Troupe et al v. Barbour et al

Filing 154

ORDER finding as moot #130 Motion for Reconsideration ; granting #138 Amended Motion for Reconsideration Re: 127 Order of Consolidation. For the reasons stated in this order, THESE CASES ARE NO LONGER CONSOLIDATED Signed by District Judge Henry T. Wingate on 3/19/2017 (CGC) Modified on 10/30/2018 (cwl).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
UNITED STATES OF AMERICA

PLAINTIFF

V.

CIVIL ACTION NO. 3:16-CV-622-CWR-FKB

STATE OF MISSISSIPPI

DEFENDANT
CONSOLIDATED WITH

MARY TROUPE, et al.

PLAINTIFFS

V.

CAUSE NO. 3:10-CV-153-HTW-LRA

GOVERNOR PHIL BRYANT, et al.

DEFENDANTS
ORDER

This Court has pending before it the amended motion of plaintiff L.S., [doc. no. 138],
asking this court to reconsider and vacate the December 6, 2016 Order of the Magistrate
Judge which consolidated the case of United States v. Mississippi, No. 3:16-cv-622-CWRFKB (“DOJ” case) with Troupe v. Barbour, No. 3:10-cv-153-HTW-MTP (“Troupe”). The
Magistrate Judge’s order of consolidation is found at docket. no. 127.
BACKGROUND
At the time of filing, the Troupe plaintiffs were a group of Medicaid-eligible children
who allegedly suffered from a variety of behavioral, emotional and mental health disorders.
They contended that they were forced to seek treatment in restrictive residential-treatment
facilities which severed connections with family and peers and exacerbated their mental
disorders. These plaintiffs claimed that the defendants’ failure to provide adequate mental

health services violated the Americans with Disabilities Act (“ADA”)1 and the Rehabilitation
Act.2 These plaintiffs sought to be certified to represent a class composed of all children
under the age of twenty-one with behavioral or emotional disorders, who are in need of
intensive home- and community-based mental health services, but are not receiving such
services.
The DOJ case, filed by the United States Department of Justice, alleges that the State
of Mississippi (hereafter “State”) discriminates against adults with mental illness by
providing treatment that relies on repeated, long periods of institutionalization. This, the
United States claims, is in violation of Title II of the Americans with Disabilities Act of 1990
(“ADA”). The United States seeks to have the State provide community-integrated services,
programs, and activities for these adults.
The defendants 3 in both cases filed a motion to consolidate, claiming the two
lawsuits involved common issues of fact and law and should be consolidated pursuant to
Rule 42(a) of the Federal Rules of Civil Procedure [doc. no.112]. Rule 42(a) provides as
follows: “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.”
The State pointed to factors that it claimed favored consolidation. Both matters were
pending in the same federal court district; and, although the Troupe case involves children

1

The Americans with Disabilities Act (ADA) is codified as Title 42 U.S.C. §12101, et seq.
The Rehabilitation Act is codified as Title 29 U.S.C. § 701, et seq.
3
In Troupe v. Barbour, civil action no. 3:10-cv-153, the defendants are: the Governor, Director of
Medicaid, Chairman of the Board of Mental Health, and Director of the Department of Mental Health for
the State of Mississippi, in their official capacities. In United States v. State of Mississippi, civil action no.
3:16-cv-622, the State of Mississippi is the defendant.
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and the DOJ lawsuit involves adults, any changes in how the State treats persons with mental
illness would necessarily involve changes for the care of both children and adults, the State
claimed. Without consolidation, the State contended, there was a threat of inconsistent
results.
The Troupe plaintiffs took no position as to consolidation, but the United States
objected, [doc.no.118], stating the cases were factually and legally distinct and involved
different plaintiffs. The delay that would result from consolidation, according to the United
States, would unduly prejudice the adults with mental illness on whose behalf they sued, and
the inevitable delay would offset any potential reduction of costs and judicial resources. The
two cases, according to the United States, will require separate discovery, dispositive
motions, factual findings, witnesses, trial and remedies.
THE ORDER OF CONSOLIDATION
Magistrate Judge Michael T. Parker considered the motion. In deciding whether to
consolidate cases the courts look at a variety of factors, including the following:
(1)whether the actions are pending before the same court; (2) whether common
parties are involved in the cases (3) whether there are common questions of law
and/or fact, (4) whether there is a risk of prejudice or confusion if the cases are
consolidated, and if so, is the risk outweighed by the risk of inconsistent
adjudications of factual and legal issues if the cases are tried separately, (5)
whether consolidation will conserve judicial resources, (6) whether
consolidation will result in an unfair advantage, (7) whether consolidation will
reduce the time for resolving the cases, and (8) whether consolidation will
reduce the cost of trying the cases separately.
Crest Audio, Inc. v. QSC Audio Prods., Inc., Civil Action Nos. 3:12-cv-755-CWRFKB, 3:13-cv-610-CWR-FKB 2016 WL 3249217 (S.D. Miss. Mar. 4, 2016) (quoting
In re Camp Arrowhead, Ltd, Civil Action No. SA-10-cv-170-XR, 2010 WL 841340, at
*1 (W.D. Tex. Mar. 4, 2010).
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The Magistrate Judge conducted a thorough analysis of the above factors and
correctly concluded that most of the factors weighed in favor of consolidation at the
time. The Magistrate judge found: a) that the cases were pending in the same court; b)
some parties were the same; c) there were common questions of law and fact; d)
consolidation posed little risk of prejudice, confusion, or inconsistent rulings; e)
consolidation would help conserve judicial resources f) no unfair advantage would be
created; g) the reduction of time issue weighed against consolidation; h) costs to the
parties would be reduced. The motion was granted and the cases were consolidated by
order of December 6, 2016 [doc. no. 127].
On December 9, 2016, the Troupe plaintiffs, joined by the United States, filed a
motion urging reconsideration of the order of consolidation, citing to changed
circumstances [doc. nos. 130 and 131]. On January 20, 2017, the Troupe plaintiffs filed
an amended motion for reconsideration. The defendants oppose the motion. This court
conducted a hearing in this matter on February 10, 2017, and heard oral arguments from
the parties.
ANALYSIS
These plaintiffs point out that over the course of the litigation of Troupe, three
of the original four plaintiffs in that case have become adults. Their claims are no
longer appropriate for adjudication in Troupe, which sought to improve mental health
services for children in Mississippi. The three have filed for voluntary dismissal of
their claims pursuant to Federal Civil Rule of Civil Procedure 41(a)(2) [doc. no. 134].
L.S., who is still a minor, is the only remaining plaintiff in the Troupe litigation.

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Additionally, the Troupe plaintiffs originally sought class certification. L.S. no
longer seeks class certification in this matter because of the substantial change in
circumstances for the original plaintiffs. The motion for class certification has been
withdrawn. L.S. is pursuing his individual claim under the ADA and Section 504 of the
Rehabilitation Act. The suit on his behalf seeks to have the State of Mississippi provide
home and community-based services to him, a person with moderate intellectual disability
and a co-occurring mental illness. He requests the State to provide these services in the
most integrated setting appropriate to his needs.
The DOJ case, on the other hand, attempts to address appropriate treatment for the
thousands of adults in Mississippi with mental illness. According to L.S., saddling his case
with that of the DOJ lawsuit will result in manifest injustice and further delay in obtaining a
solution to the problems surrounding his treatment. The DOJ action, he contends, seeks
systemic, statewide relief, whereas L.S. seeks only to have his individual mental health needs
met by the State of Mississippi.
According to L.S., his primary needs center around his developmental disability,
rather than his mental illness; thus there is less likelihood of overlap of the legal and factual
issues. The state agencies responsible for addressing the issues for L.S. will differ from
those against whom the United States will be seeking injunctive and equitable relief for the
adult population with mental illness. For instance, L.S. asserts, the Bureau of Intellectual
and Developmental Disabilities is responsible for providing services for individuals with
intellectual disabilities, such as L.S., but is not likely to be a part of the solution in the DOJ
lawsuit.

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Since the posture of the Troupe case is vastly different than when consolidation was
granted by the Magistrate Judge, this court now undertakes a new analysis of the factors to
be addressed, in light of those changed circumstances. Consolidation can be reassessed in
light of subsequent developments. See, e.g., Pedigo v. Austin Rumba, Inc., No. A-08-CA803-JRN, 2010 WL 2730463, AT*2 (W.D. Tex. June 24, 2010) (denying motion to
consolidate and noting possibility of reconsideration if circumstances “change with future
development of the two cases”)
We begin first with the premise that the district court has wide discretion when
making a determination whether to consolidate or not, and is not required to consolidate even
in the face of some common questions of law and fact. Mills v. Beech Aircraft Corp., 886
F.2d 758, 762 (5th Cir. 1989 (the power of the court is purely discretionary). See also, Alley
v. Chrysler Credit Corp., 767 F.2d 138, 140 (5th Cir. 1985).
The court may refuse a request to consolidate if consolidation will cause delay in one
or more of the individual cases, or will lead to confusion or prejudice in the management or
trial of the case. As Magistrate Judge Parker did, this Court has reviewed the Crest Audio
factors listed above. The Court is of the opinion that the majority of the factors no longer
weigh in favor of consolidation.
Given the disparities in the two cases, no savings in costs, time or judicial resources is
anticipated. DuPont v. S. Pac. Co., 366 F.2d 193, 196 (5th Cir. 1966). In deciding whether
to consolidate, a court should weigh the amount of time, money, and effort that consolidation
would save against any inconvenience, delay, or expense that might result. Axcess
International, Inc. v. Savi Technologies, Inc., .2011 WL 13089393 (N.D. Tex. Nov. 9, 2011).
Arnold v. E. Airlines, 681 F.2d 186, 193 (4th Cir. 1982); see also St. Bernard Gen. Hosp. v.
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Hosp. Serv. Ass'n of New Orleans, 712 F.2d 978, 989 (5th Cir. 1983) (citing In re Dearborn
Marine Serv., Inc., 499 F.2d 263, 270-71 (5th Cir. 1974)). Foremost among the factors to be
considered is whether consolidation would prejudice the rights of the parties. If so, it is
improper. Dupont v. Southern Pacific Co., 366 F.2d 193, 195–96 (5th Cir.1966), cert.
denied, 386 U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 106 (1967).
This court is of the opinion that if the cases remain consolidated, there is a strong
likelihood that manifest injustice will result to L.S. Consolidation of his individual claims
with those brought by the United States will substantially increase the time and cost to
litigate his claims. The Troupe case is the older of the two cases and is much further along in
the litigation process. The defendants’ dispositive motions have been heard and ruled on in
that case, whereas no dispositive motions have been filed yet in the DOJ case. Discovery in
the DOJ case is in its early stages, and given the number of people affected, it is expected
that discovery will be prolonged and complex.
Troupe, as an individual claim, is reasonably expected to be tried within the current
year, while it is highly unlikely that the DOJ case will be ready for trial for at least another
year, due to the sheer number of persons involved in that litigation and the procedural
complexities presented.
The Magistrate Judge, in consolidating the two cases, found that Troupe and the DOJ
case both presented broad challenges to Mississippi’s public policies concerning the
provision of services and treatment under Medicaid to those with mental illness. As the
plaintiffs in both cases point out, this is no longer the case.

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CONCLUSION
This court finds: a) that the cases are pending in the same court; b) only the
defendants are the same; c) there are common questions of law but few common questions
of fact; d) consolidation poses risk of prejudice, confusion, or inconsistent rulings in the
present circumstance ; e) consolidation would not significantly help conserve judicial
resources f) an unfair advantage might be created as to the defendants g) the issue regarding
the reduction of time still weighs against consolidation; and h) costs to the parties would not
be reduced, and would, in fact, be increased for L.S.
For all of the reasons discussed above, this court is persuaded that the amended
motion to reconsider the order of consolidation [doc. no.38] should be and hereby is granted
and the Magistrate Judge’s order of December 6, 2016, [doc. no. 127] is vacated. Plaintiff’s
previous motion to reconsider the order of consolidation [doc. no. 130] was supplanted by
the amended motion and is, therefore, moot. These cases are no longer consolidated. The
clerk is instructed to make the appropriate changes to the docket.
SO ORDERED AND ADJUDGED, this the 19th day of March, 2017.
________s / HENRY T. WINGATE_________ 
UNITED STATES DISTRICT COURT JUDGE

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