Butz v. Clayton

Filing 19

OPINION AND ORDER DENYING WITHOUT PREJUDICE Defendant's 15 MOTION to Consolidate Cases filed by Jerry Clayton.--Signed by Magistrate Judge Anthony P. Patti. (MWil) (Main Document 19 replaced on 3/31/2016) (MWil).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FRANK BUTZ,
Plaintiff,
Case No. 2:15-CV-12232
Judge Matthew F. Leitman
Magistrate Judge Anthony P. Patti

v.

JERRY CLAYTON,
Defendant.
___________________________________/
OPINION AND ORDER DENYING WITHOUT PREJUDICE
DEFENDANT’S MOTION TO CONSOLIDATE (DE 15)
I.

OPINION:
A.

Background
1.

Case No. 2:15-cv-12232-MFL-APP (Butz v. Clayton)

Plaintiff is an in pro per party to two cases in this Court. On June 19, 2015,
while incarcerated at the Washtenaw County Jail (WCJ) in Ann Arbor, Michigan,
Plaintiff Frank Leonard Butz filed the instant lawsuit against Jerry Clayton, the
Washtenaw County Sheriff. (DE 1 at 1-2.) In sum, Plaintiff’s complaint concerns
an alleged inability to attend a court-ordered class due to his confinement in FBlock, an allegedly ambiguous disciplinary system and kites allegedly not being

delivered to the addressee. (See DE 1 at 3.) He seeks declaratory and injunctive
relief, as well as an award of $2,000,000 for grief and suffering. (DE 1 a 4.)
2.

Case No. 2:15-cv-12233-MFL-APP (Butz v. Clayton, et al.)

Plaintiff’s other lawsuit, also filed on June 19, 2015, concerns the
conditions and cost of phone service at Washtenaw County Jail (WCJ) and was
filed against Wayne County Sheriff Jerry Clayton and Securus Technologies.1 See
Case No. 2:15-cv-12233-MFP-APP (E.D. Mich.). (DE 1 at 3.) He seeks
injunctive relief, as well as an award of monetary damages for his frustration, grief
and suffering. (DE 1 at 4.)
B.

Pending Motions in Each Case

Currently pending in this case are Defendant Clayton’s September 16, 2015
motion to dismiss (DE 9), regarding which a response was due on October 30,
2015 (DE 10), and Defendant Clayton’s October 14, 2015 motion to consolidate
both actions filed by Plaintiff (DE 15), regarding which a response was due on
December 24, 2015 (DE 16). Instead of filing substantive responses to these
motions, Plaintiff has twice filed an “affidavit and response,” each of which lists
ten challenges he faces and contains the following prayer for relief:

1

 Plaintiff’s

complaint groups together “Securus Correctional Billing
Services/Securus Technologies [and] T-Netix Inc.” (DE 1 at 2.) It appears that,
around 2004, T-Netix and Evercom Systems merged and formed Securus
Technologies. See http://apps.securustech.net/history.asp. Therefore, for the
purposes of this report and recommendation, the Court assumes the sole defendant
is Securus Technologies, Inc.  
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Plaintiff Frank Butz prays the Court grant a hearing to determine if
[P]laintiff can be appointed legal counsel, how to proceed, explain
“Dismiss With Prejudice”, grant Defendant(s) Motions, or whatever
the Court deems appropriate.
(DE 13 at 2 & DE 17 at 2.)2
Currently pending in Plaintiff’s second case are two motions to dismiss (DEs
10 & 11, DE 16), each of which was filed during September 2015. (See also DE
12 (Declaration)). Pursuant to the Court’s September 14, 2015 order, Plaintiff’s
responses to the first two were due on October 29, 2015. (DE 14.) Pursuant to the
Court’s September 18, 2015 order, Plaintiff’s response to the latter was due on
October 19, 2015. (DE 17.) Here, too, Plaintiff filed a similar “affidavit and
response.” (DE 18.)3 Sheriff Clayton has filed a reply. (DE 19.)
C.

Discussion

In his October 14, 2015 motion in the instant case, Defendant Clayton
contends, in part: “it is clear that both lawsuits are grounded in a common factual
basis; namely, the conditions of confinement during Mr. Butz’s period of
incarceration at the Washtenaw County Jail.” (DE 15 at 10.) Defendant’s motion

2

 Plaintiff

filed another such document on October 1, 2015; however, it appears he
intended to file it in Case No. 15-12233. (See DE 12.)

3

 Technically,

Defendant’s motion to consolidate (DE 15) is unopposed and could
be granted on that basis. “A respondent opposing a motion must file a response,
including a brief and supporting documents then available.” E.D. Mich. LR
7.1(c)(1). Here, Plaintiff’s December 9, 2015 filing (DE 17) does not constitute a
response to the substance of Defendant’s motion to consolidate (DE 15).  
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is based upon Fed. R. Civ. P. 42(a), which provides: “If actions before the court
involve a common question of law or fact, the court may:
(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.

Fed. R. Civ. P. 42(a) (“Consolidation.”). (See DE 15 at 2, 11 & 13.)4 In particular,
Defendant relies upon the factors set forth in Cantrell v. GAF Corp., 999 F.2d
1007 (6th Cir. 1993):
[W]hether the specific risks of prejudice and possible confusion [are]
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.

4

 In

issuing this order, I assume a magistrate judge’s authority to rule upon a Fed.
R. Civ. P. 42(a) motion to consolidate. See Carcaise v. Cemex, Inc., 217 F. Supp.
2d 603, 604 n.1 (W.D. Pa. 2002) (“Pursuant to the Referral Orders entered by the
District Court . . ., this magistrate judge has the authority to rule on the request to
consolidate as a non-dispositive motion.”); see also Trafalgar Power, Inc. v. Aetna
Life Ins. Co., 131 F. Supp. 2d 341, 343 (N.D.N.Y. 2001) (“In a Report,
Recommendation and Order dated November 8, 2000 (the Report), the Magistrate
Judge decided the motions for non-dispositive relief by granting Algonquin's
motion for consolidation of 00–CV–1246 with 99–CV–1238, and denying Aetna's
motion for leave to intervene as moot.”). But see Black v. Cockrell, No. 4:03-CV182-A, 2003 WL 21757297, at *1 n.1 (N.D. Tex. July 28, 2003) (“While the
magistrate judge's reasoning in support of consolidation was sound, he did not
possess the authority to consolidate the actions because he effectively disposed of
the latter-filed action.”).

4

Cantrell, 999 F.2d at 1011 (citing Hendrix v. Raybestos–Manhattan, Inc., 776 F.2d
1492, 1495 (11th Cir.1985)). (See also DE 15 at 11, 12, 13 & 17.)
Even so, a decision to consolidate is within this Court’s discretion.
“Whether cases present a common question of law or fact is only a threshold
requirement; once a common question has been established, the decision to
consolidate rests in the sound discretion of the district court.” Banacki v. OneWest
Bank, FSB, 276 F.R.D. 567, 571 (E.D. Mich. 2011) (Rosen, C.J.). “In exercising
its discretion, a court should weigh ‘the interests of judicial economy against the
potential for new delays, expense, confusion, or prejudice.’” Banacki, 276 F.R.D.
at 571 (quoting In re Consolidated Parlodel Litig., 182 F.R.D. 441, 444 (D.N.J.)
(citations omitted)); see also Thurman v. Ocwen Loan Servicing, LLC, No. 1310305, 2013 WL 2456382, at *2 (E.D. Mich. June 6, 2013) (Cox, J.) (“A district
court's decision with respect to a motion for voluntary dismissal under Fed. R. Civ.
P. 42(a)(2) is reviewed for abuse of discretion.”) (citing Bridgeport Music, Inc. v.
Universal–MCA Music Pub., 583 F.3d 948, 953 (6th Cir.2009)).
Exercising that discretion, I conclude that Defendant Clayton’s October 14,
2015 motion to consolidate Case Nos. 2:15-cv-12232 and 2:15-cv-12233 should be
denied at this time. While Defendant Clayton’s October 14, 2015 motion to
consolidate distinctly addresses the issue of common questions of law and fact and
also sets forth his arguments as to each of the five (5) Cantrell factors (DE 15 at
5

12-17), the fact remains that motions to dismiss have been filed in each case – on
September 16, 2015 by Defendant Clayton in the instant case (DE 9), as well as on
September 11, 2015 by Defendant Securus Technologies (DE 10, DE 11) and on
September 16, 2015 by Defendant Clayton (DE 16) in Case No. 2:15-cv-12233.
Moreover, on December 28, 2015 – a date following the filing of these motions to
dismiss - the Clerk of the Court reassigned the latter case from Judge Friedman to
Judge Leitman as a companion case to the instant action. (Case No. 2:15-cv-12233
(DE 21).) Thus, dispositive motions having already been filed and the same
judicial officers having already been assigned to these cases, there is little reason,
if any, for the Court to consolidate these matters at this time. Moreover, I note
that, even though both actions pertain in some way to jail conditions, the two cases
involve distinct claims, and there is an additional party added in the second of the
two cases.
II.

ORDER:
Accordingly, Defendant Clayton’s October 14, 2015 motion (DE 15) to

consolidate both actions filed by Plaintiff (Case Nos. 2:15-cv-12232, 2:15-cv12233) is DENIED WITHOUT PREJUDICE to renewal should both of these
cases survive the pending motions to dismiss.
IT IS SO ORDERED.

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Dated: March 31, 2016

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on March 31, 2016, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager to the
Honorable Anthony P. Patti

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