Morningstar et al v. Jianping et al

Filing 134

ORDER GRANTING 109 Motion to Reassign and Coordinate Recently Transferred Case. Signed by Judge Miranda M. Du on 5/3/13. (Copies have been distributed pursuant to the NEF - EW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
Case No. 2:10-cv-02209-MMD-GWF
Case No. 2:10-cv-02244-MMD-GWF

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ORDER
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IN RE RINO INTERNATIONAL
CORPORATION DERIVATIVE
LITIGATION

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(Cal. Plaintiffs’ Motion for Leave to File
Sur-Reply – dkt. no. 127;
Cal. Plaintiffs’ Motion to Reassign and
Coordinate – dkt. no. 135)

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I.

SUMMARY

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Before the Court are M. Aileen Morningstar and Alice Slettedahl’s (collectively

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“California Plaintiffs”) Motion for Leave to File Sur-Reply (dkt. no. 127) and Motion to

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Reassign and Coordinate Recently Transferred California Derivative Action (dkt. no.

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135). These motions arise out of three shareholder derivative actions brought on behalf

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of RINO International Corporation (“RINO”).

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II.

MOTION FOR LEAVE TO FILE SUR-REPLY

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California Plaintiffs bring their Motion for Leave to File a Sur-reply in support of

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their opposition to the Court’s granting of a preliminary approval of the parties’ derivative

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settlement. As the Court granted the Plaintiffs Andrew Nguyen and Robert Binnewies’

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(collectively “Nevada Plaintiffs”) Motion to preliminarily approve the derivative settlement

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(see dkt. no. 139), California Plaintiffs’ Motion is denied as moot.

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III.

MOTION TO REASSIGN AND COORDINATE

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California Plaintiffs seek to reassign and coordinate the California Action,

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Morningstar v. Jianping, 2:13-cv-427-JCM-GWF (D. Nev. filed Mar. 13, 2013), with this

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action (herein referred to as the “Nevada Action”). They oppose consolidation.

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Pursuant to Federal Rule of Civil Procedure 42(a), “[i]f actions before the court

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involve a common question of law or fact,” the court may consolidate the actions.

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District courts are given wide latitude in exercising their discretion to grant or deny

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consolidation. See In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987); Walker

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v. Loop Fish & Oyster Co., 211 F.2d 777, 781 (5th Cir. 1954) (a “district judge has a wide

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discretion in regulating trial procedure”). Consolidation requires only a common question

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of law or fact; perfect identity between all claims in any two cases is not required, so long

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as there is some commonality of issues.

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warranted, the Court “weighs the interest of judicial convenience against the potential for

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delay, confusion and prejudice caused by consolidation.” Sw. Marine, Inc. v. Triple A

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Mach. Shop, Inc., 720 F. Supp. 805, 807 (N.D. Cal. 1989); see also Waste Distillation

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Tech., Inc. v. Pan Am. Res., Inc., 775 F. Supp. 759, 761 (D. Del. 1991) (“The savings of

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time and effort gained through consolidation must be balanced against the

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inconvenience, delay or expense that might result from simultaneous disposition of the

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separate actions.”).

To determine whether consolidation is

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The California Action was transferred from the Central District of California to this

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Court on March 13, 2013, and assigned before District Judge James C. Mahan. (See

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dkt. no. 13.) As both the California Action and the Nevada Action involve similar facts

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and similar allegations, reassignment to the same district judge is appropriate. However,

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judicial economy is not served by consolidating the actions. The Nevada Plaintiffs have

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entered into a preliminary settlement agreement with Defendants ─ an agreement which

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California Plaintiffs oppose. Although the issues are similar, the different procedural

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posture of the cases and the inevitable confusion and delay engendered by the plaintiffs’

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disputed settlement positions militates against consolidation. See Arkansas Right to Life
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State Political Action Committee v. Butler, 972 F. Supp. 1187, 1193 (W.D. Ark. 1997)

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(denying consolidation in part based on different procedural postures); Firefighters, Local

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1908 v. Cnty. of Clark, 2:12-cv-00615-MMD-VC, 2012 WL 1986590, at *3 (D. Nev. June

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1, 2012) (same). While the Court’s familiarity with the underlying facts at stake in both

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actions favors reassignment, consolidation is inappropriate.

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IV.

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CONCLUSION
IT IS THEREFORE ORDERED that M. Aileen Morningstar and Alice Slettedahl’s

Motion for Leave to File Sur-Reply (dkt. no. 127) is DENIED as moot.

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IT IS FURTHER ORDERED that Morningstar and Slettedahl’s Motion to Reassign

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and Coordinate Recently Transferred California Derivative Action (dkt. no. 135) is

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GRANTED. Good cause appears to reassign Morningstar v. Jianping, 2:13-cv-00427-

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JCM-GWF (D. Nev. filed Mar. 13, 2013), to the undersigned. The Clerk is instructed to

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effectuate this reassignment.

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DATED THIS 3rd day of May 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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