United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION FOR SEPARATE
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Wal-Mart Stores East, L.P. and Wal-Mart Stores, Inc.
(together “Wal-Mart”) seek to separate the trials
of Plaintiffs, Kim Hannah and Michael Barham. Mot. for Sep.
Trials, ECF No. 318. Plaintiffs oppose Defendants'
motion, arguing that common questions of law and fact require
that the two cases be kept together. Pls. Mem. in Opp., ECF
No. 351. For the reasons stated below, Defendants' motion
case arises out of the termination of three former Wal-Mart
managers, Kim Hannah, Michael Barham and Thomas Irving, Jr.
Order on Mot. for Summary Judgment at 3, ECF No. 255. Ms.
Hannah and Mr. Irving were both employed as Market Human
Resources Managers, a position that involved providing human
resources services within a particular geographical region.
Id. at 2. In contrast, Mr. Barham was employed as a
Market Asset Protection Manager, which involved providing
loss prevention services within a particular geographical
region. Id. Ms. Hannah, Mr. Barham and Mr. Irving,
all African-American employees, were terminated in April 2010
in connection with a nationwide reorganization conducted by
Wal-Mart in 2009- 2010, known internally by the name
“Project Apple.” Id. at 3. After
learning of their termination, all three individuals applied
to other positions within the company. Id. at 9-10.
Wal-Mart eventually re-hired Mr. Barham in a different role,
but it did not re-hire Ms. Hannah and Mr. Irving.
Hannah, Mr. Irving and Mr. Barham brought this lawsuit
against Wal-Mart in September 2012,  alleging various claims
under Title VII of the Civil Rights Act of 1964 (“Title
VII”) and the Connecticut Fair Employment Practices Act
(“CFEPA”). Am. Compl., ECF No. 6. In October
2014, Wal-Mart moved to sever Mr. Barham's claims from
the claims brought by Ms. Hannah and Mr. Irving under
Fed.R.Civ.P. 21; three months later, in January 2015,
Wal-Mart moved for summary judgment on all of Plaintiffs'
claims. Defs. Mot. to Sever, ECF No. 180; Defs. Mot. for
Summary Judgment, ECF No. 205. In February 2016, the Court
partially granted Wal-Mart's motion for summary judgment
and denied Wal-Mart's motion to sever. Order on Mot. for
Summary Judgment, ECF No. 255.
Court's summary judgment ruling narrowed the scope of
this case, dismissing most of the nine separate employment
claims initially alleged against Wal-Mart and leaving only
the retaliatory failure to rehire claims brought by Mr.
Irving, Ms. Hannah and Mr. Barham and the discriminatory
termination and failure to rehire claims brought by Mr.
Barham. Id. at 38. The Court also concluded that
severing the claims was not appropriate in light of the
common questions of law and fact with respect to the
surviving claims. Id. at 37.
the Court's ruling, Wal-Mart moved for reconsideration of
the Court's decision, seeking dismissal of the remaining
claims. Defs. Mot. for Reconsid., ECF No. 271. The Court
agreed that reconsideration was appropriate with respect to
some claims, and ultimately dismissed the following
additional claims: (1) all claims as to Mr. Irving; (2) the
majority of the retaliatory failure to rehire claims as to
Mr. Barham; and (3) several of the retaliatory failure to
rehire claims as to Ms. Hannah. Order on Reconsid., ECF No.
295. The Court's ruling further narrowed the case to
include only the following claims: (1) as to Mr. Barham,
discriminatory termination, discriminatory failure to rehire,
and retaliatory failure to rehire claims; and (2) as to Ms.
Hannah, retaliatory failure to rehire claims. Id. at
now moves to separate the trial of Mr. Barham's claims
from the trial of Ms. Hannah's claims under Fed.R.Civ.P.
42, arguing that the Court's ruling on Wal-Mart's
motion for reconsideration has eliminated many of the common
questions between these two Plaintiffs' claims. Mot. for
Sep. Trials, ECF No. 318.
Standard of Review
to separate trials are governed by Rule 42 of the Federal
Rules of Civil Procedure. Rule 42(b) provides that,
“[f]or convenience, to avoid prejudice, or to expedite
and economize, the court may order a separate trial of one or
more separate issues” or claims. Fed.R.Civ.P. 42(b). A
motion to separate trials under Rule 42 is determined under
the same principles used in connection with a motion to sever
claims under Rule 21. Morris v. Northrop Grumman Corp.,
37 F.Supp.2d 556, 580 (E.D.N.Y. 1999). “The decision
whether to grant a severance motion is committed to the sound
discretion of the trial court.” State of N.Y. v.
Hendrickson Bros., 840 F.2d 1065, 1082 (2d Cir. 1988),
cert. denied, 488 U.S. 848 (1988); see also
Katsaros v. Cody, 744 F.2d 270, 278 (2d Cir. 1984)
(affirming bifurcation of third-party claim and separating
trial on liability and damages phases where the separate
trials would require different types of evidence and there
was no prejudice resulting from bifurcation).
order to determine whether claims should be tried separately,
courts generally consider four factors: “(1) whether
the claims arise out of the same transaction or occurrence;
(2) whether the claims present some common questions of law
or fact; (3) whether settlement of the claims or judicial
economy would be facilitated; (4) whether prejudice would be
avoided if severance were granted; and (5) whether different
witnesses and documentary proof are required for the separate
claims.” Tardd v. Brookhaven Nat. Lab., No. 04
CV 3262 (ADS), 2007 WL 1423642, at *6 (E.D.N.Y. May 8, 2007)
(citing Cestone v. General Cigar Holdings, Inc., No.
00 Civ. 3686 RCCDF, 2002 WL 424654, at *2 (S.D.N.Y. Mar. 18,
2002)); see also Dickerson v. Novartis Corp., 315
F.R.D. 18, 24 (S.D.N.Y. 2016) (“‘Severance
requires the presence of only one of these conditions, '
although courts ‘view severance as a procedural device
to be employed only in exceptional circumstances.'”
(citing Oram v. SoulCycle LLC, 979 F.Supp.2d 498,
503 (S.D.N.Y. 2013)); Svege v. Mercedes-Benz Credit
Corp., 329 F.Supp.2d 283, 284 (D. Conn. 2004) (“On
a case-by-case basis, the Court should examine, among other
factors, whether bifurcation is needed to avoid or minimize
prejudice, whether it will produce economies in the trial of
the matter, and whether bifurcation will lessen or eliminate
the likelihood of juror confusion”).
argues that separate trials will avoid prejudice and increase
judicial economy and efficiency in this matter. Defs. Mem. in
Supp., ECF No. 319. In support of its arguments, Wal-Mart
explains that the remaining claims as to Ms. Hannah and Mr.
Barham involve a separate set of facts, evidence and legal
issues. Id. at 12-13. Wal-Mart further asserts that
separating the two sets of claims will avoid potential
prejudice as to Wal-Mart with respect to Ms. Hannah's
case. Id. at 14. Plaintiffs disagree, insisting
that, because there is some overlapping testimony remaining
between the two sets of claims and the Court could utilize
limiting jury instructions to eliminate prejudice, the
continued consolidation of trial is justified as to these two
Plaintiffs. Pls. Mem. in Opp, ECF No. 351.
the claims in this case initially arose out of the same
transaction or occurrence - namely, the corporate
reorganization that purportedly led to the termination of Ms.
Hannah, Mr. Barham and Mr. Irving - most of the common ground
between the parties was eliminated when the Court decided to
reconsider its summary judgment ruling. The only claim
remaining as to Ms. Hannah is a retaliatory failure to rehire
claim. Order on Reconsid. at 9. This claim ...