Kahama VI, LLC v. HJH LLC

Filing 27

ORDER: Plaintiff's Amended Unopposed Motion to Consolidate this Case with Prior Pending Case and Response to Order to Show Cause 25 is GRANTED. The Clerk is directed to close Case No. 6:12-cv-1922-T-30TBM. All future filing s shall be filed in Case No. 8:11-cv-2029-T-30TBM. If Plaintiff elects to file a motion to file an amended complaint in 8:11-cv-2029, it shall do so within seven (7) days of the date of this Order. If Plaintiff fails to file a motion to file an amended complaint within the applicable time period, the parties shall file an amended case management report in 8:11-cv-2029. Signed by Judge James S. Moody, Jr on 6/17/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

KAHAMA VI, LLC,
Plaintiff,
v.

Case No. 6:12-cv-1922-T-30TBM

HJH LLC,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Amended Unopposed Motion
to Consolidate this Case with Prior Pending Case and Response to Order to Show Cause
(Dkt. 25). The Court, having reviewed the motion and being otherwise advised in the
premises, concludes the motion to consolidate should be granted.
BACKGROUND
Plaintiff Kahama VI, LLC, moves to consolidate this foreclosure action (“Kahama II”)
with its other pending action before this Court, Case No. 8:11-cv-2029-T-30TBM (“Kahama
I”). In the Kahama I case, Plaintiff seeks to recover damages for breach of a promissory note
and guaranty agreements that secured a mortgage on the same property that it is now seeking
to foreclose. HJH, LLC, is a defendant in both actions, and Robert McMillan, William
Riveiro, Kirsten Riveiro, and John Bahng are defendants solely in Kahama I as guarantors

on the note. Plaintiff represents that counsel for Defendants does not oppose this motion to
consolidate the two cases.
MOTION TO CONSOLIDATE STANDARD
Under Federal Rule of Civil Procedure 42(a), if a court finds that two or more actions
before the court “involve a common question of law or fact,” then the court may: “(1) join
for hearing or trial any or all maters at issue in the actions; (2) consolidate the actions; or (3)
issue any other orders to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). The Rule
“is permissive and vests a purely discretionary power in the district court,”although district
courts have been urged to use Rule 42(a) “to expedite the trial and eliminate unnecessary
repetition and confusion.” Young v. City of Augusta, Ga., 59 F.3d 1160, 1168 (11th Cir.
1995). In exercising its discretion, a court must determine:
Whether the specific risks of prejudice and possible confusion are overborne
by the risk of inconsistent adjudications of common factual and legal issues,
the burden on parties, witnesses and available judicial resources posed by
multiple lawsuits, the length of time required to conclude multiple suits as
against a single one, and the relative expense to all concerned of the singletrial, multiple-trial alternatives.
Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985) (quoting Arnold
v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982).
DISCUSSION
The same parties are involved in both actions concerning the related issues of
foreclosure on the property and breach of the note and guaranties of a mortgage securing that
same property. As the Court noted in its order on the motion for summary judgment, it is

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unusual for a plaintiff to separate the two causes of action. Thus, they may properly be
consolidated.
Nonetheless, the procedural posture of the two actions is quite different. Kahama I
is set for trial in September 2013, and the dispositive motion deadline is July 15, 2013. In
Kahama II, the parties have yet to file a case management report. Plaintiff also represents
that it intends to file a motion for an amended complaint in Kahama I, incorporating the
foreclosure action from Kahama II as well as adding additional claims based on Defendants’
alleged misrepresentations concerning the state court quiet title action, Case No.:200820156-CINS. In order to prevent further delay in Kahama I, Plaintiff shall file a motion to
file an amended complaint within seven (7) days of the date of this Order. If Plaintiff fails
to file such a motion within the applicable time period, the parties shall file an amended case
management report in Kahama I within fourteen (14) days of the date of this Order.
It is therefore ORDERED AND ADJUDGED that:
1.

Plaintiff’s Amended Unopposed Motion to Consolidate this Case with Prior
Pending Case and Response to Order to Show Cause (Dkt. 25) is GRANTED.

2.

The Clerk is directed to close Case No. 6:12-cv-1922-T-30TBM.

3.

All future filings shall be filed in Case No. 8:11-cv-2029-T-30TBM.

4.

If Plaintiff elects to file a motion to file an amended complaint in 8:11-cv2029, it shall do so within seven (7) days of the date of this Order.

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5.

If Plaintiff fails to file a motion to file an amended complaint within the
applicable time period, the parties shall file an amended case management
report in 8:11-cv-2029.

DONE and ORDERED in Tampa, Florida on June 17, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2012\12-cv-1922.mtconsolidate.frm

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