United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
Andrew Drake is suing defendant Aerotek, Inc. for allegedly
interfering with his ability to sustain employment. In
particular, plaintiff says that he was terminated from his
employment with a third party because defendant threatened to
sue the third party, relying on an overly broad
interpretation of a noncompete agreement that plaintiff
signed while still working for defendant.
motions are before the court: (1) defendant's motion
under Fed.R.Civ.P. 42 to consolidate this case with Drake
v. Aerotek, No. 14-cv-216-bbc (W.D. Wis.); (2)
plaintiff's motion under Fed.R.Civ.P. 56(d) to stay
briefing on defendant's motion for summary judgment
pending discovery. For the reasons discussed below, I am
denying the motion to consolidate and granting the motion to
stay further summary judgment proceedings until after the
parties have an opportunity to conduct reasonable discovery.
Motion to Consolidate
resolve defendant's motion to consolidate without
extended discussion. Although this case and Drake v.
Aerotek, No. 14-cv-216-bbc (W.D. Wis.) involve the same
parties, they do not involve the same issues. Case no.
14-cv-216-bbc involves overtime pay that defendant allegedly
owes plaintiff; this case involves the scope of a noncompete
agreement. Defendant cites a seven-factor test from a
district court in Texas to support its consolidation
argument, Russo v. Alamosa Holdings, Inc., No.
03-CV-289, 2004 WL 579378, at *1 (N.D. Tex. Feb. 27, 2004),
but defendant fails to account for the text of the relevant
rule, which allows joinder only when the cases "involve
a common question of law or fact." Fed.R.Civ.P. 42.
Defendant says that both cases "arise out of
[plaintiff's] employment, " but defendant does not
identify a single factual or legal determination that is
common to both cases.
there were some common questions of law or fact, I would deny
defendant's motion. Case no. 14-cv-216-bbc is nearing
completion (trial is scheduled for August 29, 2016), but this
case is just getting started. If I granted defendant's
motion to consolidate, it would cause a significant delay in
resolving case no. 14-cv-216-bbc. Particularly because
defendant has not identified any common questions in the two
cases, I see no reason to postpone the trial in case no.
Motion to Stay Summary Judgment Motion
days after plaintiff filed this case, before either party had
conducted any discovery, defendant filed a motion for summary
judgment. Dkt. #8. In its motion, defendant argues that its
noncompete agreement is not the cause of plaintiff's
termination with the third party and that, regardless,
defendant acted in good faith, so it cannot be held liable
for tortious interference.
response, plaintiff says that he needs discovery to refute
both of defendant's arguments. In particular, he says
that he needs discovery related to (1) the reasons why he was
terminated by the third party (in the form of depositions of
the third party decision makers and production of documents);
(2) the extent to which defendant and the third party are in
competition (which relates to the scope of the noncompete
agreement and whether defendant acted in good faith); and (3)
possible reasons unrelated to a violation of the noncompete
agreement that defendant may have threatened to sue the third
party, such as retaliation for plaintiff's complaints
about his wages (which, plaintiff says, is also relevant to
the issue of good faith).
does not deny that the issues plaintiff raises could be
relevant to a claim for tortious interference and it does not
deny that plaintiff lacks discovery on these issues. Instead,
defendant opposes plaintiff's request to conduct
discovery on the ground that a letter defendant sent the
third party shows as a matter of law that defendant's
conduct was not the reason plaintiff was terminated by the
third party and that defendant was acting in good faith.
letter defendant sent states that "[i]t appears that
[plaintiff's] current employment with your organization
violates his contractual obligations to" defendant and
that "[i]f we do not hear from you with appropriate
assurances, we will pursue injunctive relief and damages and
will utilize all legal means available to ensure compliance
with your obligations to Aerotek." Dkt. #11-4 at 5.
Obviously, defendant's letter cannot show why a
third party terminated plaintiff. Further, I agree
with plaintiff that the letter does not show as a matter of
law whether defendant acted in good faith; other evidence may
be relevant to that determination.
defendant has not shown that it is entitled to the
extraordinary relief of denying plaintiff the right to
conduct any discovery in this case Accordingly, I am granting
plaintiff's motion to postpone summary judgment
proceedings and I am denying defendant's motion for
summary judgment without prejudice to allow the parties to
engage in reasonable discovery in accordance with the Federal
Rules of Civil Procedure. I will direct the clerk of court to
set a new scheduling conference before Magistrate Judge
alternative, defendant asks the court to "put Plaintiff
on notice that he will bear the cost of Aerotek's
attorneys' fees and costs if discovery reveals that a
broader record is unnecessary." Dkt. #20 at 6. However,
the only authority that defendant cites for such an unusual
departure from ordinary practice is Fed.R.Civ.P. 11(c)(3),
which allows the court to sanction a party for violating Rule
11(b), which prohibits parties from advancing a legally
frivolous argument, among other things. Of course, parties do
not need to be "put on notice" to follow Rule 11;
the rule serves as its own notice. Because defendant cites no
other authority for its proposed "discovery ...