Case 5:17-cv-04019-SAC-KGG Document 28 Filed 06/02/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

DEBRA RITTGERS,

Plaintiff,

vs. Case No. 17-4019-SAC-KGG

MELVIN HALE and

ANGELICA HALE,

Defendants.

O R D E R

This is a defamation action originally filed in state court

on October 31, 2016 and removed to federal court. The court has

dismissed defendant Angelica Hale from this action on statute of

limitations grounds. Defendant Dr. Melvin Hale, who has

proceeded pro se in this case and other litigation, has filed an

answer and a counterclaim. This case is now before the court

upon plaintiffs motion to dismiss the counterclaim (Doc. No.

23) and Dr. Hales motion to stay (Doc. No. 24).

Motion to dismiss

Plaintiff is employed at Emporia State University (ESU).

Dr. Hale was an instructor at ESU. The counterclaim alleges

that plaintiff had a history of committing micro-aggressions

against the Hales. It further alleges that the Hales were

concerned that plaintiff was involved in a racial bias incident

at ESU. The Hales urged an investigation of the incident and

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participated in protests regarding race discrimination and the

universitys handling of the incident. In 2015, Dr. Hale filed

a lawsuit (Case No. 15-4947) against ESU, Rittgers and many

other defendants. The lawsuit alleged race discrimination,

First Amendment retaliation, defamation and other claims. The

case was dismissed without prejudice upon Dr. Hales motion, but

Dr. Hale has since refiled the action (Case No. 16-4183).

Dr. Hale alleges in the counterclaim that plaintiff has

filed this lawsuit to frustrate and silence Dr. Hale for

speaking out against racism. Doc. No. 22, p. 16. He asserts

that this violates 42 U.S.C. 1983. Id. at p. 22.

Plaintiffs motion to dismiss asserts that the counterclaim

should be dismissed pursuant to the doctrine of res judicata.

Plaintiff contends that Dr. Hales counterclaim seeks to

relitigate a claim against plaintiff that Dr. Hale advanced in

Case No. 15-4947 and that the court ordered dismissed (Case No.

15-4947 at Doc. No. 57). Dr. Hale argues in his response to the

motion to dismiss that res judicata does not apply because he is

not pursuing the same action he asserted in Case No. 15-4947.

Doc. No. 27, p. 5. Rather, Dr. Hale states that he is alleging

First Amendment [r]etaliation for [Rittgers] alleging [in the

instant litigation] that [Dr. Hale] defamed her. Id.

The court shall reject plaintiffs res judicata argument.

The court applies federal law to determine the effect of a

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previous federal judgment. Hartsel Springs Ranch of Colo., Inc.

v. Bluegreen Corp., 296 F.3d 982, 986 (10th Cir. 2002). Under

Tenth Circuit law, res judicata applies when three elements

exist: (1) a final judgment on the merits in an earlier action;

(2) identity of the parties in the two suits; and (3) identity

of the cause of action in both suits. MACTEC, Inc. v. Gorelick,

427 F.3d 821, 831 (10th Cir. 2005) cert. denied, 547 U.S. 1040

(2006). Here, Dr. Hale contends in the counterclaim that by

filing this lawsuit on the last day of October 2016, plaintiff

has injured him in order to frustrate and silence Dr. Hale for

speaking out against racism. This is not the cause of action

asserted by Dr. Hale against plaintiff in Case No. 15-4947,

which was filed and dismissed prior to October 31, 2016.

Therefore, the court finds that there is no identity of the

cause of action as required to apply the doctrine of res

judicata.

Plaintiff also makes the alternative argument that Dr.

Hales counterclaim should be dismissed for the same reasons

stated by the Court in its June 15, 2016 decision in case number

[15-4947]. Doc. No. 23, p. 2. Plaintiff does not develop this

argument. The court rejects it as it has been presented.

Plaintiff Rittgers was dismissed as a defendant in Case No. 15-

4947 because: Dr. Hale did not allege facts plausibly showing

that Rittgers was responsible for job actions which allegedly

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violated Dr. Hales rights; Dr. Hale did not allege facts which

plausibly supported a defamation action against Rittgers;

Rittgers was not a proper defendant under Title VII of the Civil

Rights Act of 1964 or the Kansas Act Against Discrimination; and

Dr. Hale did not allege facts plausibly showing that Rittgers

was involved in a conspiracy to violate his constitutional

rights. Case No. 15-4947, Doc. No. 57. These arguments do not

directly relate to a claim that the prosecution of the instant

lawsuit has violated Dr. Hales rights under federal law or the

Constitution.

Motion to stay

Dr. Hale has filed a motion to stay all proceedings in this

case pending the resolution of Case No. 16-4183. Among other

arguments, Dr. Hale contends that a stay should be granted

because he is at a great financial and legal disadvantage in

litigating this case and Case No. 16-4183 at the same time. He

further argues that Case No. 16-4183 concerns the validity of

ESUs investigation of the racial incident which, he has

alleged, was perpetrated by plaintiff Rittgers. This bears upon

Rittgers defamation claims in this case.

The court has broad discretion in deciding whether to grant

a stay of proceedings. See Kutilek v. Gannon, 132 F.R.D. 296,

297 (D.Kan. 1990). As a general rule, stays are disfavored.

Id. After considering the arguments of each side, the court is

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not convinced to grant a stay. It appears to the court that the

legal and factual issues in the two cases do not entirely

overlap. So, it may unduly delay this litigation to order a

stay. Moreover, to the extent that there is an overlap, the

court believes it may be possible to schedule discovery so that

financial and time burdens may be minimized. Accordingly, the

motion to stay shall be denied.

Conclusion

In conclusion, the court shall deny plaintiffs motion to

dismiss (Doc. No. 23) and defendant Dr. Hales motion to stay

(Doc. No. 24).

IT IS SO ORDERED.

Dated this 2nd day of June, 2017, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge