Robert Kubicek Architects & Associates Incorporated v. Bosley et al

Filing 83

ORDER granting in part and denying in part 63 Motion for Summary Judgment; denying 79 Motion to Consolidate Cases. The Court will set a final pretrial conference by separate order. Signed by Judge David G Campbell on 12/14/2012.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Kubicek Architects & Associates,
Incorporated,

No. CV-11-02112-PHX-DGC
ORDER

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Plaintiff,

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v.

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Bruce C. Bosley and Joanne M. Bosley,
The Bosley Group Incorporated, Bashas’
Incorporated,

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Defendants.

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Defendants Bruce C. Bosley, Joanne M. Bosley, and the Bosley Group, Inc.

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(“TBG”) (collectively “Defendants” or “Bosley Defendants”) move for summary

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judgment on the first, second, and third causes of action of Plaintiff’s complaint, alleging

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direct copyright infringement, contributory copyright infringement, and vicarious liability

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for copyright infringement. Doc. 63. This Court previously severed the claims against

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Defendant Bashas’ and referred them to the Bankruptcy Court. Doc. 26. The Court

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subsequently dismissed Plaintiff’s federal RICO, state-law racketeering, and alter ego

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claims, making the above-listed claims against the Bosley Defendants the only remaining

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claims in this case. Doc. 57. Defendants’ motion has been fully briefed. Docs. 74, 78.1

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Plaintiff’s request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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The severed claims against Defendant Bashas’ were dismissed in part by the

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Bankruptcy Court, and the remaining claims have since been withdrawn from that court

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and are currently pending before Judge Frederick J. Martone. No 2:12-cv-01947-FJM.

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Plaintiff Robert Kubicek Architects & Associates, Incorporated (“RKAA”) filed a second

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motion to consolidate, requesting consolidation of the pending claims against Bashas’

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with the claims in this case. Defendant Bashas’ filed a response in opposition (Doc. 80),

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and the Bosley Defendants filed a response in opposition and joinder in Bashas’ response.

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Doc. 81. For the reasons set forth below, the Court will grant Defendants’ motion for

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summary judgment in part, deny it in part, and deny Plaintiff’s motion to consolidate.

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I.

Background.
RKAA is an architectural firm located in Phoenix, Arizona.

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Doc. 1, ¶ 13.

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Defendant Bruce Bosley began working as a draftsman for RKAA in 1982, after which

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he became a licensed architect, became a minority shareholder, and served as President

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and a member of RKAA’s board of directors. Id., ¶ 14-15. On March 14, 2007, Mr.

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Bosley resigned from the firm without prior notice. Id., ¶, 20.

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From 1997 up to the time of his resignation, Mr. Bosley worked as the architect

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principally responsible for managing RKAA’s work for Bashas’ Inc., a major, long-term

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client of the firm. Id., ¶¶ 22, 24-25. After leaving RKAA, Mr. Bosley formed his own

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architectural firm, TBG, and seven other RKAA employees who had worked on Bashas’

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projects left RKAA and began working for TBG. Id., ¶¶ 27-30. Bashas’ stopped sending

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new work to RKAA, and instead sent its work to TBG. Id., ¶ 36. RKAA alleges that

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about the time Mr. Bosley left to start his own company, Defendants acquired copies of

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RKAA’s copyrighted architectural drawings related to Bashas’ projects and later

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unlawfully copied and used the drawings in providing services to Bashas’. Id., ¶¶ 44-53.

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II.

Legal Standards.

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A.

Summary Judgment.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]
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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a

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party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome

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of the suit will preclude the entry of summary judgment, and the disputed evidence must

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be “such that a reasonable jury could return a verdict for the nonmoving party.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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B.

Copyright Act.

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Copyright protection applies to “original works of authorship fixed in any tangible

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medium of expression.”

17 U.S.C. § 102(a).

This includes “technical drawings,

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including architectural plans” and “architectural works.” 17 U.S.C. § 102(a)(5) & (8),

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§ 101 (defining works covered under § 102(a)(5)). “An ‘architectural work’ is the design

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of a building as embodied in any tangible medium of expression, including a building,

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architectural plans, or drawings.” Id. at § 102(a)(8). Such work “includes the overall

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form as well as the arrangement and composition of spaces and elements in the design,

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but does not include individual standard features.” Id.

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Registration of a copyrighted work is not required for copyright protection. 17

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U.S.C. § 408(a). Registration is, however, a prerequisite for bringing a civil action for

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copyright infringement. Id. at § 411(a). The Ninth Circuit has found that the receipt of a

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completed application by the U.S. Copyright Office is sufficient for purposes of initiating

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litigation and that the processes of copyright registration and an underlying infringement

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case can proceed concurrently. Cosmetic Ideas, Inc., v. IAC/Interactivecorp, 606 F.3d

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612, 619-21 (9th Cir. 2010). Even rejection of a registration application does not bar a

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civil suit, as long as the Copyright Office has been notified of the litigation and served a
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copy of the complaint. Id. at 619; 17 U.S.C. § 411(a). The Copyright Office may

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become party to the suit, but it is the court’s responsibility to determine the validity of a

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plaintiff’s copyright claim. 17 U.S.C. § 411(a).

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To establish copyright infringement, a claimant must prove “(1) ownership of a

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valid copyright, and (2) copying of constituent elements of the work that are original.”

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Feist Publ’n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). A certificate of

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copyright registration “made before or within five years after first publication of the work

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shall constitute prima facie evidence of the validity of the copyright and of the facts

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stated in the certificate.”

17 U.S.C. § 410(c).

This presumption “is not an

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insurmountable one, and merely shifts to the defendant the burden to prove the invalidity

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of the plaintiff's copyrights.” Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d

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663, 668 (3d Cir.1990. “The burden on the defendant to rebut the presumption varies

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depending on the issue bearing on the validity of the copyright.” Id.

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A work is “original” when it “possesses at least some minimal degree of

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creativity” and was “independently created by the author (as opposed to copied from

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other works).” Feist, 499 U.S. at 345. “The mere fact that a work is copyrighted does

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not mean that every element of the work may be protected. Originality remains the sine

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qua non of copyright; accordingly, copyright protection may extend only to those

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components of a work that are original to the author.” Id. at 348. Whether individual

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components of a work are sufficiently original to be protected is a question of fact. See,

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e.g., Vargas v. Pfizer, Inc., 418 F.Supp.2d 369, 373 (S.D.N.Y. 2005) (finding a genuine

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dispute of fact over whether elements of a plaintiff’s musical composition were

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sufficiently original to warrant copyright protection).

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III.

Defendants’ Motion for Summary Judgment.

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A.

Relevant Copyright Materials and Acts of Copying.

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The Court must first determine whether RKAA has made claims based on the

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infringement of materials that it has either registered with the U.S. Copyright Office or

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for which it has applied to that office for copyright registration. RKAA has presented
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evidence that it submitted registration applications for the following as “architectural

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works”: (1) the grocery design for “Food City by Bashas’ Store #141,” (2) the grocery

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design for “a new Bashas’ Market Store #166,” (3) the architectural design for “Ike’s

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Farmers Market by Bashas’ Store #9,” (4) the architectural design for “Ike’s Farmers

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Market by Bashas’ Store #125,” (5) the technical specifications for grocery design,

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“Generic Specifications (Project Manual),” and (6) the technical specifications for

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grocery design, “Project Manual for a new Bashas’ Market, Store #166.” Doc. 75-2 at 2-

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6, Decl. of Harvey G. Unti, ¶¶ 7-12; see Doc. 75-2 at 8-24.

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In addition to identifying the relevant works for which it has sought copyright

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registration, RKAA must point to evidence sufficient to create a triable issue of fact on

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whether Defendants copied these particular works.

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occasions after Mr. Bosley left RKAA he accessed the firm’s computer system and

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forwarded emails to himself that, in some instances, had copies of RKAA drawings

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attached. Docs. 74 at 15; 75, ¶ 40. Neither the emails nor their attachments appear to

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pertain to any plans for which RKAA applied for copyright registration, however, and are

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therefore outside the scope of this lawsuit. 75-1 at 40-42.

RKAA asserts that on several

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RKAA also argues that a comparison of RKAA drawings and TBG drawings

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shows that portions of TBG’s work “are essentially identical to, and have been

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appropriated from, digital files containing RKAA’s plans, drawings, schedules, and

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design products.” Doc. 74 at 15. RKAA cites to the declaration and report of its expert,

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Irwin G. Pasternack, who opined that works prepared by TBG for a number of Bashas’

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projects “appear to be direct appropriations and plagiarizations of RKAA work product in

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virtually every respect, with intentional cosmetic changes that appear to have been

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designed to change certain aspects of the physical appearance of the documents in order

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to disguise the misappropriations and plagiarisms.” Doc. 75-6 at 4, ¶ 7(a).

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As with the emails, Pasternack’s report pertains, in part, to drawings other than

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those for which RKAA applied for copyright registration, and opinions based on these

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drawings are outside the scope of this lawsuit. Doc. 75-6 at 9-10. The report also
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pertains, however, to drawings for stores 141 and 166, for which RKAA applied for

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copyright registration. Doc. 75-6 at 22. The report opines, for example, that details from

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RKAA #166 and Bosley #174 “prove that a direct copy of the RKAA source file was

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appropriated for Bosley use.” Doc. 75-6 at 24. These and other assertions made by

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Pasternack related to stores 141 and 166 are sufficient to create a triable issue of fact on

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whether TBG copied from RKAA’s relevant copyrighted works.

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B.

Originality.

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Defendants argue that the designs at issue do not qualify as original architectural

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works, making their registrations invalid. Doc. 63 at 8. Defendants argue that an

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“architectural work” is defined as “the overall form as well as the arrangement and

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composition of spaces and elements in the design,” and that the only details relating to

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the “overall form” of the stores at issue here are the storefront, which was designed by a

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firm other than RKAA, and the internal design for the layout of fixtures, which design

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has remained substantially the same for all grocery-stores since the 1980’s and was part

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of the “public domain” before architectural works became copyrightable in 1990. Id. at

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9-10.

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Defendant also argues that in both 2001 and 2003 Bashas’ own construction

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department prepared a Master Set of Floor and Fixture Plans that have served as the basis

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for all subsequent plans and drawings RKAA has prepared for Bashas’. Id. at 10-11.

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Defendants assert, therefore, that the overall form and design of the stores for which

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RKAA claims a copyright is, at most, derivative from Bashas’ own work, and only

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Bashas’ has a right to prepare derivative works from its existing work. Id. at 11; 17

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U.S.C. § 106(2) (“the owner of copyright under this title has the exclusive rights to do

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and authorize . . . [preparation of] derivative works based upon the copyrighted work”).

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RKAA argues in response that the fact that grocery store layouts have remained

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substantially unchanged for decades does not divest its plans for individual Bashas’ stores

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of originality because such a finding would ignore “the original thought and creativity by

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the architect that is inherent in integrating each necessary element into a suitable design
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that reflects the desires of each customer, satisfies the site constraints and meets the

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building codes specific to each structure.” Doc. 74 at 6. As to Defendants’ assertion that

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the interior layout of the stores is merely derivative of Bashas’ own designs, RKAA

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maintains that Bashas’ itself relied on designs prepared for it by RKAA, and the only

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difference between Bashas’ master plans and RKAA’s earlier version of them is that the

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title block was changed. Docs. 74 at 7, 75, ¶ 21. RKAA points to Exhibit F of Robert W.

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Kubicek’s declaration, which it maintains depicts the drawings RKAA prepared as the

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basis for Bashas’ plans, thus showing that RKAA, not Bashas’, is the originator of any

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internal layout designs. Doc. 75-1 at 29.

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Viewing the evidence in a light most favorable to RKAA, the Court concludes that

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RKAA has raised a genuine issue of material fact on whether the overall layout and

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designs it alleges Defendants appropriated for their own use contain sufficient original

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elements created by RKAA to be entitled to copyright protection. The standard for

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originality is not particularly demanding. “Original, as the term is used in copyright,

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means only that the work was independently created by the author (as opposed to copied

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from other works), and that it possesses at least some minimal degree of creativity.”

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Feist, 499 U.S. at 345. Whether RKAA’s designs are original or largely the same as the

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basic design of all grocery stores, and whether the layout of the stores must, in any case,

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be attributed to Bashas’ construction department and not to RKAA, are factual issues the

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Court cannot resolve at the summary judgment stage.

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C.

Did RKAA Transfer or Waive its Copyright Rights?

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Defendants argue that the relevant copyright materials do not actually belong to

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RKAA, but to Bashas’, or that RKAA granted Bashas’ a license to use its plans and

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drawings through years of conduct that estops it from claiming infringement. Doc. 63 at

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5-8. Defendants point to the affidavit of Mr. Bosley that over RKAA’s more than 20-

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year working relationship with Bashas’, Bashas’ kept plans, drawings, and other

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documents related to its projects both at RKAA and at its own offices, and that RKAA

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freely provided Bashas’ with “any project file or material it wanted to use in whatever
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way it wanted.” Doc. 64-1, ¶ 9. Mr. Bosley states that during his time as President of

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RKAA, he engaged in discussions with Bashas’ Vice President of construction and

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maintenance, Rick Hamm, and readily agreed that Bashas’ effectively owned the plans

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RKAA had prepared for it, and that on two occasions in 2002 and 2005, Bashas’ paid

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RKAA to compile and make copies of all of its project materials. Id., ¶¶ 11, 12. Mr.

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Bosley also states that RKAA released plans to other architects for use on Bashas’

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projects in which RKAA was not involved. Id., ¶¶ 12-13. This extended to TBG after

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Mr. Bosley resigned when, Defendants argue, RKAA allowed TBG to complete two or

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three time-critical projects for Bashas’ using files RKAA released. Id., ¶ 14; see Dep. of

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Richard Hamm, Doc. 75-3 at 7: 2-19.

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RKAA does not deny that it provided copies of its plans to Bashas’ over the years

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or that it permitted Bashas’ or other architects to use its plans on particular projects.

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RKAA instead argues that the right to possess copies of an original work or to use those

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works for limited purposes does not transfer ownership of the copyright – the exclusive

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right to control their reproduction and distribution. Doc. 74 at 10-12; see 17 U.S.C.

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§ 106. RKAA argues that unlike granting someone permission to own or use copies of an

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original work, a transfer of copyright ownership requires a signed instrument from the

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copyright owner. 17 U.S.C. § 204(a). Defendants have produced no evidence of a signed

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transfer of copyright ownership in this case. Doc. 74 at 11.

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RKAA argues that it did not give Bashas’ a license to use its plans at any time in

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any way it wanted, thereby waiving its right to assert any copyright infringement claims.

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RKAA points to Mr. Hamm’s deposition testimony that when a need arose for Bashas’ to

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use RKAA’s drawings, Hamm would convey “[j]ust that . . . we would like to have those

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released for specific reasons. They weren’t – it wasn’t cart blanch, it wasn’t everything.

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There were certain needs that we needed to have those released. And my conversation

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would have gone to Bruce, Mr. Bosley, and they would have requested what those needs

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were and why.”

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acknowledges that it released drawings to TBG for the purpose of completing particular

Doc. 75-3, Dep. of Richard Hamm, Doc. 75-3 at 5:3-8.

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RKAA

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Bashas’ projects, but argues that it did so only provisionally and that the releases, and Mr.

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Hamm’s testimony about them, show that this permission was only with respect to

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particular drawings and for a particular purpose. Doc. 74 at 10-11.

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The Court concludes that the course of conduct and verbal agreements cited by

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Defendants are not sufficient to show that RKAA transferred the copyright ownership of

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any of its works to Bashas’ in accordance with the requirements of 17 U.S.C. § 204(a).

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RKAA has raised an issue of material fact about the extent to which it granted Bashas’ a

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license to use its drawings for work by other architects on other Bashas’ projects.

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Whether RKAA’s permission extended to TBG’s use of the particular architectural works

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allegedly copied by Defendants in this case is an issue of fact to be resolved at trial.

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D.

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RKAA states three separate types of claims: direct and contributory infringement

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against all Defendants and vicarious liability against Mr. Bosley. Doc. 1, ¶¶ 66-82. To

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the extent Defendants make additional arguments respecting these claims, the Court will

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address them below.

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Specific Claims.

1.

Direct Infringement Against Mr. Bosley.

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Defendants argue that RKAA’s claim of direct infringement against Mr. Bosley

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fails because RKAA has pointed to no evidence showing that Mr. Bosley copied or made

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use of the copyrighted materials at issue in this case. Doc. 63 at 11-12; citing Costar

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Group, Inc. v. Loopnet, Inc., 373 F.3d 544, 549 (4th Cir. 2004) (“While the Copyright

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Act does not require that the infringer know that he is infringing or that his conduct

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amount to a willful violation of the copyright owner's rights, it nonetheless requires

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conduct by a person who causes in some meaningful way an infringement.”) (emphasis in

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original); see also Perfect 10, Inc. v. Megaupload Ltd., No. 11cv0191—IEG (BLM).

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2011 WL 3203117, at *4 (S.D. Cal. July 27, 2011) (“an important element of direct

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liability is volitional conduct.”)

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The Court agrees that RKAA has failed to present evidence that Mr. Bosley

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engaged in direct copyright infringement. RKAA has not pointed to any evidence that
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Mr. Bosley either personally copied or obtained relevant protected materials after he

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resigned from RKAA, or that he authored or contributed to the TBG drawings and plans

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that purportedly infringe on those materials. As previously discussed, the emails Mr.

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Bosley allegedly forwarded to himself from RKAA’s computer system do not refer to the

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relevant documents for copyright infringement in this case. RKAA does not allege any

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additional overt acts from which a reasonable jury could conclude that Mr. Bosley

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directly infringed RKAA’s copyright rights. The Court will grant summary judgment to

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Defendants on RKAA’s direct copyright infringement claim against Mr. Bosley.

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2.

Contributory Infringement Against Mr. Bosley and TBG.

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“[A] defendant is a contributory infringer if it (1) has knowledge of a third party’s

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infringing activity, and (2) induces, causes, or materially contributes to the infringing

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conduct.” Perfect 10, 2011 WL 3203117, at *5. Defendants argue that the contributory

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infringement claim against Mr. Bosley fails because RKAA presents no evidence that

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TBG engaged in direct infringement and, even if it did, there is no evidence that Mr.

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Bosley had knowledge of the infringement or did anything to induce, cause, or contribute

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to the infringement. Doc. 63 at 13 14.

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For the reasons already discussed, the Court does not agree that RKAA has failed

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to produce evidence from which a reasonable jury could conclude that TBG engaged in

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direct copyright infringement. The Court also finds that RKAA has presented sufficient

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evidence to create an issue of fact that Mr. Bosley knew of and contributed in some way

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to TBG’s alleged infringement. The Pasternack Declaration, referred to above, states

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that, given Mr. Bosley’s years of “experience in overseeing the architectural work done

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by RKAA for Bashas’, it is . . . highly unlikely that Mr. Bosley would have failed to

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recognize the extensive misappropriation and plagiarization of earlier RKAA work he

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had supervised incorporated into the TBG work product I have reviewed.” Doc. 75-6 at

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5, ¶ 8. Drawing all reasonable inferences in favor of RKAA, this evidence is sufficient to

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create an issue of fact on whether Mr. Bosley knew of and failed to interfere with – and

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thus arguably contributed to – TBG’s alleged infringing conduct. The Court will deny
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summary judgment to Defendants’ on this claim.

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Defendants argue that RKAA’s claim of contributory infringement against TBG

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fails because it is premised on allegations that Bashas’ engaged in direct infringement,

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and RKAA has presented no evidence of direct infringement by Bashas’. Doc. 63 at 13.

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The Court agrees that the evidence upon which RKAA relies to show that TBG infringed

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on its past work pertains solely to plans prepared for Bashas’ by TBG, and RKAA

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presents no evidence that Bashas’ either copied the relevant plans without permission or

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was involved in the creation of the TBG plans that purportedly copied from them. To the

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extent that the contributory infringement claim against TBG is predicated on its own

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alleged infringement, this claim is subsumed in the direct infringement claim. The Court

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will grant summary judgment to Defendants on RKAA’s contributory infringement claim

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against TBG.

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3.

Vicarious Liability of Mr. Bosley.

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Vicarious liability for copyright infringement arises where “the right and ability to

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supervise” the conduct of the infringer coalesces with “an obvious and direct financial

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interest in the exploitation of copyrighted materials.” Shapiro, Bernstein & Co. v. H.L.

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Green Co., 316 F.2d 304, 307 (2nd Cir. 1963); see Fonovisa, Inc. v. Cherry Auction, Inc.,

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76 F.3d 259, 262 (9th Cir. 1996) (following Shapiro as the landmark case on vicarious

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copyright liability). This is so whether or not the superior has actual knowledge of the

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infringement. Shapiro, 316 F.2d at 307.

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Defendants argue that RKAA’s claim of vicarious liability against Mr. Bosley fails

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as to TBG because Mr. Bosley has no direct financial interest in any of TBG’s employees

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committing an infringement. The Court does not agree. Drawing all inferences in favor

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of RKAA, the Court finds that Mr. Bosley as owner and founder of TBG had a direct

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financial interest in TBG securing and retaining Bashas’ as a client. Because TBG’s

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alleged use of copyrighted materials is directly related to work it performed on Bashas’

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behalf, Mr. Bosley’s financial interest in allegedly exploiting these materials is both

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obvious and direct. The Court will deny summary judgment to Defendants on RKAA’s
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claim of vicarious copyright infringement against Mr. Bosley.
4.

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Summary of Claims.

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In sum, the Court finds that RKAA has pointed to insufficient evidence to support

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its claims of direct copyright infringement against Mr. Bosley and contributory copyright

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infringement against TBG.

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judgment as to these claims.

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evidence to support its claims of direct copyright infringement against TBG, and

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contributory and vicarious copyright infringement against Mr. Bosley. Accordingly, the

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Court will deny Defendant’s motion for summary judgment as to these claims.

The Court will grant Defendants motion for summary
The Court finds that RKAA has presented sufficient

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E.

Attorneys’ Fees.

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Defendants seek an award of attorneys’ fees and renew their request for attorneys’

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fees associated with their motion for judgment on the pleadings. Doc. 63 at 16. As the

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Court previously found (Doc. 57 at 8), Defendants’ request is premature. The Court will

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address attorneys’ fees after this case is resolved.

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IV.

Motion to Consolidate.

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RKAA has filed a second motion to consolidate its claims against Bashas’ (No

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2:12-cv-01947-FJM) with the claims in this case. Doc. 79. The Court denied RKAA’s

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previous motion to consolidate as premature because the only matter pending in the

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Bashas’ case at that time was RKAA’s motion to withdraw the reference from the

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Bankruptcy Court. See Doc. 69 at 1. RKAA argues that now that Judge Martone has

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ruled on that motion and withdrawn the reference, its motion to consolidate is ripe.

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Doc. 79 at 7. RKAA argues that its claims against the Bosley Defendants and Bashas’

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are deeply interconnected, and consolidation is proper to avoid duplicative discovery

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efforts and potentially inconsistent rulings in parallel cases. Id. at 8-9.

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The Court continues to find that consolidation is inappropriate. Even though both

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actions are currently pending, they are at opposite stages of litigation. Discovery in this

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action ended on July 27, 2012; summary judgment briefing became final on October 29,

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2010; and, with the entry of this order, the case is now ready for trial. By contrast, the
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Bashas’ action is only in its beginning stages, and the extent of triable claims in that case

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is as yet unknown.

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(Doc. 79-1 at 1-2), and RKAA has filed a notice of appeal (Doc. 81 at 2-3). Bashas’

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attests that it intends to move to dismiss RKAA’s remaining claims. Doc. 80 at 6. Thus,

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whether and to what extent RKAA will have any claims against Bashas’ suitable for

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consolidation with this case depends on outcomes yet to be determined.

The Bankruptcy Court dismissed RKAA’s pre-petition claims

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As the Court has previously noted, this is the fourth action RKAA has filed against

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the Bosley Defendants. See Docs. 57 at 1; 81 at 1-2. The Bosley Defendants have been

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litigating these cases for nearly four years and the instant case for over one year. Doc. 81

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at 2. Consolidation at this stage would require Defendants to await discovery and the

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resolution of outstanding issues and dispositive motions in the Bashas’ action before

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bringing this case to final resolution.

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inconvenience and delay, the Court will deny the motion. See, e.g., Mills v. Beech

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Aircraft Corp., Inc., 886 F.2d 758, 761-62 (5th Cir. 1989) (finding consolidation proper

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“when two or more district court cases involve common questions of law and fact and the

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district judge finds that consolidation would avoid unnecessary costs or delay[,]” but that

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it “may properly be denied in instances where the cases are at different stages of

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preparedness for trial.”).

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IT IS ORDERED:

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1.

Because this would create substantial

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Defendants’ motion for summary judgment (Doc. 63) is granted in part

and denied in part as set forth in this order.

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2.

Plaintiffs’ second motion to consolidate (Doc. 79) is denied.

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3.

The Court will set a final pretrial conference by separate order.

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Dated this 14th day of December, 2012.

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