considered and rejected these contentions in ruling on Comten's summary judgment motion. See Sendi v. NCR Comten, Inc., 619 F. Supp. 1577, slip op. at 6-10 (E.D.Pa. 1985). Plaintiff's claim that he was discharged in violation of specific or implied terms in an employment agreement cannot, therefore, serve as the basis for a second lawsuit.
Even had I not considered plaintiff's additional claims in Sendi I, the fact that plaintiff was denied leave to amend does not give him the right to file a second lawsuit based on the same facts. As the Third Circuit observed in Walton v. Eaton Corp., 563 F.2d 66, 71 (3d Cir. 1977), the district court "must insure that the plaintiff does not use the incorrect procedure of filing duplicative complaints for the purpose of circumventing the rule pertaining to the amendment of complaints, Fed. R. Civ. Proc. 15." Sendi's proper recourse was to appeal from the denial of his motion to amend. Poe, 695 F.2d at 1107; Eliason Corp. v. Bureau of Safety and Regulation, 564 F. Supp. 1298, 1303-04 (W.D.Mich. 1983). Comten's motion to dismiss the complaint in Sendi II will be granted.
Comten has also moved for sanctions against plaintiff and his counsel pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Although I agree that the decision to file a second suit was ill-advised, I cannot conclude that plaintiff and his counsel acted so unreasonably as to justify imposition of sanctions. Sendi II was filed on October 10, 1985, before my October 25 Opinion and Order in Sendi I, which made clear that I had considered and rejected all of plaintiff's arguments. Moreover, I accept counsel's representation that he brought Sendi II in an attempt to prevent the statute of limitations from running on plaintiff's contractual claims. Applying the standard set forth in Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir. 1985), I am satisfied that counsel's litigation tactics, although misguided, were not entirely unwarranted. Comten's request for sanctions will be denied.
This 16th day of January, 1986, it is ORDERED that:
1. Defendant NCR Comten, Inc.'s Motion to Dismiss the Complaint is GRANTED, and plaintiff Joseph Sendi's Complaint is DISMISSED with prejudice. 2. Defendant's Motion for Sanctions is DENIED.