Global Aerospace, Inc. v. USA

Filing 23

ORDER GRANTING MOTION TO CONSOLIDATE. The Defendant United States of Americas Motion To Consolidate and Certificate of Compliance with D.C.COLO.LCivR 7.1 67 filed 9/8/2011, is GRANTED. Under Fed. R. Civ. P. 42(a)(2) and D.C.COLO.LCivR 42.1, Contag v. United States, Civil Action No. 11-cv-01832-MSK-MJW, Global Aerospace, Inc. v. United States, Civil Action No. 11-cv-01874-WYD-KMT, and Craft, et al. v. United States, Civil Action No. 11-cv-02253-REB-MJW, are CONSOLIDATED with Civil Action No.10- cv-03050-REB-BNB for all purposes. Under D.C.COLO.LCivR 42.1, Civil Action No. 11-cv-01832-MSK-MJW and Civil Action No. 11-cv-01874-WYD-KMT, both are REASSIGNED to United States District Judge Robert E. Blackburn and United States Magistrate Judge Boyd N. Boland. Under D.C.COLO.LCivR 42.1, Civil Action No.11-cv-02253-REB-MJW is REASSIGNED to United States Magistrate Judge Boyd N. Boland. By Judge Robert E. Blackburn on 10/24/2011 (sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 10-cv-03050-REB-BNB
(Consolidated with Civil Action No. 10-cv-03051-REB-BNB)
REGINA RESSLER, and
RANDY RESSLER,
Plaintiffs,
v.
THE BOEING COMPANY, INC.,
BE AEROSPACE, INC., and
BURNS AEROSPACE CORPORATION,
Defendants.

Civil Action No. 11-cv-01832-MSK-MJW
DANIELA ESCUDERO CONTAG, et al,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA,
Defendant.

Civil Action No. 11–cv–01874–WYD–KMT
GLOBAL AEROSPACE, INC., a subrogee of Wilmington Trust Company,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

Civil Case No. 11-cv-02253-REB-MJW
MELISSA CRAFT, et al.,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA,
Defendant.

ORDER GRANTING MOTION TO CONSOLIDATE
Blackburn, J.
The matter before me is Defendant United States of America’s Motion To
Consolidate and Certificate of Compliance with D.C.COLO.LCivR 7.1 [#67]1 filed
September 8, 2011. I grant the motion.
The determination whether to consolidate cases is governed by Rule 42(a) of the
Federal Rules of Civil Procedure, which provides, pertinently:
When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial
of any or all the matters in issue in the actions; it may order
all the actions consolidated; and it may make such orders
concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
FED. R. CIV. P. 42(a).2 This rule allows the court “to decide how 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
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“[#67]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
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As the district judge to whom the oldest numbered case involved in the proposed consolidation
is assigned for trial, the question whether to consolidate these matters falls to me for determination.
See D.C.COLO.LCivR 42.1.

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Insurance Co., 220 F.R.D. 366, 367 (D. Colo. 2004) (quoting 9 C. WRIGHT & A. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 2381 at 427 (2nd ed. 1995)). The decision
whether to consolidate cases is committed to my sound discretion. Shump v. Balka,
574 F.2d 1341, 1344 (10th Cir. 1978).
All of the cases addressed in the motion to consolidate arise from the crash of
Continental Airlines Flight 1404 at Denver International Airport on December 20, 2008.
The airplane crashed when it was attempting to takeoff.
Ressler v. Boeing, et al., Civil Action No. 10-cv-03050-REB-BNB, concerns,
inter alia, products liability claims asserted against manufacturers involved in the
construction of the crash aircraft. The plaintiffs in Ressler are two flight attendants who
were on the aircraft at the time of the crash and the spouses of those two flight
attendants. The Ressler case, Civil Action No. 10-cv-03050-REB-BNB, was
consolidated with Civil Action No. 10-cv-03051. I will refer to these two consolidated
cases as the Ressler case.
Recently, the United States was added as a defendant in the Ressler case. The
claim of the Ressler plaintiffs against the United States concerns the alleged negligence
of the Federal Aviation Administration (FAA). The Ressler plaintiffs allege that the FAA
was negligent when it failed to disseminate proper wind information to the pilots of the
crash aircraft just prior to the attempted takeoff. The United States was added as a
defendant after the Ressler plaintiffs’ administrative claims concerning their negligence
claim against the United States were denied or deemed denied.
The United States seeks to consolidate the Ressler case with three other cases:
Contag v. United States, 11-cv-01832-MSK-MJW, Global Aerospace, Inc. v. United
States, 11-cv-01874-WYD-KMT, and Craft, et al. v. United States, 11-cv-02253-REB3

MJW. In Contag and Craft, the plaintiffs are individuals who were passengers on flight
1404. These plaintiffs alleged that the FAA was negligent in not following its established
procedures in relation to flight 1404 and in not properly disseminating current wind
information to the pilots of flight 1404 before the attempted takeoff. These plaintiffs
allege that the FAA’s negligence was a proximate cause of the crash and their injuries.
In Global Aerospace, the plaintiff is the agent and manager of an association of
insurance companies that insured the crash aircraft. The crash aircraft was a total loss
for which Global Aerospace paid over 19 million dollars in insurance proceeds. In its
lawsuit, Global seeks to recover the appraised fair market value of the aircraft from the
United States. Global alleges that the FAA was negligent in not following its established
procedures in relation to flight 1404 and for not properly disseminating current wind
information to the pilots of flight 1404 before the attempted takeoff. Global alleges that
the FAA’s negligence was a proximate cause of the crash and the loss of the aircraft.
The United States is the only defendant in the Contag, Global Aerospace, and
Craft cases. Continental Airlines has been designated as a non-party at fault in the
Ressler, Contag, and Global Aerospace cases.
Each of the four cases summarized above involves common questions of law
and fact. The cases arise from one airplane crash. The allegations of negligence
concerning the United States all are very similar. The claims against the United States
all are brought under the Federal Tort Claims Act (FTCA). Under 28 U.S.C. § 1346(b),
those claims are controlled by Colorado law. The defendants rely on Colorado law in
designating Continental Airlines as a non-party at fault in the Ressler, Contag, and
Global Aerospace cases. Allocation of fault among the defendants and the designated
non-party at fault is controlled by Colorado law. The product liability claims in the
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Ressler case concern the same airplane crash, but differ from the claims against the
United States, because the product liability claims are asserted against different
defendants based on different theories of negligence and strict liability. The products
liability claims are similar to the FTCA claims because they also concern a possible
allocation of fault to Continental Airlines and the United States. All of the claims in all
four of the cases at issue here require an allocation of fault among the various parties
and Continental Airlines.
Common questions of law and fact predominate in these four cases such that
consolidation will be appropriate and efficacious. To the extent the product liability
claims in the Ressler case require treatment different from the FTCA claims against the
United States, such different treatment can be accomplished in a consolidated case.
THEREFORE, IT IS ORDERED as follows:
1. That the Defendant United States of America’s Motion To Consolidate
and Certificate of Compliance with D.C.COLO.LCivR 7.1 [#67] filed September 8,
2011, is GRANTED;
2. That under Fed. R. Civ. P. 42(a)(2) and D.C.COLO.LCivR 42.1, Contag v.
United States, Civil Action No. 11-cv-01832-MSK-MJW, Global Aerospace, Inc. v.
United States, Civil Action No. 11-cv-01874-WYD-KMT, and Craft, et al. v. United
States, Civil Action No. 11-cv-02253-REB-MJW, are CONSOLIDATED with Civil Action
No.10-cv-03050-REB-BNB for all purposes;
3. That under D.C.COLO.LCivR 42.1, Civil Action No. 11-cv-01832-MSK-MJW
and Civil Action No. 11-cv-01874-WYD-KMT, both are REASSIGNED to United States
District Judge Robert E. Blackburn and United States Magistrate Judge Boyd N. Boland;

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4. That under D.C.COLO.LCivR 42.1, Civil Action No.11-cv-02253-REB-MJW is
REASSIGNED to United States Magistrate Judge Boyd N. Boland;
5. That all future filings in these consolidated actions shall be captioned as
shown below:

Civil Action No. 10-cv-03050-REB-BNB
(Consolidated with Civil Action Nos.10-cv-03051-REB-BNB, 11-cv-01832-REB-BNB,
11-cv-01874-REB-BNB, and 11-cv-02253-REB-BNB)
REGINA RESSLER, and
RANDY RESSLER,
Plaintiffs,
v.
THE BOEING COMPANY, INC.,
BE AEROSPACE, INC.,
BURNS AEROSPACE CORPORATION, and
THE UNITED STATES OF AMERICA,
Defendants.

Dated October 24, 2011, at Denver, Colorado.
BY THE COURT:

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