Powell v. Oldham

Filing 89

ORDER granting Motion to Consolidate Cases 85 , denying Powell Plaintiffs' motion to dismiss without prejudice or, in the alternative, to stay 80 , and deferring Powell Plaintiffs' motion to appoint interim class counsel 80 . Plaintiffs are ordered to file a consolidated complaint within thirty days of the entry of this Order. Signed by Judge Samuel H. Mays, Jr on 3/9/2018. (Mays, Samuel) Modified on 3/9/2018 (Mays, Samuel). (Main Document 89 replaced on 3/9/2018) (Mays, Samuel).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ISSACCA POWELL, et al.,
Plaintiffs,

v.

BILL OLDHAM, et al.,
Defendants

MELVIN INGRAM, et al.,
Plaintiffs,
v.
BILL OLDHAM, et al.,
Defendants

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No. 2:16-cv-2907-SHM-tmp
Consolidated with:
No. 2:17-cv-2015-SHM-dkv

No. 2:17-cv-2795-SHM-tmp

ORDER

Before the Court is the December 29, 2017 Motion for
Consolidation, filed in Case Nos. 2:16-cv-2907 and 2:17-cv-2795
by Defendants Bill Oldham, individually and in his official
capacity as Sheriff of Shelby County; Robert Moore,
individually and in his official capacity as Jail Director of
Shelby County; Charlene McGhee, individually and in her
official capacity as Assistant Chief Jail Security of Shelby

County; Debra Hammons, individually and in her official
capacity as Assistant Chief of Jail Programs of Shelby County;
and Shelby County, Tennessee (collectively, “Shelby County
Defendants”) and Tyler Technology, Inc. (“Tyler”)
(collectively, “Defendants”).

(Powell, et al. v. Oldham, et

al., 2:16-cv-2907-SHM-tmp (W.D. Tenn.), ECF No. 85; Ingram, et
al. v. Oldham, et al., 2:17-cv-2795-SHM-tmp (W.D. Tenn.), ECF
No. 27.)

Defendants seek to consolidate Ingram, et al. v.

Oldham, et al., 2:17-cv-2795-SHM-tmp (W.D. Tenn.) (“the Ingram
Class Action”) with Powell, et al. v. Oldham, et al., 2:16-cv2907-SHM-tmp (W.D. Tenn.) (“the Powell Class Action”).
Plaintiffs Issacca Powell, Cortez D. Brown, Scott Turnage,
Deontae Tate, Jeremy S. Melton, Keith Burgess, and Terrence
Drain, on behalf of themselves and others similarly situated,
(collectively, “Powell Plaintiffs”) responded on January 12,
2018.

(Powell, et al. v. Oldham, et al., 2:16-cv-2907-SHM-tmp

(W.D. Tenn.), ECF No. 86.)

Plaintiffs Melvin Ingram and 29

other individuals, on behalf of themselves and others similarly
situated, (collectively, “Ingram Plaintiffs”) also responded on
January 12, 2018.

(Powell, et al. v. Oldham, et al., 2:16-cv-

2907-SHM-tmp (W.D. Tenn.), ECF No. 87; Ingram, et al. v.
Oldham, et al., 2:17-cv-2795-SHM-tmp (W.D. Tenn.), ECF No. 28.)
Also before the Court is Powell Plaintiffs’ Rule 23(g)(3)
Motion for Appointment of Interim Class Counsel and to Dismiss
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without Prejudice or, Alternatively, to Stay the Recently Filed
Ingram Class Action Complaint, filed November 21, 2017.
(Powell, et al. v. Oldham, et al., 2:16-cv-2907-SHM-tmp (W.D.
Tenn.), ECF No. 80.)
For the following reasons, Defendants’ Motion for
Consolidation is GRANTED.

Powell Plaintiffs’ motion to dismiss

without prejudice or, in the alternative, to stay is DENIED.
The motion to appoint interim class counsel is DEFERRED.
I.

Background
Powell Plaintiffs and Ingram Plaintiffs have brought

separate class actions against Defendants for unlawful
detention after the installation, integration, and
implementation of a new computer tracking system at the Shelby
County Jail.

That system included Tyler’s Odyssey software.

Powell Plaintiffs and Ingram Plaintiffs bring claims against
Shelby County Defendants under 42 U.S.C. § 1983 for violations
of Plaintiffs’ Fourth and Fourteenth Amendment rights.

They

bring negligence claims against Tyler.
On November 17, 2016, Plaintiff Issacca Powell,
individually and on behalf of all others similarly situated,
filed a class action complaint against Defendant Oldham in his
individual capacity and in his official capacity as Shelby

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County Sheriff.

(Powell, et al. v. Oldham, et al., 2:16-cv-

2907-SHM-tmp (W.D. Tenn.), ECF No. 1.)
On February 22, 2017, the Court entered a Scheduling
Order, establishing the deadlines for class certification.
(Id., ECF No. 37.)
On March 9, 2017, Shelby County Defendants filed a consent
motion to consolidate Powell with Brown, et al. v. Oldham, et
al., 2:17-cv-2015-SHM-dkv (W.D. Tenn.), brought against
Defendants by Plaintiffs Cortez D. Brown, Scott Turnage,
Deontae Tate, Jeremy S. Melton, Keith Burgess, Travis Boyd, and
Terrence Drain, on behalf of themselves and all others
similarly situated.

(Powell, et al. v. Oldham, et al., 2:16-

cv-2907-SHM-tmp (W.D. Tenn.), ECF No. 41.)

The Court granted

the consent motion on March 13, 2017, and directed Powell
Plaintiffs to file a consolidated complaint.

(Id., ECF No.

42.)
Powell Plaintiffs filed an Amended Complaint for the
consolidated class action on March 24, 2017.
43.)

(Id., ECF No.

Powell Plaintiffs filed a Second Amended Complaint on May

4, 2017.

(Id., ECF No. 52.)

Shelby County Defendants filed a

Motion for Judgment on the Pleading and an Answer on May 25,
2017.

(Id., ECF Nos. 56-57.)

Tyler filed a Motion to Dismiss

for Failure to State a Claim on May 26, 2017.

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(Id., ECF No.

58.)

Powell Plaintiffs timely responded to Defendants’

motions.

(Id., ECF Nos. 61-62.)

On August 7, 2017, the Court granted the parties’ joint
motion to extend deadlines for class certification, extending
the discovery deadline to January 16, 2018, and related
deadlines thereafter.

(Id., ECF Nos. 68-69.)

On October 31, 2017, Ingram Plaintiffs filed their
complaint.

(Ingram, et al. v. Oldham, et al, 2:17-cv-2795-SHM-

tmp (W.D. Tenn.), ECF No. 1.)
On November 21, 2017, Powell Plaintiffs filed a Rule
23(g)(3) Motion for Appointment of Interim Class Counsel and to
Dismiss Without Prejudice or Alternatively, to Stay the
Recently Filed Ingram Class Action Complaint.

(Powell, et al.

v. Oldham, et al., 2:16-cv-2907-SHM-tmp (W.D. Tenn.), ECF No.
80.)
The Court held a status conference on December 19, 2017,
to discuss the pending motion to dismiss or stay and the
appropriateness of consolidation.
84.)

(Id., Min. Entry, ECF No.

The Court ordered Defendants to file motions for

consolidation in both the Powell Class Action and the Ingram
Class Action by December 29, 2017.

(Id.)

Defendants filed their Motion to Consolidate on December
29, 2017.

(Powell, et al. v. Oldham, et al., 2:16-cv-2907-SHM5

tmp (W.D. Tenn.), ECF No. 85; Ingram, et al. v. Oldham, et al.,
2:17-cv-2795-SHM-tmp (W.D. Tenn.), ECF No. 27.)
II.

Legal Standard

Rule 42 of the Federal Rules of Civil Procedure provides
that, “[i]f actions before the court involve a common question
of law or fact, the court may . . . consolidate the actions.”
Fed. R. Civ. P. 42(a)(2).

The purpose of consolidating actions

is to “administer the court's business ‘with expedition and
economy while providing justice to the parties.’”

Advey v.

Celotex Corp., 962 F.2d 1177, 1180 (6th Cir. 1992) (quoting
Charles A. Wright & Arthur R. Miller, 9 Federal Practice and
Procedure, § 2381 (1971)).

“The party moving for consolidation

bears the burden of demonstrating the commonality of law, facts
or both in cases sought to be combined[.]”

Banacki v. OneWest

Bank, FSB, 276 F.R.D. 567, 571 (E.D. Mich. 2011) (citing Young
v. Hamric, No. 07–12368, 2008 WL 2338606, at *4 (E.D. Mich.
June 4, 2008)).
This is a threshold inquiry.

Even after a common question

has been shown, the decision to consolidate rests in the sound
discretion of the district court.

Cantrell v. GAF Corp., 999

F.2d 1007, 1011 (6th Cir. 1993) (citations omitted).

In

deciding whether to consolidate cases for trial, the district
court considers: (1) whether the specific risk of prejudice and

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possible confusion are outweighed by the risk of inconsistent
adjudication of common factual and legal issues; (2) the burden
on the parties, witnesses, and available judicial resources
posed by multiple lawsuits; (3) the length of time required to
conclude multiple suits as opposed to a single one; and (4) the
relative expense to all parties of a single trial versus
multiple trials.

Id.

III. Analysis
Defendants seek to consolidate the Powell Class Action and
the Ingram Class Action.

Powell Plaintiffs contend that the

Ingram Class Action is a “copycat class action” and that
judicial efficiency favors dismissal or stay rather than
consolidation.

(Powell, et al. v. Oldham, et al., 2:16-cv-

2907-SHM-tmp (W.D. Tenn.), ECF No. 86 at 677-78.)
In enacting the Class Action Fairness Act (“CAFA”), 28
U.S.C. § 1332, Congress intended “to prevent copycat suits in
multiple forums, enabling class actions to be consolidated to
promote judicial efficiency.”

Davenport v. Lockwood, Andrews &

Newnam, Inc., 854 F.3d 905, 910 (6th Cir. 2017) (citing S. Rep.
109-14, 7, as reprinted in 2005 U.S.C.C.A.N. 3, 27.)

According

to the Senate Report, CAFA was necessary because the previous
law “enable[d] lawyers to ‘game’ the procedural rules and keep
nationwide or multi-state class actions in state courts whose

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judges have reputations for readily certifying classes and
approving settlements without regard to class member
interests.”

S. Rep. No. 109–14, at 4, U.S. Code Cong & Admin.

News 2005, p. 3 (2005).
To address concerns about duplicative litigation, federal
courts created the first-to-file rule.

“The first-to-file rule

is a prudential doctrine that grows out of the need to manage
overlapping litigation across multiple districts. . . .

It

also conserves judicial resources by minimizing duplicative or
piecemeal litigation, and protects the parties and the courts
from the possibility of conflicting results.”

Baatz v.

Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th Cir.
2016).

“[W]hen actions involving nearly identical parties and

issues have been filed in two different district courts, the
court in which the first suit was filed should generally
proceed to judgment.”

Id. (quoting Certified Restoration Dry

Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 551 (6th
Cir. 2007)) (internal quotation marks omitted) (emphasis in
original).
Courts generally decline to apply the first-to-file rule
when the two actions are actively pending before the same
judge.

See, e.g., Ekin v. Amazon Servs., LLC, No. C14-0244-

JCC, 2014 WL 12028588, at *3 (W.D. Wash. May 28, 2014); Lantiq

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N. Am., Inc. v. Ralink Tech. Corp., No. CV 11–0234, 2011 WL
2600747, *9 (N.D. Cal. Jun. 30, 2011); Word Music, LLC v.
Priddis Music, Inc., No. CV 07–0502, 2007 WL 3231835, * 1 (M.D.
Tenn. Oct. 30, 2007).

In that situation, the concerns

supporting application of the rule -- comity, efficiency, and
uniformity -- are nonexistent or reduced.

See Word Music, 2007

WL 3231835 at *2 (concluding that the first-to-file rule “is no
longer relevant” after transfer of the second action to the
same district and judge presiding over the first action);
Rodriguez v. Taco Bell Corp., No. C13-1498, 2013 WL 5877788, at
*3 (E.D. Cal. Oct. 13, 2013) (“The concerns justifying the
application of the first-to-file rule, particularly those
relating to federal comity, do not apply when both cases are
pending before the same judge in the same court”).
The Powell Class Action and Ingram Class Action are before
the same judge, against the same Defendants, define the same
class, and allege nearly identical injuries.

The first-to-file

rule does not apply here.
The parties do not dispute that the Powell Class Action
and Ingram Class Action involve “a common question of law or
fact[.]”

Fed. R. Civ. P. 42(a).

The interests of judicial economy in consolidating the
cases outweigh the potential for delays, expense, confusion, or

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prejudice.

“Factors that may cause prejudice and jury

confusion include complex legal theories and factual proof.”
Guild Assocs., Inc. v. Bio-Energy (Wash.), LLC, 309 F.R.D. 436,
440–41 (S.D. Ohio 2015).

Prejudice may also occur if, without

consolidation, there is a risk of inconsistent results.

See

Buckler v. EnerSys, Inc., No. CV 09-152-JBC, 2010 WL 11526869,
at *1 (E.D. Ky. Nov. 30, 2010) (finding “there is a risk of
inconsistent judgments if the cases are not consolidated,
particularly [where] the legal issues in the two cases are
identical”); Kohus v. Toys "R" Us, Inc., No. C-1-05-517, 2006
WL 1476209, at *1 (S.D. Ohio May 25, 2006) (“[C]onsolidating
the cases for discovery and a Markman hearing would prevent two
trials from going forward on the basis of inconsistent
adjudications of the meaning of the exact same claims.”)
Powell Plaintiffs do not contend that consolidation will create
confusion or prejudice.

The parties concede that the legal

theories and the underlying facts are the same in both suits.
The class definitions in the Powell Class Action and the
Ingram Class Action are also identical.

(Compare Powell, et

al. v. Oldham, et al., 2:16-cv-2907-SHM-tmp (W.D. Tenn.), Am.
Compl., ECF No. 52 ¶ 100 with Ingram, et al. v. Oldham, et al,
2:17-cv-2795-SHM-tmp (W.D. Tenn.), ECF No. 1 ¶ 89.)

It will

not be confusing or prejudicial to adjudicate in one action
claims against the same defendants arising from the same
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underlying transaction.

Trying the identical legal and factual

issues separately would present a real possibility of
inconsistent results.

The prejudice and confusion factors

favor consolidation.
Powell Plaintiffs contend that consolidation will cause
delay and expense.

Potential delay and expense do not outweigh

the interests of judicial economy in consolidation.
Plaintiffs filed an Amended Complaint on May 4, 2017.

Powell
(Powell,

et al. v. Oldham, et al., 2:16-cv-2907-SHM-tmp (W.D. Tenn.),
ECF No. 52.)

On August 7, 2017, the Court granted the parties’

motion to extend the class certification discovery deadline to
January 16, 2018.

(Id., ECF No. 69.)

The Ingram Plaintiffs

filed their complaint on October 31, 2017.

(Ingram, et al. v.

Oldham, et al, 2:17-cv-2795-SHM-tmp (W.D. Tenn.), ECF No. 1.)
On December 19, 2017, the Court held a status conference and
stayed discovery until the consolidation issue was resolved.
(Powell, et al. v. Oldham, et al., 2:16-cv-2907-SHM-tmp (W.D.
Tenn), Min. Entry, ECF No. 84.)

Powell Plaintiffs and Ingram

Plaintiffs have not yet completed class certification discovery
or moved for class certification.

The actions are at an early

stage of litigation, and no trial date has been set.

If the

cases are not consolidated, there will be duplicate effort and
added expense.

The proceedings should be consolidated to

reduce that effort and expense.
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Balancing the factors of economy, delay, expense,
confusion, and prejudice weighs in favor of consolidation.
Defendants’ Motion to Consolidate is GRANTED.
IV.

Conclusion

For the foregoing reasons, Defendants’ Motion for
Consolidation is GRANTED.

Powell, et al. v. Oldham, et al.,

2:16-cv-2907-SHM-tmp (W.D. Tenn.) will be consolidated with
Ingram, et al. v. Oldham, et al, 2:17-cv-2795-SHM-tmp (W.D.
Tenn.).

The consolidated action shall proceed in this Court

under Case No. 2:16-cv-2907 and be styled Powell, et al. v,
Oldham, et al.

Powell Plaintiffs’ motion to dismiss without

prejudice or, in the alternative, to stay is DENIED.

The

motion to appoint interim class counsel is DEFERRED.

So ordered this 9th day of March, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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