McFadden One LLC v. Residences at Riverdale GP LLC et al

Filing 17

ORDER that the parties have up to and including 10 days from the entry of this Order to file any objections or concerns regarding the proposed consolidation of a joint trial in cases 4:11CV00748 and 4:10CV00330. Signed by Judge Susan Webber Wright on 2/8/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION

RIVERCLIFF COMPANY, INC.
Plaintiff
V.
RESIDENCES AT RIVERDALE GP,
LLC; RESIDENCES AT RIVERDALE
LP; DAVID F. STAPLETON; and
NATIONS CONSTRUCTION
MANAGEMENT, INC.
Defendants

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NO: 4:10CV00330 SWW

and
McFADDEN ONE LLC
Plaintiff
V.
RESIDENCES AT RIVERDALE GP,
LLC; RESIDENCES AT RIVERDALE
LP; DAVID F. STAPLETON; and
NATIONS CONSTRUCTION
MANAGEMENT, INC.
Defendants

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NO: 4:11CV00748 SWW

ORDER
For reasons that follow, the Court finds that the above-captioned cases should be
consolidated for trial pursuant to Rule 42 of the Federal Rules of Civil Procedure. The Court

will postpone consolidation and provide the parties an opportunity to state any reason why
consolidation is not appropriate. Any objection to consolidation must be filed within 10 days
from the entry date of this order.
In these cases, both plaintiffs own property adjoining the same hillside. Both plaintiffs
sue the same defendants under the same legal theories, alleging that defendants Residences at
Riverdale GP, LLC and Residences at Riverdale LP, by and through defendant Nations
Construction Management, Inc., excavated the aforementioned hillside, which caused instability
of the hillside and damage to plaintiffs’ properties. Additionally, both plaintiffs seek to hold
defendant Stapleton liable under a veil-piercing theory.
Federal Rule of Civil Procedure 42 provides that, if actions before the court involve a
common question of law or fact, the court may (1) join for hearing or trial any or all matters at
issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
unnecessary cost or delay. See Fed. R. Civ. P. 42(a). Here, the above-captioned cases arise from
the same events, present common questions of law and fact, and will require testimony from the
same witnesses. Without question, a joint trial would promote efficiency and avoid the risk of
inconsistent rulings. Accordingly, the Court finds that consolidation for the purpose of a joint
trial is warranted.
The cases are in different stages of litigation. Rivercliff Company Inc. v. Residences at
Riverdale GP, LLC, et al., No. 4:10CV00330 SWW, is set for a jury trial to begin September 17,
2012, and the discovery deadline has expired, though the parties have conducted discovery
beyond the court-imposed deadline by agreement, and McFadden One, Inc. v. Residences at
Riverdale GP, LLC, et al., 4:11CV00748 SWW, is set for a jury trial to begin November 19,

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2012, and the discovery and dispositive motions deadlines are June 19, 2012 and July 19, 2012,
respectively. Although it will be necessary to set a common trial date, the Court perceives no
reason why the parties cannot proceed according to the separate scheduling orders entered in
each case. Consolidation will be for the purpose of a joint trial; the cases will not merge into a
single action, and each will retain its separate character.
IT IS THEREFORE ORDERED that the parties have up to and including 10 days from
the entry date of this order in which to file any objections or concerns regarding the proposed
consolidation.
IT IS SO ORDERED THIS 8TH DAY OF FEBRUARY, 2012.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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