UNITED STATES COURT 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 district 

court. 

The first suit grew out of Mr. James Nasuti’s unsuccessful efforts to 

obtain a job with Whole Foods Market. After twelve failed employment 

applications, Mr. Nasuti sued in state court, identifying the defendant as 

 * Oral argument would not materially help us to decide this appeal, so 

we have decided the appeal based on the briefs. See Fed. R. App. P. 

34(a)(2); 10th Cir. R. 34.1(G). 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. Fed. R. App. 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 Court
2 

“Whole Foods Market, a/k/a WFM-WO, Inc., a Collective Trade Name for 

Others Whose Ident[it]ies are Unknown.” Whole Foods Market removed 

the action to federal court and moved for dismissal based on the failure to 

state a valid claim. Mr. Nasuti moved for a remand to state court, 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 the stay to eat up 

the time that he would otherwise have to fix 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 and creatively name other likely

Defendants using Colorado law.”); see also id. at 305 (Mr. Nasuti’s 

statement that the stay of further discovery and filing of motions prevented 

him from amending his pleadings, leaving him no other choice than to file 

a new suit in state court). The district court dismissed the second 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 appeals the 

dismissal of the second suit, and we affirm. 

 1

 In the first amended complaint, he stated that he could not be sure 

“which Whole Foods entity(s) discriminated against him.” R. at 47. 
3 

I. Repetition of the Two Actions 

The district court did not err in viewing the second suit as repetitive. 

On this issue, we apply the abuse-of-discretion standard. Katz v. Gerardi, 

655 F.3d 1212, 1217 (10th Cir. 2017). In applying this standard, we 

consider the district court’s reasoning. The district court reasoned that the 

second suit had grown out of the same core of facts underlying the first 

suit. In both suits, the court reasoned, Mr. Nasuti was alleging age 

discrimination based on his unsuccessful employment applications with 

Whole Foods. 

The court was concerned that Mr. Nasuti had tried to “split” the same 

claims into two separate suits. Given this concern, the court ordered Mr. 

Nasuti to address the issue. R. at 545–48. Mr. Nasuti 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” Whole Foods 

Market’s “racketeering scandal.” Id. at 549.2

 

 We focus on the substance of the issue, not Mr. Nasuti’s personal 

attack on the judge. The court had a legitimate interest in trying to prevent 

a claimant from filing two virtually identical complaints to circumvent a 

 2

 Mr. Nasuti called his response “Plaintiff’s Bewildered Response 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 Ranch of Colo., Inc. 

v. Bluegreen Corp., 296 F.3d 982, 985 (10th Cir. 2002). 

 Mr. Nasuti does not deny that the second suit is repetitive. He 

instead argues that he needed to file the second suit because of the stay in 

the first suit. Rather than file a repetitive suit, however, Mr. Nasuti could 

have moved to lift the stay, sought a writ of mandamus, appealed an 

adverse ruling, or moved to amend the complaint (and argued that the 

amendment should relate back to the original complaint for purposes of the 

limitations period). Thus, the district court acted within its discretion in 

dismissing the second suit as repetitive. 

II. Sanction for Trying to Circumvent the Stay 

The district court also dismissed the second suit as a sanction for 

trying to circumvent the stay in the first suit. For this rationale, we again 

apply the abuse-of-discretion standard. Nasious v. Two Unknown 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 rules applicable 

to other litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 

 3

 He states that he does not currently practice law, but adds in the first 

amended complaint that he is “in good standing, with extensive experience 

in labor law, contracts, management, 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, with or without a motion by one of the parties. 

Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (discussing the 

court’s authority to act sua sponte under Fed. R. Civ. P. 41(b)). 

Mr. Nasuti protests that he had no choice because the limitations 

period was about to expire on a claim against another Whole Foods entity 

if he had mistakenly named the wrong party. But if the limitations period 

had been about to expire, he had other options (as discussed above). 

For the sake of argument, we might assume that the district court 

could have credited Mr. Nasuti’s explanation for his filing of the second 

suit. Even with this assumption, however, our issue is whether the district 

court abused its discretion. In our view, the district court did not abuse its 

discretion in the face of Mr. Nasuti’s admission that he had filed 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 prevent a fraud 

on the court or to issue a writ of mandamus. But Mr. Nasuti has not 

 4

 We ordinarily interpret pro se filings with greater liberality than is 

afforded to filings by counselled parties. Comm. on the Conduct of 

Attorneys v. Oliver, 510 F.3d 1219, 1223 (10th Cir. 2007). But when the 

pro se party is an attorney, we interpret his or her filing just as we would 

in a counselled case. Id. 
6 

presented evidence of a fraud on our court or explained how we could 

enjoin RICO violations as a remedy for such a fraud. Nor has he shown 

how we could issue a writ of mandamus to prevent a party from violating 

RICO. We thus deny Mr. Nasuti’s request for an injunction. 

 Affirmed. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge