Acuity v. Pear Tree Properties, LLC

Filing 23

MEMORANDUM AND ORDER: IT IS THEREFORE ORERED that Acuitys motion to dismiss (Doc. No. 10) is DENIED. The cases are CONSOLIDATED, with case number 3:16-cv-00551 as the lead case. All future filings shall be made in the lead case only. The June 27, 2 017, bench trial and June 19, 2017, pretrial conference in case number 3:16-cv-00363 are CANCELED, subject to being rescheduled after the jury trial in case number 3:16-cv-00551. The Clerk is DIRECTED to file this order in both consolidated cases. IT IS SO ORDERED. Signed by District Judge Waverly D. Crenshaw, Jr on 7/1/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PEAR TREE PROPERTIES,
LLC,
Plaintiff,
v.
ACUITY,

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NO. 3:16-cv-00551
JUDGE CRENSHAW

Defendant.
MEMORANDUM AND ORDER
Before the Court is Defendant Acuity’s motion to dismiss. (Doc. No. 10.) The only ground
for dismissal that Acuity asserts is under the first-to-file doctrine. (Doc. No. 11.) Acuity filed suit
against Plaintiff Pear Tree Properties, LLC (“Pear Tree”) on February 23, 2016. Acuity v. Pear
Tree Properties, LLC, No. 3:16-cv-00363, ECF No. 1 (M.D. Tenn.). Pear Tree then filed this
lawsuit against Acuity on March 10, 2016. (Doc. No. 1.) Both Acuity and Pear Tree admit that the
lawsuits arise out of the same events involving similar issues, but not exactly the same. (Docs. No.
10, 24.) Under this situation, it is appropriate for the Court to consolidate the two cases, pursuant
to Federal Rule of Civil Procedure 42(a), rather than dismiss the latter case. Mitchell v. Dutton,
865 F.2d 1268, at *3 (6th Cir. 1989); see Miller v. U.S. Postal Service, 729 F.2d 1033 (5th Cir.
1984) (reversing the district court for dismissing the second-filed case and remanding with
instructions to consolidate the two cases for trial); Thomas v. Deason, 317 F. Supp. 1098, 1099
(W.D. Ky. 1970) (“The proper solution to the problems created by the existence of two or more
cases involving the same parties and issues, simultaneously pending in the same court would be to
consolidate them under Rule 42(a) of the Federal Rules of Civil Procedure.”). Therefore, Acuity’s
motion to dismiss (Doc. No. 10) is DENIED.

When consolidating two actions, the Court must determine whether to order a separate trial
“of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” FED.
R. CIV. P. 42(b). In order to preserve Pear Tree’s right to a jury trial, id., Acuity asks that the Court
first rule on any legal matter including the interpretation of the policy contract, and then order a
jury trial on the remaining issues. (Doc. No. 22 at 5.) If there is a contract interpretation question
that can be ruled on as a matter of law, it can be made in a motion for summary judgment, under
Federal Rule of Civil Procedure 56. The remaining issues can be tried by a jury. If, after the jury
trial, there are issues raised in Acuity’s suit that were not resolved by the jury, the Court may hold
a bench trial on the remaining issues.
IT IS THEREFORE ORERED that Acuity’s motion to dismiss (Doc. No. 10) is DENIED.
The cases are CONSOLIDATED, with case number 3:16-cv-00551 as the lead case. All future
filings shall be made in the lead case only. The June 27, 2017, bench trial and June 19, 2017,
pretrial conference in case number 3:16-cv-00363 are CANCELED, subject to being rescheduled
after the jury trial in case number 3:16-cv-00551.
The Clerk is DIRECTED to file this order in both consolidated cases.
IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE

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