Lonberger et al v. OMNI Indemnity Company et al

Filing 39

ORDER granting 30 Motion to Sever: Ordered that this civil action no. 1:13cv243 LG-JMR be severed into individual actions, one for each named Plaintiff. The current case shall be closed upon the individual cases being severed and replaced by new filings. The Court further finds the severed cases should be consolidated for discovery only. Signed by Magistrate Judge John M. Roper on 9/23/13. (RLW)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MELVIN LONBERGER, ET AL
V.

PLAINTIFFS
CIVIL ACTION NO.: 1:13cv243 LG-JMR

OMNI INDEMNITY COMPANY, ET AL

DEFENDANTS

ORDER
This matter is before the Court on the Motion [30] to Sever of Defendant,
OMNI Indemnity Company filed on August 6, 2013, the response brief [34] of the
Plaintiff filed on August 20, 2013 and the rebuttal brief [38] of the Defendant filed on
September 18, 2013.

After consideration of the record, the motion and the

memorandum presented, the Court finds that this motion should be granted.
This action was filed originally in the Circuit Court of Harrison County,
Mississippi on January30, 2013. Plaintiffs contend that Omni Indemnity Company
(“OMNI”) was grossly negligent in their conduct regarding the 2011 and 2010 motor
vehicle accidents of insureds, Melvin Lonberger and Bobbie Lonberger . (Plaintiff’s
Complaint attached as Exhibit A to the pending Motion to Sever [30]).
When considering the joinder of multiple plaintiffs in an action, Mississippi
courts have interpreted Rule 20 of the Federal Rules of Civil Procedure to require that
plaintiffs in one action may be joined only 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. Campbell v. Lowe’s Home
Centers, Inc., 2009 WL 4782096 (S.D. Miss., 2009), Gatewood v. Koch Foods of
Miss., 2009 WL 8642001 (S.D. Miss. 2009). Both the “same transaction” and the
“question of law or fact common to all” prongs must be met in order for joinder to be
proper. Palermo v. Letourneau Technologies, Inc., 542 F.Supp.2d 499, 517-18 (S.D.
Miss. 2008).
Pursuant to Rule 21, parties may be dropped by order of the court on motion of
any party, and any claim against a party may be severed and proceeded with
separately. Smith v. Coldwell Banker Real Estate, 2007 WL 2701541 (N.D. Miss.,
2007).
Plaintiffs’ Complaint asserts claims arising out of injuries suffered by each
Plaintiff who was “seriously injured in separate motor vehicle accidents.” [ 1, Exhibit
“A,” to the Motion to Sever [30] p.3]. The Complaint goes into further detail to
describe the alleged medical bills incurred by Melvin Lonberger” in the 1st year from
1/19/11 – date of Melvin’s MVA” and those incurred by Bobbie Lonberger “in the 1st
year from 2/1/10 – date of Bobbie’s MVA.” Id . The Complaint further distinguishes
the two accidents when it sets forth the allegations arising out of “Melvin Lonberger’s
01/19/11 MVA” [1] and “Bobbie Lonberger’s 2010 MVA” [1]. The allegations in the

Complaint [1] arising out of these accidents are linked to distinct an separate motor
vehicle accidents that occurred during different policy periods.
The Complaint alleges Defendant is liable for extra-contractual damages on the
basis that each Plaintiff was “further injured and damaged after each MVA.” [1,
Exhibit “A,” at p. 3]. Plaintiffs’ claims against Omni arise out of a policy “sold to
Plaintiffs in 2009-2012.” Id. at p. 4. The declarations pages attached as exhibits to
Plaintiffs’ Complaint indicate that the policy period was six months, further
establishing that the February 1, 2010 motor vehicle accident and the January 19,
2011 motor vehicle accident occurred during different policy periods. [1, Ex. 1].
The causes of action asserted in Plaintiffs’ Complaint against Omni arise
exclusively out of the adjusting, handling, and alleged denial and delay in paying
benefits. Plaintiffs allege that these benefits were due as a result of the injuries
suffered in the two separate motor vehicle accidents with different vehicles, to
different Plaintiffs with different injuries. For instance, Plaintiff, Melvin Lonberger’s
claims, arise out of injuries and an alleged failure to timely pay benefits under an
insurance policy related to a motor vehicle accident that occurred on January 19, 2011.
While, Bobbie Lonberger’s claims, arise out of her injuries and claims related to a
motor vehicle accident that occurred on February 1, 2010. Clearly, the causes of
action arise out of different occurrences, with different injuries and different policies.
As the allegations in the Complaint arise out of two distinct and separate motor

vehicle accidents and the subsequent handling of two distinct claims alleged to have
been filed under different policy periods, the Court finds that these causes of actions
should be severed as there is no question of fact or law common to either Melvin
Lonberger’s and Bobbie Lonberger’s claims.
IT IS THEREFORE ORDERED AND ADJUDGED THAT Defendant’s
Motion to Sever is GRANTED.
1. All Plaintiffs’ claims in civil action no.1:13cv243LG-JMR be severed into
individual actions, one for each named Plaintiff.
2. The Clerk shall copy the pleading and exhibits from 1:13cv243LG-JMR
which shall then be included as a part of the record for each severed case.
3. The Clerk shall assign an individual civil action number to the severed case.
4. Within thirty (30) days of this Order, each Plaintiff shall file a separate
amended complaint setting forth specific factual allegations regarding his or her
claims, however, Plaintiffs will not be required to pay any additional filing fees.
5. The current case shall be closed upon the individual cases being severed and
replaced by new filings.
6. On or prior to October 4, 2013, all pre-discovery disclosure of case
information or other cooperative discovery devices provided for in the Uniform Local
Rules of the United States District Courts of Mississippi 26.1(A) and Federal Rules
of Civil procedure 26(a)(1) which have not been previously furnished by the parties

shall be disclosed pursuant to said rules.
7. The Court further finds the severed cases should be consolidated for
discovery only. These cases should be placed on the Court’s November 3-14, 2014
trial calendar with a pre-trial conference of October 22-24, 2014. ANY CONFLICTS
MUST BE IMMEDIATELY SUBMITTED ON WRITING TO THE TRIAL JUDGE
UPON RECEIPT OF THIS ORDER. The discovery deadline shall be May 23, 2014
and the motion deadline shall be June 6, 2014. Plaintiff’s expert designation deadline
shall be February 3, 2014 and Defendant’s expert designation deadline shall be March
5, 2014. A settlement conference will be held on May 27, 2014 at 9:00 A.M. Parties
with full settlement authority must be physically present. Confidential memoranda
must be submitted on or prior to May 20, 2014. Interrogatories, Requests for
Admissions and Production are limited to 25 succinct questions. Depositions are
limited to the parties experts and no more the ten fact witness depositions per party.
SO ORDERED this the 23rd day of September , 2013
/S/ John M. Roper, Sr.
CHIEF UNITED STATES MAGISTRATE JUDGE