Linihan v. Food Concepts International, LP, et al

Filing 17

ORDER denying 6 Motion to Consolidate Cases; finding as moot 13 Motion for Leave to File. Signed by Judge Algenon L. Marbley on 02/26/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

EDWARD LINIHAN,

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Plaintiff,
v.
FOOD CONCEPTS
INTERNATIONAL, LP et al.,
Defendants.

ELIZABETH A. KLIMEK,
Plaintiff,
v.
FOOD CONCEPTS
INTERNATIONAL, LP et al.,
Defendants.

Case No. 2:15-CV-2476
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

Case No. 2:15-CV-2473
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER
This matter is before the Court on the Motions of Plaintiff Elizabeth A. Klimek and
Plaintiff Edward Linihan to Consolidate their cases with 11 related cases that are currently
pending before this Court against Defendants. For the reasons that follow, the Court DENIES
both motions.

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I.

BACKGROUND

Plaintiff Linihan commenced this case in the Franklin County Court of Common Pleas on
June 29, 2015. (Linihan Doc. 2.1) On June 30, 2015, Defendants removed the action to this
court (Doc. 1.) at which point Plaintiff filed a motion to consolidate his case (Linihan Doc. 6.)
with 11 other cases, all of which had been filed against Defendants in this Court or removed to
this Court in February 2013. (See Miller Doc. 9 at 1.) On July 8, 2015, Plaintiff Linihan’s case
was transferred from Judge Watson’s docket to this Court’s docket because it is related to the 11
other cases. Defendants failed to respond to Plaintiff’s motion to consolidate until nearly two
months later, when they filed a Motion for Leave to File Opposition to Plaintiff’s Motion to
Consolidate Instanter. (Linihan Doc. 13.) Plaintiff opposes Defendants’ motion, arguing that
Defendants have not offered any explanation or their untimely filing other than counsel’s
oversight. (Linihan Doc. 14.)
Meanwhile, Plaintiff Klimek filed a complaint in this court on June 30, 2015 and on that
same day filed a motion to consolidate her case with the 11 aforementioned cases against
Defendants. (Klimek Doc. 4.) Defendants were not served with the complaint, however, until
February 23, 2016. (Klimek Docs. 7-8.)
Like Plaintiffs Linihan and Klimek, the plaintiffs in the 11 related cases are former and
current employees of Abuelo’s restaurant in Columbus. Those Plaintiffs all pleaded violations of
the Fair Labor Standards Act (“FLSA”) and breach-of-contract claims. (See Miller Doc. 38 at 1.)
Discovery in those 11 cases was closed on August 31, 2015. (See Miller Doc. 110.)

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For ease of reference, the Court will use each Plaintiff’s last name when referring to docket
filings in Linihan v. Food Concepts Int’l, LP, No. 15-cv-2476, Klimek v. Food Concepts Int’l,
LP, No. 15-cv-2473, and Miller v. Food Concepts Int’l, LP, No. 2:13-cv-00124. Miller is the
plaintiff in one of the related cases pending before the Court.
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II.

LAW AND ANALYSIS

Under Federal Rule of Civil Procedure 42(a)2, if actions before a court involve a common
question of law or fact, the court has the discretion to:
(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.
There need not be “complete identity of legal and factual issues posed in the cases which are the
subject of the request.” J4 Promotions, Inc. v. Splash Dogs, LLC, Nos. 2:09-cv-136, 2:10-cv432, 2010 WL 3063217, at *1 (S.D. Ohio Aug. 3, 2010). The underlying objective of
consolidation “is to administer the court’s business with expedition and economy while
providing justice to the parties.” Advey v. Celotex Corp., 962 F.2d 1177, 1180 (6th Cir. 1992)
(internal quotation marks and citation omitted). The Court must take care “that consolidation
does not result in unavoidable prejudice or unfair advantage.” Cantrell v. GAF Corp., 999 F.2d
1007, 1011 (6th Cir. 1993). If the conservation of judicial resources achieved through
consolidation “are slight, the risk of prejudice to a party must be viewed with even greater
scrutiny.” Id.
Plaintiffs contend that these cases should be consolidated for purposes of discovery
because they share common questions of law and fact and the consolidation would serve the
goals of efficiency and conservation of judicial resources. Namely, they argue that consolidation
is appropriate because: (1) all Plaintiffs are current or former employees at Abuelo’s restaurant;
(2) the Defendants are the same in each case; (3) Plaintiffs and Defendants are all represented by
the same counsel, respectively; (4) three additional new plaintiffs have filed actions in this Court

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Plaintiffs Linihan and Klimek discuss the standard for determining whether cases are related
under Local Civil Rule 3.1(b), but this argument is irrelevant because the Court has already
determined that the cases are related, which is not dispositive of the issue of whether they should
be consolidated for discovery purposes.
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with similar claims3; (5) all Plaintiffs “essentially base their claims on [Defendants’] violations
of FLSA and breach of contract for wages claims.” (Klimek Doc. 4 at 4.)
Discovery in the 11 related cases closed several months ago. (See Miller Doc. 110.)
Therefore, the Court finds that consolidation at this stage would not conserve judicial resources.
See JF Promotions, 2010 WL 3063217, at *2 (denying a motion to consolidate when “the cases
[were] at very different stages in the litigation process” and any common questions of law and
fact were minor). Klimek’s complaint does indicate that there may be questions of law or fact
common to the other 11 cases, because she alleges violations of the Fair Labor Standards Act
and breach of contract, as do the other plaintiffs. (Klimak Compl., Doc. 1 at 23-51.) Linihan,
however, was an assistant general manager at Abuelo’s and brings entirely different causes of
action against Defendants. (Linihan Compl., Doc. 2 at 11-22.) Even if Klimek’s complaint
reveals some common questions of law or fact with the other 11 cases, the Court finds that
consolidation would not conserve judicial resources and that Defendants could be prejudiced
because discovery has already concluded in the other cases.
III.

CONCLUSION

For the reasons stated above, Plaintiff Linihan and Plaintiff Klimek’s motions to
consolidate are DENIED. (Linihan Doc. 6 and Klimek Doc. 4.) Defendants’ Motion for Leave
to File (Linihan Doc. 13) is MOOT.
IT IS SO ORDERED.

DATED: February 26, 2016  

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE 

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Since the date that Plaintiffs Linihan and Klimek filed their motion to consolidate, two of the
plaintiffs mentioned by Plaintiffs Linihan and Klimek in their motion, Justin Thomas and
Cassandra Epperly, have filed complaints in this Court. Neither has yet filed a motion to
consolidate those cases with any other case.
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