Cooper et al v. Meritor, Inc. et al

Filing 535

ORDER denying 414 Motion to Sever; denying 528 Motion for Leave to Supplement. Signed by District Judge Debra M. Brown on 4/24/18. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
BRENDA J. COOPER, et al.

PLAINTIFFS

V.

NO. 4:16-CV-52-DMB-JMV

MERITOR, INC., et al.

DEFENDANTS
ORDER

This case is before the Court on the defendants’ motion to sever. Doc. #414.
I
Relevant Procedural History
On March 16, 2016, Brenda Cooper, Sylvia Caffey, Margaret Odems, Bernice Richardson,
Dora Ward, Rosie Brady, Pearl Seldon, Betty Phillips, Alice Crumley, and Sylvia Cunningham
filed a complaint in this Court against Rockwell International Corporation and Randall Division
of Textron, Inc. Doc. #1. Approximately four months later, the plaintiffs filed an amended
complaint against Meritor, Inc., Rockwell Automation Inc., The Boeing Company, and Textron,
Inc. Doc. #43.
In the amended complaint, the plaintiffs, residents or former residents of Grenada County,
Mississippi, seek to recover for injuries to their homes and property caused by a manufacturing
plant located in Grenada, Mississippi. The plaintiffs allege that they “are residents or former
residents of a neighborhood adjacent” to the manufacturing plant, specifically, the “Eastern
Heights” neighborhood, and that the plant was operated by: (1) Rockwell International
Corporation, the predecessor to Rockwell Automation, Inc., which itself is a predecessor to The
Boeing Company, from 1965 until 1985; and (2) Randall Wheel Trim, a subsidiary of Textron,
Inc., from 1985 until the present. Doc. #43 at 1–6, 9. The plaintiffs further allege that the plant,
which was used to manufacture chrome-plated wheel covers, utilized numerous chemicals,

including hexavalent chromium, and trichloroethylene (“TCE”), and that these chemicals were
illegally dumped into the environment, with the defendants concealing such disposal. The
plaintiffs assert six claims arising from the allegedly wrongful acts: (1) Fraud and Fraudulent
Concealment (Count I); (2) Civil Conspiracy (Count II); (3) Negligence (Count III); (4) Nuisance
(Count IV); (5) Trespass (Count V); and (6) Intentional and/or Negligent Infliction of Emotional
Distress (Count VI). Subsequently, the parties stipulated to the dismissal of Count I and Count
II. Doc. #174.
On November 15, 2017, the defendants moved to sever the ten plaintiffs into nine separate
actions, with the claims of Phillips and Crumley (asserted as joint representatives of Hildred
Johnson) remaining together. Doc. #414. The plaintiffs responded in opposition to the motion on
November 29, 2017, and the defendants replied on December 6, 2017. Doc. #435; Doc. #450. On
April 5, 2018, the defendants moved to supplement their motion. Doc. #528. The plaintiffs did
not respond to the motion to supplement within the time allowed.
II
Motion to Supplement
In their motion to supplement, the defendants assert that, due to delays by the plaintiffs,
they only recently deposed Phillips and that the deposition:
revealed (1) unique claims and corresponding defenses regarding ownership of the
residence at issue (and discrete issues with … Plaintiff Alice Crumley, Ms. Phillips’
sister), (2) a potential personal injury claim by Ms. Phillips, and (3) the failure to
join necessary parties to resolve Ms. Phillips’ case, resulting in potential incomplete
relief.
Doc. #528 at 1–2. The defendants claim supplemental briefing is warranted to show how “[t]hese
individualized issues raised by just one of the Plaintiffs’ claims illustrate precisely why severance
is appropriate.” Id. at 2. In essence, the defendants seek leave to argue that all plaintiffs should
be severed because Phillips should be severed. Because the law of severance, as set forth below,
2

does not support such an argument, the motion to supplement will be denied. The defendants may,
however, raise their arguments related to Phillips’ joinder in a separate motion to sever. Such
motion must be filed within fourteen days of this order.
III
Analysis
Pursuant to Rule 20 of the Federal Rules of Civil Procedure:
Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
Fed. R Civ. P. 20(a)(1). Notwithstanding this provision, Rule 21 grants a district court broad
discretion to “sever any claim against a party.” Fed. R. Civ. P. 21 (emphasis added); see Brunet
v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994) (“The trial court has broad discretion
to sever issues to be tried before it.”) (citing Rule 21).
The authority to sever extends to claims properly joined under Rule 20. Acevedo v. Allsup’s
Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010).1 Accordingly, a court resolving a
motion to sever must answer two questions: (1) whether joinder was proper under Rule 20; and
(2) whether severance is warranted under Rule 21. Id.

1
See also Alexander v. Edgewood Mgmt. Corp., 321 F.R.D. 460, 465 (D.D.C. 2017) (“Regardless of the matter’s
satisfaction of Rule 20(a)’s requirements, the Court still could order severance upon a sufficient showing of prejudice
to the defendant, delay, or potential for jury confusion.”); Rhodes v. Target Corp., 313 F.R.D. 656, 659 (M.D. Fla.
2016) (“[T]he Court finds that, even if Plaintiffs satisfy the technical requirements for permissive joinder, severance
of their claims is warranted because keeping the claims together does not foster the purposes of joinder.”); E. Cornell
Malone Corp. v. Sisters of the Holy Family, St. Mary’s Acad. of the Holy Family, 922 F.Supp.2d 550, 561 (E.D. La.
2013) (“[C]ourts may sever claims even where the requirements of Rule 20(a) … have been satisfied.”); Next Phase
Distrib., Inc. v. John Does 1–27, 284 F.R.D. 165, 168 (S.D.N.Y. 2012) (“Even if the requirements of permissive
joinder are met, courts maintain the discretion to sever defendants ….”).

3

A. Joinder under Rule 20
The Fifth Circuit has observed:
Courts have described Rule 20 as creating a two-prong test, allowing joinder of
plaintiffs when (1) their claims arise out of the same transaction, occurrence, or
series of transactions or occurrences and when (2) there is at least one common
question of law or fact linking all claims. Generally, as long as both prongs of the
test are met, permissive joinder of plaintiffs is at the option of the plaintiffs.
Id. (citations, internal quotation marks, and alteration omitted).
1. Same transaction or occurrence
While the Fifth Circuit appears to have not expressly addressed Rule 20’s transaction or
occurrence standard, it applies a “logical relationship” test to Rule 13(a)’s requirement that a
compulsory counterclaim “arise[] out of the transaction or occurrence that is the subject matter of
the opposing party’s claim.” Montgomery Elevator Co. v. Bldg. Eng’g Servs. Co., Inc., 730 F.2d
377, 380 (5th Cir. 1984). Consistent with this approach, “[t]he district courts in the Fifth Circuit
have used the ‘logical relationship’ analysis in determining whether the factual situation
constitutes a transaction, occurrence, or serious of transactions or occurrences for purposes of Rule
20.” Coll v. Abaco Operating LLC, No. 2:08-cv-345, 2009 WL 2857821, at *2 (E.D. Tex. Sept.
1, 2009) (collecting cases). Insofar as “[t]he logical-relationship test employed under Rule 13(a)
seems consistent with the philosophy underlying the passage in Rule 20 that allows joinder of
parties whenever the claims arise out of ‘the same series of transactions or occurrences,’” Hodges
v. Coldwell Banker Real Estate Corp., No. 4:05-cv-168, 2007 WL 1200118, at *2 (N.D. Miss.
Apr. 19, 2007), this Court will follow the lead of the other courts in this Circuit and apply the
logical relationship test here.
“The logical relation test is a loose standard which permits a broad realistic interpretation
in the interest of avoiding a multiplicity of suits.” Nat’l Liab. & Fire Ins. Co. v. R & R Marine,

4

Inc., 756 F.3d 825, 835 (5th Cir. 2014). “While using the ‘logical relationship’ concept, [the Fifth]
Circuit gives weight to whether the claim[s at issue] share an ‘aggregate of operative facts.’” N.Y.
Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5th Cir. 1998). Operative facts are “those relating
directly to the … claims” in an action. Wisey’s #1 LLC v. Nimellis Pizzeria LLC, 952 F.Supp.2d
184, 190 (D.D.C. 2013); see Wyandot Nation of Kan. v. United States, 115 Fed. Cl. 595, 598 (2014)
(“[F]acts are operative if they are relevant to establishing a claim.”).
In seeking severance, the defendants rely on Hamilton v. Burlington Northern Santa Fe
Railway Co.,2 an unpublished case with similar facts from the Western District of Texas; and a
line of cases from district courts rejecting consolidation of civil actions brought against insurers in
the wake of Hurricane Katrina. Doc. #415 at 16–18. In opposing severance, the plaintiffs do not
rely on specific authority but argue generally, “the Plaintiffs and the claims they advance are both
logically and legally related. They all arise out of, flow from and relate back to the activities of the
Defendants, which Plaintiffs allege resulted in the contamination of their properties by constituents
of concern used at the Grenada Facility.” Doc. #435 at 5.
As an initial matter, this Court finds the Katrina line of cases inapplicable to the facts at
issue here. Each Katrina case relied on by the defendants involved insurance claims against
defendant insurers. The various courts held that the hurricane itself could not qualify as a common
occurrence under Rule 20 because “the storm was vastly different in its effect depending on the
specific geographic location of each particular home.” Vaz v. Allstate Prop. & Cas. Co., No. 1:06cv-481, 2006 WL 2583733, at *1 (S.D. Miss. Sep. 6, 2006). In essence, the courts concluded that
while the hurricane was a common fact, the actions did not arise from the same occurrence because
the results of the storm differed from plaintiff to plaintiff. These conclusions are of little value in

2

No. 08-ca-132, 2008 WL 8148619 (W.D. Tex. Aug. 8, 2008).

5

deciding the instant motion to sever because the plaintiffs here do not seek to join their actions by
pointing to a single occurrence (such as a hurricane). Rather, the plaintiffs base their claims on
the defendants’ continued operation of the Grenada plant over numerous years.3
The plaintiffs’ arguments for joinder in this action are like those considered by the district
court in Fisher v. Ciba Specialty Chems. Corp., 245 F.R.D. 539 (S.D. Ala. 2007). In Fisher, five
individual property owners sued the past and current owners of a chemical manufacturing facility
located near the subject properties. Id. at 540. The Fisher defendants moved to sever on various
grounds, including the contention that the claims did not arise from the same transaction or
occurrence. Id. at 542. The district court rejected the defendants’ argument, finding the transaction
or occurrence requirement was satisfied by the aggregate of at least five operative facts: (1) the
creation of the alleged pollutant; (2) the migration of the alleged pollutant; (3) the characteristics
and impacts of the pollutants; (4) the impact of the pollutants on property values; (5) the
defendants’ statements to the public; (6) alleged manipulation of the government on the part of the
defendants; and (7) an alleged conspiracy involving the defendants to avoid cleaning up the
contamination. Id. at 542 & n.4.
Here, as in Fisher, the Court finds the plaintiffs’ claims share an aggregate of operative
facts. These facts include: (1) the creation of the alleged pollutant, including any acts of alleged
negligence on the part of the defendants; (2) the migration of the alleged pollutant; (3) the
characteristics and impacts of the pollutants; and (4) the impact of the pollutants on property
values. While, as the defendants point out, there will be differences in the plaintiffs’ proof (such
as the levels of contamination, the specific migration paths, and the ultimate impact on the
plaintiffs’ properties), the defendants point to no authority, and this Court is aware of none, which

3

See Doc. #43 at ¶¶ 1–4.

6

stands for the proposition that these differences preclude joinder under Rule 20. Indeed, unlike
the requirements for class action certification under Rule 23, Rule 20 includes “no predomination
[of facts and law] prerequisite for joinder ….” Fisher, 245 F.R.D. at 542. Accordingly, the Court
concludes that the claims are logically related and, therefore, arise from the same transaction,
occurrence, or series of transactions.4 See Ford v. Murphy Oil U.S.A., Inc., 750 F.Supp. 766, 773
(E.D. La. 1990) (“Chemcat’s motion to sever the claims asserted against it must fail. Plaintiffs’
claims against the four corporate defendants involve common questions of fact or law and all arise
out of the same series of occurrences—the emissions.”).
2. Common questions
“Rule 20’s second prong … does not require that every question of law or fact arising in
the action be shared among the parties. Rather, the rule permits party joinder whenever there will
be at least one common question of law or fact.” Jamison v. Purdue Pharma Co., 251 F.Supp.2d
1315, 1323 (S.D. Miss. 2003) (emphasis, quotation marks, and alterations omitted) (quoting 7
Charles Alan Wright & Arthur R. Miller, FED. PRAC. & PROC. CIV. § 1653 (3d ed. 2002.)).
The Court concludes that the operative facts described above also satisfy Rule 20’s second
prong. Accordingly, joinder under Rule 20 was proper.
B. Severance under Rule 21
As explained above, Rule 21 provides district courts with discretion to sever claims. A
district court may exercise this discretion if an action “is misjoined or might otherwise cause delay
or prejudice.” Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 574 (5th Cir. 1995). In applying
4

In reaching this conclusion, the Court rejects as unpersuasive the Hamilton decision relied on by the defendants. In
Hamilton, the district court granted a motion to sever claims brought by property owners against past and current
owners of a wood treatment plant. 2008 WL 8148619, at *1. However, in granting the motion, the court did not
reference or rely on Rule 20 standards. Rather, the court appeared to rely on an order from a previous case which
dealt with pleading standards.

7

this discretion, district courts in the Fifth Circuit “have settled on a standard which accords with
that used in other circuits.” In re Rolls Royce Corp., 775 F.3d 671, 680 n.40 (5th Cir. 2014). Under
such standard, courts consider five factors:
(1) whether the claims arise out of the same transaction or occurrence; (2) whether
the claims present some common questions of law or fact; (3) whether settlement
of the claims or judicial economy would be facilitated; (4) whether prejudice would
be avoided if severance were granted; and (5) whether different witnesses and
documentary proof are required for the separate claims.
Id.
1. Factor 1 (same transaction or occurrence) and
Factor 2 (common questions of law or fact)
This Court has already concluded that the claims arise from the same transaction or
occurrence and that they present numerous common questions of law and fact. Accordingly, the
Court concludes that the first two factors, which incorporate Rule 20’s proper joinder inquiry,
weigh against severance.
2. Factor 3 (settlement or judicial economy facilitated)
The plaintiffs argue the motion to sever “should be denied because nine separate trials
would be inefficient, would monopolize this Court’s schedule, and would pose the risk of
inconsistent results.” Doc. #435 at 3. In this regard, the plaintiffs estimate that severance “would
result in at least seven hundred and two (702) separate testimonial events before this Court (as
opposed to approximately 80 [if severance was denied]).” Id. The defendants respond that these
estimates, which rely on potential rather than likely witnesses, are greatly exaggerated and that
“efficiency is not the paramount value in applying Civil Rules 20 and 21; a fair trial is.” Doc.
#450 at 4–5.
The defendants are correct that a court may sever claims to avoid prejudice even when
doing so would be inefficient. Applewhite, 67 F.3d at 574. However, this fact does not preclude
8

consideration of efficiency in deciding whether to sever. Furthermore, while it may be likely that
the plaintiffs overestimate the degree of inefficiency of separate trials, there can be no serious
dispute that, given the overlapping issues discussed above, a single trial would be more efficient
than nine separate trials. Accordingly, the third factor weighs against severance.
3. Factor 4 (prejudice avoided)
The defendants argue continued joinder would prejudice their right to a fair trial due to:
(1) differences in the strength of the plaintiffs’ cases with regard to claims of vapor intrusion and
purported trespass; (2) differences in the size, age, location, and condition of the various properties;
(3) the individualized determinations necessary for damages arising from interference with the use
and enjoyment of properties; and (4) the applicability of the statute of limitations to some claims.
Essentially, the defendants argue they will suffer prejudice because the plaintiffs’ cases are of
varying strength and involve plaintiff-specific issues.
In Fisher, the district court addressed nearly identical arguments, ultimately concluding:
Defendants also maintain that a joint trial would be ‘extremely prejudicial’ to them.
This objection is apparently threefold, to-wit: (a) a multiplicity of plaintiff-specific
facts will confuse the jury; (b) to the extent that one plaintiff’s claims are stronger
than the others’, evidence as to that plaintiff may unfairly taint the jury as to the
other plaintiffs’ claims; and (c) consolidation for trial will allow plaintiffs to
‘bolster their individually weak cases by a suggestion that contamination is
widespread.’ None of these considerations are persuasive. As an initial matter, the
risk of jury confusion in determining which facts attach to which plaintiffs appears
minimal. Federal juries are routinely asked to parse facts that are relevant to
particular claims or particular parties, and are able to do so without difficulty so
long as counsel presents the evidence in a cogent, orderly fashion that makes clear
which evidence attaches to which particular claims or defenses. Furthermore,
defendants’ ‘taint’ argument disregards the ready availability of limiting
instructions (should counsel draft and propose same) designed specifically to
circumscribe the uses for which particular evidence may be considered, as well as
pattern charges stressing that the claims and defenses of each party must be
considered separately and independently from those of each other party. There is
no reason to believe that a jury would be unwilling or unable to follow such
instructions in this case; therefore, defendants’ protestations of prejudice are
misplaced.
9

Fisher, 245 F.R.D. at 543–44 (alterations, record citations, and footnotes omitted).
This Court agrees that a proper presentation of evidence, paired with proper instructions,
will eliminate any prejudice that may arise from any differences in the relevant claims.
Accordingly, the Court concludes that this factor weighs against severance.
4. Factor 5 (different witnesses and documentary proof)
Neither party appears to have directly addressed the final factor. However, it appears to
this Court that the claims would involve significant overlap in witnesses and documentary proof.
Accordingly, the Court concludes that the final factor weighs against severance.
5. Balancing
In sum, all relevant factors weigh against severance. Accordingly, the defendants’ motion
to sever will be denied.
IV
Conclusion
For the reasons above, the defendants’ motion to sever [414] and motion to supplement
[528] are DENIED.
SO ORDERED, this 24th day of April, 2018.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

10