AMEC Environment & Infrastructure, Inc. v. Structural Associates, Inc., et al
Filing
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ORDER DENYING 17 Defendants' Motion to Strike, DENYING 19 Defendants' Motion to Dismiss for Failure to State a Claim, and DENYING AS MOOT 27 Defendants' Motion to Stay. The Scheduling Order in this case at docket entry thirt y-five (35) now applies to this consolidated action. If the Order requires amending in light of the consolidation, the parties shall request such amendment in a timely manner. Signed by US District Judge Terrence W. Boyle on 10/21/2013. Counsel is directed to read Order in its entirety for critical information and deadlines. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
UNITED STATES OF AMERICA FOR
USE AND BENEFIT OF TALON
INDUSTRIES,
Plaintiff,
v.
AMEC ENVIRONMENT &
INFRASTRUCTURE, INC., et al.,
Defendants.
UNITED STATES OF AMERICA FOR
USE AND BENEFIT OF STRUCTURAL
ASSOCIATES, INC.,
Plaintiff,
V.
AMEC ENVIRONMENT &
INFRASTRUCTURE, INC., et al.,
Defendants.
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7:13-CV-54-BO
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7:13-CV-77-BO
ORDER
These causes come before the Court on a motion by defendant AMEC Environment &
Infrastructure (AMEC) to consolidate these matters with an earlier filed action, AMEC v. Talon
Industries and Structural Associates, Inc., No. 7:13-CV-21-BO. A hearing was held on the
matters before the undersigned on October 17, 2013, at Raleigh, North Carolina. For the reasons
discussed below, AMEC's motion to consolidate is granted.
BACKGROUND
All three of these actions arise out of a construction project in Onslow County to replace a
buried fiberglass-reinforced pipeline at the Marine Corps' Air Station located near the New River.
AMEC was the general contractor on the pipeline project and held a contract for project with the
United States Navy. Structural Associates (Structural) was a first tier subcontractor that
contracted with Talon Industries (Talon) to perform excavation activities. During the construction
period, the existing pipeline cracked and 9,000 gallons of jet fuel was spilled. In the first filed
action, AMEC sued Structural and Talon seeking, inter alia, to recover environmental
remediation expenses related to the spill. In two separate, later filed actions, Structural and Talon
brought Miller Act claims against AMEC as well as Zurich American Insurance Company
(Zurich), from which AMEC obtained a Miller Act payment bond in the amount of $2,890,914 for
the pipeline project. Those cases seek, inter alia, performance on the payment bond by Zurich
and payment for services rendered and work accepted by the Navy.
DISCUSSION
Rule 42(a) ofthe Federal Rules of Civil Procedure permits consolidation of actions
involving common questions of law or fact. This Court has broad discretion in determining
whether to consolidate actions pending before it. A/S J Ludwig Mowinckles Rederi v. Tidewater
Canst. Co., 559 F.2d 928, 933 (4th Cir. 1977). While Rule 42(a)(2) would permit a court to
merge causes of actions into a single case, the majority of courts still subscribe to the traditional
rule, which provides that consolidated actions must retain their separate characters. See Schnabel
v. Lui, 302 F.3d 1023, 1035 (9th Cir. 2002); 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure ยง 2382 (3d ed.). This Court will follow the traditional rule. See Bess v.
Cnty a/Cumberland, NC., No. 5:11-CV-388-BR, 2011 WL 4809879 (E.D.N.C. October 11,
2011).
AMEC has demonstrated that consolidation of these cases is appropriate here. The three
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cases each arise out of the same construction project and involve common questions of fact.
While Structural and Talon contend that their subsequently-filed actions involve only a discrete
issue of law and are not related to AMEC' s remediation claim, the Court is not convinced that its
economy and resources would not be better served by considering all of the matters between these
parties that relate to the pipeline project in the same action. Moreover, Structural and Talon have
each raised counterclaims against AMEC in the first filed action, alleging identical claims to those
brought in their subsequently filed actions against AMEC. With the addition of Zurich as a
counterclaim defendant in the first filed action, the claims and parties and each of these cases
would be identical or so substantially similar as to not warrant repetition of the parties' and the
Court's efforts. Accordingly the Court hereby CONSOLIDATES cases 7:13-CV-21-BO, 7:13CV-54-BO, and 7:13-CV-77-BO. Case number 7:13-CV-21-BO shall serve as the lead case.
CONCLUSION
For the foregoing reasons, AMEC's motion to consolidate is GRANTED. These three
actions shall proceed under the caption at case number 7:13-CV-21-BO. The parties are
DIRECTED to file consolidated pleadings within fourteen (14) days of the date of entry of this
order to reflect consolidation of these matters and to add any claims or parties to the lead action as
appropriate. For this reason, the Court DENIES WITHOUT PREJUDICE AMEC's motion to
dismiss counterclaim and motion to strike filed in the lead case. [DE 17 & 19]. Such motion may
be refiled once the parties and pleadings have been supplemented to reflect consolidation. The
clerk is DIRECTED to enter this order in each of the now-consolidated actions and to
administratively close the files of cases 7:13-CV-54-BO and 7:13-CV-77-BO. At the appropriate
time, these matters shall be reopened so that judgment may be entered therein.
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AMEC's motion to stay discovery pending ruling on the motion to consolidate is DENIED
AS MOOT. The scheduling order entered in the lead case at docket entry thirty-five now applies
to the consolidated action; should this order require amendment in light of consolidation, the
parties shall request such amendment in a timely manner.
SO ORDERED, this
1..[_ day of October, 2013.
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