Shoen

Filing 66

ORDER denying 60 Motion to Consolidate Cases. Signed by Judge David G Campbell on 8/11/2011.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael L. Shoen, a resident of Arizona, )
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Plaintiff,
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vs.
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Richard Symons, a resident of Great
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Britain, et al.,
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Defendants.
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No. CV09-1548 PHX DGC
ORDER

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Defendants move pursuant to Rule 42(a) to consolidate this case with another action

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closed over four years ago. Doc. 60. Defendants argue that the parties are the same, and that

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the language of the parties’ contract at issue in this case is identical to the language of the

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injunction in the closed case. Id. at 2-3. Defendants urge that consolidation will facilitate

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applying a single interpretation to both the contract and the injunction. Id. at 3.

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Plaintiff responds that there is only one action pending before the Court and further

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suggests that this Court has held the injunction in the closed case is unambiguous, that the

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only practical issue remaining is the issue of damages, and that the summary judgment order

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in this case “does not adjudicate the merits” of the claims for which judgment was entered

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against Plaintiff. Doc. 62 at 2. Plaintiff also attempts to argue the viability of the injunction

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without explaining how this argument is relevant to the requirements of Rule 42(a) (Doc. 62

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at 4-10), as well as asserts that the motion to consolidate is untimely but fails to provide

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further details (id. at 4:3).

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Defendants have filed a reply (Doc. 63), and the parties do not request oral argument.

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A.

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As a threshold matter, Plaintiff’s submission that “the Court has already decided that

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the stipulated Injunction is not ambiguous” (Doc. 62 at 2) is without support. The Court’s

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summary judgment order expressly declined ruling on the injunction. Doc. 53 at 3:15-19.1

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Plaintiff also asserts that “the only issue remaining – for all practical purposes – is the

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amount of damages.” Doc. 62 at 2. The Court is unaware of having entered a judgment in

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favor of Plaintiff on all issues save damages. In its summary judgment order the Court held

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only that, with respect to paragraph A of the parties’ stipulation, “[t]he plain language of the

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stipulation does not permit marketing by Defendants of their newly-titled DVD ‘The Snake

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Preliminary Matters.

and the Stallion’ as being ‘formerly Cobra-Ferrari Wars.’” Doc. 53 at 5.

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Plaintiff further argues that the summary judgment order “granting judgment

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dismissing the remaining claims does not adjudicate the merits of these claims,” and asserts

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the Court suggested as much when denying Plaintiff’s motion for reconsideration. Doc. 62

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at 2:12-17. Summary judgment is generally a judgment on the merits, however, Wyatt v.

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Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), and nothing in the Court’s July 18, 2011 order

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(Doc. 61) holds otherwise. The Court may not have made findings as to specific issues or

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facts, but judgment was entered in favor of Defendants as to claims 1, 2, 4, and 5 – and

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partial judgment was entered in favor of Defendants on claims 3 and 6 “to the extent they

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involve breaches of contracts other than the 2007 Stipulation for Injunction.” Doc. 53 at 3.

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B.

Motion to Consolidate.

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The case with which Defendants seek to consolidate this action has been closed for

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over four years. Defendants concede the new action is limited to the contract between the

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parties (Doc. 60), Plaintiff does not argue that the present action alleges a cause of action for

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civil contempt of the injunction (see Doc. 62), and Defendants have not filed a declaratory

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action seeking to interpret their rights and obligations under the injunction. The fact that the

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The Court’s summary judgment order concluded only that the parties’ stipulation –
i.e., the agreement between the parties – was unambiguous as to paragraph A when read in
conjunction with paragraph F. Doc. 53 at 4-5.
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contract and the injunction may have identical language has no bearing on the meaning of

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the contract. Defendants’ reply suggests that having the parties’ contract interpreted in this

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case but leaving the “identical language in the Injunction unresolved” would not serve the

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interests of judicial economy. Doc. 63 at 3-4. Given that this case does not formally plead

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a civil contempt cause of action, however, Defendants fail to show the relevance of the

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injunction – and, by extension, of the closed case – to this action. To the extent Defendants

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suggest that a final judgment in this case would somehow be frustrated by the injunction

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issued in the closed case, Defendants have made no showing that such conflict would ensue.

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Nor have Defendants shown that a judgment here in their favor would be an insufficient basis

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for modifying the injunction.

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The motion to consolidate will be denied because Defendants have not shown two live

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actions before the Court that involve common questions of law and fact. Fed. R. Civ. P.

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42(a).

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C.

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Plaintiff’s pending motion for preliminary injunction (Doc. 65) will be ruled upon in

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Comment.

due course once it has been fully briefed.

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IT IS ORDERED that Defendants’ motion for consolidation (Doc. 60) is denied.

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DATED this 11th day of August, 2011.

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