DAVIS v. Wal-Mart Stores East LP
ORDER denying as moot 17 Motion to Dismiss; granting 20 Motion for Joinder. The Court hereby ORDERS that Davis v. WalMart Stores, Inc., 3:11CV129, be CONSOLIDATED into Davis v. WalMart Stores East, L.P, 3:12CV122 and that case 3:11CV129, be ADMINISTRATIVELY CLOSED. All future filings in these consolidated proceedings should be made exclusively in 3:12CV122. Ordered by Judge C. Ashley Royal on 11/2/12 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
WAL‐MART STORES, INC.,
Civil Action No.: 3:11‐CV‐129 (CAR)
ORDER ON MOTION TO CONSOLIDATE
Currently before the Court is Defendant Wal‐Mart Stores, Inc.’s Motion for
Consolidation and Mandatory Joinder [Doc. 20]. Plaintiff Betty Davis has two almost
identical premises liability cases currently pending in this Court – Davis v. Wal‐Mart
Stores, Inc., Case No. 3:11‐CV‐129 (CAR) and Davis v. Wal‐Mart Store East, L.P., Case No.
3:12‐CV‐122 (CAR). Having reviewed the Motion, Plaintiff’s response, and the relevant
law, the Court finds these two cases clearly involve common questions of law and fact.
Therefore, the Court GRANTS Defendant’s Motion [Doc. 20] and ORDERS the two
cases to be CONSOLIDATED pursuant to Fed. R. Civ. P. 42(a). Consolidating these
cases makes Plaintiff’s pending Motion to Dismiss moot, and thus, that Motion [Doc. 17]
is hereby DENIED as moot.
On August 24, 2011, Plaintiff filed her original pending civil action in the Superior
Court of Walton County, Georgia, against Defendant Wal‐Mart Stores, Inc. (“Wal‐Mart
Inc.”), alleging she sustained significant injuries as a result of being struck by a
malfunctioning motorized shopping cart while shopping with her husband at Wal‐Mart
Store #780 in Walton County, Georgia, on July 23, 2010. On September 9th, 2011,
Wal‐Mart Inc. timely removed the action to this Court. After discovery ended, on May
21, 2012, Wal‐Mart Inc. filed a motion for summary judgment which is currently pending
in this case.
On July 23, 2012, Plaintiff filed a second civil action in the State Court of Gwinnett
County, Georgia, against Defendant Wal‐Mart Stores East, L.P. (“Wal‐Mart East”),
alleging the same injuries, from the same incident that occurred on July 23, 2010, at the
same Wal‐Mart store in Walton County, Georgia. Wal‐Mart East removed that case to
the Northern District of Georgia, and the Northern District transferred the case to this
Court. Thereafter, Wal‐Mart Inc. filed the current Motion to Consolidate the two cases.
Rule 42(a) affords a district court authority to order multiple actions consolidated
“[w]hen actions involving a common question of law or fact are pending before the
court.”1 The Eleventh Circuit has explained that consolidation pursuant to Rule 42(a) “is
permissive and vests a purely discretionary power in the district court.”2 In exercising
that discretion, district courts must weigh the risk of prejudice and confusion wrought
by consolidation against the risk of inconsistent rulings on common factual and legal
questions, the burden on the parties and the court, the length of time, and the relative
expense of proceeding with separate lawsuits if they are not consolidated.3
This Court has reviewed the Complaints in these two actions and readily
confirms that they encompass common questions of law and fact; that consolidation
would promote the interests of judicial economy, efficiency and convenience; and that
consolidation would not appear likely to yield any countervailing inconvenience, delay,
prejudice or expense for the Court or the litigants. Plaintiff’s personal injury claims in
both cases arise out of the same July 23, 2010 incident, at the same Wal‐Mart store in
Monroe, Georgia, and Plaintiff uses the same Wal‐Mart employee witnesses, the same
damages witnesses, and many of the same theories of liability. Although Plaintiff names
two different defendants, it is clear the Complaints describe the exact same defendant –
the Wal‐Mart entity that controlled and operated Wal‐Mart Store No. 780 in Monroe,
Georgia which employed the associates whose alleged negligence is at issue in both of
Fed. R. Civ. P. 42(a).
Young v. City of Augusta, 59 F.3d 1160, 1168 (11th Cir.1995) (quoting In re Air Crash Disaster at Florida
Everglades, 549 F.2d 1006, 1013 (5th Cir.1977)).
See Hendrix v. Raybestos‐Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir.1985).
these actions. It is equally clear that the correct Wal‐Mart entity is Wal‐Mart East.
Thus, the Court exercises its discretion and consolidates these two cases.
As explained above, Defendant’s Motion to Consolidate [Doc. 20] is GRANTED,
and thus, Plaintiff’s pending Motion to Dismiss [Doc. 17] is hereby DENIED as moot.
Pursuant to Fed. R. Civ. P. 42(a), the Court hereby ORDERS that Davis v.
Wal‐Mart Stores, Inc., 3:11‐CV‐129‐CAR, be CONSOLIDATED into Davis v. Wal‐Mart
Stores East, L.P, 3:12‐CV‐122‐CAR and that case 3:11‐CV‐129, be ADMINISTRATIVELY
CLOSED. To avoid any confusion, and given that 3:11‐CV‐129 will henceforth be a
closed file, the parties are ORDERED not to include the caption of 3:11‐CV‐129 in any
future filings in this action and not to file any pleadings directly in 3:11‐CV‐129. Rather,
all future filings in these consolidated proceedings should be made exclusively in
SO ORDERED. This 2nd day of November, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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