Manion et al v. Ameri-Can Freight Systems Incorporated et al

Filing 96

ORDER re: 95 Defendants' Objection to Plaintiffs' Supplemental Briefing [see attached Order for details]. Signed by Judge Dominic W Lanza on 6/20/19. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Zandra Manion, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-17-03262-PHX-DWL

Ameri-Can Freight Systems Incorporated, et
al.,

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Defendants.

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On May 21, 2019, the Court issued an order denying Defendants’ motion for

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summary judgment. (Doc. 89.) Near the end of the order, the Court raised an issue that

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hadn’t been addressed in the parties’ briefs—whether two different plaintiffs should be

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allowed to assert a wrongful death claim in this case. (Id. at 9-10.) “Rather than

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unilaterally select a solution,” the Court stated that “[t]he parties must meet and confer

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regarding the proper Plaintiff (or Plaintiffs) in the wrongful death action and either stipulate

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to Plaintiffs’ filing of an amended complaint or file supplemental briefing on this issue by

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June 4, 2019.” (Id., emphasis added.)

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On June 4, 2019, Plaintiffs filed a supplemental brief. (Doc. 90.) The first sentence

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stated that, “[p]ursuant to the Court’s May 21, 2019 Order (docket #89), Plaintiffs’ counsel

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having conferred, Plaintiffs jointly submit the following briefing regarding the appropriate

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wrongful death parties.” (Id. at 1.) The supplemental brief went on to argue that “any

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defect in the Complaint is harmless or has been waived” and that because “none of the

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parties has raised the issue . . . the Court need not take up the issue.” (Id. at 6.)

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Two days later, on June 6, 2019, the Court issued an order noting that, “[a]lthough

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Plaintiffs’ filing did not indicate whether they met and conferred with Defendants, because

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only Plaintiffs chose to file supplemental briefing on the issue, the Court will assume

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Defendants do not object.” (Doc. 92.) Accordingly, the Court ordered that “Plaintiffs

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Zandra Manion and Lisa Blyler may proceed as Plaintiffs in the wrongful death action.”

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(Id.)

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The next day, on June 7, 2019, Defendants filed an objection to Plaintiffs’

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supplemental brief. (Doc. 95.) In it, Defendants assert that “Plaintiffs’ counsel did not

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meet and confer with Defendants’ counsel as required by the Court’s order. Plaintiffs failed

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to comply with the Court’s order, and instead, filed their Supplemental Briefing without

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consulting Defendants.” (Id. at 2.) Defendants go on to argue that, on the merits, the Court

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shouldn’t allow Manion and Blyler to act as separate plaintiffs for purposes of the wrongful

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death claim and that “[a]ny result except requiring Plaintiffs[] to designate a single

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representative prejudices Defendants and goes against Arizona law.” (Id.)

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As an initial matter, the Court wishes to express its displeasure with Plaintiffs’

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conduct. The May 21, 2019 order specifically required “the parties” to meet and confer.

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It is unclear how the two Plaintiffs could have interpreted that language as requiring them

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only to meet and confer with each other, and not with defense counsel.

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As for how to proceed, the Court remains unwilling to unilaterally make any

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changes to the operative complaint. The discussion of the two-plaintiffs issue in the May

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21, 2019 order was simply meant to flag this issue for the parties’ attention, so they could

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take whatever steps they felt necessary to address it. Because there are no motions pending

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before the Court, there is nothing for the Court to do at this time.

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…

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…

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…

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…

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Finally, to the extent Defendants still desire some form of relief, the Court

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recommends they address this issue in the Proposed Final Pretrial Order. It can then be

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further discussed, if necessary, at the Final Pretrial Conference on August 26, 2019.

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Dated this 20th day of June, 2019.

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