CANDELA et al v. CITY OF HACKENSACK et al

Filing 39

ORDER denying 16 MOTION to Consolidate Cases - Murrell and Candela cases, for discovery only, filed by RICHARD TERRANOVA, MARIO CANDELA. Signed by Magistrate Judge Mark Falk on 9/28/2017. (jr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHAMBERS OF
MARK FALK
UNITED STATES MAGISTRATE JUDGE

USPO & COURTHOUSE
1 FEDERAL SQ., ROOM 457
NEWARK, NJ 07101
[phone]

LETTER ORDER

September 28, 2017

To: All Counsel of Record

Re: Murrell et al. v. City of Hackensack et al., 16-2913 (WJM)
Candela et al. v. City of Hackensack et al., 16-9335 (ES)
Dear Counsel:
This matter comes before the Court upon the motion of Plaintiffs James Murrell,
Jr. (“Murrell”) and Christopher Haw (“Haw”) to consolidate this action (the “Murrell
Action”) with another pending action in this district, Candela et al.v City of Hackensack
et al., 16-9335 (the “Candela Action”). The motion is opposed. For the reasons that
follow, the motion [CM/ECF No. 13] is denied.
A. Murrell Action
Murrell is employed by the City of Hackensack (“City”) as a gardner with the
Parks Department of the City’s Department of Public Works (“DPW”). Murrell’s claims
stem predominately from the alleged conduct of three City employees, namely, council
members David Sims (“Sims”) and Leonardo Battaglia (“Battaglia”), and City Manager
David Troast (“Troast”) during the period April 2014 through February 2016. Murrell
alleges Sims and Battaglia harassed him and three other DPW employees, that the City
Greenhouse tended by Murrell was closed at their request, and that Sims, Battaglia and
Troast retaliated against Plaintiff and failed to promote him on account of his filing
complaints and union grievances regarding their alleged wrongful conduct.

Haw was employed by the City as a Supervisor of Parks and Recreation from
August 2015 until he was terminated in February 2016. Haw’s claims arise primarily
from the alleged wrongful conduct of two City employees, Superintendent of the DPW,
Jesse D’Amore (“D’Amore”), and personnel director for the City, Simeon Cumberbatch
(“Cumberbatch”). Haw claims, among other things, that unbeknownst to him he was
hired provisionally, and that he was fired in retaliation for complaining about the
harassment of DPW employees by Sims and Battaglia and for refusing to comply with
orders to compel employees to work shifts beyond what he believed were legally
permissible. Haw also claims that he was terminated without a hearing in violation of his
due process rights.
On May 23, 2016, Murrell and Haw filed their Complaint against the City, Troast,
D’Amore, Cumberbatch, Battaglia and Sims asserting federal and state law claim
including claims for violation of their First Amendment rights under 42 U.S.C. § 1983,
and claims under the New Jersey Civil Rights Act, (“NJCRA”) N.J.S.A. 10:6-1 et seq.,
and the Conscientious Employee Protection Act, (“CEPA”) N.J.S.A. 34:19-1 et seq..
B. Candela Action
Plaintiffs Mario Candela (“Candela”) and Richard Terranova (“Terranova”)
(collectively “Candela Plaintiffs”) were employees of the DPW. Candela Plaintiffs
allege, among other things, that D’Amore and Assistant Superintendent of the DPW,
Anthony Sedita (“Sedita”), misused City property, illegally recorded DPW employees,
and forced Candela Plaintiffs to perform work outside the scope of their jobs for the
personal benefit of D’Amore and Sedita. Terranova also claims that D’Amore and Sedita
retaliated against him for his union activities, embarrassed him, and used ethnic epithets
directed at him.
On December 16, 2016, Candela Plaintiffs filed suit against the City, D’Amore,
Sedita, and Mitchell Horne, Candela Plaintiffs’ direct supervisor. Alleging that they were
retaliated against and denied promotions, Candela Plaintiffs asserted claims for violation
of their First Amendment rights under 42 U.S.C. § 1983, and claims under the NJCRA,
and CEPA, as well as a claim under the Racketeer Influenced and Corrupt Organization
Act, 18 U.S.C. 1962(b).
C. Motion to Consolidate
The Murrell Plaintiffs now move to consolidate the Murrell Action with the
Candela Action. Murrell Plaintiffs argue that the matters should be consolidated due to
the significant overlap in claims and witnesses. Specifically, they argue that both cases
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involve DPW employees making claims of retaliation, amongst other claims, against the
City and various City employees after plaintiffs engaged in union activities, and that the
Murrell Plaintiffs and Candela Plaintiffs are represented by the same counsel and assert
many of the same federal and state claims. The City opposes the motion arguing that
most of the factual allegations are entirely unrelated and have little to do with union
activities. Ultimately, defendants argue that consolidation would confuse the issues and
inconvenience the defendants.
Federal Rule of Civil Procedure 42(a) provides: “[w]hen actions involving a
common question of law or fact are pending before the court, it may . . . order all the
actions consolidated. . . .” Fed.R.Civ.P. 42(a). The Rule gives the district court “‘broad
power’ to consolidate cases that share ‘common questions of law or fact.’” A.S. ex rel.
Miller v. SmithKline Beecham Corp., 769 F.3d 204, 212 (3d Cir. 2014) (quotations
omitted). “The mere existence of common issues, however, does not require
consolidation.” ACR Energy Partners, LLC v. Polo N. Country Club, Inc., 309 F.R.D.
193, 194 (D.N.J. 2015). “[W]hen exercising its discretion on a consolidation motion, a
court should weigh the interests of judicial economy against the potential for new delays,
expense, confusion, or prejudice.” Margolis v. Hydroxatone, LLC, 2013 WL 875987, at
*2 (D.N.J. Mar. 6, 2013).
While the Murrell Action and Candela Action both involve plaintiffs and
defendants that are employed by the City, the factual similarity of the cases basically ends
there. Out of the eight defendants named in the two matters sought to be consolidated,
only two are defendants in both cases.1 None of the plaintiffs are the same in the two
cases. Moreover, the alleged facts underlying the claims of both sets of plaintiffs are
distinct. The Murrell and Candela Actions do not involve the same operative facts. Quite
to the contrary, the allegations of each plaintiff are very fact specific and, for the most
part, uniquely independent. To the extent there is some factual overlap, it would not
warrant consolidation of the cases here.
Nor is the assertion of similar causes of action by the Murrell and Candela
Plaintiffs sufficient to warrant the cases be consolidated. The claims of each individual
plaintiff, with little exception, rise and fall on their own particular set of facts. “[T]he
mere fact that two cases assert similar theories of recovery does not constitute a ‘common
question of law’ so as to warrant consolidation.” Liberty Lincold Mercury, Inc. v. Ford
Mktg. Corp. , 149 F.R.D. 65, 81 (D.N.J. 1993) (quotations omitted). To the extent any of
the plaintiffs’ allegations relate to involvement in union activities, the mere existence of

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The City and D’Amore are defendants in the Murrell and Candela Actions.
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these similar legal theories alone is not grounds for consolidation, particularly when they
only amount to one of many claims being asserted in each case.
Given the differing factual allegations and sources of proof upon which the four
plaintiffs rely, consolidation is not appropriate. Indeed, the volume of allegations and the
fact specific inquiries needed to support or refute them in each of the two cases would
only create confusion and ultimately prejudice the parties to the litigation. See Liberty,
149 F.R.D. at 81 (“Where the evidence in one case is not relevant to the issues in the
other, consolidation would create a likelihood of prejudice by confusing the issues.”)
Finally, not only does consolidation here have the potential to lead to confusion, it
possibly may increase litigation expenses. Just because some witnesses might testify in
both cases does not mean that consolidation is warranted. Here, the City is represented by
different counsel in each case, and some of the individual defendants also have separate
counsel. Counsels’ attendance at depositions and review of written discovery in both
cases that arguably could be unrelated to the matter in which their client is a named party
conceivably could result in the unnecessary expenditure of time and money.
The Court finds that consolidation will not promote judicial economy and likely
will cause prejudice and confusion. For these reasons, the motion to consolidate
[CM/ECF No. 13] is denied.
SO ORDERED.

s/Mark Falk
MARK FALK
United States Magistrate Judge

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