Great American Life Insurance Company v. Tanner et al

Filing 189

ORDER granting (185) Motion to Consolidate Cases in case 3:16-cv-00070-DMB-JMV. Signed by District Judge Debra M. Brown on 7/25/19. Associated Cases: 3:18-cv-00023-NBB-RP, 3:16-cv-00070-DMB-JMV (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
GREAT AMERICAN LIFE
INSURANCE COMPANY

PLAINTIFF

V.

NO. 3:16-CV-70-DMB-JMV

AVA MITCHELL TANNER, et al.

DEFENDANTS

ORDER CONSOLIDATING CASES
This interpleader action is before the Court on Ava Mitchell Tanner’s “Motion to
Consolidate Related Cases.” Doc. #185.
I
Relevant Procedural History
Because this motion concerns whether two separate cases should be consolidated, the
relevant procedural history of each is provided in turn.
A. This Interpleader Action
On April 5, 2016, Great American Life Insurance Company filed an interpleader complaint
in the United States District Court for the Northern District of Mississippi (“Interpleader Action”),
naming Ava Mitchell Tanner, Alita Margaret Mitchell, and Craig J. Cheatham as defendants. Doc.
#1 at 1. Among other relief, Great American sought a determination of the proper recipient of
death benefits under two retirement annuities it issued to Don Mitchell, who passed away on
December 1, 2015. Doc. #1 at 2, 4–6; Doc. #1-7. On May 27, 2016, Alita and Craig filed an
answer to the complaint, which included a crossclaim by Alita against Ava. Doc. #9. On June 30,
2016, Ava filed an amended answer to Alita’s crossclaim, which included a crossclaim against
Alita and Craig. Doc. #24 at 1–2, 3–8. Ava’s crossclaim alleged that she and her sister, Phyllis
Mitchell Fernandez, were the beneficiaries of “most of [Don’s] assets” until Alita and Craig

exerted undue influence over Don to supplant Ava and Phyllis as beneficiaries to Don’s Cetera
investment account,1 Prudential life insurance policy, Great American annuities, and a trust that
included an “[o]il [i]nterest of unknown value.” Doc. #24 ¶¶ 19, 41. Alita and Craig answered
Ava’s crossclaim on July 18, 2016. Doc. #30.
This Court dismissed Great American on November 29, 2016. Doc. #74 at 2, 6. On
September 1, 2017, Phyllis moved to intervene in Ava’s crossclaim, arguing intervention was
proper because, along with Ava, she was a 50% beneficiary of the Prudential policy and mineral
trust before Alita and Craig unduly influenced Don to disinherit her and Ava. Doc. #139 at 2–4.
The Court denied Phyllis’ motion to intervene, finding that, while the crossclaims for the
Prudential policy and mineral trust involved “the same central factual inquiry,” they fell beyond
the scope of Rule 13(g) because they involved different property than that in the Interpleader
Action. Doc. #154 at 5. Based on the same reasoning, the Court dismissed Ava’s crossclaim to
the extent it concerned assets other than the Great American annuities. Doc. #170 at 12–16.
Regarding the undue influence claim as to the Great American annuities, however, the Court
granted summary judgment in Ava’s favor. Id. at 27–28. Alita and Craig appealed. Doc. #174.
On appeal, the Fifth Circuit determined that undue influence was properly presumed
because Don and Craig had a confidential relationship and Craig was actively involved in changing
the beneficiaries of the Great American annuities. Doc. #188-1 at 10. However, it remanded the
case for trial, concluding that genuine issues of fact existed regarding whether Alita and Craig
could rebut the presumption. Id. at 12–16.
Following remand, Ava filed this “Motion to Consolidate Related Cases.” Doc. #185.

1

Ava’s crossclaim refers to this property as “Regions Bank CD.” Doc. #24 ¶ 41. Ava later refers to it as an investment
account with Cetera. Id. ¶ 18.

2

Alita and Craig responded in opposition, Doc. #186; and Ava replied, Doc. #187.2
B. The Tanner/Fernandez Action
On January 30, 2018, Ava filed a complaint against Alita3 and Craig in the United States
District Court for the Northern District of Mississippi. See Tanner v. Mitchell, et al., No. 3:18-cv23 (N.D. Miss.), at Doc. #1. On June 7, 2018, Ava moved to amend the complaint to add her sister
Phyllis as a plaintiff. Id. at Doc. #11. United States District Judge Neal B. Biggers, to whom the
case is assigned, granted the motion.4 Id. at Doc. #13. Ava and Phyllis filed the amended
complaint on August 1, 2018 (“Tanner/Fernandez Action”). Id. at Doc. #24.
Against Alita and Craig, Ava and Phyllis’ amended complaint alleges “(1) [the] use of
undue influence to abuse a confidential relationship, (2) the use of undue influence on a person in
a confidential relationship and (3) acquisition of assets through means of undue influence.” Id. at
Doc. #24, at 1. Specifically, Ava and Phyllis allege that Alita and Craig unduly influenced Don to
gain an interest in the “Cetera account $150,000, Prudential Life Insurance policy for $186,000,
Great American Life Insurance annuities for $120,153.25 and $117,333.54, A trust with Oil
Interest of unknown value.” Id. at Doc. #24 ¶ 52. Judge Biggers denied the parties’ cross-motions
for summary judgment on June 19, 2019. Id. at Doc. #62. Trial is currently set for July 22, 2019.
II
Discussion
Federal Rule of Civil Procedure 42(a)(2) permits a district court to consolidate actions that
“involve a common question of law or fact.” Consolidation may be used to avoid unnecessary

2

Contrary to local rule, Ava did not file a separate memorandum brief in support of the motion, nor did Alita and
Craig file a separate memorandum brief in support of their response. See L.U. Civ. R 7(b)(4).

3

This complaint references Alita as “Alita Cheatham Mitchell.”

4

Phyllis moved to intervene the same day Ava moved to amend the complaint. Doc. #12. In the same order granting
leave to amend, Judge Biggers denied as moot Phyllis’ motion to intervene. Doc. #13.

3

costs or delay, see Mills v. Beech Aircraft Corp., Inc., 886 F.2d 758, 761–62 (5th Cir. 1989); or to
avoid the duplication of judicial effort, In re Dearborn Marine Serv., Inc., 499 F.2d 263, 271 (5th
Cir. 1974). “A trial court has broad discretion in determining whether to consolidate a case
pending before it.” Mills, 886 F.2d at 762 (quoting Alley v. Chrysler Credit Corp., 767 F.2d 138,
140 (5th Cir. 1985)). But a court is not free to consolidate actions if doing so would prejudice any
party’s rights. St. Bernard General Hosp., Inc. v. Hosp. Serv. Ass’n of New Orleans, Inc., 712
F.2d 978, 989 (5th Cir. 1983) (citation omitted).
A. Common Question of Law or Fact
Ava contends the operative facts of the Interpleader Action and the Tanner/Fernandez
Action are “identical” because they “involve the activities of [Craig and Alita] during August and
September 2015 when Don [] signed 9 documents relating to his estate in 4 locations in 3 states
over a 6-week period of time” and, during the same time period in which Don changed his
beneficiaries on the Great American annuities, he also changed his beneficiaries on the Prudential
life insurance policy and Cetera account. Doc. #185 ¶¶ 7, 8. Ava also maintains that “Craig was
with Don every time he changed a policy or changed a beneficiary or signed any other document
relating to his estate.” Id. ¶ 9. Alita and Craig respond that consolidation is improper because the
claims for the Great American annuities are “distinct transactions and occurrences” from the
claims for the Cetera account and Prudential life insurance policy. Doc. #186 ¶ 2.
Contrary to Alita and Craig’s argument, Rule 42 consolidation does not require claims to
arise out of the same transaction or occurrence5 but rather that they “involve a common question
of law or fact.” In evaluating whether the Interpleader Action and the Tanner/Fernandez Action

5

Perhaps Alita and Craig confuse the requirements of Rule 42 with those of Rule 13(g), which requires crossclaims
to arise out of the same transaction or occurrence.

4

involve a common question of law or fact, the Court notes that, in denying Phyllis’ motion to
intervene and in dismissing Ava’s crossclaims regarding the assets other than the Great American
annuities, it found that the crossclaims on the Cetera account, Prudential life insurance policy, and
mineral trust involved “the same central factual inquiry” as the claim regarding the Great American
annuities. Doc. #154 at 5; Doc. #170 at 16. For this reason, the Court concludes that the
Interpleader Action and the Tanner/Fernandez Action share a common question of fact. See Fed.
R. Civ. P. 42(a)(2).
B. Avoidance of Unnecessary Costs, Delay, or Duplication of Judicial Effort
Ava argues that “[t]wo trials would be a tremendous waste of judicial resources” because
the two cases involve the same operative facts; because the parties are the same, with the exception
of Phyllis; and because trying the cases separately could take four-to-five days each.6 Doc. #185
¶¶ 7, 10. Having determined both cases share a common question of fact, the Court agrees that
conducting two trials would result in some duplication of judicial effort. See In re Dearborn
Marine Serv., Inc., 499 F.2d at 271.
Alita and Craig argue that consolidation is improper because the Tanner/Fernandez Action
has completed discovery and is set to begin trial before Judge Biggers on July 22, 2019, while this
case has not yet been reset for trial. Doc. #186 ¶ 5. This argument lacks merit because the
procedural posture of both cases is the same—all that remains is that they proceed to trial.
Alita and Craig also argue that Ava has not provided any authority as a basis for this Court
to consider consolidation “for a third time.” Id. ¶ 7. However, this is Ava’s first motion to

6

Ava does not argue in her motion or in her reply that trying the cases separately would result in unnecessary costs or
delay.

5

consolidate under Rule 42.7
Finally, Alita and Craig argue that Ava’s motion to consolidate is “an attempt to forumshop as to who will try the matter, having previously received a favorable ruling from this Court.”8
Id. ¶ 6. This argument is not supported by the record. As Alita and Craig acknowledge,9 Ava
initially tried to bring all her claims against them in this Interpleader Action, see Doc. #24 ¶¶ 19,
41; and Phyllis unsuccessfully attempted to intervene in this Interpleader Action, see Doc. #154.
Furthermore, Ava and Phyllis’ previous attempts to include the non-Great American-related claims
in this action occurred before this Court’s summary judgment ruling in Ava’s favor (and before
Judge Biggers denied the summary judgment motions in the Tanner/Fernandez Action).
All considered, the Court concludes that consolidating the cases would not prejudice any
party and, therefore, in the exercise of its discretion, will grant consolidation.
III
Conclusion
Ava’s motion to consolidate the Interpleader Action with the Tanner/Fernandez Action
[185] is GRANTED and, accordingly:
1.

This Interpleader Action, No. 3:16-cv-70, and the Tanner/Fernandez Action, No.
3:18-cv-23, are CONSOLIDATED for trial and all other purposes.

2.

The earlier filed Interpleader Action, No. 3:16-cv-70, is designated as the lead case.

7

Alita and Craig again appear to conflate the filing of a Rule 13(g) crossclaim with a motion to consolidate under
Rule 42.

8

In support, they cite Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986), and Exxon Mobil Corp. v. Turner Indus.
Grp. LLC, 339 F. App’x 441 (5th Cir. July 31, 2009). Neither case involved a motion to consolidate. Brown concerned
an improvident removal. See 792 F.2d at 482. Exxon Mobil, contrary to Alita and Craig’s erroneous representation,
did not concern a motion to consolidate either but rather was a declaratory judgment action filed in federal court while
related tort actions were pending in state court. See 339 F. App’x at 444–45.
9

Doc. #186 ¶¶ 1, 6, 7.

6

3.

All filings shall be made in the Interpleader Action as the lead case, which filings
will be reflected on the docket of the Tanner/Fernandez Action.

4.

In the caption of all documents filed, the lead case heading shall be set forth first,
followed by the consolidated case heading, with the words “consolidated with”
directly under the lead case heading.

SO ORDERED, this 25th day of June, 2019. 
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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