DUBRASKY et al v. HILCORP ENERGY COMPANY

Filing 14

MEMORANDUM ORDER granting 11 Motion to Consolidate Cases; denying 11 Motion to Remand to State Court. Signed by Judge Terrence F. McVerry on 8/27/2015. (rjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 2:15-cv-664
)
v.
)
)
HILCORP ENERGY COMPANY,
)
a/k/a HILCORP, and its
)
Officers, Agents and Subsidiaries,
)
Defendant.
)
MEMORANDUM ORDER
KATHY DUBRASKY and
IVAN DUBRASKY,
Plaintiffs,

Pending before the

Court is Plaintiffs’ FIRST AMENDED MOTION TO

CONSOLIDATE & REMOVE (ECF No. 11). Defendant has filed a brief in opposition to the
motion (ECF No. 13). Accordingly, the motion is ripe for disposition.
Plaintiffs initiated this action by filing a complaint in the Court of Common Pleas of
Lawrence County on April 21, 2015. On May 20, 2015, Defendant timely removed the action to
the United States District Court for the Western District of Pennsylvania, based on the parties’
diversity of citizenship. Thereafter, Defendant filed an answer. The Court held an initial case
management conference on July 9, 2015, and placed the parties’ on a discovery schedule. About
a month later, Plaintiffs filed this motion, asking that this case be consolidated with the one filed
at 1:14-cv-01576 and then to have both cases “removed” – in reality, remanded – to state court,
where other actions involving Plaintiffs, Pulaski Township, and various elected local officials
arising out of the same basic set of facts as this action are pending. Plaintiffs’ two requests will
be addressed seriatim.
I.

Motion to Consolidate
Fed. R. Civ. P. 42(a) permits the consolidation of actions that “involve a common
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question of law or fact[.]” “The moving party bears the burden of proof on a motion to
consolidate.” Borough of Olyphant v. PPL Corp., 153 F. App’x 80, 82 (3d Cir. 2005). The
district court has broad discretion in deciding whether consolidation is appropriate. Id. Even
where common questions of law or fact exist, the court may deny consolidation if it would cause
delay, expense, confusion, or prejudice. Farahmand v. Rumsfeld, No. CIV.A. 02-1236, 2002 WL
31630709, at *2 (E.D. Pa. Nov. 20, 2002) (citation omitted). A court may also “deny
consolidation when one case is further into the discovery process.” Id. (citations omitted).
Although the factual allegations in these two cases are different (primarily because the
cases involved different wells), the legal issues are the same and the same Defendant is
involved.1 Both complaints raise causes of action for private nuisance, negligence and/or
recklessness, and strict liability. Determining whether Defendant can be held liable under any of
these theories would require the Court to resolve several threshold-type legal questions. A few
come readily to mind: the Court will have to determine in both cases whether Defendant can be
liable under a nuisance theory for a permitted conditional use of the properties and whether
Defendant’s drilling activities can be considered an “unreasonably dangerous activity,” such that
strict liability can apply. It would be in the interest of judicial economy to resolve these issues at
one time, and they can likely all be resolved at the summary judgment stage.
To be sure, the cases are on different discovery timelines. But the Chito action is not so
far along in discovery – apparently, Defendant’s first set of interrogatories and requests for
production of documents weren’t served until June 8, 2015 – that this concern outweighs the

1.
Defendant’s suggestion that Plaintiffs have “conceded” that different legal issues are
involved appears to be based upon a misreading of Plaintiffs’ motion. In the portion of Plaintiffs’
motion on which Defendant relies for that assertion, Plaintiffs are actually referring to the cases
pending in Lawrence County, not the two cases pending before this Court, when saying that
“separate and distinct legal and equitable relief and remedies” are involved. Pls.’ Mot. ¶ 30.
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interests served by consolidation. 9A The Late Charles Alan Wright, et al., Fed. Prac. & Proc.
Civ. § 2383 (3d ed.) (“[T]he fact that the actions are at different stages of trial preparation does
not preclude consolidation automatically.”). Nor is the Court convinced that the facts are so
different that jury confusion would result. At any rate, to take into account the possibility of
confusion of the issues at trial, at this time, the Court will consolidate these actions for purposes
of discovery and all other pretrial proceedings only. See, e.g., Groh v. State Farm Mut. Auto. Ins.
Co., No. 2:10-CV-00918, 2011 WL 13680, at *2 (S.D. Ohio Jan. 3, 2011). (“Rule 42(a) does not
foreclose the possibility of separate trials.”). A ruling on whether the actions should be
consolidated for trial is reserved until all pretrial proceedings, including a ruling on any motions
for summary judgment, are resolved.
Therefore, Plaintiffs’ motion to consolidate the cases at 2:14-cv-01576 and 2:15-cv00664 is GRANTED. The cases will be consolidated at 2:14-cv-01576. The parties shall confer
and draft a mutually agreeable proposed amended case management scheduling order, which
shall be filed with the Court on or before Tuesday, September 8, 2015.
II.

Motion to Remand
Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division embracing the
place where such action is pending.” Inasmuch as there is complete diversity of citizenship
among the parties and Plaintiffs seek in excess of $75,000 in damages, this action was properly
removed to this Court pursuant to § 1441. Plaintiffs’ only bases for seeking to remand this action
to state court are “judicial economy, consistency, availability of the evidence etc.” Pls.’ Mot. ¶
22. The Court is sympathetic to Plaintiffs’ concerns. Intuitively, it would make sense to have all

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of these similar cases tried in Lawrence County by a judge who is already familiar with the
issues. However, as Defendant correctly points out, none of these are valid reasons for
remanding a case. To the contrary, Defendant has a legal right under the removal statute to
proceed in this forum, and the Court has a legal duty to exercise its jurisdiction to preside over
this case. See Thermotron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345 (1976), abrogated
on other grounds, Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996); Feidt v. Owens
Corning Fiberglas Corp., 153 F.3d 124, 128–29 (3d Cir. 1998). Accordingly, Plaintiffs’ motion
to remand is DENIED.
It is SO ORDERED, this 27th day of August, 2015.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge

cc:

Angelo A. Papa, Esquire
Email: [e-mail]
Kathy K. Condo, Esquire
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Mark K. Dausch, Esquire
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