Wesco Insurance Company v. Smart Industries Corporation

Filing 31

REPORT AND RECOMMENDATION that 19 Motion to Consolidate Cases be granted. Objections to R&R due by 7/13/2017. Signed by Magistrate Judge Carl W. Hoffman on 6/2917. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WESCO INSURANCE COMPANY,

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Plaintiff,
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v.
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SMART INDUSTRIES COPRORATION,
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Defendant.
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_______________________________________ )

Case No. 2:16-cv-01206-JCM-CWH

REPORT & RECOMMENDATION

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Presently before the Court is Defendant Smart Industries Corporation’s motion (ECF No. 19) to

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consolidate this case, Wesco Insurance Company v. Smart Industries Corporation (2:16-cv-01206-JCM-

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CWH), with Wyman v Smart Industries Corporation (2:16-cv-02378-RFB-GWF). The motion was filed

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in both cases on April 20, 2017. Plaintiff Jennifer Wyman filed a response (No. 31) in Wyman on May

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4, 2017, and Defendant filed a reply (ECF No. 22) on May 12, 2017. A hearing was held in this matter

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(ECF No. 25) on June 6, 2017.

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Defendant moves to consolidate the cases, arguing that both cases share a number of questions

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of fact and law, and so consolidation would serve the interest of judicial economy and provide for a

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uniform outcome for all parties. Fed. R. Civ. P. 42(a) and LR42-1(b) both provide that “[i]f actions

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before the court involve a common question of law or fact, the court may: (2) consolidate the actions.”

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Upon review, the Court find the following questions of law and fact are common to both cases:

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I.

Common Questions of Fact

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1.

Whether a custom added junction box, a subpart of arcade machine, Serial No. 258231 was

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properly wired at the time it left Smart’s control in December 2004;

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2.

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Whether Charles Wyman acted inconsistent with established safety policies and procedures,
contributing to his death;

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Whether preventative safety measures including interlock switches, subparts of the subject
arcade machine, were properly installed at the time the subject machine left Smart’s control in

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December 2004 and whether those same interlock switches underwent subsequent

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alteration—improperly overriding their intended safety role; and

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4.

Whether at any time prior to September 29, 2015, a person other than Smart or its employees

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made alterations to the subject arcade machine, Serial No. 258231, or its subparts sufficient

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to produce a defective and inherently dangerous arcade machine.

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II.

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1. Whether Smart is strictly or negligently liable for the manufacture and distribution of arcade

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machine, Serial No. 258231, which is alleged to have caused the death of Charles Wyman;
2. Whether Charles Wyman was contributorily negligent; or was the cause of his own death due to any

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Common Questions of Law

non-compliance with established safety standards for arcade machine technicians;
3. Whether Nickels and Dimes or its employees acted contrary to company policy or manufacturer’s

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guideline(s) in the maintenance of the subject arcade machine, Serial No. 258231;

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4. Whether Arizona workmen’s compensation law should govern the standing and timeliness of any

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claims in the proposed consolidated cases against Smart or any other Defendant (and whether the

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Plaintiffs’ claims had standing);

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5. Whether the damages asserted by the Plaintiffs in Cases 2:16-cv-01206-JCM-CWH and 2:16-cv-

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02378-RFB-GWF overlap; and
6. Whether adequate subject matter jurisdiction existed over the parties; there is a motion to remand

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filed by Plaintiffs because of the forum defendant rule.
III.

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Conclusion
Given the substantial overlap in questions of law and fact, the Court recommends consolidation.

IV.

Notice

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This Report and Recommendation is submitted to the United States District Judge assigned to this

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case under 28 U.S.C. § 636(b)(1). A party who objects to this Report and Recommendation may file a

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written objection supported by points and authorities within fourteen days of being served with this

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Report and Recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the

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right to appeal the District Court’s Order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS THEREFORE RECOMMENDED that Defendant Smart Industries Corporation’s motion (ECF
No. 19) to consolidate 2:16-cv-01206-JCM-CWH with 2:16-cv-02378-RFB-GWF be granted.

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DATED: June 29, 2017.

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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