Goldberg v. Miller et al (TV3)

Filing 82

MEMORANDUM AND ORDER granting Motion to Consolidate cases. Cases associated: Create association to: 3:15-cv-545. All future filings shall only be made in Gaynor v. Miller, Case No. 3:15-CV-545. Signed by Magistrate Judge C Clifford Shirley, Jr on 11/7/16. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
KENNETH GAYNOR, et al.,
Plaintiffs,
v.
DELOY MILLER, et al.,
Defendants.

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MARCIA GOLDBERG, et al.,
Plaintiffs,
v.
DELOY MILLER, et al.,
Defendants.

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No. 3:15-CV-546-TAV-CCS

LEWIS COSBY, et al.,
Plaintiffs,
v.
DELOY MILLER, et al.,
Defendants.

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No. 3:16-CV-121-TAV-CCS

GABRIEL R. HULL, et al.,
Plaintiffs,
v.
DELOY MILLER, et al.,
Defendants.

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No. 3:16-CV-232-TAV-CCS

No. 3:15-CV-545-TAV-CCS

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
Standing Order 13-02, and the referral Orders of the Chief District Judge.
Now before the Court are the following Motions by case:
1. Gaynor v. Miller, 3:15-cv-545. Plaintiff’s Motion for Order
Deeming Defendant Gerald Hannah’s Served, or in the alternative,
to Extend Time to Serve, and Memorandum in Support Thereof
[Doc. 54]; Defendants’ Motion and Incorporated Memorandum of
Law in Support of Consolidation of Related Actions [Doc. 62]; and
Stipulated
Briefing
Scheduling
Regarding
Underwriter
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Defendants’ Motion for Consolidation of Related Actions [Doc.
66].
2. Goldberg v. Miller, 3:15-cv-546: Plaintiff’s Motion for Order
Deeming Defendant Gerald Hannah’s Served, or in the alternative,
to Extend Time to Serve, and Memorandum in Support Thereof
[Doc. 55]; Defendants’ Motion and Incorporated Memorandum of
Law in Support of Consolidation of Related Actions [Doc. 62]; and
Stipulated
Briefing
Scheduling
Regarding
Underwriter
Defendants’ Motion for Consolidation of Related Action [Doc.
66].
3. Cosby v. Miller, 3:16-cv-121: Joint Motion for Scheduling
Order [Doc. 11] and Motion for Appointment of Co-Lead Plaintiffs
and Approval of Their Selection of Lead Counsel [Doc. 11].
4. Hull v. Miller, 3:16-cv-232: Joint Motion to Postpone
Responsive Pleading Deadline [Doc. 45], Defendants’ Motion and
Incorporated Memorandum of Law in Support of Consolidation of
Related Actions [Doc. 61], and Stipulated Briefing Scheduling
Regarding Underwriters Defendants’ motion for Consolidation of
Related Actions [Doc. 63].
By way of background, the Court ruled these cases to be related. In two of these cases,
Gaynor and Goldberg, the Plaintiffs filed Motions to Remand. The Court held the above Motions
in abeyance until the Chief District Judge ruled on the Motions to Remand. The District Judge
denied the Motions to Remand on September 8, 2016.
The parties appeared before the Court on October 25, 2016, for a status conference with
respect to the above motions. Attorneys Stephen Astley and Al Holifield were present on behalf
of the Plaintiffs in Gaynor, Goldberg, and Hull.1 Attorneys Paul Davidson and Tera Murdock
were present on behalf of Defendant KPMG, LLP. Attorneys Stephen Marcum and Robert
Weber (via telephone) were present on behalf of Defendants Bob Gower, Catherine Rector,
David Hall, Deloy Miller, Don Turkleson, Joseph Leaery, Marceau Schlumberger, and Merrill
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Counsel for the Cosby Plaintiffs, Attorney Gordan Ball, did not attend the hearing, and therefore, the Court did not
address the Motions filed in Cosby. After the hearing, Mr. Ball’s assistant reported to the Court that Attorney Ball
was absent due to a serious medical emergency. Mr. Ball or the Cosby Plaintiffs shall advise the Court as to when
they desire to proceed with a hearing on the motions.

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McPeak. Attorneys Margaret Keeley and Jeffery Yarbro were present on behalf of Defendants
Aegis Capital Corporation, Dominick & Dominick, LLC, I-Bankers Securities, Inc., Ladenburg
Thalmann & Co., Inc., MLV & Co., LLC, Maxim Group, LLC, National Securities Corporation,
Northland Capital Markets, and Williams Financial Group. Finally, Defendant Scott Boruff
attended the hearing on behalf of himself.
With respect to the Motions for Order Deeming Defendant Gerald Hannah’s Served that
were filed in Gaynor [Doc. 54] and Goldberg [Doc. 55], Plaintiffs’ counsel reported that he
would work with Defendant Hannahs’s attorney to attempt to resolve the issue. The Court
ORDERED Plaintiffs’ counsel to report to the Court within one week as to whether the issue
had been resolved or whether the Court’s involvement was necessary.2
With respect to consolidation, the parties agreed that Gaynor, Goldberg, and Hull should
be consolidated but not Cosby. In addition, the parties agreed that Gaynor should serve as the
lead case. The Court finds that Rule 42(a) of the Federal Rules permits the Court to consolidate
cases that present common questions of law or fact. The Court finds that Gaynor, Goldberg, and
Hull present common questions of law and fact, and the Court finds that it is appropriate to
consolidate these three actions. The Court will not order consolidation as to the Cosby case.
Accordingly, the Court ORDERS as follows:
1. The Motions to Consolidate filed in Gaynor [Doc. 62],
Goldberg, [Doc. 62], Hull [Doc. 61] are GRANTED. Because
it is the first-filed of the two cases, it is ORDERED that
Gaynor v. Miller, 3:15-cv-545 SHALL SERVE as the lead
case for purposes of this consolidation, and all future filings
shall only be made in Gaynor v. Miller, Case No. 3:15-CV545;

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On November 2, 2016, Attorney Astley filed a Notice with the Court stating that counsel for Mr. Hannahs,
Kenneth Shemin, has agreed to accept service on behalf of Mr. Hannahs. The Notice states that Plaintiffs Kenneth
Gaynor and Marcia Goldberg withdraw their respective Motions for Order Deeming Defendant Gerald Hannahs
Served. [Doc. 83].

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2. Motions for appointment of lead counsel shall be filed on or
before November 8, 2016;
3. The Joint Motions to Set Briefing Schedule and Postpone
Responsive Pleading Deadline filed in Gaynor [Doc. 74] and
Goldberg [Doc. 74] are DENIED AS MOOT;
4. The Joint Motion to Postpone Responsive Pleading Deadline
filed in Hull [Doc. 45] is DENIED AS MOOT;
5. The Joint Motions to Postpone Rule 26(f) Report filed in
Gaynor [Doc. 78], Goldberg [Doc. 78], and Hull [Doc. 84] are
GRANTED IN PART. The Court will postpone the parties’
Rule 26(f) Report but it may not be to the extent as requested
in the Motions. The Court will reset the deadline following an
order of lead counsel.
Accordingly, following the Court’s decision on lead counsel, the Court will enter the
deadlines with respect to the filing of the Master Consolidated Complaint and responses thereto,
which will be consistent with the deadlines discussed at the hearing.
IT IS SO ORDERED.
ENTER:

s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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