CX Reinsurance Company Limited v. Kirson
Filing
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MEMORANDUM/ORDER denying 24 Motion to Consolidate Cases. Signed by Judge James K. Bredar on 11/14/2016. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CX REINSURANCE COMPANY, LTD.
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v.
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CIVIL NO. JKB-15-3054
LEADER REALTY CO., et al.
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CX REINSURANCE COMPANY, LTD.
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v.
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CIVIL NO. CCB-15-3056
SINGER REALTY CO., et al.
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CX REINSURANCE COMPANY, LTD.
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v.
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CIVIL NO. RWT-15-3132
BENJAMIN L. KIRSON
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CX REINSURANCE COMPANY, LTD.
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v.
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CIVIL NO. WMN-15-3136
HOMEWOOD REALTY INC., et al.
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CX REINSURANCE COMPANY, LTD.
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v.
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CIVIL NO. RDB-15-3158
MILDRED K. CAPLAN
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CX REINSURANCE COMPANY, LTD.
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v.
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CIVIL NO. ELH-15-3364
B&R MANAGEMENT, INC., et al.
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MEMORANDUM AND ORDER
Pending before the Court in these six cases are identical motions to consolidate, which
have been referred to the undersigned for decision. The motions have been briefed, and no
hearing is required, see Local Rule 105.6 (D. Md. 2016). They will be denied.
The six cases are all brought by CX Reinsurance Company, Limited (“CX Re”), against
various landlords and affiliated individuals and entities. CX Re claims in each case it is entitled
to rescission of a commercial insurance policy issued by CX Re to protect the various
Defendants from liability for personal injury or property damage arising from Defendants’
leasing of residential properties to tenants. CX Re’s claim of rescission is based upon its
allegations that Defendants, in submitting their applications for insurance coverage, gave false
answers in response to questions about prior lead-paint violations. That information, CX Re
alleges, was material to its decision whether to insure and, if so, under what terms insurance
would be offered. Further, CX Re claims it was defrauded by Defendants’ misrepresentations
and seeks damages.
I. Standard for Consolidation
Federal Rule of Civil Procedure 42(a) permits, but does not mandate, consolidation of
cases that involve a common question of law or fact.
The Supreme Court has stated,
“[C]onsolidation is permitted as a matter of convenience and economy in administration, but
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.” Johnson v. Manhattan Ry. Co., 289 U.S. 479,
496-97 (1933); Intown Props. Mgmt., Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168 (4th
Cir. 2001). If a common question of law or fact exists, then the district court must weigh the
competing considerations to determine if consolidation is desirable.
The critical question for the district court in the final analysis was whether the
specific risks of prejudice and possible confusion were 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 alternatives.
See Fed. R. Civ. P. 42(a); see generally 9 C. Wright & A. Miller, Federal Practice
& Procedure: Civil s 2383 (1971).
Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982). If the common issue is not
central to the resolution of the cases or if consolidation will lead to delay in the processing of one
of the individual cases, then consolidation may be denied. 9A C. Wright & A. Miller, Federal
Practice & Procedure: Civil § 2383, at 40-43 (3d ed. 2008). The decision lies within the
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discretion of the district court. A/S J. Ludwig Mowinckles Rederi v. Tidewater Constr. Co., 559
F.2d 928, 933 (4th Cir. 1977).
II. Analysis
The threshold consideration in deciding if cases should be consolidated is whether
different cases present a common question of either fact or law. Having considered relevant case
authorities, the Court concludes these six cases do not present either a common question of fact
or a common question of law.
Each case has the same Plaintiff, who has asserted claims of fraud and rescission in each
action. Moreover, Movants contend that Defendants are likely to assert the same defenses, such
as statute of limitations or laches, among others. However, identical legal theories do not
constitute a common question of law. Gardner v. Cardinal Constr., Inc., No. C13-2001, 2013
U.S. Dist. LEXIS 101396, at *5-6 (N.D. Iowa July 18, 2013); Liberty Lincoln Mercury, Inc. v.
Ford Mktg. Corp., 149 F.R.D. 65, 81 (D.N.J. 1993) (“the mere fact that two cases assert similar
theories of recovery does not constitute a ‘common question of law’ so as to warrant
consolidation”); Walter E. Heller & Co. v. Tuscarora Cotton Mill, 1974 U.S. Dist. LEXIS
13035, at *1-2 (M.D.N.C. Mar. 29, 1974) (noting dearth of cases “wherein consolidation has
been ordered solely on the basis of identical legal theories”). Thus, for example, resolving
whether fraud occurred in one case will not resolve whether fraud occurred in another case. No
common question of law rules the outcome of these six cases.
Nor is there a common question of fact. Cases in which a common question of fact has
been found are those arising from the same set of facts. See, e.g., Coyne & Delany Co. v.
Selman, 98 F.3d 1457, 1463-64 (4th Cir. 1996) (two suits alleging breach of fiduciary duty and
professional malpractice by same defendants based upon establishment of one ERISA plan);
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Russell v. United States, No. 1:12-cv-0407, 2012 U.S. Dist. LEXIS 95400, at *5-7 (M.D. Pa.
July 9, 2012) (cases arose out of same alleged incident, at same time, in same place, and
involved same defendants); Jacobs v. Castillo, 612 F. Supp. 2d 369, 372-73 (S.D.N.Y. 2009)
(cases involved same plaintiffs suing medical professionals for same type of malpractice with
same resulting injury in same time period); Jones v. Qwest Commc’ns Int’l, Inc., No. Civ. 063523MJDAJB, 2007 WL 4179385, at *3 (D. Minn. Nov. 20, 2007) (both cases involved identical
questions of law and fact as to whether defendant violated Fair Labor Standards Act in its
treatment of its sales consultants); Internet Law Library, Inc. v. Southridge Cap. Mgmt. LLC, 208
F.R.D. 59, 60-62 (S.D.N.Y. 2002) (both cases involved questions of fact pertaining to same
agreement between same parties); Allfirst Bank v. Progress Rail Servs. Corp., 178 F. Supp. 2d
513, 515-16 (D. Md. 2001) (each case “mirror image” of other case as to parties and facts).
In the present cases, however, no one set of facts is shared by any two cases. For
example, in 15-3054, CX Re issued an insurance policy based upon an application executed by
Charles Piccinini on behalf of Leader Realty, Inc., and the policy listed the specific properties it
covered. Whether Defendants in 15-3054 made a material misrepresentation on their application
that resulted in damage to CX Re is a distinct factual question from whether any other defendants
in any other case made a material misrepresentation on other policy applications pertaining to
other properties. Although the cases share factual similarities, they do not share one factual
question such that resolution of it in one case drives the resolution of the rest of the cases. Other
cases have followed this principle in denying consolidation. See, e.g., Singh v. Carter, No. CV
16-399 (BAH), 2016 WL 2626844, at *9-10 (D.D.C. May 6, 2016) (each plaintiff claiming same
type of discrimination by same defendant situated differently); Hicks v. Grove, Civ. No. ELH12-1422, Civ. No. ELH-13-2592, 2014 U.S. Dist. LEXIS 24088, at *4-7 (D. Md. Feb. 25, 2014)
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(cases against different defendants at one detention center arose from distinct events and alleged
different types of conduct); Gardner, at *8-10 (each case turned on circumstances particular to
each plaintiff even though both alleged same kind of discrimination by same defendant
employer); Joe Hand Promotions, Inc. v. Dock St. Enters., Civ. No. WMN-11-1973, 2011 U.S.
Dist. LEXIS 141242, at *4-6 (D. Md. Dec. 8, 2011) (cases by different plaintiffs claiming
unauthorized broadcasts based on broadcasts on different nights and involved different fees).
Having found no common question of law or fact, the Court need not proceed to the next
part of the analysis to determine whether considerations of pragmatism and fairness weigh in
favor of or against consolidation, although in that regard, no savings of judicial resources can be
foreseen because of the need to resolve each case on its own facts. Nevertheless, the Court has
considered Movants’ argument pertaining to some overlapping concerns in discovery and deems
it expedient to designate a single magistrate judge, at the discretion of each individual presiding
judge, as overseer of discovery issues affecting more than one case. Discovery issues pertaining
only to one case will be handled in the fashion deemed appropriate by the respective presiding
judge.
III. Conclusion
Based upon the foregoing reasons, the Court ORDERS the following:
1. In 15-3054, the motion to consolidate (ECF No. 46) IS DENIED.
2. In 15-3056, the motion to consolidate (ECF No. 56) IS DENIED.
3. In 15-3132, the motion to consolidate (ECF No. 24) IS DENIED.
4. In 15-3136, the motion to consolidate (ECF No. 47) IS DENIED.
5. In 15-3158, the motion to consolidate (ECF No. 22) IS DENIED.
6. In 15-3364, the motions to consolidate (ECF Nos. 46 and 47) ARE DENIED.
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DATED this 14th day of November, 2016.
BY THE COURT:
_____________/s/_____________________
James K. Bredar
United States District Judge
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