McCauley v. America's Pizza Company, LLC
OPINION AND ORDER granting in part and denying in part 36 Motion to Consolidate Cases. Cases 2:16-cv-253 and 2:16-cv-418 are consolidated for the purposes of discovery only. Signed by Magistrate Judge Terence P. Kemp on 5/5/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Case No. 2:16-cv-253
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
America’s Pizza Company, LLC,
Hamdi Hassan, et al.,
America’s Pizza Company, LLC,
Case No. 2:16-cv-418
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
OPINION AND ORDER
Defendant America’s Pizza Company, LLC (APC) has moved to
consolidate these two cases.
The plaintiffs in Case No. 2:16-cv-
418, Hamdi Hassan, Ahmadou Alpha, and Christopher Ward, oppose
consolidation for purposes other than discovery.
been fully briefed.
The issues have
For the following reasons, the motion to
consolidate will be granted in part and denied in part.
On March 23, 2016, Kimberly McCauley, the named plaintiff in
Case No. 2:16-cv-253, filed her collective action complaint
She sued on her own behalf and also brought her
claims as ‘opt-in’ collective action claims on behalf of
similarly situated delivery drivers for (1) failure to pay
minimum wages under the FLSA and (2) failure to pay minimum wages
under Ohio law.
On May 11, 2106, Mr. Hassan filed a class action
complaint in Case No. 2:16-cv-418 against APC and its CEO Michael
Mr. Hassan also asserted opt-in collective
action claims for failure to pay minimum wages.
McCauley, however, Mr. Hassan asserted a claim for failure to pay
overtime wages under the FLSA.
Further, he asserted Rule 23 opt-
out class action claims arising under state law for (1) failure
to pay minimum wages, (2) failure to pay overtime wages, and (3)
untimely payment of wages.
Finally, Mr. Hassan alleged that Mr.
Stolzenthaler, as the CEO, was individually liable for delivery
driver damages as an employer.
In the McCauley case, APC and Ms. McCauley stipulated
regarding sending notice of an opt-in collective action,
conditionally certified for settlement purposes only, to a subset
of APC’s delivery drivers.
See Case No. 2:16-cv-253, Doc. 25.
Employees who have signed an arbitration agreement since January
1, 2016, or applied for their position online after March 23,
2015, are excluded from the stipulated collective.
also stipulated for purposes of conditional certification that
she would dismiss her Ohio claims and proceed only on her FLSA
claims on behalf of herself and whoever opted in.
approved this stipulation on September 13, 2016, and notice was
sent to 3,500 potential opt-in plaintiffs on November 11, 2016.
As of the expiration of the opt-in period on February 1, 2017,
over 300 delivery drivers had opted-in.
In the Hassan case, APC and Mr. Stolzenthaler moved to
compel individual arbitration of Mr. Hassan and Mr. Alpha’s
Mr. Ward opted-in and a motion for leave to file a
second amended complaint proposing to name him as a plaintiff and
class representative was filed on October 20, 2016.
As a result,
Mr. Ward was not subject to the motion to compel arbitration.
By order dated March 24, 2017, Judge Graham stayed the
Hassan case on two bases.
First, he noted the pending motion to
Further, he explained that the United States
Supreme Court will soon hear argument on three consolidated cases
on the issue of “‘[w]hether the collective-bargaining provisions
of the National Labor Relations Act prohibit the enforcement
under the Federal Arbitration Act of an agreement requiring an
employee to arbitrate claims against an employer on an
individual, rather than collective, basis.’” See Order Granting
Defendants’ Motion to Stay, Doc. 37, p. 2, quoting Ernst & Young
LLP v. Morris, 2016 WL 4710181 (U.S.), No. 16-300 (Petition for a
Writ of Certiorari).
The Motion to Consolidate
Against this background, APC seeks the consolidation of
In support of its motion, APC primarily contends
that the cases involve common questions of law and fact and
therefore must be consolidated.
More specifically, APC asserts
that the Hassan case should be consolidated with the McCauley
case because the both cases allege the same causes of action
under the FLSA and Ohio law, and the prospective class, alleged
scheme of violations, and defendants are effectively the same.
APC argues that it does not matter that the Hassan case includes
claims for unpaid overtime in addition to the claims for unpaid
Further, APC argues that the issue of the
arbitration agreements and motion to compel arbitration in the
Hassan case does not preclude consolidation.
In short, according
to APC, all the factors generally considered weigh in favor of
consolidation and the FLSA does not prohibit consolidation.
In response, the Hassan plaintiffs object to consolidation
for any purposes other than discovery, and state by way of
footnote that they already have served discovery.
that consolidation for all other purposes should be denied
because the cases involve different causes of action, procedural
remedies, and parties, that the cases are at different stages,
and that the plaintiffs seek to represent different classes.
Consolidation of cases is provided for in Rule 42(a) of the
Federal Rules of Civil Procedure, which states, in pertinent
part, that the Court may order consolidation of actions involving
“a common question of law or fact . . . .”
Fed. R. Civ. P.
The purpose 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) (quoting 9 Wright & Miller, Federal
Practice and Procedure, §2381 (1971)).
thoughtfully consider “[w]hether the specific risks of prejudice
and possible confusion [are] overborne by the risk of
inconsistent adjudications of common factual and legal issues,
the burden on parties, witnesses and available judicial resources
posed by multiple lawsuits, the length of time required to
conclude multiple suits as against a single one, and the relative
expense to all concerned of the single-trial, multiple-trial
Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th
Cir. 1993) (citation and internal quotation marks omitted).
“[C]onsolidation does not merge the suits into a single
action, change the rights of the parties, or make parties in one
suit parties in the other.”
Twaddle v. Diem, 200 F. App'x 435,
438 n.4 (6th Cir. 2006) (citing Johnson v. Manhattan Ry. Co., 289
U.S. 479, 496–97 (1933) (interpreting predecessor of Rule
“[I]t is the district court's responsibility to ensure
that parties are not prejudiced by consolidation.”
Lewis v. ACB
Bus. Servs., Inc., 135 F.3d 389, 412-13 (6th Cir. 1998) (citing
Charles A. Wright and Arthur R. Miller, Federal Practice and
Procedure § 2385 (2d ed.1994)).
The parties do not dispute that the actions before the Court
involve common questions of law and fact relating to wage-based
claims under the FLSA and Ohio law.
For this reason, the Hassan
plaintiffs do not object to the consolidation of these cases for
The Court agrees that this is the reasonable
approach under the current circumstances.
The cases are at
different stages, with notice already having been issued in the
McCauley case and the opt-in period having now expired.
as the cases currently stand, the plaintiffs seek to represent
different classes distinguished, in part, by the issue of an
As explained above, the United States
Supreme Court soon will be addressing a similar issue relating to
While the Court finds limited consolidation to
be the better exercise of discretion at this point, the parties
remain free to seek consolidation for further purposes at a later
date should they so choose.
Finally, to the extent that these
cases are consolidated for discovery purposes, in order to
undertake or continue with discovery on a consolidated basis, the
parties will be required to request that the stay be lifted in
the Hassan case.
For the reasons set forth above, the motion to consolidate
(Doc. 36 in Case No. 2:16-cv-253) is granted to the extent that
these cases are consolidated for purposes of discovery but denied
in all other respects.
Motions for Reconsideration
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,
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
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
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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