Brady et al v. National Football League et al

Filing 65

MEMORANDUM in Support re 63 MOTION to Consolidate Cases (originally filed in 11-cv-748 SRN/JJG on 03/30/11) filed by Obafemi Ayanbadejo, Ryan Collins, Carl Eller, Priest Holmes. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(akl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
Carl Eller, Priest Holmes, Obafemi
Ayanbadejo, and Ryan Collins,
individually, and on behalf of all others
similarly situated,
Civil Action No: 0:11-cv-00748-RHK-JSM
Plaintiffs,
v.
National Football League, et al.,
Defendants.
Tom Brady, Drew Brees, Vincent Jackson,
Ben Leber, Logan Mankins, Peyton
Manning, Von Miller, Brian Robison, Osi
Umenyiora, and Mike Vrabel, individually,
and on behalf of all others similarly
situated,

MEMORANDUM IN SUPPORT OF
PLAINTIFFS’ MOTION TO
CONSOLIDATE

Civil Action No. 0:11-cv-00639-SRN-JJG

Plaintiffs,
v.
National Football League, et al.
Defendants.

Plaintiffs Carl Eller, Priest Holmes, Obafemi Ayanbadejo, and Ryan Collins (the
“Eller Plaintiffs”) respectfully submit this memorandum in support of their motion to
consolidate the above-captioned actions, for all purposes, pursuant to Fed. R. Civ.
P. 42(a).

Introduction
Pending before this Court are two separate actions arising out of the same body of
facts which seek similar relief against the same defendants.
Resolution of each action turns on much of the same facts and evidence, requiring
depositions of the same witnesses and production of the same documents.
practice in each action will likely address the same body of facts.

Motion

Similarly, the

applicable law to be applied will be similar, if not identical. Well-established principles
of efficiency and judicial economy require that these actions be consolidated for all
purposes before a single judge, pursuant to Fed. R. Civ. P. 42(a).
Argument
This Court enjoys broad discretion to consolidate related actions in order to spare
needless cost or delay:
When actions involving a common question of law or fact are pending
before the court, it may order a joint hearing or trial of any or all the matters
in issue in the actions; it may order all the actions consolidated; and it may
make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
Fed. R. Civ. P. 42(a).
In considering consolidation under Rule 42(a), this Court must first determine
whether the proceedings involve a common question of fact or law. If so, the Court must
then “balance the time and effort consolidation would save against the inconvenience or
delay which it would cause.” Kramer v. Boeing Co., 134 F.R.D. 256, 258 (D. Minn.
1991). The balance here tips sharply in favor of consolidation.

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A.

Common Issues of Fact Run Through Both Cases.
Both actions plainly share common issues of fact. The cases involve similar

litigants with similar claims. See Wright and Miller, Federal Practice & Procedure Civil
2d § 2384 (stating “Actions involving the same parties are apt candidates for
consolidation.”). Both actions arise from a single body of facts and are based on largely
the same evidence. As a result, each action will require depositions of many of the same
people and production of the same documents. Each case exists because Defendants
commenced a lockout on March 12, 2011 that, if continued, will result in the cancellation
of the 2011 NFL season. That cancellation will directly affect the retired and rookie
members of the putative class sought to be represented by the Eller Plaintiffs here, as well
as active NFL players.
Given the overlapping nature of these two actions, there can be no dispute that
they easily meet the threshold requirement for commonality under Rule 42(a).
B.

Consolidation Would Promote the Efficient Resolution of Both Matters and
Conserve Judicial Resources.
Consolidation of the Eller and Brady actions will further the interests of justice by

avoiding unnecessary cost and delay. Consolidation “should be prudently employed as a
valuable and important tool of judicial administration, invoked to expedite trial and
eliminate unnecessary repetition and confusion.” Devlin v. Transp. Communicatons Int’l
Union, 175 F.3d 121, 130 (2d Cir. 1999) (internal citations omitted).
As set forth above, both actions arise from the same body of facts and as a result,
much of the evidence in one case will be involved in the other. Consolidation will thus

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prevent the needless duplication of discovery and will allow the Court to streamline case
management by holding joint hearings and by following a master scheduling order. See
EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998) (holding that “it was appropriate
to consolidate these claims and avoid the inefficiency of separate trials involving related
parties, witnesses, and evidence”).
C.

Consolidation Would Not Result in Inconvenience, Delay, Expense, or
Prejudice to Any Party.
Both cases have only recently been filed. There has been no scheduling order in

either case nor has any discovery been commenced.

No party would suffer

inconvenience, delay, expense, or prejudice if these matters were consolidated. There is
also no threat of unfair prejudice or inconvenience to any party. See HBE Corp., 135
F.3d at 551 (stating “Consolidation is inappropriate … if it leads to inefficiency,
inconvenience, or unfair prejudice to party.”) Rather, consolidation would benefit the
litigants and the Court by streamlining discovery and motion practice and thus preserving
judicial resources.
In short, the actions filed in Eller and Brady are perfect for consolidation. The
cases bear an extremely close legal and factual relationship, and their consolidation will
economize resources of the parties and the Court. Accordingly, the Court should grant
the Eller Plaintiffs’ motion to consolidate these actions for all purposes.

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Conclusion
For the foregoing reasons, Eller Plaintiffs respectfully request that pursuant to Fed.
R. Civ. P. 42(a), the Court consolidate Eller et al v. NFL, Civil No. 0:11-cv-00748-RHKJSM, and Brady v. NFL, Civil No. 0:11-cv-00639-SRN-JJG.
Dated: March 30, 2011

Michael D. Hausfeld
Hilary K. Scherrer
HAUSFELD LLP
1700 K Street, NW
Suite 650
Washington, D.C. 20006
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Michael P. Lehmann
Jon T. King
Arthur N. Bailey, Jr.
HAUSFELD LLP
44 Montgomery Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Respectfully Submitted,

s/Mark J. Feinberg
Mark J. Feinberg (#28654)
Michael E. Jacobs (#0309552)
Shawn D. Stuckey (#0388976)
ZELLE HOFMANN VOELBEL & MASON LLP
500 Washington Avenue, South
Suite 4000
Minneapolis, MN 55415
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Daniel S. Mason
ZELLE HOFMANN VOELBEL & MASON LLP
44 Montgomery Street
Suite 3400
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Samuel D. Heins (#43576)
Vince J. Esades (#249361)
HEINS MILLS & OLSON, P.L.C.
310 Clifton Avenue
Minneapolis, MN 55403
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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[e-mail]
Attorneys for Plaintiffs

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