Eric C. Rajala, Trustee in Bankruptcy for estate of Generation Resources Holding Company, LLC v. Robert H. Gardner, et al.

Filing 37

MEMORANDUM AND ORDER granting 10 Motion to Consolidate Cases; denying as moot 2 Motion to Clarify. Signed by District Judge Eric F. Melgren on 12/19/2011. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ERIC C. RAJALA, Trustee in Bankruptcy for
the Estate of Generation Resources Holding
Company, LLC

Plaintiff,

vs.

Case No. 09-2482-EFM

ROBERT H. GARDNER, et al.

Defendants.

MEMORANDUM AND ORDER
Before the Court is the Member Defendants’ Motion to Consolidate Case No. 11-2524 and
Case No. 09-2482 (Doc. 10 in 11-2524).1 Plaintiff Trustee did not file a response to the Member
Defendants’ Motion to Consolidate. Defendant FreeStream Capital LLC filed a response objecting
to consolidation because it believed that consolidation would moot its pending Motion to Distribute
Funds in Case No. 11-2524.
The Member Defendants seek to consolidate the two actions because they involve common
questions of law and fact; primarily that the Pennsylvania judgment funds at issue in Case No. 112524 are subsumed in Case No. 09-2482. A more detailed recitation of the background of these two

1

This group of Defendants includes R. James Ansell, Virginia Ansell, Windforce Holdings, Inc., Robert.
Gardner, Robbin Gardner, Gardner Family Investment Company LLC, William Stevens, Akiko Stevens, Stevens Family
Investment Company LLC, Lookout Windpower Holding Company LLC (both MO and PA), and Forward Windpower
Holding Company LLC (both MO and PA).

cases, and the issues surrounding them, is found in Judge Humphreys’s recent Memorandum and
Order denying the Trustee’s Motion for Leave to File an Amended Complaint.2 In Judge
Humphreys’s Order, she specifically recommended consolidation of the two cases.
Federal Rule of Civil Procedure 42(a) allows a court to consolidate actions involving a
common question of law or fact. It is within the district court’s discretion whether to “(1) join for
hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any
other orders to avoid unnecessary cost or delay.”3 The party seeking consolidation bears the burden
of establishing that judicial economy outweighs the risk of delay or potential prejudice to the
opposing party.4
The Court finds it appropriate to consolidate these two cases. The two cases involve common
questions of law and fact, and no party will be prejudiced by the consolidation. Although FreeStream
would like its Motion to Distribute to be decided prior to consolidation, the Court cannot discern
how or why consolidation frustrates the Court making a determination on FreeStream’s motion. The
Court can just as easily decide FreeStream’s motion after consolidation. Accordingly, the Court
grants the Member Defendants’ Motion to Consolidate.
Several motions have been filed in the two related cases which become moot with the
consolidation of the two cases. In Case No. 09-2482, Trustee filed a Motion to Strike Lookout
Windpower Holding’s Motion to Determine that Judgment Funds are Not Estate Property (Doc.
166). Lookout Windpower Holding, however, filed an identical motion in Case No. 11-2524

2

See Doc. 191 in Case No. 09-2482 and Doc. 36 in Case No. 11-2524.

3

Fed. R. Civ. P. 42(a)(1)-(3); see also Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978).

4

Shump, 574 F.2d at 1344.

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(Doc.9). The motion has been fully briefed. As such, the Court denies Lookout Windpower
Holding’s Motion to Distribute and Trustee’s Motion to Strike (Docs. 158 and 166 in Case No.
09-2482) as moot.5 The Court also denies Trustee’s Motion to Clarify (Doc. 2 in Case No. 112524) as moot.
IT IS ACCORDINGLY ORDERED that the Member Defendants’ Motion to
Consolidate Case No. 09-2482 and Case No. 11-2524 (Doc. 10 in Case No. 11-2524) is
GRANTED. The two cases are consolidated for all purposes with Case No. 09-2482-EFMKMH designated as the lead case.
IT IS FURTHER ORDERED that Lookout Windpower Holding’s Motion to Determine
that Judgment Funds are Not Estate Property (Doc. 158 in Case No. 09-2482) is DENIED AS
MOOT.
IT IS FURTHER ORDERED that Trustee’s Motion to Strike (Doc. 166 in Case No.
09-2482) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Trustee’s Motion to Clarify (Doc. 2 in Case No. 112524) is DENIED AS MOOT.

5

Lookout Windpower Holding’s Motion to Distribute (Doc. 9) remains pending; there simply need not be two
duplicative motions. FreeStream’s Motion to Distribute (Doc. 4) also remains pending. The Clerk’s Office, however,
may revise the docket entry numbers. All summary judgment motions and the motion for judgment on the pleadings
(Docs. 144, 147, and 183) remain pending, as well.
The Court will set oral arguments on the motions to distribute and summary judgment motions in the very near
future.

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IT IS SO ORDERED.
Dated this 19th day of December, 2011.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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