Ellis et al

Filing 261

ORDER that plaintiff's motion to consolidate (ECF No. 258 ) is DENIED. The Clerk of Court is ORDERED to apply this ruling to plaintiff's motion to consolidate filed in James v. Alessi, 2:18-cv-01398-JAD-GWF (ECF No. 19). Signed by Judge Larry R. Hicks on 9/9/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No. 3:09-cv-00428-LRH-WGC

MELINDA ELLIS,

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Plaintiff, ORDER

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v.

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ALESSI TRUSTEE CORPORATION;
DAVID ANTHONY ALESSI; and ALESSI
& KOENIG LLC,

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Defendants.

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Plaintiff, Melinda James, fka Melinda Ellis, moves this court to consolidate the above

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captioned action (“Ellis”) with James v. Alessi, 2:18-cv-01398-JAD-GWF (“James”). ECF

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No. 258. 1 David Alessi, the sole defendant in James opposed the motion, (ECF No. 259), and

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plaintiff replied (ECF No. 260). 2 The court now denies plaintiff’s motion: consolidation is not

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warranted because the parties to the actions are not identical, the causes of action arise out of

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different facts, and the cases are on significantly different time tracks.

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I.

BACKGROUND

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This action has an extensive litigation history which the court has reiterated in a number of

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prior orders; therefore, the court will only detail the most relevant history. On July 14, 2015, after

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a jury trial, the court entered Judgment against defendants Alessi Trustee Corporation (“ATC”)

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For clarity’s sake, this Order refers to the ECF document numbers in Ellis, Case No. 3:09-cv-00428-LRHWGC, unless otherwise noted.
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In James, 2:18-cv-01398-JAD-GWF, plaintiff’s motion is ECF No. 19, Alessi’s opposition is ECF No. 20,
and plaintiff’s reply is ECF No. 21. The court’s ruling herein applies equally to both motions.
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and Alessi & Koenig LLC (“A&K”) in the amount of $381,091.04 plus post-judgment interest.

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ECF No. 218. However, the parties then reached an agreement staying the judgment and stipulating

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that plaintiff would refrain from enforcing the judgment in exchange for the defendants (1)

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executing a promissory note in favor of plaintiff, secured with a deed of trust against an identified

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real property, and (2) making monthly payments towards the promissory note. ECF Nos. 230, 235.

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Following the stipulation, defendants only made three payments to plaintiff and failed to grant

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plaintiff the stipulated security interest in the real property as required. ECF No. 256.

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In response, plaintiff filed a motion for an order to show cause (ECF No. 236) which the

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court granted (ECF No. 245). A&K failed to respond and filed for bankruptcy on December 13,

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2016. ECF No. 256. On August 22, 2017, plaintiff filed a motion for a status check as no further

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action had been taken by either defendant ATC or A&K, and defendant A&K was still involved

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in bankruptcy proceedings. ECF No. 248. The court granted plaintiff’s motion and ordered

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defendants to respond within 10 days as to why they should not be held in contempt of court for

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violation of the court’s order. ECF No. 250. On September 25, 2017, dismissed defendant David

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Anthony Alessi (“Alessi”) filed a response to the court’s order (ECF No. 252) to which plaintiff

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responded (ECF No. 255). On September 7, 2018, the court determined that given that ATC and

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A&K had failed to respond to the court for over 2 years, and failed to comply with the terms of

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the stipulated stay of judgment, the most appropriate course of action was to vacate the stipulated

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stay and allow plaintiff to proceed in enforcing the judgment against both ATC and A&K. ECF

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No. 256.

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On July 27, 2018, plaintiff filed a new action with the court, James, alleging breach of

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contract, breach of covenant of good faith and fair dealing, fraud in the inducement, and fraudulent

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misrepresentation against Alessi personally regarding the above stipulation. James, ECF No. 1.

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Alessi filed a motion to dismiss on August 31, 2018, and discovery was stayed pending resolution

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of the motion. James, ECF Nos. 5, 17. While the motion to dismiss was pending, plaintiff filed a

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motion to consolidate James with the above captioned case. ECF No. 258; James, ECF No. 19.

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Subsequently, Judge Dorsey granted in part and denied in part Alessi’s motion to dismiss on

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May 24, 2019. James, ECF No. 24. Accordingly, plaintiff amended her complaint (James, ECF
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No. 25), and Alessi answered (James, ECF No. 26). Discovery is currently pending in James, and

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due to end December 20, 2019. James, ECF No. 29. Other than the pending motion for

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consolidation, nothing further is pending in Ellis.

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II.

DISCUSSION

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Federal Rule of Civil Procedure 42 allows a court to consolidate two or more actions that

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involve a common question of law or fact. FED. R. CIV. P. 42(a). A court has broad discretion under

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Rule 42 when determining whether to consolidate actions pending in the same district: the court

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may consolidate on a motion by a party or it may do so sua sponte. See LR 42-1; Inv’rs Research

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Co. v. U.S. Dist. Court for Cent. Dist. of California, 877 F.2d 777, 777 (9th Cir. 1989). In

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determining if consolidation is proper, “[t]he court should weigh the time and effort that

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consolidation would save against any inconvenience, delay, or expense it would cause” as well as

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the specific risks of prejudice and confusion. Narvaes v. EMC Mortg. Corp., No. CIV 07-00621

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HG-LEK, 2009 WL 1269733, at *2 (D. Haw. May 1, 2009) (citing Huene v. United States, 743

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F.2d 703, 704 (9th Cir. 1984) and Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990)).

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First, Alessi argues that he will be unfairly prejudiced because at the time the motion to

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consolidate was filed a fully briefed motion to dismiss, which Alessi argued would dismiss James

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in its entirety, was already before Judge Dorsey. The court need not address such arguments as

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prior to this order, Judge Dorsey granted in part and denied in part Alessi’s motion to dismiss.

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However, the court is still not persuaded by plaintiff’s arguments that consolidation of the two at

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issue cases will avoid ‘substantial duplicative labor,’ that judicial economy will be served, and that

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there are common questions of fact in both.

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In ruling on Alessi’s motion to dismiss in James, Judge Dorsey found that James was not

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duplicative of Ellis. The two cases did not involve identical parties—Alessi, the sole defendant in

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James was not a defendant in Ellis as he was dismissed from the case prior to trial. The cases

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involve their “own unique facts”— even though James evolved out of Ellis. Further, Judge Dorsey

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found that because Alessi was not a party to Ellis, after the automatic A&K bankruptcy stay is

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lifted, plaintiff will not be able to collect the Ellis judgment from Alessi personally. Therefore, a

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ruling in Ellis will have no bearing on James.
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The court agrees with Judge Dorsey and finds that consolidation is not warranted for the

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same reasons the two actions are not duplicative. Further, judicial economy and efficiency will

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not be served by consolidating because the actions are on significantly different time tracks: Ellis

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is at its end with only the enforcement of judgment left. Conversely, James has yet to complete

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discovery.

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Good cause appearing, IT IS THEREFORE ORDERED that plaintiff’s motion to

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consolidate (ECF No. 258) is DENIED. The Clerk of Court is ORDERED to apply this ruling to

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plaintiff’s motion to consolidate filed in James v. Alessi, 2:18-cv-01398-JAD-GWF (ECF

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No. 19).

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IT IS SO ORDERED.

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DATED this 9th day of September, 2019.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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