Boes v. The United States of America

Filing 25

ORDER granting 18 Motion to Consolidate Cases. Signed by Chief Judge Karen E. Schreier on 9/2/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DUSTIN A. BOES,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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CIV. 10-4046-KES

ORDER GRANTING
DEFENDANT’S MOTION TO
CONSOLIDATE

Plaintiff, Dustin A. Boes, alleges that defendant, United States of
America, violated the Federal Tort Claims Act (FTCA), specifically 28
U.S.C. §§ 2671, 1346(b)(1), through the actions of its agents Jeff Metzinger and
Chad Mosteller. In a separate action pending before this court, Boes v.
Metzinger. 08-CIV-4180-KES (Metzinger), Boes asserts various state-law causes
of action and a 42 U.S.C. § 1983 claim against Metzinger and Mosteller. The
United States moves to consolidate this case and Metzinger. Boes resists. The
motion is granted.
BACKGROUND
The pertinent facts to this order are as follows:
During the relevant time period, Metzinger was a police officer for the city
of Pierre in South Dakota and Mosteller was an agent for South Dakota’s
Division of Criminal Investigation. Both were members of the Northern Plains
Safe Trails Drug Enforcement Task Force, which the Federal Bureau of

Investigation oversees. On February 21, 2007, Metzinger swore out a probable
cause affidavit, which Boes alleges contained false statements that Boes sold
illegal drugs on June 6, 2006, and October 23, 2006.
As a result of Metzinger’s affidavit, a criminal complaint was issued on
February 21, 2007, and, pursuant to an arrest warrant, Boes was arrested and
jailed on April 7, 2007. Boes spent that Saturday evening, Easter Sunday, and
Monday morning in jail before being bonded out. During discussions with
Metzinger and Mosteller on April 8, 2007, Boes alleges that he offered specific
facts showing that they arrested the wrong individual.
Boes’s initial appearance was scheduled for April 9, 2007. Before that
appearance, Boes’s attorney contacted the South Dakota Attorney General’s
Office and explained that Boes was innocent. The Attorney General agreed and
dismissed the charges against Boes.
On May 8, 2007, the South Dakota Attorney General issued a letter
stating that “Boes was wrongfully identified and arrested on or about April 8,
2007. Mr. Boes was in no way involved in any criminal activity.” Docket 1 at
¶ 31.
In this action, Boes alleges that he sustained emotional and physical
injury, pain and suffering, lost wages, damage to his reputation, impairment of
his earning capacity, and miscellaneous expenses and that Metzinger and

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Mosteller proximately caused his injuries. Boes seeks an award in the amount
of $250,000.
In Metzinger, Boes alleges the same facts in an almost identical
complaint, and he asserts a § 1983 cause of action and state-law claims of
malicious prosecution, false arrest, and intentional infliction of emotional
distress against Metzinger and Mosteller. Civ. 08-4180, Docket 1. Boes seeks
an unspecified amount of money from Mosteller and Metzinger as damages.
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 42(a)(2), if two “actions before
the court involve a common question of law or fact, the court may . . .
consolidate the actions . . . .” The federal rules permit consolidation “ ‘as a
matter of convenience and economy in administration’ ” but consolidation
“ ‘does not merge the suits into a single cause, or change the rights of the
parties, or make those who are parties in one suit parties in another.’ ”
Enterprise Bank v. Saettele, 21 F.3d 233, 235 (8th Cir. 1994) (quoting Johnson
v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933)). Consolidated suits
maintain their independent identities. Horizon Asset Mgmt., Inc. v. H & R Block,
Inc., 580 F.3d 755, 769 (8th Cir. 2009) (“A consolidated case ‘retain[s] its
independent status,’ and plaintiffs in a consolidated action . . . are still ‘entitled
to a decision on the merits of their claims.’ ” (alteration in original) (quoting
DeGraffenreid v. Gen. Motors Assembly Div., 558 F.2d 480, 486 (8th Cir. 1977))).

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“ ‘The threshold issue is whether the two proceedings involve a common
party and common issues of fact or law.’ ” Enterprise Bank, 21 F.3d at 235
(quoting Seguro de Servicio de Salud v. McAuto Sys. Group, 878 F.2d 5, 8 (1st
Cir. 1989)). Even if the defendants are not identical, consolidation may still be
appropriate if common questions of fact or law exist. 9A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2382 (3d ed. 2008) (“If an
appropriate common question exists, federal courts have often consolidated
actions despite differences in the parties.”).
If the threshold question is met, the court then weighs “the saving of time
and effort that . . . Rule 42(a) would produce against any inconvenience, delay,
or expense that it would cause for the litigants and the trial judge.” Id.; see also
EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998) (“Consolidation is
inappropriate, however, if it leads to inefficiency, inconvenience, or unfair
prejudice to a party.”). The district court has broad discretion to consolidate
cases under Rule 42. Enterprise Bank, 21 F.3d at 235.
This action and Metzinger involve a common party because Boes is the
plaintiff in both actions. There are many identical factual issues between the
actions. Both actions involve the same two actors, Metzinger and Mosteller, and
the same underlying facts surrounding the February 2007 affidavit, Boes’s
April 7, 2007, arrest, and the April 8, 2007, interrogation. While Boes may need

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to prove additional facts to succeed in this action as compared to Metzinger, the
core facts are identical.
Even though there are separate tortfeasors in this action and in
Metzinger, as long as there is a common legal question, “[a]ctions by a plaintiff
against different tortfeasors may . . . be consolidated.” 9A Wright & Miller at
§ 2382. Ultimately, both cases turn on whether Boes was arrested without
probable cause and whether Metzinger and Mosteller should have released
Boes when he explained the facts to them. The determination of that question
will, in part, resolve the FTCA claim against the government and, in part,
resolve the § 1983 action and state-law causes of action against Metzinger
and Mosteller.
Because the threshold issues of same parties and common questions of
law and fact are met, the court must now balance the time and effort saved by
consolidation against any prejudice consolidation could cause Boes. The
anticipated witnesses for both cases are the same and, if the actions are
consolidated, they will only have to testify once, rather than twice. If applicable,
the court can decide motions in these two actions jointly, which saves the court
and the parties time and resources. Thus, consolidation would save the court
time and effort.
Boes argues that he will be prejudiced if the cases are consolidated
because the FTCA claim will be tried to the court and Metzinger will be tried to

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a jury: “If the cases are consolidated, the jury will hear evidence against both of
the individual defendants, as well as the Government, but will be asked to
ignore the latter and only resolve issues involving the individual defendants.
Such an inquiry presents a substantial risk that the jury will confuse the
evidence and the issues . . . .” Docket 20 at 2.
Courts can simultaneously hold jury and bench trials. In that situation,
the court allows parties to present evidence necessary for the jury trial to the
jury and will hear evidence pertaining to the bench trial after the conclusion of
the jury trial each day or at the close of the jury trial. In this situation, the
court can still consolidate the two actions. See 9A Wright & Miller at § 2382
(reasoning that cases consolidated under Rule 42 do not need to be
consolidated in their entirety). The jury will not be presented with evidence on
the FTCA claim and, thus, there is neither a risk that the jury will confuse the
evidence nor does a possibility of unfair prejudice to Boes exist.
Boes further argues that consolidation would be inefficient and
inconvenient because “the resolution of the Federal Tort Claims issues may well
resolve the issues presented by [Metzinger] . . . . Therefore, it makes sense to
resolve the suit that may render the second suit moot, or at least significantly
narrow any remaining issues.” Docket 20 at 2. Defendants to both actions,
however, have indicated a “desire to make a joint offer of settlement pursuant
to Fed. R. Civ. P. 68.” Docket 21 at 3. If the cases are not consolidated,

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defendants contend that they may be prejudiced in making a settlement offer
because “an offer of judgment might not result in effectively covering the
Plaintiff’s costs (which includes attorney fees in 1983 actions but not in FTCA
actions).” Docket 21 at 3.
The law generally “encourages parties to settle disputes.” Perkins v. Gen.
Motors Corp., 965 F.2d 597, 600 (8th Cir. 1992); see also Lunsford v. United
States, 570 F.2d 221, 228 (8th Cir. 1977) (reasoning that the FTCA encourages
parties to settle). A Rule 68 settlement is “designed to encourage complete
settlement, not simply resolve the issues of liability and remedies.” Radecki v.
Amoco Oil Co., 858 F.2d 397, 401 (8th Cir. 1988). If defendants are not allowed
to make lump-sum settlement offers that encourage settlement, which
represent their total liability, “ ‘they would understandably be reluctant to
make settlement offers.’ ” Id. (quoting Marek v. Chesny, 473 U.S. 1, 6-7 (1985)).
Because consolidating the actions would allow all defendants to make a joint
settlement offer, including attorney’s fees, and would resolve all questions of
liability, inefficiency and inconvenience would exist only if the court denied the
motion to consolidate.
There is a common party in these two actions and numerous common
questions of fact and law. The court has balanced the time and effort that
consolidation would save the parties against the prejudice and inconvenience
that Boes argues would result from consolidation. Finding that there is

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significant time and effort to be saved in consolidation and further finding that
Boes’s claims of prejudice and inconvenience are without merit, consolidation
of the two cases is appropriate in these circumstances. Accordingly, it is
ORDERED that defendant’s motion to consolidate (Docket 18) is granted.
It is FURTHER ORDERED that Boes v. Metzinger, Civ. 08-4180, and Boes
v. United States, Civ. 10-4046, are consolidated and future filings will be filed
under Boes v. Metzinger, Civ. 08-4180.
Dated September 2, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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