Borowiak IGA Foodliner, Inc. v. Affiliated Foods Midwest Cooperative, Inc.

Filing 28

ORDER - Borowiak IGA Foodliner, Inc.'s Motion to Consolidate (Filing No. 23 in Case No. 8:16CV466) is granted, in part. To the extent that the motion to consolidate asks the cases be consolidated for trial, it is denied without prejudice to re assertion at a later date. The two above-captioned cases are consolidated for purposes of discovery and pretrial management only. Case No. 8:16CV466 will be designated as the "Lead Case" and Case No. 8:16CV465 will be designated as "Me mber Case." The court's CM/ECF System has the capacity for "spreading" text among the consolidated cases. If properly docketed, the documents filed in the Lead Case will automatically be filed in the Member Case. The parties are i nstructed to file documents related to discovery (except those described in paragraph 5) in the Lead Case and to select the option "yes" in response to the System's question whether to spread the text. The parties may not use the sprea d text feature to file complaints, amended complaints, and answers; to pay filing fees electronically using pay.gov; or to file items related to service of process. If a party believes an item in addition to those described in paragraph 4 should not be filed in all the consolidated cases, the party must move for permission to file the item in one or more member cases. The motion must be filed in all the consolidated cases using the spread text feature. The parties shall have until February 17, 2017, to meet, confer, and jointly file a report pursuant to Fed. R. Civ. P. 26(f), encompassing both cases. Ordered by Magistrate Judge F.A. Gossett. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AFFILIATED FOODS MIDWEST
COOPERATIVE, INC., a Nebraska
corporation, and ASSOCIATED
WHOLESALE GROCERS, INC.,
Plaintiffs,
v.
SUPERVALU INC., a Delaware
corporation,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

8:16CV465
ORDER

BOROWIAK IGA FOODLINER, INC., )
)
Plaintiff/Counter Defendant,
)
)
v.
)
)
AFFILIATED FOODS MIDWEST
)
COOPERATIVE, INC., and
)
ASSOCIATED WHOLESALE
)
GROCERS, INC.,
)
)
Defendants/Third-Party
)
Plaintiffs/Counter Plaintiffs,
)
)
v.
)
)
TREVOR BOROWIAK,
)
)
Third Party Defendant.

8:16CV466
ORDER

This matter comes before the court on the Motion to Consolidate (Filing No. 23 in Case
No. 8:16CV466) filed by Borowiak IGA Foodliner, Inc. (“Borowiak IGA”), requesting
1

consolidation of the above-captioned cases. Affiliated Foods Midwest Cooperative, Inc.
(“AFM”) and Associated Wholesale Grocers (“AWG”) oppose consolidation of the above
cases for trial, but do not oppose consolidation for discovery purposes. (Filing No. 27 in Case
No. 8:16CV466).
Federal Rule of Civil Procedure 42(a) 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(a). “For convenience, to avoid prejudice, or to
expedite and economize, the court may order a separate trial of one or more separate issues,
claims, crossclaims, counterclaims, or third-party claims.” Fed. R. Civ. P. 42(b). “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 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 court finds that consolidation for purposes of discovery
and pretrial management is appropriate at this time. There is no dispute that there are common
facts, agreements, and witnesses in the above cases. The instant actions both involve certain
agreements between AFM and Borowiak IGA, including a supply agreement. Borowiak
IGA’s action against AFM includes a claim that AFM breached the supply agreement. (Case
No. 8:16CV466). In AFM’s action against SuperValu, AFM alleges SuperValu tortiously
interfered with the supply agreement between AFM and Borowiak IGA.
2

(Case. No.

8:16CV465). Due to the similarities between the cases, the same documents will be part of
discovery in both cases and the parties will likely present similar motions and arguments during
discovery. Consolidation during the discovery phase will avoid duplicative parallel activities
and will promote the goals of efficient use of judicial resources without leading to
inconvenience, delay, unfair prejudice, or additional expense. Because both cases are in the
initial stages of progression, consolidation of discovery and pretrial management will conserve
judicial resources, as well as the resources of the parties. Accordingly,

IT IS ORDERED:
1. Borowiak IGA Foodliner, Inc.’s Motion to Consolidate (Filing No. 23 in Case No.
8:16CV466) is granted, in part. To the extent that the motion to consolidate asks the cases be
consolidated for trial, it is denied without prejudice to reassertion at a later date.
2. The two above-captioned cases are consolidated for purposes of discovery and
pretrial management only.
3.

Case No. 8:16CV466 will be designated as the “Lead Case” and Case No.

8:16CV465 will be designated as “Member Case.”
4. The court’s CM/ECF System has the capacity for “spreading” text among the
consolidated cases.

If properly docketed, the documents filed in the Lead Case will

automatically be filed in the Member Case. The parties are instructed to file documents
related to discovery (except those described in paragraph 5) in the Lead Case and to select the
option “yes” in response to the System’s question whether to spread the text.
5.

The parties may not use the spread text feature to file complaints, amended

complaints, and answers; to pay filing fees electronically using pay.gov; or to file items related
to service of process.
6. If a party believes an item in addition to those described in paragraph 4 should not be
filed in all the consolidated cases, the party must move for permission to file the item in one or
more member cases. The motion must be filed in all the consolidated cases using the spread
3

text feature.
7. The parties shall have until February 17, 2017, to meet, confer, and jointly file a
report pursuant to Fed. R. Civ. P. 26(f), encompassing both cases.

DATED: January 17, 2017
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge

4