UNITED STATES COU RT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ M. JAMES NASUTI, Plaintiff - Appellant,

v. WHOLE FOODS MARKET, a/k/a WFM-WO, INC., Defendant - Appellee. No. 19-1128 (D.C. No. 1:19-CV-00509-RM-KMT) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McKAY , and BACHARACH , Circuit Judges.

________________ _________________ This appeal involves the relationship between two suits in dis trict

court. The first suit grew out of Mr. J ames Nasuti’s unsuccessful effo rts to obtain a job with Whol e Foods Market. After twelve failed emplo yment applications, Mr. Nasuti sued in state court, identifying the d efendant as

* Oral argument would no t materially help us t o decide this appea l, so we have decided the app eal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir . R. 34.1(G). This order and judgme nt does not constitut e binding precedent except under the doctrines of law of the case, res judicata, and colla teral estoppel. But the order and judgment may be cited for its persuasive valu e if otherwise appropriate. Fed. R. A pp. P. 32.1(a); 10th Cir. R. 32 .1(A). FILED United States Court of Appeals Tenth Circuit 

### August 2, 2019
Elisabeth A. Shumaker Clerk of Court2 “Whole Foods Market, a/k/a WFM- WO, Inc., a Collective Trade Nam e for Others Whose Ident[it] ies are Unknown.” Whole Foods Market remo ved the action to federal court and moved for dismissal based on th e failure to state a valid claim. Mr. Nasuti mo ved for a remand to state cou rt, and the district court stayed during the pendency of Whole Foods Market ’s motion to dismiss and Mr. Nasuti’s motion to remand. Mr. Nasuti feared that the stay might ultimately doom his suit if he had sued the wrong Whole Foods entity, 1 and he expected t he stay to eat up the time that he would otherwise have to fi x this defect. R. at 267. So he filed a new suit. Id. (“Plaintiff has, in just the last few days, discovered a way to evade the discovery ban a nd creatively name other likely Defendants using Colorado law.”); see also id. at 305 (Mr. Nasuti’s statement that the stay of furth er discovery and filing of moti ons prevented him from amending his pleadings, leaving him no other choice th an to file a new suit in state court). The district court dismissed the se cond suit without prejudice, viewing it as repetitive with the first suit and an abusive effort to circumvent the stay in the first suit. Mr. Nasuti app eals the dismissal of the second suit, and we affirm.

1 In the first amended complaint, he stated that he could not b e sure “which Whole Foods entity(s) discr iminated against him.” R. at 47.3 I. Repetition of th e Two Actions The district court did not err in viewing the second suit as re petitive. On this issue, we apply the ab use-of-discretion standard. Katz v. Gerardi , 655 F.3d 1212, 1217 (10th Cir. 2017). In appl ying this standard , we consider the district court’s r easoning. The district court rea soned that the second suit had grown out of the same core of facts underlying the first suit. In both suits, th e court reasoned, Mr. Nasuti was allegin g age discrimination based on his unsuccessful employment application s with Whole Foods. The court was concerned that Mr. Nasuti had trie d to “split” th e same claims into two separate suits. Given this concern, the court o rdered Mr. Nasuti to address the issue. R. at 545–48. Mr. N asuti responded , but the response didn’t address the court’s concern. Mr. Nasuti instead attacked the integrity of the judge, accusing him of trying to “bury” Wh ole Foods Market’s “racketeering scandal.” Id. at 549. 2
We focus on the subst ance of the issue, no t Mr. Nasuti’s perso nal attack on the judge. T he court had a legitim ate interest in try ing to prevent a claimant from filing two virtu ally identical complaints to ci rcumvent a

2 Mr. Nasuti called his response “Plaintiff’s Bew ildered Respon se to the Court’s Sua Sponte , Ex Parte ‘Bury the Scandal’ Sanctions Order Thing.” R. at 549.4 restriction on amending a complaint. Hartsel Springs Ranc h of Colo., Inc. v. Bluegreen Corp. , 296 F.3d 982, 985 ( 10th Cir. 2002). Mr. Nasuti does not deny that t he second suit is repetitive. H e instead argues that he needed to file the second suit because o f the stay in the first suit. Rather than fil e a repetitive suit, however, Mr . Nasuti could have moved to lift the stay, sought a writ of mandamus, appeale d an adverse ruling, or moved to amend the complaint (and argued tha t the amendment should relate back to the original com plaint for purp oses of the limitations period). Thus, the di strict court acted within its discretion in dismissing the second suit as repetitive.
II. Sanction for Trying to Circumvent the Stay The district court als o dismissed the sec ond suit as a sanction for trying to circumvent th e stay in the first suit. For this ratio nale, we again apply the abuse-of-discretion standard. Nasious v. Two Un known B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr. , 492 F.3d 1158, 1161 (10th Cir. 2007). Though Mr. Nasuti is an attorney, 3 he is acting pro se. Irrespective of his pro se status, he must comply with the same procedural rule s applicable to other litigants. Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836,

3 He states that he does not curre ntly practice law, but adds i n the first amended complaint that he is “in good standing, with extensive experience in labor law, contracts, managem ent, and safety issues.” R. at 46.5 840 (10th Cir. 2005). 4 The district court had the authority to enforce its stay order in the first suit, wit h or without a mo tion by one o f the parties. Olsen v. Mapes , 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (discussing the court’s authority to act sua spon te under Fed. R. Civ. P. 41(b) ). Mr. Nasuti protests that he had no choice because the limitatio ns period was about to expire on a cl aim against anot her Whole Foo ds entity if he had mistakenly named the wrong party. But if the limitati ons period had been about to expire, he had other options (as discussed ab ove). For the sake of argument, we mig ht assume that th e district cou rt could have cred ited Mr. Nasuti’s explanat ion for his filing of the second suit. Even with this assumption, however, our issu e is whether the district court abused its discretion. In our view, the district court di d not abuse its discretion in the face of Mr. Nasuti’s admission that he had fi led the second suit to bypass the stay entered in the first suit.
III. Request for an Injunction Mr. Nasuti asks us to enjoin Whole Foods Market from further violations of RICO, arguing that we can act sua sponte to preve nt a fraud on the court or to issu e a writ of mandamus. But Mr. Nasuti has not

4 We ordinarily interpret pro se filings with greater liberalit y than is afforded to filings by counselled parties. Comm. on the Conduct of Attorneys v. Oliver , 510 F.3d 1219, 1223 (10th Ci r. 2007). But when the pro se party is an attorney, we interpret his or her filing jus t as we would in a counselled case. Id.6 presented evidence o f a fraud on our court or explained how we could enjoin RICO violations as a reme dy for such a fraud. Nor has he shown how we could issue a writ of manda mus to prevent a party from v iolating RICO. We thus deny Mr. Nasuti’s request for an injunction. Affirmed. Entered for the Court

Robert E. Bacharach Circuit Judge