P.B. v. Burke County Public Schools Board of Education et al

Filing 29

ORDER granting in part and reserving for decision by the District Court in part [Doc. 7 filed in 1:13-cv-09] MOTION to Consolidate this Case with 1:12-cv-00334; joining 1:13cv09 & 1:12-cv-334 for the purposes of discovery and reserving the decision as to whether or not to grant Defts' motion for consolidation for trial to the District Court, to be determined after the completion of discovery in these two cases. Signed by Magistrate Judge Dennis Howell on 4/5/13. (Pro se litigant served by US Mail.)(ejb)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13 CV 009

A.B., as Lawful Guardian ad litem of
Minor Child, L.B.,

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Plaintiff
v
BURKE COUNTY PUBLIC SCHOOLS
BOARD OF EDUCATION, LINDA
BRADSHAW, JOHN ROES 1-10, and
MICHAEL ANDREW ALEXANDER,
Defendants

ORDER

THIS MATTER has come before the undersigned pursuant to a Motion to
Consolidate (#7) filed by Defendants’ Burke County Public Schools Board of
Education and Linda Bradshaw. In the motion those two Defendants request the
Court to consolidate this matter for all purposes, including trial, with the case
presented in P.B., as Lawful Guardian Ad Litem of Minor Child, Jane Doe v. Burke
County Board of Education, Linda Bradshaw, John Roes 1-10, and Michael
Andrew Alexander which is pending in this Court.(1:12cv334) The Plaintiff has
responded to the motion of Defendants in a response entitled “Plaintiff’s
Opposition to Defendants’ Motion to Consolidate” (#17).

In the response,

Plaintiff requests the Court grant the Defendants’ motion in part by consolidating
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the the two cases for pretrial purposes only and reserve for later decision whether
or not the two cases should be consolidated for trial.
I. BACKGROUND
An examination of the Complaints filed this action and the action contained
in file 1:12cv334, appear to have arisen out of the same set of facts.

Both

Complaints allege injury caused out of alleged acts or omissions of the Defendants
Burke County Board of Education and Linda Bradshaw and also other alleged acts
of the Defendant Michael Andrew Alexander.
In the Complaints it is alleged that Defendant Alexander was a teacher at
Hildebran Elementary School located in Burke County, North Carolina. It is
further alleged that both the minor Plaintiffs were students in Defendant
Alexander’s third grade class during the academic year 2011 to 2012. (Complaints,
¶¶ 1, 2 and 3) It is alleged that during school hours and on school grounds that
Defendant Alexander sexually molested both of the minor Plaintiffs. (Complaints,
¶¶ 1, 2, and 3) It is further alleged that Defendant Bradshaw was a guidance
counselor at Hildebran Elementary School and when each of the two minor
Plaintiffs complained of the actions of Defendant Alexander, that the Defendant
Bradshaw disregarded the complaints. (Complaints, ¶¶ 4, 5 and 6)
The two Complaints are almost mirror images of each other.

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The

Complaints contain almost the same exact language in the factual allegations
(1:12cv334, ¶¶ 20-53) (1:13cv09, ¶¶ 21-53) The purported causes of actions,
although similar in each case, are presented against different Defendants. In file
1:12cv334, counts I, II, III, and IV present claims against the school board,
Bradshaw and John Roes. In file 1:13cv09, counts I and II are made against the
school board only. The purported causes of actions of each Complaint are all
entitled similarly. Counts VI, VII, VIII, IX, X, XI, XII, XIII and XIIII in each
Complaint are virtually the same.
The Plaintiffs in each case are represented by the same attorneys and the
Defendants Burke County Public Schools Board of Education and Linda Bradshaw
are represented by the same attorneys. Mr. Alexander represents himself in each
case.
The Complaint in file 1:13cv09 in ¶ 26 alleges that “Defendant Alexander’s
sex and child abuse of L.B. includes abuse and misconduct that is nearly identical
to the heinous crimes he carried out against L.B.’s classmate.” (See P.B. v Burke
County Public Schools Board of Education, et al., Case No. 12-cv-334
(W.D.N.C.).) It would appear that the Plaintiff in file 1:13cv09 is incorporating
the allegations in 1:12 cv 334.

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II. STANDARD OF REVIEW
Rule 42 of the Federal Rules of Civil Procedure permits the Court to
consolidate two or more cases “if actions before the court involve a common
question of law or fact.” Fed.R.Civ.P. 42(a). Federal district courts have broad
discretion under Rule 42(a) to consolidate cases pending in the same district. See
A/S J. Ludwig Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928, 933 (4th
Cir. 1977). In the Fourth Circuit, the relevant factors for a district court to consider
in deciding whether to consolidate are:
(1)

whether the risk of inconsistent adjudications of common
factual and legal issues outweigh the specific risks of prejudice
and possible confusion;

(2)

the relative burden on the parties;

(3)

witnesses and available judicial resources posed by multiple
lawsuits;

(4)

the length of time required to conclude multiple suits as against
a single one; and,

(5)

the relative expense to all concerned of the single-trial,
multiple-trial alternatives.

Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982) (citing 9 C.
Wright & A. Miller, Federal Practice & Procedure: Civil § 2383 (1971)). This
Court may consolidate the cases if, in light of the totality of the circumstances, it is

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necessary for the just adjudication of both suits. The Court will consider each of
the Arnold factors in turn.
III. ANALYSIS
(a)

Risk of Confusion Verses Rick of Inconsistent Adjudications

The Defendants School Board and Bradshaw contend that the consolidation
of these cases for both discovery and trial would prevent the possibility of
inconsistent verdicts in regard to the Defendants. The Plaintiff, on the other hand,
contends that each minor Plaintiff has suffered damages that are distinct as to each
one of the minor Plaintiffs and that there should be, at least at this time, separate
trials. Plaintiff’s counsel does not object to the consolidation of the two cases for
discovery but does object for the consolidation for trial. However, Plaintiff’s
counsel states in his Response that position may change. Discovery is just now
beginning in these cases. At this point, the Court cannot determine if joinder for
trial is best but it would appear from the similarity of the Complaints and the
allegations that the Court should, in fact, weigh this factor in favor of at least
joinder for discovery purposes if not for trial. However, at this time it appears it
would be best interest of justice to reserve for the District Court, that being the trial
court in this matter, the decision of whether or not the cases should be joined for
trial after discovery has been completed.

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(b)

Burden on the Parties

It would appear, at least as to discovery and the presentation of a majority of
what would be the potential witnesses in these cases, that the burden on both the
Plaintiff and Defendants in each case would be decreased by a joinder for not only
discovery but also for trial.
(c)

The Burden on the Witnesses and the Courts Posed by Multiple
Lawsuits

It appears that consolidation for discovery and trial would lessen the burden
on both the witnesses and the Court. An examination of the Complaints shows that
the witnesses to be called in each case would essentially be the same, other than for
damages. Consolidation for both discovery and trial would save these witnesses
from exposure of having to have to testify twice if the cases were not consolidated
for trial. The burden upon jurors would be decreased by one trial. Judicial
economy would be increased by a joinder for both discovery and trial. Johnson v
Coleotex Corp., 899 F.2d 1281, 1285 (2nd Cir. 1990) This factor is weighed by the
undersigned in favor of joinder for both discovery and trial.
(d)

Length of Time Required to Conclude Multiple Suits as Against a
Single One

The Complaint in file 1:12cv334 was filed on October 22, 2012 and in file

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1:13cv09, the Complaint was filed on January 14, 2013. The parties, however,
submitted similar requests for scheduling. This Court, on March 26, 2013, filed
scheduling orders in each case setting the same schedule for discovery and the
same date for trial.

This factor is weighed in favor of consolidation for all

purposes, that being both discovery and trial.
(e)

The Relative Expense to All Concerned of the Single Trial, MultipleTrial Alternatives

The undersigned would weigh this factor in favor of consolidation for all
purposes. Considering the budget constraints upon this Court and the effective and
economical use of juror time shows that this factor should weigh heavily in favor
of granting Defendants’ motion for both purposes, that being discovery and trial.
IV. CONCLUSION
In summation, the Arnold factors weigh in favor of consolidation for
purposes of both discovery and trial. However, the undersigned is of the opinion
that joinder for trial should, in these two cases, be a decision to be made by the
District Court after the Court has the benefit of the completion of discovery. The
undersigned will grant the Defendants’ motion in part and will order that the cases
be consolidated for discovery purposes. The undersigned will further order that the
decision as to whether or not to grant Defendants’ motion as to consolidation for

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trial will be reserved to the District Court after discovery has been completed.
ORDER
IT IS, THEREFORE, ORDERED that the Motion to Consolidate by
Burke County Public Schools Board of Education and Linda Bradshaw (#7) is
hereby ALLOWED in part and is RESERVED for decision by the District Court
in part. It is further ORDERED that the cases entitled “P.B., as Lawful Guardian
ad litem of Minor Child, Jane Doe v. Burke County Public Schools Board of
Education, Linda Bradshaw, John Roes 1-10, and Michael Andrew Alexander”,
file 1:12cv334 is hereby JOINED for the purposes of discovery with the file
entitled “A.B., as Lawful Guardian ad litem of Minor Child, L.B. v. Burke County
Public Schools Board of Education, Linda Bradshaw, John Roes 1-10, and Michael
Andrew Alexander”, that being file 1:13cv09. It is further ORDERED that the
decision as to whether or not to grant Defendants’ motion for consolidation for trial
is hereby reserved to the District Court and is to be determined by the District
Court after the completion of discovery in these two cases.

Signed: April 5, 2013

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