Pilmaier v. Omaha Public Power District

Filing 31

ORDER granting in part and denying in part 27 Motion to Consolidate Cases. The Pilmaier and Nellenbach (8:14cv40) suits are hereby consolidated for discovery. To the extent that the Motion to Consolidate asks that the cases be consolidated for t rial, it is denied without prejudice to reassertion at a later date. A planning conference regarding the Pilmaier and Nellenbach suits will be held, via telephone, with the undersigned on January 23, 2015, at 9:30 a.m. Counsel for the plaintiffs shall initiate the call to the Court. The planning conference presently scheduled for December 29, 2014 in the Pilmaier suit is cancelled. Ordered by Magistrate Judge F.A. Gossett. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TIMOTHY PILMAIER,
Plaintiff,
V.
OMAHA PUBLIC POWER
DISTRICT, A Political Subdivision,
Defendant.

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8:13CV349

ORDER

Defendant Omaha Public Power District (“OPPD”) has filed a motion requesting that
this case be consolidated with Nellenbach v. OPPD, Case No. 8:14-cv-40 (D. Neb. 2014).
(Filing 27.) OPPD requests that the cases be consolidated for discovery and trial, with the
exception that Counts VII and VIII of Plaintiff Timothy Nellenbach’s (“Nellenbach”)
complaint be tried separately.
On November 25, 2013, Plaintiff Timothy Pilmaier (“Pilmaier”) filed a lawsuit against
OPPD relating to changes OPPD made to its employee retirement plan (“Pilmaier suit”). On
February 6, 2014, Nellenbach filed a lawsuit (“Nellenbach suit”) making similar claims
regarding OPPD’s employee retirement plan. In particular, each suit includes allegations that
the changes OPPD made to its retirement plan violate the due process, takings and contracts
clauses of the state and federal constitutions. Pilmaier and Nellenbach are represented by the
same counsel and the cases are both assigned to Senior United States District Court Judge
Joseph Bataillon for disposition.
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)
(quotation omitted). The consent of the parties is not required for consolidation. 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. (citation omitted). 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 Court concludes that consolidating these cases for
discovery is appropriate at this time. The cases clearly involve common issues of law and
fact and, consequently, will include overlapping areas of discovery. Although the suits
involve different plaintiffs, each plaintiff similarly maintains that the changes OPPD made
to its retirement plan violate the state and federal constitutions. Moreover, the plaintiffs are
represented by the same attorney. Due to these similarities, consolidation for purposes of
discovery is proper, as it will conserve judicial resources, as well as the resources of the
parties.
At this point, the Court will not address the question of whether the suits should be
consolidated for trial. This issue is best left to be resolved following the completion of some
discovery. Therefore, the motion to consolidate is denied without prejudice insofar as it
relates to trial consolidation.1
Accordingly,
IT IS ORDERED:
1.

OPPD’s Renewed Motion to Consolidate Cases (filing 27) is granted, in part.
The Pilmaier and Nellenbach suits are hereby consolidated for discovery. To

1

The Court recognizes that Nellenbach’s complaint contains two claims pertaining
only to his employment with OPPD. In fact, OPPD concedes that these claims should be
tried separately. The parties agree that discovery related to these two claims need not be
consolidated. Accordingly, the parties shall confer and, in advance of the planning
conference, discuss how discovery related to these two claims shall proceed. If a modified
discovery schedule is necessary for these claims, the parties shall so advise the Court at the
planning conference. Otherwise, discovery matters related to these items will correspond
with discovery regarding all other issues.
2

the extent that the Motion to Consolidate asks that the cases be consolidated
for trial, it is denied without prejudice to reassertion at a later date.
2.

A planning conference regarding the Pilmaier and Nellenbach suits will be
held, via telephone, with the undersigned on January 23, 2015, at 9:30 a.m.
Counsel for the plaintiffs shall initiate the call to the Court. Prior to the
conference, counsel shall meet and confer in an effort to coordinate discovery
deadlines and procedures, and discuss any other issues that need to be
addressed at the conference.

3.

The planning conference presently scheduled for December 29, 2014 in the
Pilmaier suit is cancelled.

DATED November 3, 2014.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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