Broadcast Music, Inc. et al v. Shultz
ORDER DENYING PLAINTIFFS' MOTION 5 TO CONSOLIDATE this civil action with 3:12cv59. Signed by District Judge Gina M. Groh on 4/12/2013. (tlg)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
BROADCAST MUSIC, INC., et al.,
CIVIL ACTION NO. 3:13-CV-37
CHRISTOPHER B. SHULTZ,
ORDER DENYING PLAINTIFFS’ MOTION TO CONSOLIDATE
On March 22, 2013, Plaintiffs filed a motion in Civil Action No. 3:13-CV-37 to
consolidate that action with Civil Action No. 3:12-CV-59 [Doc. 5]. Responses to the
plaintiffs’ motion were due no later than April 8, 2013. To date, no responses or
objections to this motion have been filed.
Federal Rule of Civil Procedure 42(a) provides that “[i]f actions before the court
involve a common question of law or fact, the court may . . . consolidate the actions.”
The decision whether to consolidate is left to the sound discretion of the district judge.
A/S J. Ludwig Mowinckles Rederi v. Tidewater Constr. Corp., 559 F.2d 928, 933
(4th Cir. 1977) (“District courts have broad discretion under F.R.Civ. P. 42(a) to
consolidate causes pending in the same district.”). Nevertheless, the Fourth Circuit
Court of Appeals has provided the following guidelines:
The critical question for the district court in the final analysis was whether
the specific risks of prejudice and possible confusion were overborne by
the risk of inconsistent adjudications common factual and legal issues, the
burden on parties, witnesses and available judicial resources posed by
multiple lawsuits, the length of time required to conclude multiple suits as
against a single one, and the relative expense to all concerned of the
single-trial, multiple-trial alternatives.
Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982).
This Court has reviewed Plaintiffs’ motion to consolidate. Although common
questions of law or fact may have existed regarding the issues in the Complaint, there is
no longer a dispute as to liability in 3:12-CV-59. Defendants in 3:12-CV-59 have failed
to make an appearance. Therefore, after Entry of Default by Clerk, the Court granted in
part the Plaintiffs’ Motion for Default Judgment. The Court’s Order granting in part
Plaintiffs’ Motion for Default Judgment specifically deemed admitted all of the wellpleaded facts alleged in the Complaint.
In 3:12-CV-59, an evidentiary hearing on the issue of damages is scheduled for
April 30, 2013. However, in Civil Action No. 3:13-CV-37, as of this date, the docket
does not reflect that Defendant Christopher B. Shultz has been served with the
summons and Complaint. Therefore, Shultz, upon being served, may enter an
appearance and defend against the lawsuit unlike Defendants in Civil Action No. 3:12CV-59.
As the facts and issues of liability have already been determined in 3:12-CV-59,
as a result of the Entry of Default by Clerk and the Court’s Order granting in part the
Plaintiffs’ Motion for Default Judgment, the only issue left in that case is damages. In
stark contrast, multiple issues still remain in 3:13-CV-37 regarding facts, liability, and
damages. In light of the differences between the two civil actions, common issues of
fact and liability do not exist. Further, consolidating the cases at this point in the
proceedings would result in unnecessary delays and confusion of the issues.
Accordingly, Plaintiffs’ motion to consolidate Civil Action No. 3:13-CV-37 with
Civil Action No. 3:12-CV-59 is DENIED.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein
and all pro se parties.
DATED: April 12, 2013