Burrow et al v. Forjas Taurus, S.A. et al
ORDER granting in part and denying in part Braztech's motion to consolidate this action with Suzanne M. Bedwell and Ernest D. Bedwell v. Braztech, case No. 1:17-cv-22335-EGT. Signed by Magistrate Judge Edwin G. Torres on 2/9/2018. (js02)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-Civ-21606-TORRES
WILLIAM BURROW and OMA LOUISE
FORJAS TAURUS S.A. and
BRAZTECH INTERNATIONAL, L.C.,
ORDER ON BRAZTECH’S MOTION TO CONSOLIDATE
This matter is before the Court on Braztech International L.C.’s (“Defendant”
or “Braztech”) motion to consolidate this action with William Burrow and Oma
Louise Burrow v. Forjas Taurus and Braztech, case no. 1:16-cv-21606-EGT (the
“Burrow case”). On November 6, 2017, Suzanne M. Bedwell (“Ms. Bedwell”) and
Ernest D. Bedwell (“Mr. Bedwell”) (the “Bedwell Plaintiffs”) filed their response
[D.E. 73] to which Braztech replied on November 13, 2017. [D.E. 76]. Therefore,
Braztech’s motion is now ripe for disposition. After careful consideration of the
motion, response, reply, the benefit of oral argument, the record presented, the
relevant authority, and for the reasons discussed below, Braztech’s motion is
GRANTED in part and DENIED in part.2
On November 8, 2017, William Burrow and Oma Louise Burrow (the “Burrow
Plaintiffs”) filed a motion to intervene to oppose Braztech’s motion to consolidate.
The Bedwell Case
The Bedwell Plaintiffs filed this action (the “Bedwell case”) on September 16,
2016 (four months after the Burrow case) in the United States District Court for the
District of Alaska as a proposed class action alleging negligent design or
manufacture of Rossi-brand .357 Magnum revolvers. [D.E. 1].3
On January 20,
2015, Ms. Bedwell purchased a Magnum revolver at an outdoor equipment retailer
in Wasilla, Alaska. On February 21, 2015, Ms. Bedwell, along with her husband
and son, drove to an ammunition store to purchase supplies before driving to
Palmer, Alaska to engage in target practice. In the process of exiting the motor
vehicle in the parking lot, the revolver inadvertently fell out of its holster, landed on
its hammer, and unintentionally discharged a round of ammunition that struck Ms.
Bedwell’s son in his left leg. Ms. Bedwell suggests that the accidental discharge of
the firearm was directly and proximately caused by the firearm’s defective
condition, including manufacturing and/or design defects. As a result of the injury
to Ms. Bedwell’s son, Alaska state troopers were called to the scene. After hearing
Ms. Bedwell’s explanation for the cause of the accident, the officers took the firearm
into their possession.
On April 14, 2015, Alaska state troopers tested Ms. Bedwell’s firearm for a
potential misfiring defect by tapping the revolver on the hammer with a small
Mr. Bedwell originally filed a related action in Alaska state court – on behalf
of his minor child – seeking damages for personal injury and emotional distress.
The state and federal case were eventually combined into one action in District
Court of Alaska before being transferred to the Southern District of Florida.
mallet. The test allegedly resulted in an unintentional misfiring of the weapon.
Plaintiff then purchased three additional Rossi .357 revolvers and a local gunsmith
tested them for defects. Out of the three, one discharged in the same way as Ms.
Bedwell’s revolver when struck on the hammer with a mallet. As such, Ms. Bedwell
filed this class action seeking to force Braztech to recall, repair, and/or repurchase
the defective .357 revolvers sold to Ms. Bedwell and the class. Specifically, the
Bedwell Plaintiffs seek to represent a proposed class that includes “[a]ll individuals
in the United States and its territories who own a Rossi .357 Magnum revolver.”
[D.E. 75-1]. The Magnum revolvers include models R46202, R46102, R97206, and
In sum, the Bedwell Plaintiffs allege that Braztech violated the Florida
Deceptive and Unfair Trade Practices Act, committed two counts of negligence
(failure to warn and failure to test), and breached several warranties.
Sedgwick, in the District of Alaska, transferred this case to the Southern District of
Florida pursuant to the first-filed rule because there was substantial overlap
between Bedwell and Burrow.
The Burrow Case
William Burrow and Oma Louise Burrow (the “Burrow Plaintiffs”) filed their
complaint on May 5, 2016 with allegations that certain handguns that Forjas
Taurus manufactured – and that Braztech distributed in the United States – are
defective and unreasonably dangerous.
Specifically, the Burrow Plaintiffs claim
that several handguns share safety features with identical designs and that they
are prone to drop-fires.
The Burrow Plaintiffs own a Rossi .38 Special which
allegedly discharges when dropped.
As such, the Burrow Plaintiffs seek to
represent a proposed class that includes “[a]ll individuals in the United States who
own a Revolver.” [D.E. 75-1]. The revolvers are defined as models R35102, R35202,
R85104, R97206, R97104, R46202, and R46102.
The Court issued its Scheduling Order in the Burrow case on June 28, 2016.
That Order initially established a trial date of March 5, 2018 with a discovery
deadline of October 4, 2017 and a deadline for motions for October 9, 2017. These
deadlines were subsequently extended and a new trial date is set for July 16, 2018.
The discovery deadline is now February 2, 2018 and the deadline to file motions is
April 13, 2018.4 To date, the Burrow Plaintiffs have issued discovery requests to
both Braztech and Forjas Taurus, and both defendants have produced documents in
response.5 On November 8, 2017, the Burrow Plaintiffs filed a motion to intervene
to Braztech’s motion to consolidate. [D.E. 75-1].
Braztech’s motion seeks to consolidate Bedwell with Burrow pursuant to Fed.
R. Civ. P. 42(a), which provides that “[i]f 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
The Burrow Plaintiffs allege nine causes of action against Braztech and
Forjas Taurus, including violations of the Florida Deceptive and Unfair Trade
Practices Act, negligence, strict liability, breach of express warranty, breach of
implied warranty, negligent failure to disclose, negligent failure to warn,
concealment and misrepresentation, fraudulent concealment and intentional failure
to warn, and declaratory relief. [D.E. 75-1].
The Burrow Plaintiffs have purportedly spent tens of thousands of dollars
having the Portuguese documents translated.
at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to
avoid unnecessary cost or delay.”
Rule 42(a) codifies a trial court’s managerial
power “‘to control the disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants.’” In re Air Crash Disaster at
Florida Everglades, 549 F.2d 1006, 1012 (5th Cir. 1977) (quoting Landis v. North
American Co., 299 U.S. 248, 254 (1936)). The Eleventh Circuit has “encouraged
trial judges to ‘make good use of Rule 42(a) . . . in order to expedite the trial and
eliminate unnecessary repetition and confusion.”’ Hendrix v. Raybestos-Manhattan,
Inc., 776 F.2d 1492, 1495 (11th Cir. 1985) (quoting Dupont v. Southern Pacific Co.,
366 F.2d 193, 195 (5th Cir. 1966)). The decision on whether to consolidate under
Rule 42(a) is purely discretionary, yet the district court must determine the
[W]hether 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 single-trial, multiple-trial
Hendrix, 776 F.2d at 1495 (quoting Arnold v. Eastern Air Lines, Inc., 681 F.2d 186,
193 (4th Cir. 1982)). “The court must also bear in mind the extent to which the
risks of prejudice and confusion that might attend a consolidated trial can be
alleviated by utilizing cautionary instructions to the jury during the trial and
controlling the manner in which the plaintiffs’ claims (including the defenses
thereto) are submitted to the jury for deliberation.” Hendrix, 776 F.2d at 1495.
The Burrow Plaintiffs’ Motion to Intervene
Before ruling on Braztech’s motion to consolidate, we must consider the
Burrow Plaintiffs’ motion to intervene.6 Under Rule 24(a)(2), a district court must
permit anyone to intervene in a case as a matter of right when the intervener:
(1) is given an unconditional right to intervene by a federal
(2) claims an interest relating to the property or transaction that
is the subject of the action, and is so situated that disposing of
the action may as a practical matter impair or impede the
movant’s ability to protect its interest, unless existing parties
adequately represent that interest.
FED. R. CIV. P. 24(a)(2).
“Any doubt concerning the propriety of allowing
intervention should be resolved in favor of the proposed intervenors because it
allows the court to resolve all related disputes in a single action.” Fed. Sav. & Loan
Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993).
The Burrow Plaintiffs claim that they meet all four requirements under Rule
24(a)(2). This means they must establish that (1) their motion is timely, (2) they
have an interest relating to the property or transaction underlying Bedwell, (3) they
are situated in a way that the disposition of Bedwell may impede or impair their
ability to protect their interests, and (4) the original parties are inadequate to
protect their interests. See Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 910 (11th Cir.
2007); see also Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989) (internal
Beginning with the question of timeliness, courts consider several factors to
guide their analysis:
Braztech does not oppose the Burrow Plaintiffs’ motion to intervene.
1. The length of time during which the would-be intervenor actually
knew or reasonably should have known of his interest in the case
before he petitioned for leave to intervene[;] 2. The extent of the
prejudice that the existing parties to the litigation may suffer as a
result of the would-be intervenor’s failure to apply for intervention as
soon as he actually knew or reasonably should have known of his
interest in the case[;] 3. The extent of the prejudice that the would-be
intervenor may suffer if his petition for leave to intervene is denied[;]
and 4. The existence of unusual circumstances militating either for or
against a determination that the application is timely.
Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1294
(11th Cir. 2017) (quoting Meek v. Metro. Dade Cty., Fla., 985 F.2d 1471, 1478-79
(11th Cir. 1993)).
The Burrow Plaintiffs’ motion is timely because it was filed
approximately two weeks after Braztech filed its motion to consolidate on October
22, 2015. [D.E. 69]. When the Burrow Plaintiffs filed their motion on November 8,
2017 [D.E. 75], they did so before the hearing date scheduled on November 14, 2017.
Therefore, the Burrow Plaintiffs have met the first factor under Rule 24(a)(2).
The second factor to consider under Rule 24(a)(2) is whether the Burrow
Plaintiffs have an interest relating to the property or transaction in Bedwell. This
factor is met because the two cases arguably include the same proposed class
members and therefore are potentially “competing class actions, neither of which
have been certified.” Dickstein v. Able Telcom Holding Corp., 192 F.R.D. 331, 334
(N.D. Ga. 2000). “This is sufficient to show an interest relating to the property or
transaction which is the subject of the action,” because the two cases concern
similar (1) handguns, (2) causes of action, (3) parties, and (4) allegations of
design/manufacturing defects. Therefore, the second factor favors intervention.
As for the third factor under Rule 24(a)(2) – which relates to whether the
disposition of the Bedwell case could impede or impair the ability of the Burrow
Plaintiffs’ ability to protect their interests – we find that this factor also favors
The Burrow Plaintiffs’ interests could be impaired without
intervention because a resolution in Bedwell could bind a proposed class in Burrow
and negatively impact other proposed class members. Id.; see also Tech. Training
Assocs., Inc. v. Buccaneers Ltd. P’ship, 874 F.3d 692, 696 (11th Cir. 2017) (finding
that the interveners “have an interest in this case because, as class members, they
will be bound by the terms of the settlement if it is approved and judgment is
entered”) (citing Juris v. Inamed Corp., 685 F.3d 1294, 1312 (11th Cir. 2012)).
Therefore, the third factor favors intervention.
To satisfy the fourth factor, the Burrow Plaintiffs must rebut a presumption
of adequate representation. The Burrow Plaintiffs and the Bedwell Plaintiffs are
both pursuing a similar objective in vindicating their rights for the defective design
of handguns “so we can presume that the [Bedwell Plaintiffs’] representation is
adequate.” Clark v. Putnam County, 168 F.3d 458, 461 (11th Cir. 1999). “But the
presumption is weak; in effect, it merely imposes upon the proposed interven[o]rs
the burden of coming forward with some evidence to the contrary.” Id. (emphasis
added). “The requirement of the Rule is satisfied if the applicant shows that
representation of his interest ‘may be’ inadequate; and the burden of making that
showing should be treated as minimal.” Id. The “general rule [is] that adequate
representation exists if no collusion is shown between the representative and an
opposing party, if the representative does not have or represent an interest adverse
to the proposed interven[o]r, and if the representative does not fail in fulfillment of
his duty.” Id. And “[s]howing any of these factors is not a difficult.” Id.
Here, the Burrow Plaintiffs have met their “minimal” burden of showing
inadequate representation because the Bedwell Plaintiffs included individual claims
for personal injury in their case against Braztech. See Tech. Training Assocs., Inc.,
874 F.3d at 697. These individual claims may result in divergent interests when
juxtaposed with the Burrow Plaintiffs and could make the Bedwell Plaintiffs more
prone to compromise in a way that benefits Ms. Bedwell’s son over those of the
Burrow Plaintiffs and other class members.
This is enough to rebut the
presumption of adequate representation. See id. (“The plaintiffs have a greater
incentive to settle because their claims may be barred by the statute of limitations if
they cannot secure a waiver from Buccaneers, while the movants have no statute of
Although the parties fiercely contest whether the plaintiffs’
claims are actually time barred, the risk that they could be gives the plaintiffs a
greater incentive to settle as compared to the movants.”) (emphasis added); Clark,
168 F.3d at 462 (“A greater willingness to compromise can impede a party from
adequately representing the interests of a nonparty.”). Because we find that the
Burrow Plaintiffs have satisfied all of the requirements under Rule 24(a)(2), we will
consider their arguments – as well as the arguments of the Bedwell Plaintiffs – in
opposition to Braztech’s motion to consolidate.
Braztech’s Motion to Consolidate
Braztech argues that there is substantial overlap between Bedwell and
Burrow and that consolidating the two actions should be in the interest of all
parties. First, Braztech contends that both cases involve the same models of Rossibranded .357 branded Magnum revolvers.
For example, the proposed class in
Bedwell allegedly identifies four of the six models already identified in Burrow.
Second, Braztech suggests that both cases involve common questions of law and fact
such as the allegations that the revolvers contain a defective hammer-block
Braztech further notes that all members of the proposed class in this
case would be included in the proposed class in Burrow. Third, Braztech argues
that the two cases present the same issues as to whether the revolvers discharge
when dropped as a result of a manufacturing or design defect.
Braztech further believes that consolidation will save significant time and
resources, promote judicial economy, and prevent needless repetition of evidence,
procedures, and trial issues. Braztech also argues that no party can point to any
specific risk of prejudice or confusion that would arise from consolidation. Because
both cases involve similar issues, similar discovery, an analysis of the same data,
and resolution of the same factual issues, Braztech contends that consolidation is
more than appropriate in this case.
In sum, Braztech concludes that almost every question of law or fact alleged
in the two cases is the same, such as (1) whether Braztech breached any applicable
warranties, (2) whether the revolvers misfire when dropped, (3) whether the
revolvers contain a manufacturing or design defect common to all revolver models,
(4) whether Braztech knew the revolvers were defective, (5) whether Braztech
violated the Florida Deceptive and Unfair Trade Practices Act, and (6) whether the
named plaintiffs and putative class members are entitled to damages.
1. The Bedwell Plaintiffs’ Initial Opposition
consolidation would be inappropriate when there are numerous issues of both fact
and law that are uncommon between the two cases. The Bedwell Plaintiffs also
claimed that Braztech failed to meet its burden to demonstrate that consolidation
was appropriate and that it would be disingenuous and prejudicial if consolidation
Because consolidation would result in prejudice to both sets of
plaintiffs and hinder judicial economy, the Bedwell Plaintiffs concluded that
Braztech’s motion should be denied.
2. The Burrow Plaintiffs’ Initial Opposition
Apart from the Bedwell Plaintiffs, the Burrow Plaintiffs also initially opposed
Braztech’s motion to consolidate because the first-to-file rule allegedly requires that
the Bedwell action be dismissed without prejudice because the Burrow case can
provide full and adequate relief to all of the members of any proposed class. See,
e.g., VISX, Inc. v. Garabet, 2000 WL 1929328, at *3 (N.D. Cal. Dec. 18, 2000) (“[T]he
Court shall exercise its discretion under the first to file rule and [grant] the
defendants’ motion to dismiss the present complaint without prejudice.”). “Where
two actions involving overlapping issues and parties are pending in two federal
courts, there is a strong presumption across the federal circuits that favors the
forum of the first-filed suit under the first-filed rule.” Manuel v. Convergys Corp.,
430 F.3d 1132, 1135 (11th Cir. 2005) (citing United States Fire Ins. Co. v. Goodyear
Tire & Rubber Co., 920 F.2d 487, 488 (8th Cir. 1990) (describing the first-filed rule
as “well-established”); Church of Scientology of Cal. v. United States Dep’t of
Defense, 611 F.2d 738, 750 (9th Cir. 1979) (noting that the first-filed rule “should
not be disregarded lightly”)). The reason for the first-filed rule is that “no purpose
would be served by proceeding with a second action.”
Pacesetter Sys., Inc. v.
Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982).
The first to file rule “determines which court may decide the merits of
substantially similar issues,” and “also establishes which court may decide whether
the second suit filed must be dismissed, stayed, or transferred and consolidated.”
Sutter Corp. v. P & P Indus., Inc., 125 F.3d 914, 920 (5th Cir. 1997). Once a court
determines that a likelihood of substantial overlap exists between two cases, “the
proper course of action [is] for the court to transfer the case to the [first-filed] court
to determine which case should, in the interests of sound judicial administration
and judicial economy, proceed.” Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d
599, 606 (5th Cir. 1999).
The Burrow Plaintiffs believed that there is no need to proceed with two
cases when one is already subsumed by the other. See Fisher v. Duff, 2016 WL
3280429, at *3 (W.D. Wash. June 15, 2016) (“[T]he Court finds that dismissal is
more appropriate because the putative class members in this suit can obtain relief
in the Court of Federal Claims suit.”) (citing Intersearch Worldwide, Ltd. v.
Intersearch Grp., Inc., 544 F. Supp. 2d 949, 963 (N.D. Cal. 2008) (“Dismissal is
proper where the court of first filing provides adequate remedies.”)). Alternatively,
the Burrow Plaintiffs suggestws that the Bedwell action be stayed pending
resolution of the Burrow case or, at the very least, resolution of the upcoming
motion for class certification.
As support, the Burrow Plaintiffs presented four reasons as to why these two
cases should not be consolidated. First, the Burrow Plaintiffs contended that there
was nothing to be gained from consolidation. For example, the Bedwell Plaintiffs’
failure to sue the manufacturer, Forjas Taurus, as a defendant allegedly renders
them incapable of pursuing full and complete relief for the proposed class in
Burrow. As a result, the Burrow Plaintiffs believed that this omission places the
Bedwell Plaintiffs in a weaker position to negotiate a successful resolution for the
class if the cases are consolidated. Second, the Burrow Plaintiffs argued that their
case will be substantially delayed if consolidated because they have made
significant progress with document productions whereas the Bedwell Plaintiffs have
conducted no discovery. Third, the Burrow Plaintiffs suggested that the individual
claims for personal injury in the Bedwell case could make the Bedwell Plaintiffs
more prone to compromise the class in a way that benefits their own interests over
other class members. And finally, the Burrow Plaintiffs concluded that the personal
injury claims in Bedwell should be allowed to continue in their own case while the
class claims are subsumed in the Burrow action.
3. The Burrow and Bedwell Plaintiffs’ Amended Response
On December 7, 2017, the Bedwell and Burrow Plaintiffs filed an amended
response to Braztech’s motion to consolidate. [D.E. 82]. Both sets of plaintiffs now
agree with Braztech that the best way to protect the interests of absent class
members is to have everyone in a single case represent both the .38 Special
purchasers and the .57 Magnum purchasers. In other words, the plaintiffs claim
that merging both cases will allow the Burrow Plaintiffs to represent the .38 Special
purchasers and will also allow the Bedwell Plaintiffs to represent the .357 Magnum
purchasers. Because the Burrow and Bedwell Plaintiffs agree to consolidate, they
request that the Court address the following four issues so that these cases can
proceed on the merits: (1) the filing of a master complaint, (2) the stay of the
personal injury claims in Bedwell, (3) a modified Scheduling Order, and (4) the
appointment of co-lead counsel.
Braztech does not oppose a stay of the personal injury claims in Bedwell or a
modification of the Court’s Scheduling Order. Braztech, however, opposes a merger
of the two cases because it opens up a range of issues potentially prejudicial to
Forjas Tauras – the manufacturer of the revolvers and a named defendant in
Burrow but not Bedwell. Stated differently, Braztech takes issue with a merged
case because the Bedwells would be able to assert new claims against a new
defendant that they initially decided not to sue.
Rather than merging the two
cases, Braztech suggests that both cases should remain separate but proceed on
parallel tracks for pretrial matters. In other words, a Scheduling Order and other
procedural orders would govern both cases and evidence gathered by any party
could be used in either case. Braztech contends that this approach is the most
efficient and reduces the burden on the parties and the Court without
fundamentally changing the cases or the underlying claims. Because a complete
merger of the two cases would present complicated procedural issues and prejudice
Forjas Tauras, Braztech concludes that consolidation of the two cases for purposes
of discovery and other pre-trial matters is the best way to dispose of all claims.
Braztech also argues that there is no need for the appointment of any interim
class counsel because no class has been certified and therefore an appointment
would serve no purpose. For example, Braztech suggests that the proposed classes
in the two cases are materially different and do not overlap. The Bedwells seek to
represent a proposed class of three models of Rossi branded .357 Magnum revolvers
whereas the Burrow Plaintiffs seek to represent a proposed class of three models of
Rossi branded .38 Special revolvers.
Braztech believes that these classes are
mutually exclusive (except in instances where a given person happens to be a
member of both classes by virtue of owning both types of revolvers) and that the
named plaintiffs and their law firms are not competing with each other to represent
any proposed class. As such, Braztech concludes that appointment of interim class
counsel is premature at this stage of the proceedings and that the Court should
consider this issue if and when a class is certified.
Beginning with the first issue – on whether this case should be consolidated
for pretrial matters or fully merged into one case – it is important to understand the
differences between the two concepts. “[C]onsolidation . . . does not merge the suits
into a single cause, or change the rights of the parties, or make those who are
parties in one suit parties in another.”
289 U.S. 479, 496-97 (1933); see also
Schnabel v. Lui, 302 F.3d 1023, 1035 (9th Cir. 2002) (“The language of Rule 42(a)
seems to authorize consolidation either as merger or as retaining separate
character, but the majority of courts have held that consolidated actions retain their
separate character.”); Cole v. Schenley Indus., Inc., 563 F.2d 35, 38 (2d Cir. 1977)
(citing Johnson v. Manhattan Ry., 289 U.S. 479, 496-97 (1933); Garber v. Randell,
477 F.2d 711 (2d Cir. 1973)) (holding that consolidation “does not change the rights
of the parties in the separate suits.”). By contrast, a merger combines two or more
actions into one case where each loses its separate identity and where a single
judgment is rendered. See 9A Charles A. Wright and Arthur R. Miller, Federal
Practice and Procedure § 2382 (3d ed. 2014) (providing that “‘consolidation’ is used
in three different senses” under Rule 42(a), including “when several actions are
combined into one, lose their separate identity, and become a single action in which
a single judgment is rendered”).
In determining whether to consolidate a case, “[t]he moving party has the
burden of persuading the court that consolidation is desirable, and the fact that a
common question of law exists does not alone justify consolidation in the absence of
administration.’” Prudential Ins. Co. of Am. v. Marine Nat. Exch. Bank, 55 F.R.D.
436, 437 (E.D. Wis. 1972) (citing Schacht v. Javits, 53 F.R.D. 321, 324–325
Ultimately, however, “[t]he power of the court to order
consolidation is discretionary.” Id. We agree with all the parties that consolidation
of pretrial matters – including discovery and class certification – is in the best
interests of both cases. Consolidation allows the parties to coordinate depositions,
share documents, and determine the character of any proposed class that plaintiffs
seek to certify.
The only contested issue is whether these cases should be merged into one
action or consolidated solely for discovery and class certification purposes.
primary objection from Braztech is that Forjas Taurus will be prejudiced because
the Bedwells could assert new claims against a new defendant that they previously
chose not to sue. Braztech’s argument is not entirely unfounded. Yet, we cannot
find that the level of prejudice to Forjas Taurus should bar the merger of these two
While the Bedwells did not initially sue Forjas Taurus in their case,
discovery may have revealed that the Bedwells needed to sue the manufacturer.
And in the absence of a Scheduling Order, there is no reason why the Bedwells
cannot seek to amend their complaint and serve Forjas Taurus as a new defendant
– thereby eliminating any prejudice to Forjas Taurus. Alternatively, the Burrow
Plaintiffs could also seek leave to amend their complaint to add the Bedwells as
additional class representatives, which would accomplish the same goal of having
all model revolvers represented against Forjas Taurus. Either way, there are at
least two ways that the Bedwells could still pursue their claims against Forjas
Taurus, weakening any argument that Forjas Taurus will be prejudiced as a result
of a merged case. Accordingly, Bedwell and Burrow shall be merged into one case
pursuant to Rule 42 for all purposes, including trial.
The next issue is whether the Court should appoint interim class counsel.
Federal Rule of Civil Procedure 23(g)(3) is a permissive rule which provides that a
court “may designate interim counsel to act on behalf of a putative class before
determining whether to certify the action as a class action.” Fed. R. Civ. P. 23(g)(3).
“Although the rule does not provide a standard for determining whether interim
counsel should be appointed, courts that have construed it have relied on the
Advisory Committee Notes accompanying the rule which limit its use to
circumstances when interim counsel is necessary to protect the interests of the
putative class.” Carrier v. American Bankers Life Assur. Co., 2006 WL 2990465, *1
(D.N.H., Oct. 19, 2006). The 2003 Advisory Committee Notes “provide that
designation of interim counsel is unnecessary where . . . counsel that filed the class
complaint is the only counsel seeking appointment and there is no rivalry or
uncertainty between other firms.” Jenkins v. Hyundai Motor Fin. Co., 2008 WL
781862, at *3 (S.D. Ohio Mar. 24, 2008) (citing Fed. R. Civ. P. 23(g)(2)(A), 2003
Advisory Committee Notes).
Here, appointing interim class counsel is unnecessary because there are no
other lawyers competing for class counsel appointment and there are no other
duplicative lawsuits pending in other courts.
“The type of situation in which
interim class counsel is appointed is one in which overlapping, duplicative, or
competing class suits are pending before a court, so that appointment of interim
counsel is necessary to protect the interests of class members.”
Pharmacia Pension Plan, 2006 WL 1308582, at *1 (S.D. Ill. May 10, 2006). As the
Manual for Complex Litigation suggests, the kinds of cases where interim counsel is
appointed is where a large number of putative class actions have been consolidated
or are otherwise pending in a single court:
If . . . there are a number of overlapping, duplicative, or competing
suits pending in other courts, and some or all of those suits may be
consolidated, a number of lawyers may compete for class counsel
appointment. In such cases, designation of interim counsel clarifies
responsibility for protecting the interests of the class during
precertification activities, such as making and responding to motions,
conducting any necessary discovery, moving for class certification, and
Manual for Complex Litigation (Fourth) § 21.11 (2004); see also Smith v. Aon
Corp., 2006 WL 1006052, at *2 (N.D. Ill. Apr. 12, 2006); Turner v. Murphy Oil USA,
Inc., 2006 WL 267333, at *1, *12 (E.D. La. Jan. 30, 2006); Hill v. The Tribune
Co., 2005 WL 3299144, at *3-5 (N.D. Ill. Oct. 13, 2005); In re Delphi ERISA
Litig., 230 F.R.D. 496, 497-99 (E.D. Mich. 2005).
Given the commentary to Rule 23 and the Manual for Complex Litigation
(Fourth), appointment of interim counsel is inappropriate in this case because there
is a single law firm seeking to represent the proposed class of .38 Special owners,
and a different law firm proposing to represent the non-overlapping proposed class
of .357 Magnum owners. Absent special circumstances, we prefer to consider the
appointment of class counsel when there is a motion for class certification.
Accordingly, there is no need to appoint interim class counsel at this time.
The final issues to address are (1) whether the personal injury claims – and
the related counterclaims – in Bedwell should be stayed and (2) whether the
Scheduling Order in Burrow should be modified. First, we agree with all the parties
that a stay of the personal injury claims in Bedwell – along with the affirmative
defense of apportionment – should be stayed while these cases are consolidated.
This does not mean that any discovery related to these claims should be stayed,
however, because items could be relevant to various matters in the merged action.
Second, the Scheduling Order in Burrow needs to be modified because the deadlines
are impracticable given the effect of merging the case with Bedwell. Therefore, the
parties are directed to confer and advise the Court through a joint status report of
how much additional time is needed to accommodate the merger of these two cases
for all purposes, including trial. A joint status report shall be submitted within
fourteen (14) days from the date of this Order.
Upon review of the parties’
submission, a revised Scheduling Order shall be entered.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED:
Braztech’s motion to consolidate [D.E. 69] is GRANTED in part and
DENIED in part. William Burrow and Oma Louise Burrow v. Forjas
Taurus and Braztech, case no. 1:16-cv-21606-EGT, and Suzanne M.
Bedwell and Ernest D. Bedwell v. Braztech, case No. 1:17-cv-22335EGT, shall be merged for all further matters. A copy of this Order
shall be filed in both actions, but all further filings shall be submitted
only in Burrow.
The parties are directed to confer and advise the Court through a joint
status report of how much additional time is needed to accommodate
the merger of these two cases. A joint status report shall be submitted
within fourteen (14) days from the date of this Order. Upon review of
the parties’ submission, a revised Scheduling Order shall be entered.
The personal injury claims – and the related counterclaims – in
Bedwell shall be stayed pending final disposition of the merged action
The Burrow and Bedwell Plaintiffs shall file a consolidated complaint
within twenty-one (21) days from the date of this Order.
The appointment of interim class counsel at this time is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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