Asher v. Duke Energy Carolinas LLC
Filing
26
OPINION AND ORDER granting 6 Motion to Consolidate Cases in case 6:12-cv-02787-JMC; granting 6 Motion to Consolidate Cases in case 6:12-cv-02788-JMC; granting 6 Motion to Consolidate Cases in case 6:12-cv-02789-JMC Signed by Honorable J Michelle Childs on 5/15/2013.Associated Cases: 6:12-cv-02787-JMC, 6:12-cv-02788-JMC, 6:12-cv-02789-JMC(mbro)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Crystal Leeann Asher,
as Personal Representative of
the Estate of Joseph Bradley Asher,
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
Duke Energy Carolinas, LLC,
)
)
Defendant.
)
___________________________________ )
Crystal Leeann Asher,
)
)
Plaintiff,
)
)
v.
)
)
Duke Energy Carolinas, LLC,
)
)
Defendant.
)
___________________________________ )
Crystal Leeann Asher,
)
as Personal Representative of
)
the Estate of Joseph Bradley Asher,
)
)
)
Plaintiff,
)
)
v.
)
)
Duke Energy Carolinas, LLC,
)
)
Defendant.
)
___________________________________ )
1
Civil Action No.: 6:12-cv-02787-JMC
OPINION AND ORDER
Civil Action No.: 6:12-cv-02788-JMC
Civil Action No.: 6:12-cv-02789-JMC
This matter is before the court on Defendant Duke Energy Carolinas, LLC’s
(“Defendant”) Motion to Consolidate [Dkt. No. 6].
Defendant argues the above
captioned action should be consolidated with related actions Asher v. Duke Energy
Carolinas, LLC, Civil Action No.: 6:12-cv-02788-JMC, and Asher v. Duke Energy
Carolinas, LLC, Civil Action No.: 6:12-cv-02789-JMC (each, collectively, and together
with this Action, the “Action(s)”) for the purpose of ruling on Defendant’s pending
Motions to Dismiss, filed in each of the Actions, and, if necessary, for the purposes of all
future motions, discovery and trial.
FACTUAL AND PROCEDURAL BACKGROUND
The Actions arise from a September 2009 incident during which Joseph Bradley
Asher (“Decedent”) entered an electrical substation owned by Defendant and allegedly
made contact with electrical equipment. As a result, Decedent sustained personal injuries
and subsequently died on November 21, 2009. On August 31, 2012, Plaintiff separately
filed a loss of consortium, a survival and a wrongful death action in the Court of
Common Pleas for Greenville County, South Carolina. Defendant properly removed all
Actions to this court based on the court’s diversity jurisdiction [Dkt. No. 1]1 and
subsequently filed motions to dismiss in each Action. Defendant filed the instant Motion
to Consolidate [Dkt. No. 6] arguing that the actions involve the same questions of law
and fact and thus are appropriate for consolidation under Federal Rule of Civil Procedure
42(a).
1
Plaintiff is a citizen of Greenville County, South Carolina. [Dkt. No. 1-1]. In her
pleadings filed in the Court of Common Pleas for Greenville County, Plaintiff incorrectly
stated that Defendant is a citizen of South Carolina. See [Dkt. No. 1-1]. Defendant is a
citizen of North Carolina. See [Dkt. No. 1-3]. Thus, complete diversity of citizenship
exists, the appropriate amount in controversy has been alleged, and this court may
properly exercise jurisdiction.
2
The parties are the same in each Action, as are the underlying facts, though
Plaintiff filed separate claims: a loss of consortium action on her own behalf (Civil
Action No.: 6:12-cv-02788-JMC), and a wrongful death action (Civil Action No.: 6:12cv-02787-JMC), and a survival action (Civil Action No.: 6:12-cv-02789-JMC) as the
personal representative of Decedent. Plaintiff’s Response represents that she supports
Defendant’s Motion to Consolidate for the purpose of ruling on the pending Motions to
Dismiss and for discovery, but she opposes consolidation of the trials. [Dkt. No. 17].
For the reasons discussed below, Defendant’s Motion is GRANTED.
DISCUSSION
Rule 42(a) of the Federal Rules of Civil Procedure provides that where actions
involve a common question of law or fact, the court may “(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.” FED. R. CIV. P. 42(a). Courts enjoy broad
discretion to consolidate actions pending in the same district, like these Actions. See A/S
J. Ludwig Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928, 933 (4th Cir. 1977).
In Kelley v. U.S., the court granted the defendants’ motion to consolidate a
husband’s loss of consortium claim and a wife’s separately filed personal injury claim
where both claims stemmed from injuries the wife sustained in a plane crash, finding that
the claims necessarily involved common questions of law and fact. 580 F. Supp. 2d 490,
494 (E.D. Va. 2008).
Like Kelley, the Actions here stem from the same incident:
Decedent was injured and subsequently died after entering an electrical substation. Thus,
the factual predicates for each Action are the same. Accordingly, each Action involves
common questions of law and fact such as whether Defendant owed any duty to
3
Decedent, whether Decedent assumed the risk of injury when entering the substation, the
manner in which Decedent entered the substation, and the precautions Defendant took to
prevent unauthorized entry. Because there are such common questions, the court finds
that consolidation is appropriate.
The court also weighs the risks of prejudice to the parties and possible juror
confusion to determine if consolidation is proper. The court must consider the risks of
consolidation against the risks of not consolidating, which would include common factual
and legal issues being decided inconsistently, burdening the parties, witnesses and the
judiciary with multiple lawsuits, the time required to conclude several actions as opposed
to one, and the expense of conducting multiple trials as opposed to a single trial. See
Arnold v. E. Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982).
In other words,
consolidation is appropriate when to do so will “foster clarity, efficiency and the
avoidance of confusion and prejudice.” Allfirst Bank v. Progress Rail Servs. Corp., 178
F. Supp. 2d 513, 520 (citing Arnold, 681 F.2d at 192-93).
Plaintiff argues that consolidation may cause confusion if one jury attempted to
award damages for consolidated causes of action, risking less than fair compensation
because jurors may assume that damage awards overlap when Plaintiff argues they
should not. [Dkt. No. 17]. The court does not find this argument compelling because
such potential prejudice can be alleviated through jury instructions and an appropriate
verdict form. It is well settled that courts may quell juror confusion through cautious jury
instructions. Arnold, 681 F.2d at 193; see also Durham v. S. Ry. Co., 254 F. Supp. 813,
815-16 (W.D. Va. 1996) (noting that the court may address any potential prejudice with
proper jury instructions that illustrate the “different considerations involved so that no
4
prejudice will result….”). Accordingly, the court does not give credence to the prejudice
argument.
Plaintiff also argues that consolidation will create a conflict of interest for her by
virtue of the fact that she brought the wrongful death and survival actions in her
representative capacity, and the loss of consortium action in her individual capacity.
Plaintiff argues that the potential conflict of interest would arise in distributing any
potential settlement or judgment proceeds. She asserts that certain liens and creditors’
claims may apply to any potential recovery in the survival Action, but not the wrongful
death or loss of consortium Actions. Plaintiff does not specify the types of liens or
creditors or delineate whether the creditors are hers or those of Decedent. Regardless, the
court finds this argument unpersuasive because the jury can be provided a verdict form
requiring it to specify the amount of recovery, if any, as to each cause of action. Thus,
any amount subject to creditor claims can be singled out. Moreover, any appropriate
amounts would be subject to creditor claims whether the causes of action are tried
separately or consolidated. See Dubuque Fire & Marine Ins. Co. v. Wilson, 213 F.2d
115, 121 (4th Cir. 1954) (noting that “in South Carolina the primary source to which a
creditor of an estate must look for payment is the personal estate of the deceased in the
hands of his personal representative.”), rev’d on other grounds, Moultis v. Degen, 279
S.C. 1, 301 S.E.2d 554, (1983). Additionally, the potential conflict does not outweigh the
benefit of judicial economy provided by consolidation. The parties have agreed that each
Action may maintain its separate caption and case number [Dkt. No. 17-1], [Dkt. No. 21],
which should alleviate any confusion.
5
Finally, Plaintiff argues that time would not be saved by consolidation because
Plaintiff would still present evidence on each element of each Action during trial. This
argument is without merit. Three separate actions would require three separate trial
dates, selecting three separate juries, calling the same witnesses and presenting much of
the same evidence to establish the same factual predicate. Accordingly, the court finds
that judicial economy is best served by consolidation.
CONCLUSION
For the reasons set forth above, Defendant’s Motion to Consolidate [Dkt. No. 6] is
GRANTED for the purposes of all future motions, discovery, and trial. The parties are
further notified that Asher v. Duke Energy Carolinas, LLC, Civil Action No.: 6:12-cv02787-JMC is designated as the lead docket number for purposes of court deadlines,
including the date by which all actions must be concluded.
IT IS SO ORDERED.
United States District Judge
May 15, 2013
Greenville, South Carolina
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?