Ctr. LLC, Nos. 16-cv-12413, 16-14144, 2017 WL 1021060, at *3 (E.D. Mich. Mar. 16, 2017) (finding that consolidation was not warranted where there was only a “tenuous connection between the legal theories in the two cases”); Butz, 2016 WL 1253272, at *3 (denying motion to consolidate where “the two cases involve[d] distinct claims”); Grigsby v. I-Flow Corp., 264 F.R.D. 264, 266 (E.D. Ky. 2009) (denying motion to consolidate where the “differences outweigh[ed] the similarities between the cases”).

         Moreover, motions to dismiss have been filed in both cases. Elmore, Docket No. 30 (W.D. Ky. Mar. 13, 2018). (D.N. 6) The disposition of such motions may render this consolidation request moot. See Butz, 2016 WL 1253272, at *3. The Court will therefore deny the motion to consolidate without prejudice.[1]See Id. In the event that ...


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