Dorrough v. Corey et al

Filing 50

ORDER consolidating case with CIV-14-1389-D. All future filings shall occur only in Case No. CIV-14-1389-D.. Signed by Honorable Timothy D. DeGiusti on 1/3/17. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
VICKI DORROUGH, individually,
and as Special Administrator of the
ESTATE OF MATTHEW DORROUGH,
Deceased,

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)
)
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Plaintiff,
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vs.
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THE GEO GROUP, INC., a Florida
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Corporation, d/b/a LAWTON
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CORRECTIONAL FACILITY, et al.,
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Defendants.
)
_______________________________________)

Case No. CIV-14-1389-D

Proposed for Consolidation With:
VICKI DORROUGH, as special administrator )
of the ESTATE OF MATTHEW DORROUGH, )
Deceased,
)
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Plaintiff,
)
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vs.
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DANIEL COREY, et al.,
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Defendants.
)
_______________________________________)

Case No. CIV-15-143-D

ORDER
Before the Court for consideration is Plaintiff’s Motion to Consolidate and Amend
[Doc. No. 47], filed only in Case No. CIV-14-1389-D (“Dorrough I”) but requesting
consolidation pursuant to Fed. R. Civ. P. 42(a) with the related case of Dorrough v. Corey,

Case No. CIV-15-143-D (“Dorrough II”). Plaintiff also moves pursuant to Fed. R. Civ.
P. 15(a)(2) to file a proposed Third Amended Complaint that would add allegations to her
existing pleading in Dorrough I that now appear only in her complaint in Dorrough II.
Defendant GEO Group, Inc. (GEO) has filed separate responses to the Motion, one agreeing
consolidation is appropriate [Doc. No. 57] and a second opposing amendment of Plaintiff’s
pleading [Doc. No. 58]. At the Court’s direction, the defendants in Dorrough II have
responded to the Motion to Consolidate, and like GEO, they agree consolidation is
appropriate.
A.

Consolidation of Plaintiff’s Two Cases Under Rule 42(a)
All defendants agree the related cases should be consolidated, but they qualify their

responses by stating consolidation should be for the purpose of discovery only. Both GEO
and the individual defendants say it is premature to decide at this point whether the cases
should be consolidated for trial, and reserve the right to move for separate trials of the two
cases under Rule 42(b). Both argue that the standards for § 1983 liability differ between the
individual defendants and GEO, which is subject only to municipal liability, and the different
nature of the two actions may warrant their bifurcation for trial.
Rule 42(a)(2) vests in the district court discretionary authority to consolidate actions
that involve a common question of law or fact. See Gillette Motor Transp. v. Northern Okla.
Butane Co., 179 F.2d 711, 712 (10th Cir. 1950) (recognizing “broad discretion vested in the
trial court in ordering consolidation of cases”). The commonality requirement is clearly met
under the circumstances presented, where Plaintiff asserts in two separate cases that the
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constitutional rights of the decedent were violated by the defendants’ failure to protect him
from physical attack by another inmate. Both cases present for decision the question of
whether unconstitutional conduct by prison officials caused Matthew Dorrough’s death; GEO
can be held liable (in Dorrough I) only if one or more of its employees (the defendants in
Dorrough II) violated Mr. Dorrough’s constitutional rights. Accordingly, the Court easily
finds that consolidation of the two cases is appropriate. The defendants’ concerns about
potential prejudice from a joint trial can best be evaluated after it is determined through
discovery and dispositive motions what claims remain for trial.
In keeping with the Court’s customary practice, the consolidation of the cases will
result in a direction that the Clerk administratively close the higher-numbered case and that
the parties make all future filings only in the lower-numbered case. This practice is a matter
of administrative convenience so there is no need for the Clerk to maintain two files and the
parties (or the Court) to make duplicate filings. It does not prejudice the right of a defendant
to assert any defense or raise any issue in the consolidated action that was available to that
defendant in the separate case. Should it later appear that separate trials are warranted,
bifurcation will be ordered, and the higher-numbered case can be reopened.
B.

Amendment of Plaintiff’s Pleading Under Rule 15(a)(2)
Plaintiff seeks to add factual allegations to her Second Amended Petition [Doc.

No. 37] in Dorrough I – a case filed in state court and removed to federal court by GEO –
relating to the timeliness of her action under 42 U.S.C. § 1983. These allegations have
already been made in the Complaint in Dorrough II, and the amendment would further align
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Plaintiff’s pleadings in the two cases. GEO opposes the proposed amendment on grounds
of futility and prejudice. GEO asserts that Plaintiff ignores the Court’s prior ruling on GEO’s
motion to dismiss her § 1983 claim as time barred, and seeks to reopen an issue that has
already been decided adversely to Plaintiff.
Rule 15(a)(2) directs district courts to “freely give leave [to amend] when justice so
requires.” The Tenth Circuit has stated regarding this provision: “The purpose of the Rule
is to provide litigants ‘the maximum opportunity for each claim to be decided on its merits
rather than on procedural niceties.’” Minter v. Prime Equipment Co., 451 F.3d 1196, 1204
(10th Cir. 2006) (quoting Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir.
1982)). Accordingly, an amendment of pleadings should be permitted unless a sufficient
reason exists to deny leave to amend. Id.; see Foman v. Davis, 371 U.S. 178, 182 (1962).
“‘Refusing leave to amend is generally only justified upon a showing of undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment.’” Bylin v. Billings, 568 F.3d
1224, 1229 (10th Cir. 2009) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.
1993)).
GEO’s futility argument is based on the Court’s ruling in the Order of July 12, 2016,
that Plaintiff’s § 1983 claim in Dorrough I accrued when she had sufficient facts to put her
on inquiry notice of the factual basis of the claim. GEO contends Plaintiff previously argued
in her briefs the same facts that she now proposes to add to her pleading – allegations also
asserted in Dorrough II to delay the accrual of § 1983 claims against individual employees
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of GEO – and the Court necessarily deemed these additional allegations to be ineffectual to
preserve her claim. Plaintiff obviously disagrees with GEO’s reading of the July 12 Order.
Upon consideration, the Court finds that GEO overstates the holding of the July 12
Order, and that the effect of Plaintiff’s allegations in Dorrough II on the timeliness issues
raised in this case can best be assessed by an orderly presentation and briefing of the issues
under the applicable legal standards. In their current briefs, the parties make only general
arguments, without citation of legal authorities, regarding the accrual of Plaintiff’s claim
against GEO.1 The Court is unwilling to determine on these briefs that Plaintiff’s requested
amendment would be futile.
Similarly, the Court rejects GEO’s claim of prejudice. GEO argues that Plaintiff is
“attempt[ing] to unbuckle the Court’s ruling on the accrual of her Section 1983 claim” and
additional motion practice regarding the same issue will simply cause GEO “to expend
unnecessary time and resources for no substantive purpose.” See GEO’s Resp. Mot. Amend
[Doc. No. 58], p.9. This is simply a reiteration of GEO’s futility argument, and is not
persuasive to the Court.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Consolidate and Amend
[Doc. No. 47] is GRANTED. The above-styled cases are consolidated for all purposes,
without prejudice to a later motion by any party for separate trials. Plaintiff shall file her

1

GEO alternatively relies on materials outside Plaintiff’s pleading that were previously presented
in reply briefs. See GEO’s Resp. Mot. Amend [Doc. No. 58], p.8. The Court previously ruled that these
materials would not be considered in a ruling under Rule 12(b)(6). See Order 6/25/15 [Doc. No. 35].

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proposed Third Amended Complaint against Defendants GEO Group, Inc. and Joseph Palone
within 7 days from the date of this Order.
IT IS FURTHER ORDERED that Plaintiff’s actions shall proceed as a single case
under Case No. CIV-14-1389-D and all future filings shall occur only in Case No. CIV-141389-D, unless otherwise ordered. The Clerk shall administratively close Case No. CIV-15143-D without prejudice to a future reopening, if appropriate.
IT IS SO ORDERED this 3rd day of January, 2017.

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