R. North Beach, Inc. v. Country Visions, Inc. et al

Filing 37

ORDER GRANTING PLAINTIFF'S MOTION TO CONSOLIDATE signed by District Judge Troy L. Nunley on 9/26/16. The Court hereby GRANTS Plaintiff's Motion to Consolidate Case No. 2:15-cv-02014-TLN-CKD and Case No. 2:15-cv-01740-TLN-CKD for the sole purpose of discovery. The Court orders the Clerk to make a note of the consolidation on the docket for discovery only. Furthermore, the Court will consider the dates proposed by the parties in their Joint Status Report (ECF No. 23 ) and will issue a scheduling order shortly. Lastly, the Court DENIES Plaintiff's request for sanctions and DENIES Defendants' Motion to Strike as MOOT. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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R. NORTH BEACH, INC., an Illinois
corporation
Plaintiff,

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v.

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Defendants.
COUNTRY VISIONS, INC., a California
corporation,

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No. 2:15-cv-01740-TLN-CKD

Plaintiff,

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ORDER GRANTING PLAINTIFF’S
MOTION TO CONSOLIDATE

COUNTRY VISIONS, INC., a California
corporation, and KENNETH PETERSEN,

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No. 2:15-cv-02014-TLN-CKD

v.
MIDSOUTH LLC, an Illinois corporation,
Defendant.

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This matter is before the Court on Plaintiff R. North Beach, Inc.’s Motion to Consolidate

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Case No. 2:15-cv-02014-TLN-CKD and Case No. 2:15-cv-01740-TLN-CKD. (ECF No. 26-1.)

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Defendants Country Visions, Inc. and Kenneth Petersen filed an opposition to Plaintiff’s Motion

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to Consolidate. (ECF No. 30.) Plaintiff filed a reply to the opposition in which Plaintiff also

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requests sanctions. (ECF No. 31.) Having carefully considered the briefing by both parties, the

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Court GRANTS Plaintiff’s Motion to Consolidate (ECF No. 26-1) and DENIES Plaintiff’s

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request for sanctions (ECF No. 31).

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I.

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MOTION TO CONSOLIDATE
Plaintiff requests the Court consolidate solely for discovery purposes Case No. 2:15-cv-

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02014-TLN-CKD and Case No. 2:15-cv-01740-TLN-CKD. (ECF No. 26-1 at 7–8.) Defendants

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do not oppose consolidation for discovery purposes only. (ECF No. 30 at 2.) However,

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Defendants oppose Plantiff’s motion insofar as it seeks to consolidate cases for trial or other

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proceedings. (ECF No. 30 at 2.)
Federal Rule of Civil Procedure 42 provides “[i]f actions before the court involve a

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common question of law or fact, the court may . . . consolidate the actions.” “The consolidation

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may be for all purposes or for limited purposes.” Fed. R. Civ. P. Commentary, R. 42. The Ninth

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Circuit held that district courts have broad discretion under Rule 42 to consolidate cases. Inv’rs

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Research Co. v. U.S. Dist. Court for Cen. Dist. of California, 877 F.2d 777, 777 (9th Cir. 1989).

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Courts have interpreted the broad discretion to permit consolidation for the purposes of discovery

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only. Lewis v. City of Fresno, No. CV-F-08-1062 OWW/GSA, 2009 WL 1948918, at *3 (E.D.

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Cal. July 2, 2009) (consolidating for the purposes of discovery while deferring the decision on

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trial consolidation).

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This Court has the discretion to consolidate for a limited purpose such as discovery. The

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Court notes that Plaintiff provided an ample list of reasons that separate discovery would be

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duplicative and Defendants do not dispute these reasons. (ECF No. 26-1 at 7–8.) Thus,

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Plaintiff’s Motion to Consolidate Case No. 2:15-cv-02014-TLN-CKD and Case No. 2:15-cv-

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01740-TLN-CKD is hereby GRANTED for the sole purpose of discovery.

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II.

REQUEST FOR SANCTIONS
Plaintiff further requests sanctions against Defendants for unnecessarily delaying in

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agreeing to consolidate the two cases. (ECF No. 31 at 2–3.) Plaintiff asserts Defendants could

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have agreed to consolidation weeks earlier instead of waiting for the opposition deadline the

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Court imposed. (ECF No. 31 at 3.) Defendants filed a separate Motion to Strike Plaintiff’s
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Request for Sanctions in Reply Brief or in the Alternative Motion for Leave to File Sur-Reply.

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(ECF No. 34.) Defendants argue that the request for sanctions was improperly brought in the

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Reply to Defendants’ Opposition. (ECF No. 34 at 1.)

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Plaintiff requests sanctions under 28 U.S.C.A. § 1927. (ECF No. 31 at 2.) Under 28

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U.S.C.A. § 1927, a court may require an attorney “who so multiplies the proceedings in any case

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unreasonably and vexatiously” to pay costs, expenses or attorney’s fees. Sanctions awarded

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under § 1927 must be based upon a finding that the attorney knowingly and recklessly advanced a

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frivolous position for the purposes of harassing the opposing party. Salstrom v. Citicorp Credit

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Serv., Inc., 74 F.3d 183, 184–85 (9th Cir. 1996). “Where both sides’ actions serve to delay the

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litigation and waste time, even justifiable sanctions under section 1927 may be denied.”

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Gallagher v. England, No. CIV-F-05-0750 AWI SMS, 2007 WL 1775473, at *2 (E.D. Cal. June

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20, 2007).
The Court finds Plaintiff’s request for sanctions meritless. Plaintiff argues a delay from

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April 20, 2016, to May 25, 2016, is sufficient to rise to the level of unreasonable or vexatious.

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(ECF No. 31 at 2–3.) However, Plaintiff presents no evidence to suggest that during that period

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Defendants purposefully delayed in order to harass Plaintiff. In fact, Plaintiff states during some

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of that period Defendant Petersen was traveling, supporting a finding that Defendants did not

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purposefully delay. Similarly, Plaintiff’s concern that Defendants delayed in order to deny the

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consolidation is unsupported, especially considering Defendants do not oppose consolidation.

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Additionally, the Court notes Plaintiff by its own admission also delayed the proceedings by

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waiting to file its motion to consolidate until June 23, 2016, after Defendants had failed to agree

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to informal requests to consolidate which were made between April 20, 2016, and May 25, 2016.

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The Plaintiff’s arguments are meritless and the Court hereby DENIES Plaintiff’s requests for

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sanctions. Defendants Motion to Strike is hereby DENIED as MOOT.

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The Court further notes that motions for sanctions must afford the opposing party notice

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and a chance to reply. Plaintiffs are admonished to remember this in the future.

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III.

CONCLUSION
The Court hereby GRANTS Plaintiff’s Motion to Consolidate Case No. 2:15-cv-02014-

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TLN-CKD and Case No. 2:15-cv-01740-TLN-CKD for the sole purpose of discovery. The Court

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orders the Court Clerk to make a note of the consolidation on the docket for discovery only.

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Furthermore, the Court will consider the dates proposed by the parties in their Joint Status Report

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(ECF No. 23) and will issue a scheduling order shortly. Lastly, the Court DENIES Plaintiff’s

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request for sanctions and DENIES Defendants’ Motion to Strike as MOOT.

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IT IS SO ORDERED.

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Dated: September 26, 2016

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Troy L. Nunley
United States District Judge

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