Gabriel v. OneWest Bank, FSB
Filing
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OPINION AND ORDER OF CONSOLIDATION: Lead Case No. 4:11cv3356 and Member Case No. 4:12cv324; granting 8 MOTION to Consolidate Lead Case No. 4:11-cv-3356 and Member Case No. 4:12-cv-00324.(Signed by Judge Melinda Harmon) Parties notified.(arrivera, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FLOYD J. GABRIEL,
Plaintiff,
VS.
ONEWEST BANK FSB,
Defendant.
FLOYD J. GABRIEL AND RACQUEL
DAVIS,
Plaintiffs,
VS.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION A/K/ FANNIE MAE
AND ONEWEST BANK, FSB,
Defendants.
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CIVIL ACTION H-11-3356
CIVIL ACTION H-12-324
OPINION AND ORDER OF CONSOLIDATION
Pending before the Court in H-11-3356 cause is Defendant
OneWest Bank’s motion to consolidate the above referenced cases
(instrument #8), which were both removed from state court and which
allege wrongful foreclosure of the same property, have a common
plaintiff (Floyd J. Gabriel), and a common Defendant (OneWest
Bank), and involve common issues of fact and law.
Both cases are
pending on the undersigned judge’s docket.
Federal Rule of Civil Procedure 42(a) provides,
If the actions before the court 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)
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consolidate the actions; or (3) issue any other orders to
avoid unnecessary cost or delay.
A court has wide discretion in deciding whether two or more
actions
have
common
questions
of
law
consolidation would save time and money.
and
fact
and
whether
Mills v. Beech Aircraft
Corp., 886 F.2d 758, 761-62 (5th Cir. 1989).
Factors for the court
to consider in determining if consolidation is appropriate are
whether (1) the actions are pending before the same court; (2)
there are common parties; (3) there are common questions of law or
fact; (4) there is risk of prejudice or confusion if the cases are
consolidated and if so, whether the risk is outweighed by the risk
of inconsistent adjudications of factual and legal issues; (5)
consolidation will conserve judicial resources and reduce the time
and cost of handling the cases separately; and (6) the cases are at
different stages.
In re Enron Corp. Sec., Derivative & ERISA
Litig., Nos. H-01-3624, et al., 2007 WL 446051, *1 (S.D. Tex. Feb.
7, 2007.
The Court may order consolidation even where the parties
are opposed to it and its determination many “take precedence over
the desires of counsel.”
Id., citing In re Air Crash Disaster at
Florida Everglades on Dec. 19, 1972 v. Eastern Air Lines, Inc., 549
F.2d 1006, 1013, 1014 (5th Cir. 1977).
District courts frequently
consolidate cases before them that overlap substantially.
Gate
Guard Services, LP v. Solis, Civ. A. No. V-10-91, 2011 WL 2784447,
*14 (S.D. Tex. July 12, 2011), citing O’Hare v. Vulcan Capital,
LLC, No. SA-04-CA-566-OG, 2007 WL 996437, *3 (W.D. Tex. Feb. 20,
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2007).
Consolidation does not merge suits into a single cause of
action or change the rights of the parties,
In re Enron, 2007 WL
446051, *1, citing Frazier v. Garrison I.S.D., 980 F.2d 1514, 1532
(5th Cir. 1983)(“[A]ctions maintain their separate identity even if
consolidated”); McKenzie v. U.S., 678 F.2d 571, 54 (5th Cir.
1982)(“[C]onsolidation does not cause one civil action to merge
from two”); Miller v. U.S. Postal Serv., 729 F.2d 1033, 1036 (5th
Cir. 1984)(courts have emphasized that following consolidation it
is vital that “the two suits retain their separate identities” even
to
the
point
that
each
requires
“the
entry
of
a
separate
judgment.”).
As noted, these two cases are on this Court’s docket, they
have a common plaintiff and common defendant, they arise out of
foreclosure on the same property, they have common issues of law
and fact, there is no risk of confusion, and consolidation will
conserve judicial resources and reduce the time and cost of
handling the cases separately.
Neither case has been set on
schedule yet, so the litigation is at the same stage in both.
One
difference
is
that
proceeding pro se in H-11-3356.
Plaintiff
Floyd
J.
Gabriel
is
As reflected on the docket sheet,
he has failed to appear for two scheduling conferences before
United States Magistrate Judge Frances Stacy.
There is also a
pending motion to dismiss (#3), filed on September 21, 2011, to
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which he has not responded.
In H-12-324, Mr. Gabriel and his co-
Plaintiff, Racquel Davis, are represented by attorney Frank A.
Rush.
The Court finds that consolidation is appropriate and
ORDERS that OneWest’s motion to consolidate (#8 in H-11-3356)
is GRANTED, and the cases shall proceed under Civil Action No. H11-3356.
The Court further
ORDERS that Mr. Rush shall inform the Court within seven days
whether he intends to represent Mr. Gabriel in both actions.
If
so, the Court further
ORDERS Mr. Rush to file a response to the motion to dismiss
(#3 in H-11-3356) within twenty days of receipt of this order.
If
Mr. Rush is not representing Mr. Gabriel in H-11-3356, Mr. Gabriel
shall file a response by the same deadline.
SIGNED at Houston, Texas, this
5th
day of
April , 2012.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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