E Biofuels-Mead v. Skinner Tank

Filing 81

ORDER - The Motion to Consolidate (filing 68 ) is denied. A telephonic planning conference will be held with the undersigned on Thursday, August 16, 2012, at 10:30 a.m. to discuss progression of this case. Plaintiff's counsel shall initiat e the call to chambers. In advance of the planning conference, the parties shall confer and submit to the Court a proposed progression schedule. The Joint Motion for Oral Argument on Motion to Consolidate (filing 76 ) is denied as moot. Ordered by Magistrate Judge F.A. Gossett. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
E BIOFUELS-MEAD, LLC,
Plaintiff,
V.
SKINNER TANK, Company,
Defendant.

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8:06CV706

ORDER

This matter is before the Court on Defendant Skinner Tank Company’s (“Skinner
Tank”) Motion to Consolidate (filing 68).1 Skinner Tank requests that this suit (hereinafter
the “Skinner action”) be consolidated with E3 Biofuels, LLC v. Biothane Corp., Case No.
8:11CV44 (D. Neb. 2011) (hereinafter the “Biothane action”).2 Plaintiff E3 Biofuels (“E3")
and Third-Party Defendant Dilling Mechanical Contractors, Inc. (“Dilling”) oppose the
motion. For the reasons set forth below, Skinner Tank’s motion will be denied.
BACKGROUND
Both the Skinner action and the Biothane action arise out of the construction of an
Ethanol Plant (the “Plant”) in Mead, Nebraska. In the Skinner action, E3 alleges that Skinner
Tank breached its contract to design and assemble tanks and supporting structures for the
Plant and that Skinner Tank was negligent in the construction of the tanks. In the Biothane
action, E3 contends that Biothane breached its contract to provide a functional boiler system
for the Plant and that Biothane and PEI were negligent in the start-up and integration of the

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Biothane, LLC (“Biothane”) and Perennial Energy, Inc. (“PEI”), the defendants in
the Biothane action, have joined in this Motion to Consolidate and have also filed a motion
to consolidate in the Biothane action, to which Skinner Tank has joined.
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Skinner Tank also moved to consolidate this action with E3 Biofuels, LLC v. Dilling
Mechanical Contractors, Inc., Case No. 8:11CV43 (D. Neb. 2011). However, subsequent
to the filing of the Motion to Consolidate, that action was settled.

boiler system. In each suit, E3 claims that the alleged contractual breaches and negligence
delayed construction of the Plant and resulted in additional construction expenses and loss
of operating revenue.
The Skinner action was filed on November 13, 2006, and is assigned to District Court
Judge Joseph Bataillon for disposition. By order dated December 3, 2007 (filing 57), the
Skinner action was transferred to bankruptcy court upon E3's Suggestion of Bankruptcy
(filing 56). On May 29, 2012, following a transfer from Kansas Bankruptcy Court back to
this Court, this case was reinstated (filing 59). At that time, Judge Bataillon requested that
the undersigned hold a status conference with the parties as soon as possible and, if
appropriate, place the case on an expedited progression schedule.3 (Id.)
The Biothane action was filed on February 8, 2011, and is assigned to Chief District
Court Judge Laurie Smith Camp. Discovery has commenced, however, a final progression
order has not been entered.
ANALYSIS
Federal Rule of Civil Procedure 42(a) allows for consolidation of cases involving
common issues of law or fact as a matter of convenience and economy in judicial
administration. Fed. R. Civ. P. 42(a). “The district court is given broad discretion to decide
whether consolidation would be desirable and the decision inevitably is contextual.” Cisler
v. Paul A. Willsie Co., Case No. 8:09CV365, 2010 WL 3237222, *2 (D. Neb. Aug. 13,
2010). The consent of the parties is not required for consolidation. Id. Whether to grant a
motion to consolidate is within the sound discretion of the court. Id. When ruling on a
motion to consolidate, “[t]he court must weigh the saving of time and effort that would result
from consolidation against any inconvenience, expense, or delay that it might cause. Id.
Lawsuits involving the same parties are “apt candidates for consolidation.” Id. (quotation

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A status conference was held with the parties on June 21, 2012. At that time, the
Motion to Consolidate was discussed and it was agreed that a follow-up conference would
be scheduled following a ruling on the motion. (Filing 75.)
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and citation omitted). However, consolidation is inappropriate “if it leads to inefficiency,
inconvenience, or unfair prejudice to a party.” EEOC v. HBE Corp., 135 F.3d 543, 551 (8th
Cir. 1998).
Having reviewed the matter, the undersigned finds that consolidation of the actions
is inappropriate. While there may be some common issues of fact and law in the cases, the
defendants in each of the actions are different. Plaintiff E3 is the only party currently
involved in each of the suits. Also, the Skinner action was filed in 2006, far in advance of
the Biothane case. In fact, the boiler explosion giving rise to the Biothane suit did not occur
until after the Skinner action had been filed. Given the age of the Skinner action, it is
probable that the case will be placed on an expedited progression schedule. Consolidating
the suits would likely lead to further delays in the Skinner action.
Accordingly,
IT IS ORDERED:
1.

The Motion to Consolidate (filing 68) is denied.

2.

A telephonic planning conference will be held with the undersigned on
Thursday, August 16, 2012, at 10:30 a.m. to discuss progression of this case.
Plaintiff’s counsel shall initiate the call to chambers.

3.

In advance of the planning conference, the parties shall confer and submit to
the Court a proposed progression schedule.

4.

The Joint Motion for Oral Argument on Motion to Consolidate (filing 76) is
denied as moot.

DATED July 23, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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