FRIENDS OF MERRYMEETING BAY et al v. BROOKFIELD RENEWABLE POWER INC et al

Filing 54

ORDER ON PLAINTIFFS MOTION TO CONSOLIDATE granting in part and denying in part 37 Motion to Consolidate Cases By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRIENDS OF MERRYMEETING BAY,
et al.,
Plaintiffs,
v.
BROOKFIELD POWER US ASSET
MANAGEMENT, LLC, et al.,
Defendants.

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) Docket no. 2:11-cv-35-GZS
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ORDER ON PLAINTIFFS’ MOTION TO CONSOLIDATE
Before the Court is Plaintiffs’ Motion to Consolidate Dam Cases for Trial and for
Depositions of Plaintiffs’ Witnesses (Docket # 37). Via this Motion, Plaintiffs Friends of
Merrymeeting Bay (“FOMB”) and Environment Maine seek to consolidate this action with cases
they have filed against other dam owners, specifically a case against Nextera Energy Resources,
Inc., et al. (“Nextera Defendants”) (D. Me. No. 2:11-cv-38-GZS), a case against Topsham Hydro
Partners Limited Partnership (“Topsham Hydro”) (D. Me. No. 2:11-cv-37-GZS), and a case
against Defendant Miller Hydro Group (“Miller Hydro”) (D. Me. No. 2:11-cv-36-GZS) (together
with this case, the “FOMB Dam Cases”). Each defendant opposes consolidation and, in this
case, Defendant has filed a response opposing the Motion (Docket # 42).
Federal Rule of Civil Procedure 42(a) allows a court broad discretion to consolidate cases
that “involve a common question of law or fact.” There are undeniably common questions of
law involved in the FOMB Dam cases to the extent that Plaintiffs are pressing identical claims
under the Endangered Species Act (“ESA”) in each case based on alleged taking of listed
Atlantic Salmon. While the Court has given due consideration to the benefits of consolidating

these cases, in the Court’s final assessment, consolidation is not appropriate at this time. On the
record, there is significant variability in the facts of each case on a variety of issues including the
rivers involved, the dams involved and their location, the regulatory history of each dam, and the
ongoing regulatory proceedings involving the ESA.

In the Court’s view, these factual

differences make wholesale consolidation burdensome for defendants and will not necessarily
yield an efficient use of judicial resources. 1
In light of this assessment, Plaintiffs’ request that the Court consolidate these cases for
purposes of discovery and depositions is GRANTED IN PART AND DENIED IN PART. The
Court notes that all four cases are on the same schedule under their respective scheduling orders.
To the extent that Plaintiffs specifically seek the Court’s approval to present their common
witnesses for a consolidated deposition (as compared to four completely separate depositions),
the Court GRANTS that request. In the Court’s assessment, the parties can and should
consolidate the depositions of common witnesses in order to minimize costs and maximize
efficiency. Thus, the Court hereby ORDERS that counsel confer and attempt to reach agreement
on the following: (1) a list of witnesses that qualify as common witnesses in all four cases; (2)
the procedure to be utilized at the consolidated deposition of common witnesses, including the
sequence of questioning, the amount of time each party shall have for asking questions, the
handling of any joint objections; and (3) the process for complying with any and all
confidentiality orders during the deposition.

To the extent that the parties cannot reach

agreement on the consolidation of a specific deposition or the procedures to be used at a specific
deposition, they are free to request a conference before the magistrate judge in accordance with
District of Maine Local Rule 26(b). To the extent Plaintiffs’ Motion might be read as requesting
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As noted in the papers, the Court notes that in both this case and the Nextera case, Plaintiffs have additionally pled
a cause of action under the Clean Water Act, 33 U.S.C. § 1341 et seq. Thus, the claims and legal issues are not
identical in all four cases.

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consolidated discovery beyond the scheduling of Plaintiffs’ common witnesses, the request is
DENIED.
With respect to Plaintiffs’ request for a consolidated trial, the request is DENIED
WITHOUT PREJUDICE.

Plaintiffs are free to renew this request by filing a motion to

consolidate in connection with the filing of their pretrial memoranda required by Local Rule
16.4. At that time, the parties and the Court will have a better understanding of any common
factual issues that remain for trial and what common witnesses would appear.
As explained herein, the Motion to Consolidate is GRANTED IN PART and DENIED IN
PART. The denial of Plaintiffs’ request for a consolidated trial is without prejudice to Plaintiffs
renewing the motion once discovery and any dispositive motion practice is complete.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 9th day of February, 2012.

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