Viesti Associates, Inc. v. McGraw-Hill Companies, Inc., The

Filing 68

ORDER DENYING MOTION TO CONSOLIDATE. Defendant's Motion to Consolidate 65 filed April 5, 2012, is DENIED, by Judge Robert E. Blackburn on 5/1/12.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-01237-REB-DLW
VIESTI ASSOCIATES, INC.,
Plaintiff,
v.
THE McGRAW-HILL COMPANIES, INC, and
JOHN DOES 1 through 10,
Defendants.

ORDER DENYING MOTION TO CONSOLIDATE
Blackburn, J.
Before me is Defendant’s Motion to Consolidate [#65]1 filed April 5, 2012.
Defendant The McGraw-Hill Companies, Inc. seeks to consolidate this case with Viesti
Associates, Inc. v. The McGraw-Hill Cos., Civil Case No. 1:12-cv-00668-WYD-DLW.
As the district judge to whom the oldest numbered case involved in the proposed
consolidation is assigned for trial, the issue of whether to consolidate these cases falls
to me for determination. See D.C.COLO.LCivR 42.1. I deny the motion.
The determination whether to consolidate cases is governed by Rule 42(a) of the
Federal Rules of Civil Procedure, which provides that, “[i]f actions before the court
involve a common question of law or fact, the court may . . . consolidate the actions[.]”
FED. R. CIV. P. 42(a)(2). The purpose of the rule is to allow the court “to decide how

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“[#65]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

cases on its docket are to be tried so that the business of the court may be dispatched
with expedition and economy while providing justice to the parties.” Breaux v.
American Family Mutual Insurance Co., 220 F.R.D. 366, 367 (D. Colo. 2004) (quoting
9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
2381 at 427 (2nd ed. 1995)).
The moving party has the burden to prove that consolidation in warranted.
Shump v. Balka, 573 F.2d 1341, 1344 (10th Cir. 1978). The mere fact that a defendant
has been sued in separate cases involving similar subject matter does not require a
court grant a motion to consolidate, American Empire Insurance Co. v. King
Resources Co., 545 F.2d 1265, 1269-70 (10th Cir. 1976), and the court should not
consolidate cases when confusion or prejudice may result, St. Paul Fire & Marine
Insurance Co. v. King, 45 F.R.D. 519, 520 (W.D. Okla. 1968). The ultimate decision
whether to consolidate cases is committed to the sound discretion of the trial court.
Shump, 573 F.2d at 1344.
Defendant has failed to carry its burden to prove that consolidation would
promote a just or efficient result in these cases. Although it appears that there are
common issues of law and fact in these matters, procedurally, they are at vastly
different stages of litigation. Discovery in this case is to be completed by the end of this
week. Dispositive motions are due next month, and trial is currently scheduled for
August 20, 2012. By contrast, the case before Chief Judge Daniel was filed barely six
weeks ago. No discovery or other deadlines have yet been established in that matter,
and a scheduling conference will not be held until mid-July. Whatever efficiencies might

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have been gained by consolidation are outweighed in this instance by the delay and
concomitant prejudice that would attend an attempt to merge these two actions.
Accordingly, I find and conclude that consolidation of these matters is
unwarranted and inappropriate. See, e.g., Kirzhner v. Silverstein, 2011 WL 3568265
at *2 (D. Colo. Aug. 15, 2011); American Family Mutual Insurance Co. v. Haslam,
2011 WL 3568240 at *3 (D. Colo. Aug. 12, 2011).
THEREFORE IT IS ORDERED that Defendant’s Motion to Consolidate [#65]
filed April 5, 2012, is DENIED.
Dated May 1, 2012, at Denver, Colorado.
BY THE COURT:

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