Pfeffer v. HSA Retail, Inc., d/b/a Carryon

Filing 20

ORDER DENYING 11 Motion to Consolidate Cases. Signed by Judge Xavier Rodriguez. (rf)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JIMMIE LEE PFEFFER, INDIVIDUALLY
AND ON BEHALF OF A CLASS OF
SIMILARLY SITUATED INDIVIDUALS,
Plaintiff,
v.
HSA RETAIL, INC.,
Defendant.

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Civil Action No. SA-11-CV-959-XR

ORDER
On this day, the Court considered Plaintiff's Motion for Consolidation (Docket No. 11). For
the following reasons, the Court DENIES the motion.
Background
Plaintiff Jimmie Lee Pfeffer ("Plaintiff") filed this lawsuit against HSA Retail, Inc. d/b/a
Carry On ("Defendant") on November 15, 2011, alleging a violation of the Electronic Fund Transfer
Act ("EFTA"). Pl.'s Orig. Comp. (Docket No. 1). That same day, Plaintiff filed eight other lawsuits
against eight different defendants, each alleging the same violation of the EFTA.1 On January 23,
2011, Plaintiff filed a motion to consolidate all nine cases pursuant to Federal Rule of Civil
Procedure 42. Pl.'s Mot. for Consolidation (Docket No. 11). Defendant filed a response in
opposition to Plaintiff's motion on January 26, 2011. Def.'s Resp. (Docket No. 16).

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The case numbers of the eight other lawsuits are 5:11-cv-00961-FB, 5:11-cv-00962-OLG, 5:11-cv-00963-XR,
5:11-cv-00964-OLG, 5:11-cv-00965-HLH, 5:11-cv-00966-XR, 5:11-cv-00967-FB, and 5:11-cv-00968-XR. In all
nine lawsuits, Plaintiff alleges that the defendants, ATM operators, violated the EFTA by failing to affix a notice to
their ATMs, or within close proximity to their ATMs, informing consumers of a possible transaction fee.

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Legal Standard
Federal Rule of Civil Procedure 42 permits consolidation of multiple actions if the “actions
before the court involve a common question of law or fact.” FED. R. CIV. P. 42(a). The purpose
of consolidation is to “avoid unnecessary costs or delay.” Frazier v. Garrison I.S.D., 980 F.2d 1514,
1532 (5th Cir. 1993) (quoting FED. R. CIV. P. 42(a)). Federal district courts have very broad
discretion in deciding whether or not to consolidate. Id.
Factors for the court to consider when determining whether consolidation is appropriate
include (1) whether the actions are pending before the same court, (2) whether common parties are
involved in the cases, (3) whether there are common questions of law or fact, (4) whether 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 if the cases are tried separately,
and (5) whether consolidation will conserve judicial resources and reduce the time and cost of trying
the cases separately. In re Enron Corp. Sec., Derivative, & "ERISA" Litig., Civ. A. Nos. H-01-3624,
H-03-5528, H-04-0087, H-04-0088, 2007 WL 446051, at *1 (S.D.Tex. Feb. 7, 2007) (citing
Rodriguez v. Torres, Nos. Civ. B-04-036, B-04-037, B-04-043, 2004 WL 2952612, at *1 (S.D.Tex.
Nov. 22, 2004)). A mere contention that failure to consolidate cases might lead to inconsistent
decisions is insufficient justification for a court to consolidate an action. Frazier, 980 F.2d at 1532.
Analysis
Because all nine cases involve different defendants and independent fact scenarios, the risks
of consolidation outweigh any potential benefits. Consequently, the Court finds that consolidation
of the cases is inappropriate.

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Other than the fact that they assert the same legal claim by the same plaintiff, the nine actions
that Plaintiff seeks to consolidate are completely unrelated.

Each case involves a different

defendant, each of which is a different corporate entity. Plaintiff does not allege that any of the
defendants acted in concert with one another or that any of the defendants were even aware of one
another’s activities. Not only do the cases involve nine different defendants, but each case involves
entirely independent fact scenarios as well. The facts in each case involve different ATM machines
at different locations that were used at different times. Thus, determination of liability in each case
will require the evaluation of entirely different witness testimony and evidence.2
Since the cases consist of different defendants and independent fact scenarios, the potential
risks and burdens of consolidation outweigh any potential benefits. The risk of prejudice to the
defendants and juror confusion at trial are sizeable. If the cases were consolidated, defendants might
be prejudiced during discovery by being forced to reveal confidential or sensitive information to one
another that would not otherwise be disclosed. At trial, the risk of confusion is salient because jurors
might have difficulty keeping track of the details in nine different fact scenarios, especially since the
disposition of each matter entails the evaluation of entirely different pieces of evidence.
While the risks of juror confusion and prejudice to the defendants are palpable, the benefits
of consolidation are slim. The disposition of each case requires separate, individualized inquiries,

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For example, in order for Plaintiff to prevail on his EFTA claim in each case, he must show that the ATM did not
have a conspicuous transaction fee notice "on or at" the machine at the time of Plaintiff's transaction. 15 U.S.C. §
1693b(d)(3). However, an ATM operator would not be liable for failing to affix a fee notification to the ATM if such
a notice had properly been posted on the ATM but was subsequently removed by a person other than the ATM
operator. § 1693h(d). Therefore, to determine liability, the Court will have to conduct an individualized inquiry in
each case to establish (1) whether a properly placed notice ever existed on the ATM and, if the notice is found to
have existed, (2) whether it was later removed by an individual other than the ATM operator.

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so few judicial resources would be saved by consolidating the actions.3 As a result, the benefits of
consolidation are significantly outweighed by the drawbacks. Accordingly, the Court finds that
consolidation of the actions is not appropriate.
Conclusion
Because each case involves a different defendant and requires an individualized inquiry of
different facts, the potential risks of consolidation outweigh the potential benefits. Consequently,
the Court finds that consolidation of the actions is inappropriate and DENIES Plaintiff's Motion for
Consolidation (Docket No. 11).
It is so ORDERED.
SIGNED this 6th day of February, 2012.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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Plaintiff contends that any risk of prejudice is outweighed by the risk of inconsistent adjudication of common
factual and legal issues. Pl.'s Mot. for Consolidation ¶ 5 (Docket No.11). The Court disagrees. As discussed above,
common facts are not presented in any of the cases; rather, each case involves an independent incident. Moreover,
since the purpose of Rule 42 is to avoid unnecessary costs or delay, not to ensure the uniformity of decisions, the
mere possibility of inconsistent holdings on legal issues does not provide sufficient justification for consolidation.

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