Lightning Rod Mutual Insurance Company v. Foundations Plus, LTD. et al

Filing 25

ORDER denying 8 Motion to Consolidate Cases; denying 17 Motion to Strike. Signed by Magistrate Judge Terence P. Kemp on 2/29/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Charles James Manley,
Plaintiff,

:
:Case No. 2:15-cv-1786

v.

:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Foundations Plus, LTD., et al.,:
Defendants.

:

Lightning Rod Mutual Insurance :
Company,
Plaintiff,

:Case No. 2:15-cv-2978

v.

:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Foundations Plus, Ltd., et al.,:
Defendants.

:

ORDER
Charles James Manley, Plaintiff in the first-captioned case
and one of the defendants in the second, has filed a motion to
consolidate these two cases.

For the following reasons, that

motion will be denied.
In the first case, Mr. Manley has sued a number of parties
whom he claims were responsible for not completing a barn
restoration project in accordance with Mr. Manley’s directives,
and in breach of contract or other duties owed to Mr. Manley.
The second case involves a claim by Lightning Rod Mutual
Insurance Company for a declaratory judgment that it is not
liable under a policy which it issued to Foundations Plus LTD, a

defendant in the first case, for the claims which Mr. Manley has
asserted against Foundations Plus.

Lightning Rod and Foundations

Plus both oppose consolidation.
Consolidation of cases is provided for in Fed.R.Civ.P.
42(a), which provides, in pertinent part, that the Court
may order consolidation of "actions involving a common
question of law or fact...." The underlying purpose of the
Rule is to promote economy in the administration of justice.
Feldman v. Hanley, 49 F.R.D. 48 (S.D.N.Y. 1969). Any savings
of litigant and judicial resources achieved by consolidation
must be balanced against any prejudice to the parties,
including potential confusion of the issues, which might
result from consolidation. Arroyo v. Chardon, 90 F.R.D. 603
(D.P.R. 1981). It is not a prerequisite to consolidation
that there be a complete identity of legal and factual issues
posed in the cases which are the subject of the request.
Thayer v. Shearson, Loeb, Rhoades, Inc., 99 F.R.D. 522
(W.D.N.Y. 1983). Rather, as long as there are some common
questions of either law or fact, the Court has the
flexibility under Rule 42 to allow cases to proceed jointly
with respect to such matters in which joint proceedings would
not be unduly prejudicial and would be an effective
utilization of judicial resources. Brewer v. Republic Steel
Corp., 64 F.R.D. 591 (N.D. Ohio 1974), aff'd 513 F.2d 1222
(6th Cir. 1975).
This Court has denied consolidation for trial purposes in a
similar situation involving, as the second of two cases, a
declaratory judgment action arising out the first case. See
Guild Associates, Inc. v. Bio-Energy (Washington), LLC, 309
F.R.D. 436 (S.D. Ohio 2015)(although the Court ordered
consolidation for discovery purposes since the parties had agreed
to that approach). It specifically noted that, in such cases,
there is no commonality of legal issues since the coverage issues
are separate and distinct from the underlying liability issues,
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and that a jury would be confused if it had to deal with both.
The same result was reached in J4 Promotions, Inc. v. Splash
Dogs, LLC, 2010 WL 3063217 (S.D. Ohio Aug. 3, 2010). The Court
will follow that approach here. It is true, however, that the
two cases which are the subject of Mr. Manley’s motion to
consolidate are assigned to the same District Judge and
Magistrate Judge, and to the extent that the proceedings overlap
in some respects, the Court can handle any such issues
efficiently without formal consolidation.
As part of its response, Lightning Rod moved to strike some
of the allegations made in the motion to consolidate. The Court,
while agreeing that some of Mr. Manley’s assertions about
counsel’s motivation in filing the declaratory judgment action in
state court might be speculative, does not view them as so
prejudicial that an order to strike is needed. That request will
therefore be denied.
For the foregoing reasons, the Court denies the motion to
consolidate (Doc. 56 in Case No. 2:15-cv-1786 and Doc. 8 in Case
No. 2:15-cv-2978) and denies the motion to strike (Doc. 17 in
Case No. 2:15-cv-2978).
Procedure on Objections
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for

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reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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