Yarbary v. Martin, Pringle, Oliver, Wallace & Bauer L.L.P. et al

Filing 33

MEMORANDUM AND ORDER granting 19 Motion to Consolidate Cases. Case 12-2773-CM-DJW is designated as lead case. Signed by District Judge Carlos Murguia on 3/12/2013.Mailed to pro se party Kristopher D. Yarbary by regular mail. (mm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KRISTOPHER D. YARBARY,

Plaintiff,
v.
MARTIN, PRINGLE, OLIVER,
WALLACE & BAUER, L.L.P, et al.,
Defendants.

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Case No. 12-2773-CM

MEMORANDUM AND ORDER
Plaintiff brings this action pro se, claiming that he is entitled to proceeds of his deceased
mother’s employee benefit plans. One of plaintiff’s brothers also filed a nearly-identical case in this
court. That case, Mabone v. Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., et al., No. 12-2794EFM, is pending before Judge Eric F. Melgren. Defendants filed motions to consolidate in both cases.
The court now takes up the motion to consolidate filed in this case (Doc. 19).
Federal Rule of Civil Procedure 42(a) allows a court to consolidate “any or all the matters in
issue in the actions” if the actions involve a “common question of law or fact.” The decision whether
to consolidate such actions is left to the sound discretion of the trial court. Shump v. Balka, 574 F.2d
1341, 1344 (10th Cir. 1978). In exercising its discretion, the court should consider whether judicial
efficiency is best served by consolidation. Johnson v. Unified Gov’t, No. 99-2407-JWL, 1999 WL
1096038, at *1 (D. Kan. Nov. 16, 1999).
The court has reviewed the complaint in Mabone and the amended complaint filed in this case.
Both complaints make the same allegations and bring the same nine counts. They are against the same
defendants and involve the same questions of law and fact. The only significant difference in the two

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documents is the named plaintiffs. Both cases involve identical motions to consolidate and motions to
dismiss.
The court believes that judicial efficiency would be best served by consolidation. Although the
plaintiffs reside in different locations, both plaintiffs request a jury trial and designate Kansas City as
the location for trial. The court finds that the two cases should be consolidated, and that Case No. 122773-CM-DJW should be designated the lead case. In addition, contrary to plaintiff’s expressed
concern, consolidation of the cases does not mean that the two plaintiffs cannot continue to represent
themselves pro se.
IT IS THEREFORE ORDERED that defendants’ Motion to Consolidate (Doc 19) is granted.
IT IS FURTHER ORDERED that Case No. 12-2773-CM-DJW should be designated the lead
case.
Dated this 12th day of March, 2013, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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