Island Vibe Cafe et al v. PCL Construction Enterprises, Inc. et al

Filing 21

ORDER granting 15 Motion to Consolidate Cases. Master Docket is now 4:17-cv-141-D. Counsel should read the order in its entirety for critical deadlines and information. Signed by Chief Judge James C. Dever III on 10/12/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION

ISLAND VIBE CAFE, MORNING STAR STABLES,
TBM CONSTRUCTION, MICHAEL JANSSEN, and
WILLIAM BAILEY, on behalf of themselves and all
others similarly situated,
Plaintiffs,
v.
PCL CONSTRUCTION ENTERPRISES, INC., and
PCL CIVIL CONSTRUCTORS, INC.,

Defendants.
MARISSA GROSS d/b/a DOWN CREEK
GALLERIES, RHONDA G. DERRING, and
ROBERT D. CASE, on behalf of themselves and all
others similarly situated,
Plaintiffs,
v.
PCL CONSTRUCTION SERVICES, INC.,
Defendant.
MISS OCRACOKE, INC., STEPHEN J. WILSON,
HATTERAS BLUE, INC., STEVEN J. HARRIS,
STEVEN WRIGHT, CHARLES EDWARD
HOFMANN, and ALEX DANIEL GARRISH, on
behalf ofthemselves and all others similarly situated,
Plaintiffs,
v.
PCL CONSTRUCTION ENTERPRISES, INC.,
PCL CIVIL CONSTRUCTORS, INC.,
PCL CONSTRUCTION SERVICES, INC., and
PCL CONSTRUCTION RESOURCES (USA) INC.,
Defendants.

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No. 4:17-cv-101-D

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No. 4:17-cv-102-D

No. 4:17-cv-103-D

MATIHEW BREVELERI, on behalf of himself and
all others similarly situated,
Plaintiff,

v.

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No. 4:17-cv-107-D

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PCL CONSTRUCTION ENTERPRISES, INC.
and PCL CNIL CONSTRUCTORS, INC.,
Defendants.
THOMAS EDGAR, NINA EDGAR, EDWARD
WAAS, and JACK LEWIS, on behalf of themselves
and all others similarly situated,
Plaintiffs,

v.

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No. 5:17-cv-445-D

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PCL CIVIL CONSTRUCTORS, INC.,
Defendant.
BRIGGS MCEWAN, LAS OLAS, INC., TRI-V
CONERY, INC., TAMILYNETIE GRAY d/b/a
FAMILY WATER ADVENTURES, DANIEL
SPAVENTA, KAREN FITZPATRICK, and EDWIN
FITZPATRICK, on behalfofthemselves and all others
similarly situated,
Plaintiffs,

v.

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No. 2:17-cv-40-D

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PCL CNIL CONSTRUCTORS, INC.,
PCL CONSTRUCTION ENTERPRISES, INC., and
PCL CONSTRUCTION SERVICES, INC.,
Defendants.

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ORDER
On September 26, 2017, pursuant to Federal Rules of Civil Procedure 16(a), 23(g), and 42(a),
plaintiffs in these six cases asked the court to enter an order consolidating these six cases, appointing
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interim lead counsel, and instructing the parties to meet and confer and to submit an initial proposed
case management plan. Defendants do not oppose the motion.
The moving plaintiffs in the following six cases are:

1. Island Vibe Cafe. et al. v. PCL Construction Enterprises. Inc .. et al., No. 4:17-cv-101-D
("Island Vibe");
2. Gross d/b/a Down Creek Galleries. et al. v. PCL Construction Services. Inc .. No. 4:17cv-102-D ("Gross");
3. Miss Ocracoke. Inc. et al. v. PCL Construction Enterprises. Inc .. et al., No.4: 17-cv-1 03D ("Miss Ocracoke");
4. Breveleri. et al. v. PCL Construction Enterprises. Inc .. et al., No. 4:17-cv-107-D
("Breveleri");

5. Edgar. et al. v. PCL Civil Constructors. Inc .. No. 5:17-cv-445-D ("Edgar''); and
6. McEwan v. PCL Civil Constructors. Inc .. No. 2:17-cv-40-D ("McEwan").
There is a seventh case, Arch Insurance Co. v. PCL Civil Constructors. Inc., No. 4:17-cv126-D ("Arch Insurance"), that also involves claims arising out of the power outage affecting
Ocracoke and Hatteras, North Carolina. Arch Insurance has moved to intervene in four of the
putative class actions: Miss Ocracoke, Breveleri, Edgar, and McEwan. Plaintiffs' counsel are in
the process of meeting and conferring with counsel for Arch Insurance, but Arch Insurance has not
yet taken a position on consolidation of its action with the other actions.
Under Ru1e 42(a), "[i]f actions before the court involve a common question oflaw 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).
The court finds that the plaintiffs in the six above-captioned actions ("actions") assert one or more
similar claims against defendant PCL Civil Constructors, Inc., or other named PCL entities
(collectively "defendants" or "PCV') arising out of the power outage affecting Ocracoke and
Hatteras, North Carolina, as more specific8lly alleged in the actions. Plaintiffs in the actions have

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agreed to consolidate the actions for all purposes, and defendants do not oppose the motion. Upon
consolidation of the actions, and the designation of a master case file, plaintiffs intend to file in due
course a master consolidated amended complaint, or, if circumstances warrant, more than one
consolidated complaint, with the intention that these complaint(s) shall become the operative
complaint(s) for the actions and allow for the more efficient resolution of these actions.
In sum, the court hereby ORDERS as follows:

1. CONSOLIDATION OF RELATED ACTIONS.
a. The court finds that the record and relevant pleadings reflect that the actions assert one
or more similar claims arising out of the power outage affecting Ocracoke and Hatteras, North
Carolina and reflect one or more common issues of fact or law. Accordingly, the court finds that
the Island Vibe Cafe, Gross, Miss Ocracoke, Breveleri, Edgar, and McEwan actions should be
consolidated for all purposes under Federal Rule of Civil Procedure 42(a).
b. The clerk shall establish and maintain a Master Docket for this proceeding under the
caption "In re: Outer Banks Power Outage Litigation," Master FileNo. 4: 17-CV-141-D. All orders,
pleadings, motions, and other documents should, when filed and docketed in the Master File, be
deemed filed and docketed in each individual case.
c. The parties shall meet and confer with counsel in the above-referenced Arch Insurance
action and determine whether consolidation would be appropriate. In addition, ifany new additional
action is filed in, removed to, or transferred to this court, the parties shall meet and confer to
determine whether the new action involves similar issues of law or fact and whether consolidation
would be appropriate. Ifso, the parties shall meet and confer with counsel in the new action and any
party may file a motion to consolidate the new action if appropriate.

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2. FILING AND DOCKETING PROCEDURES.
a. Every pleading hereafter filed in this Consolidated Action shall bear the following
caption:
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Master File No. 4:17-CV-141-D

IN RE: OUTER BANKS POWER OUTAGE
LITIGATION

This Document Relates To:
All Actions.

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b. When a pleading or -paper is intended to apply to all actions to which this order applies,
the words "All Actions" shall appear after the words "This Document Relates To:" as per the
demonstrative caption a,bove. When a pleading or paper is intended to apply to less than all such
actions, the filing party shall identify this court's docket number for each action to which the
pleading or paper is intended to apply, and the last name of the first named plaintiff in that action
shall appear after the words "This Document Relates To:" in the caption, i.e., "Civil Action No.
_ _ [Name of plaintiff]."
c. When a pleading or paper is filed and the caption, pursuant to subsection (b) above, shows
that it is applies to "All Actions," the CMIECF filing shall be made in the Master File only. No
further copies need be filed or other docket entries made.
d. When a pleading or paper is filed and the caption, pursuant to subsection (b), shows that
it applies to fewer than all of the actions, the CMIECF filing shall be made in the Master File and
in the docket of each such action.

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3. FILING OF CONSOLIDATED AMENDED PLEADINGS.
a. Defendants shall not answer or otherwise respond to any of the complaints in the separate
actions, to the extent defendants have not done so to date. In addition, plaintiffs shall not respond
to defendants' pending motions to dismiss to the extent they have been filed, or to the motions to
intervene filed by Arch Insurance to the extent they have been filed, in the separate actions.
Defendants and Arch Insurance (or any other defendant, proposed intervenor, or other interested
party) shall have the right to file any appropriate motions once the master consolidated amended
complaint(s) have been filed in the Consolidated Action.
b. Within 30 days, plaintiffs shall file a master consolidated amended complaint. If the
parties meet and confer and find it necessary to file more than one master pleading (for example,
if the Arch Insurance lawsuit is consolidated in due course, or if among the existing six actions there
is a plaintiff or claim that warrants treatment in a separate complaint going forward), then they shall
do so within 30 days.
4. APPOINTMENT OF INTERIM COUNSEL.
a. Under Federal Ru1e of Civil Procedure Ru1e 23(g)(3), "[t]he court may designate interim
counsel to act on behalf of a putative class before determining whether to certify the action as a class
action." Fed. R. Civ. P. 23(g)(3). The court has considered the filings and finds that appointment
of interim counsel is appropriate.
b. The court appoints Whitfield Bryson & Mason LLP, the Zaytoun Law Firm, and Wallace
& Graham, P.A., as Interim Co-Lead Counsel, and appoints the Law Office of Jean Sutton Martin,

PLLC, Morgan & Morgan Complex Litigation Group, McCune Wright Arevalo, LLP, Hendren,
Redwine & Malone, PLLC, Rose Harrison & Gilreath, P.C., and WolfHaldensteinAdler Freeman
& Herz LLP to the Interim Plaintiffs' Steering Committee.

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5. INTERIM CASE MANAGEMENT ORDER.
Counsel for all parties in the Consolidated Action shall meet and confer and within the next
45 days submit an agreed proposal, or differing proposals if agreement on issues cannot be reached,
concerning an initial case management plan.
6. INITIAL STATUS CONFERENCE.
On Monday, December 18,2017, the parties shall appear for an initial status conference at
10:00 a.m. in courtroom one of the Terry Sanford Federal Building, 310 New Bern Avenue,
Raleigh, North Carolina.
SO ORDERED.

This~

day of October 2017.

S

C.DEVERill
J
Chief United States District Judge

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