Sampson v. Schenck et al

Filing 518

ORDER granting (485) and (488 )Motion to Consolidate Cases; in case 8:07-cv-00155-JFB-TDT; granting (375) and (378) Motion to Consolidate Cases in case 8:08-cv-00107-JFB-TDT. Trial is set to commence, at the courts call, during the week of Octo ber 21, 2013, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon and a jury. Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of the Court within fourteen (14) days after being served with a copy of this Order. Failure to timely object may constitute a waiver of any objection. Ordered by Magistrate Judge Thomas D. Thalken. (MKR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NICHOLAS SAMPSON,
Plaintiff,

8:07CV155

vs.
INV. EARL SCHENCK, in his official
and individual capacities; INV.
WILLIAM LAMBERT, in his official and
individual capacities; SGT. SANDY
WEYERS, in her official and individual
capacities; INV. CHARLES
O’CALLAGHAN, in his individual and
official capacities; DOES 1-8, in their
official and individual capacities;
CASS COUNTY SHERIFF’S OFFICE, a
Nebraska political subdivision; DAVID
KOFOED, in his official and individual
capacities; and DOUGLAS COUNTY
SHERIFF’S OFFICE, a Nebraska
political subdivision,

ORDER

Defendants,
MATTHEW LIVERS,
8:08CV107
Plaintiff,
vs.
EARL SCHENCK, Cass County
Sheriff’s Investigator; WILLIAM
LAMBERT, Nebraska State Patrol
Investigator; CHARLES
O’CALLAGHAN, Nebraska State Patrol
Investigator; SANDRA WEYERS, Cass
County Sheriff’s Sergeant; COUNTY
OF CASS, NEBRASKA; DAVID
KOFOED, Commander of the Douglas
County Sheriff’s Office Crime Scene
Investigation Division; TIM DUNNING,
Sheriff of Douglas County; and
COUNTY OF DOUGLAS, Nebraska,
Defendants.

ORDER

This matter is before the court on the defendants’ motions to consolidate (Filing
Nos. 485 and 488 in Sampson v. Schenck, et al., 8:07CV155 (Sampson); Filing Nos.
375 and 378 in Livers v. Schenck, et al., 8:08CV107 (Livers))1. The defendants filed
briefs (Filing No. 486 in Sampson; Filing No. 376 in Livers) in support of the motions.
The plaintiffs filed briefs (Filing No. 492 in Sampson; Filing No. 384 in Livers) and an
index of evidence (Filing No. 493 in Sampson) in opposition to the motions.

The

defendants filed a brief (Filing No. 496 in Sampson; Filing No. 386 in Livers) in reply.
The plaintiff filed a supplemental brief (Filing No. 497 in Sampson) in opposition. The
defendants filed a brief (Filing No. 505 in Sampson) in surreply. The defendants filed
an amended surreply brief (Filing No. 509 in Sampson).

BACKGROUND
This case arises from an investigation into the April 17, 2006, murders of Wayne
and Sharmon Stock in Murdock, Nebraska. The plaintiffs, Matthew Livers (Livers) and
Nicholas Sampson (Sampson), were arrested and jailed awaiting trial for the murders
after Livers confessed to the murders and implicated Sampson as an accomplice.
Subsequently, after different individuals confessed to the murders, Livers and Sampson
were released from jail and charges were dropped without prejudice.
On June 3, 2009, Sampson filed an amended complaint alleging violations of his
civil rights arising from the homicide investigation. See Filing No. 232 - Amended
Complaint in Sampson. Sampson seeks monetary damages for violations of his civil
rights under the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the
United States Constitution. Id. Sampson generally alleges the defendants fabricated
evidence to create the appearance of probable cause to justify Sampson’s arrest,
arrested Sampson without probable cause, and concealed exculpatory evidence. Id.

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The defendants Earl Schenck, Sandy Weyers, the Cass County Sheriff’s Office, and Cass County,
Nebraska filed the Joint Motion to Consolidate Pursuant to Fed. R. Civ. P. 42(a) and represented the
defendants William Lambert, Charles O’Callaghan, Tim Dunning, the Douglas County Sheriff’s Office, and
Douglas County, Nebraska, join in the motions. See Filing No. 485 - Motion p. 2 in Sampson; Filing No.
375 - Motion p. 2 in Livers. Douglas County, Nebraska, filed a separate Joinder in Motion to
Consolidate. See Filing No. 488 - Joinder in Sampson; Filing No. 378 - Joinder in Livers. William
Lambert and Charles O’Callaghan also filed notices of joinder to the motions to consolidate. See Filing
No. 487 - Joinder in Sampson; Filing No. 377 - Joinder in Livers. The defendant David Kofoed did not
participate in the motions.
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On April 2, 2010, Livers filed a second amended complaint alleging similar violations of
his civil rights arising from the homicide investigation. See Filing No. 238 - Second
Amended Complaint in Livers. Livers generally alleges the defendants coerced Livers’
confession, fabricated evidence, arrested Livers without probable cause, and concealed
exculpatory evidence. Id. Livers also seeks monetary damages for violations of his civil
rights under the Fourth, Fifth, and Fourteenth Amendments of the United States
Constitution. Id.
On June 30, 2008, the cases were consolidated for purposes of discovery. See
Filing No. 78 - Order in Sampson. The court noted:
Both plaintiffs allege the investigation was characterized by
police misconduct including coercion of the plaintiffs and
witnesses, fabrication of evidence and concealment of
exculpatory evidence. Based on the investigation, the
plaintiffs allege false murder charges were filed against the
plaintiffs and they were incarcerated for over five months.
Both plaintiffs allege claims against the defendants in their
official and individual capacities pursuant to 42 U.S.C. §
1983. The named defendants in both cases are the same.
Id. On November 24, 2008, Sampson filed a motion for severance. See Filing No. 136
- Motion in Sampson.

In the motion, Sampson stated he originally believed

consolidation would allow discovery to proceed in a spirit of cooperation.

Id.

Nevertheless, Sampson stated there was conflict between counsel regarding sharing
information.

Id.

On December 29, 2008, this court severed the cases stating

“[o]rdinarily the fact that counsel are unable to collaborate effectively during discovery
would not justify cleaving one case into two. However, counsel believe their differences
of opinion will actually impair the plaintiffs’ positions in their individual lawsuits.” See
Filing No. 159 - Order in Sampson. The defendants did not oppose the motion for
severance.
The defendants filed the instant motions to consolidate on January 8, 2013. See
Filing Nos. 485 and 488 in Sampson; Filing Nos. 375 and 378 in Livers.

The

defendants argue these cases warrant consolidation because the cases arise out of the
same operative facts, raise the same legal issues, assert the same damages claims,
involve the same defendants, and the court will hear testimony from the same witnesses
in both cases.

See Filing No. 486 - Brief p. 3-5 in Sampson.
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Specifically, the

defendants argue the plaintiffs were arrested within hours of each other as part of the
same criminal investigation and filed similar complaints with nearly identical claims and
requests for damages. Id. The defendants argue the two cases will require the court to
hear the same evidence from the same witnesses and the court will issue similar sets of
jury instructions. Id. The defendants argue the cases have progressed to the same
stage and requiring the parties to try each case individually will waste judicial resources
and jurors’ time. Id. The defendants also note these cases were consolidated on
appeal. Id.; see Filing No. 478 - United States Court of Appeals for the Eighth Circuit
Opinion p. 17 in Sampson.
The defendants argue consolidation will not prejudice the plaintiffs. See Filing
No. 496 - Reply p. 7 in Sampson; Filing No. 386 - Reply p. 6 in Livers. The defendants
argue the true cause for concern is the potential prejudice against the defendants;
however, the defendants argue these cases arise out of the same circumstances and
involve the same issues of law such that consolidation will avoid inefficiency and
unnecessary cost or delay.

See Filing No. 496 - Reply p. 9 in Sampson. The

defendants argue the plaintiffs’ theories of liability are not contradictory and a jury is
capable of considering different theories of liability, if any differences exist, arising out of
the same facts. See Filing No. 386 - Reply p. 4 in Livers. The defendants argue the
court can draft jury instructions with clarity to avoid any confusion and the jury is
capable of hearing all the evidence and making appropriate decisions based on the
evidence. See Filing No. 496 - Reply p. 7 in Sampson; Filing No. 386 - Reply p. 10-11
in Livers.
The defendants also argue Livers’ potential settlement with Douglas County does
not prevent consolidation.

See Filing No. 509 - Amended Surreply Brief p. 1-2 in

Sampson. The defendants argue both Livers and Sampson maintain claims against
David Kofoed (Kofoed) that will require evidence of Douglas County’s policies and
procedures in both cases, even if Livers does not maintain a Monell claim. Id. at 3.
The defendants argue the fact that Sampson is faulting Kofoed and Douglas County
Sheriff’s Office, while Livers is faulting only Kofoed, “should not prove to be
insurmountably mind-bending to jurors.” Id.

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Sampson argues there are meaningful differences in the claims and defenses
between Sampson and Livers.

See Filing No. 492 - Response p. 2 in Sampson.

Sampson argues, since severance, the plaintiffs have pursued separate paths of
discovery, have found different evidence to bear significance to one case but not the
other, and have built separate and distinct cases. Id. at 3. Sampson argues plaintiffs’
counsel have communicated infrequently, have not attended depositions jointly, and
have disclosed different expert witnesses. Id. Sampson argues there is a foundational
conflict between Sampson’s and Livers’ theories of liability. Id. at 5-6. Sampson also
argues there is no prejudice to the defendants to have separate trials. Id. at 11-12.
Sampson argues the defendants did not object to the severance in 2008 and the
defendants, over the course of this litigation, have never complained about burdens of
time, expense, or effort involved with four years of discovery and preparation of multiple
dispositive motions in two cases. Id. at 14. Therefore, Sampson argues there is no
reason to now consolidate and many reasons to keep the cases separate.

Id.

Additionally, Sampson argues Livers’ potential settlement with DCSO creates a
potential for confusion because jurors might speculate why Livers settled a portion of his
claim, or has no claim against DCSO, while Sampson maintains his claim. See Filing
No. 497 - Supplemental Response p. 1-2 in Sampson.
Livers argues consolidation will be inconvenient and unfairly prejudicial. See
Filing No. 384 - Response p. 7 in Livers. Livers argues the plaintiffs have developed
potentially incompatible theories of liability and the presentation of theories could
prejudice the plaintiffs. Id. at 8-10. Livers argues the parties relied on the severance in
2008 and pursued different discovery without coordination. Id. Livers argues differing
issues of probable cause will confuse the jury. Id. at 10. Livers contends his Fourth
Amendment rights were violated because the defendants arrested him without probable
cause and subjected him to a coercive, custodial interrogation. Id. In contrast, Livers
contends Sampson will argue Livers’ confession did not furnish probable cause to justify
his arrest, which did not occur until after the defendants had obtained the confession
from Livers. Id. Livers argues the jury will have difficulty keeping the plaintiffs’ parallel,
but distinct, theories separate. Id.

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Additionally, Livers argues Sampson, unlike Livers, maintains municipal liability
claims against Douglas County, which will require the presentation of complex policy
and practice evidence. Id. at 11. Livers argues he made a calculated decision to
dismiss his Monell claim against Douglas County out of concern that the presentation of
such evidence will distract the jury from the malfeasance of the individual defendants.
Id. Livers also argues consolidation will negatively affect the damages awarded to the
plaintiffs. Id. at 2, 4, 8, 11-12. Livers argues one of the following unduly prejudicial
possibilities may occur: 1) the presence at trial of two plaintiffs who were wrongfully
incarcerated for a similar period of time could lead the jury to award similar damages to
both plaintiffs, even though Livers suffered far greater injury than Sampson due to
factors unique to Livers or 2) Sampson’s counsel could contend that Livers is
responsible for his own injuries because of his confession, whereas Sampson is a truly
innocent victim who was arrested through no fault of his own therefore Livers would get
zero damages. Id. Livers argues this will make his case the “hard one” and likely
appear more difficult. Id. at 8.

ANALYSIS
Federal Rule of Civil Procedure 42 provides: “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.” Fed. R. Civ. P. 42. “Consolidation of separate
actions presenting a common issue of law or fact is permitted under Rule 42 as a matter
of convenience and economy in judicial administration. The district court is given broad
discretion to decide whether consolidation would be desirable and the decision
inevitably is contextual.” 9 Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 2383 (2d ed. 1994). Whether to grant a Rule 42(a) motion to consolidate
is within the sound discretion of the court.

United States Envtl. Prot. Agency v.

Green Forest, 921 F.2d 1394, 1402-03 (8th Cir. 1990). The “court [must] weigh the
saving of time and effort that consolidation under Rule 42(a) would produce against any
inconvenience, delay, or expense that it would cause . . . .” Wright & Miller, supra,
§ 2383. “[D]istrict courts generally take a favorable view of consolidation . . . .” Id.
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Furthermore, “[a]ctions involving the same parties are apt candidates for consolidation.”
Id. § 2384.

However, under Fed. R. Civ. P. 42(b), consolidation is considered

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).
The court previously noted the plaintiffs’ actions “arise out of the same set of
facts and are based on similar allegations.” See Filing No. 159 - Order in Sampson.
Thus the threshold question of whether the cases involve a common question of law or
fact is satisfied. The question remains whether consolidation will lead to inefficiency,
inconvenience, or unfair prejudice. Due to the similarity in the plaintiffs’ cases, the
plaintiffs will present similar evidence from many of the same witnesses. Consolidation
will avoid using two juries to hear similar evidence. Additionally, consolidation will avoid
witnesses appearing at two separate trials to testify to the same facts. Although the
plaintiffs argue they relied on severance in preparation for their cases and the plaintiffs’
attorneys have not worked together, trial has not been set and the plaintiffs have
adequate time to coordinate strategy, if necessary. Consolidation will promote the goals
of efficient use of judicial resources without leading to inconvenience, delay, or
additional expense.
The plaintiffs will not suffer unfair prejudice from consolidation. The original basis
for severance during discovery was because “counsel believe[d] their differences of
opinion would actually impair the plaintiffs’ positions in their individual lawsuits.” Id.
The plaintiffs have not shown consolidation will impair or unfairly prejudice the plaintiffs’
positions at trial. The plaintiffs both argue their theories of liability are inconsistent and
the potential defenses to those theories are different causing undue prejudice if these
cases are consolidated. The differences in the plaintiffs’ theories of liability, if any, will
not so confuse the jury as to prevent the jury from giving the plaintiffs’ claims proper
attention. Appropriate jury instructions will alleviate any potential confusion jurors may
have when determining liability. Additionally, a jury has the ability to differentiate the
severity of damages between the plaintiffs if the evidence so provides. Proper jury
instructions would ensure the jurors consider the plaintiffs’ potential damages
separately. See WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d
1032, 1041 (8th Cir. 2011) (“A jury is presumed to follow its instructions. . . .”). The
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court also finds the plaintiffs will not suffer undue prejudice because some of the
witnesses for the plaintiffs are different. Additionally, Sampson’s Monell claim does not
prejudice Livers. Sampson’s Monell claim is only one aspect of Sampson’s case that
has claims overwhelmingly similar to Livers’ case. The jury will be able to separate
Sampson’s Monell claim from Livers’ claims and the court can administer proper jury
instructions to avoid confusion.
The defendants have met their burden to show consolidation is appropriate for
these actions. The cases clearly present common issues of law and fact, the cases
involve the same defendants, nearly identical causes of action, and relate to the same
time period and events. The evidence suggests consolidation of these matters will
promote judicial economy.

IT IS ORDERED:
1.

The defendants’ motions to consolidate (Filing Nos. 485 and 488 in

Sampson v. Schenck, et al., 8:07CV155; Filing Nos. 375 and 378 in Livers v.
Schenck, et al., 8:08CV107) are granted.
2.

Trial is set to commence, at the court’s call, during the week of October

21, 2013, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon and a jury.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 6th day of February, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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