E3 Biofuels, LLC v. Biothane Corporation et al

Filing 142

ORDER - The Motion to Consolidate (filing 131 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
E3 BIOFUELS, LLC,
Plaintiff,
V.
BIOTHANE, LLC, successor in
interest and liability to, and
PERENNIAL ENERGY, INC.,
Defendants.

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8:11CV44

ORDER

This matter is before the Court on Biothane, LLC’s (“Biothane”) and Perennial
Energy, Inc.’s (“PEI”) (collectively referred to herein as “Defendants”) Motion to
Consolidate (filing 131).1 Defendants request that this suit (hereinafter the “Biothane
action”) be consolidated with E3 Biofuels-Mead, LLC v. Skinner Tank Company, Case No.
8:06CV706 (D. Neb. 2006) (hereinafter the “Skinner action”).2 Plaintiff E3 Biofuels (“E3")
opposes the motion.3 For the reasons set forth below, Defendants’ 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

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Skinner Tank Company, the defendant in the Skinner action, has joined in this
Motion to Consolidate and has also filed a motion to consolidate in the Skinner suit, to which
Biothane and PEI have joined.
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Defendants 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.
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Dilling Mechanical Contractors, Inc., Third-Party Defendant in the Skinner action,
also opposes this Motion to Consolidate.

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
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. (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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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 that the Motion to Consolidate (filing 131) is denied.
DATED July 23, 2012.

BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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