D'AMICO -v- WASTE MANAGEMENT OF NEW YORK, LLC

Filing 68

DECISION AND ORDER denying 62 Motion to Consolidate Cases. Signed by Hon. Mark W. Pedersen on 12/5/19. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES W. D’AMICO, on behalf of himself
and all others similarly situated,
Plaintiff,
-vs-

DECISION AND ORDER
18-CV-6080-EAW-MJP

WASTE MANAGEMENT OF NEW YORK,
LLC,
Defendant.
Pedersen, M.J. Plaintiff James W. D’Amico filed the operative Second
Amended Complaint on behalf of himself and all others similarly situated,
alleging negligence, gross negligence and nuisance against Defendant Waste
Management of New York, LLC. (Second Am. Compl., Apr 4, 2019, ECF No.
38.) 1 Defendant operates the High Acres Landfill and Recycling Center in
Fairport, New York, which Plaintiffs claim emits noxious odors into Plaintiffs’
property. Id. ¶1.
Also pending in the Western District of New York is a case titled Fresh
Air for the Eastside, Inc. v. Waste Management of New York, L.L.C. (“FAFE”),
case number 18-CV-6588, against Waste Management of New York, LLC, in
which Plaintiffs claim there are “persistent, noxious, and offensive odors of

Plaintiff made a motion seeking leave to file a Third Amended
Complaint, which has not yet been decided. See ECF 53. In addition, the
nuisance and gross negligence claims were disposed of in Defendant’s motion
to dismiss. See ECF 33.
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garbage (“the Garbage Odors”) and landfill gas (“Landfill Gas Odors,” . . .)
emanating from two landfills owned by Defendant, one of which is at issue in
the present case. See ECF 1. The FAFE case is not a class action suit. Plaintiffs
in the FAFE case have asserted technical causes of action not asserted in the
present case and have named an additional municipal defendant. (Compl. ¶ 1,
18-CV-6588-EAW-MJP, Aug. 14, 2018, ECF No. 1.)
Presently before the Court is Defendant’s motion to consolidate this case
and the FAFE case pursuant to Federal Rule of Civil Procedure 42 for discovery
purposes only. (Def.’s Notice of Mot., Nov. 18, 2019, ECF No. 62.) Defendant
argues that consolidating the two cases for discovery purposes will increase
efficiency by coordinating discovery in both cases “that will likely include the
same type of discovery from the same witnesses,” thus avoiding duplicative
discovery. (Def.’s Mem. of Law at 1–2, ECF No. 62-1.) Defendant further
asserts that neither party will suffer prejudice if this request is granted
because neither case would be significantly delayed with the imposition of a
formal coordinated scheduling order. (Id. at 2.)
Plaintiff opposes consolidation largely on the grounds that he believes it
would provide Defendant with the ability to delay this case based upon the
discovery needs in the FAFE case. (Pl.’s Response at 1, Dec. 2, 2019, ECF No.
66.) Of notable importance is that this matter involves the certification of a
class. Plaintiff has indicated that it will need to conduct discovery prior to
seeking class certification. (Id. at 3.) Plaintiff has also indicated that if class

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certification is denied additional plaintiffs may come forward and that if it is
granted, Defendant will seek to amend its proposal. (Id. at 3.) In addition,
Plaintiff asserts that factual and legal differences between the two cases
renders consolidation improper. (Id. at 3.) Plaintiff contends that informal
coordination regarding discovery would better serve the parties and indicates
that Plaintiff “has already consented to cross-noticing depositions and will
work with counsel for Defendant in order to reduce litigation burdens wherever
possible.” (Id. at 3.)
Rule 42(a) of the Federal Rules of Civil Procedures provides that “[i]f
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). Courts have broad discretion when determining
whether consolidation is appropriate. Johnson v. Celotex Corp., 899 F.2d 1281,
1284–85 (2d Cir. 1990), cert. denied, 498 U.S. 920 (1990); Solvent Chemical Co.
ICC Industries, Inc. v. E.I. Dupont De Nemours & Co., 242 F.Supp.2d 196, 221
(W.D.N.Y. 2002). “In exercising its discretion, the trial court must weigh the
efficiency gains against the risk of prejudice to the parties and possible
confusion of the issues.” Velazquez v. Suffolk Cty., No. 18-CV-5115(JS)(ARL),
2019 WL 2124859 at *4 (E.D.N.Y. May 15, 2019) (citing Johnson, 889 F.2d at
1285).

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The Court finds that consolidating the two cases risks prejudicing
Plaintiffs in the FAFE case due to the likelihood of significant delay involving
the class certification issue in this action. The Court further finds that
consolidation is not warranted given the variance in legal facts and issues in
the two actions. Further, consolidation for discovery purposes is not in the
interests of judicial convenience and economy given that the two cases will
likely diverge for discovery purposes until the class certification issue is
decided, leaving the burden on the Court to continuously attempt to maintain
a coordinated discovery schedule. The Court agrees with Plaintiff that informal
consolidation for the purposes of discovery, to the extent possible, is the
preferred route.
For the reasons set forth above, the Court denies Defendant’s motion to
consolidate the present case with the FAFE case for the purposes of discovery
(ECF No. 62), without prejudice.
SO ORDERED.
DATED:

December 5, 2019
Rochester, New York
/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge

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