Sitts et al v. Dairy Farmers of America, Inc. et al
OPINION AND ORDER granting in part 159 MOTION to Sever or Separate Claims to No More than Nine Plaintiffs. Plaintiffs are required to designate a select group of not more than 20 plaintiffs whose claims will be included in the first trial within 20 days; parties shall file supplemental memoranda of law addressing severance under Rule 21 or 42(b) within 30 days. Signed by Judge Christina Reiss on 5/1/2020. (law)
u.s. ;::;; i:
DISTRICT ,_ \ 1 ~::::-·iCNT
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
GARRETT AND RALPH SITTS, LEON
ATWELL, VICTOR BARRICK, DANIEL
BAUMGARDER, WILLIAM BOARD,
GEORGE BOLLES, ROGER BOLLES, ANDY
BOLLINGER, THOMAS BOLLINGER,
LOGAN BOWER, DWIGHT
BROUILLETTE, THOMAS BROUILLETTE,
AARON BUTTON, HESTER CHASE,
THOMAS CLARK, THOMAS
CLATTERBUCK, PAUL CURRIER, GERRY
DELONG, PETE AND ALICE DIEHL, MARK
DORING, MARK AND BARBARA DULKIS,
GLEN EAVES, MIKE EBY, WILLIAM
ECKLAND, DOUG ELLIOT, JAMES
ELLIOT, WENDALL ELLIOTT, MICHAEL
FAUCHER, DAVID AND ROBIN FITCH,
DUANE AND SUSAN FLINT, JOSEPH
FULTS, RICHARD GANTNER, STEFAN
AND CINDY GEIGER, WILLIAM GLOSS,
JOHN GWOZDZ, DAVID AND LAURIE
GRANT, JIM AND JOYCE GRAY, DENNIS
HALL, ROGER AND JOHN HAMIL TON,
NEVIN AND MARLIN HILDEBRAND, JAKE
AND HARLEN HILL YERD, RICHARD AND
TERRI HOLDRIDGE, PAUL HORNING,
TERRY AND ROBERT HUYCK, DONALD
SCOTT HYMERS, TERRY INCH, RANDY
AND LYNETTE INMAN, THEODORE
JA YKO, JACK KAHLER, JAMES AND
TERESA KEATOR, JIM AND SHARON
KEILHOLTZ, GEORGE KEITH, LEE AND
ELLEN KLOCK, MIKE AND LISA
KRAEGER, FRED LACLAIR, TIM LAL YER,
FRANK AND JOHN LAMPORT, CORRINE
LULL, CHARLES AND GRETCHEN MAINE,
THOMAS AND DEBORA MANOS, FRED
MATTHEWS, RUSSELL MAXWELL,
GERRY MCINTOSH, STEPHEN MELLOTT,
JOHN AND DAVID MITCHELL, THOMAS
MONTEITH, WALT MOORE, RICHARD
AND SHEILA MORROW, DEAN MOSER,
MELISSA MURRAY AND SEAN QUINN,
THOMAS NAUMAN, CHARLES NEFF,
2020 HAY - I PM ~: 25
Case No. 2:16-cv-287
DAVID NICHOLS, MICHAEL NISSLEY,
LOU ANN PARISH, DANIEL PETERS,
MARSHA PERRY, CAROLYN AND DAVE
POST, JUDY LEE POST, SCOTT
RASMUSEU, BRIAN REAPE, DAVID AND
LYNETTE ROBINSON, BRIAN AND LISA
ROBINSON, CAL VIN ROES, BRADLEY
ROHRER, PAUL AND SARAH
ROHRBAUGH, ROBERTA RYAN, SCOTT
AND LIN SA WYER, S. ROBERT SENSENIG,
THOMAS AND DALE SMITH, DALE AND
SUSAN SMITH, DENNIS SMITH, DONALD
T. AND DONALD M. SMITH, ROGER AND
TAMMY, SMITH, TODD SNYDER,
RICHARD SOURWINE, DANNY
SOURWINE, RANDY SOWERS, SHANE
STALTER, GEORGE AND SHIRLEY
STAMBAUGH, TRACY STANKO, STEPHEN
SOURWINE, RICHARD SWANTAK,
GEORGE AND PA TRICIA THOMPSON,
JEREMY THOMPSON, KEN AND JUDY
TOMPKINS, DANIEL VAUGHN, MARK
VISSAR, ERIC WALTS, EDWARD
WALLDROFF, GERALD WETTERHAHN,
JR., EUGENE WILCZEWSKI, STEVE
DAIRY FARMERS OF AMERICA, INC., )
and DAIRY MARKETING SERVICES,
OPINION AND ORDER
GRANTING IN PART DEFENDANTS' MOTION
TO SEVER CLAIMS FOR TRIAL
Plaintiffs allege claims pursuant to the Sherman Act, 15 U.S.C. §§ 1-2, for
asserted antitrust violations committed by Defendants Dairy Farmers of America, Inc.
("DF A") and Dairy Marketing Services, LLC ("OMS") (collectively, "Defendants").
Pending before the court is Defendants' motion to sever or separate Plaintiffs' claims and
try them in groups of no more than nine Plaintiffs, which Plaintiffs oppose.
Plaintiffs are represented by Dana A. Zakarian, Esq., Elizabeth A. Reidy, Esq.,
Gary L. Franklin, Esq., Joel G. Beckman, Esq., Michael Paris, Esq., and William C.
Nystrom, Esq. Defendants are represented by Alfred C. Pfeiffer, Jr., Esq., Elyse M.
Greenwald, Esq., Ian P. Carleton, Esq., Jennifer L. Giordano, Esq., Margaret M. Zwisler,
Esq., and W. Todd Miller, Esq.
Factual and Procedural Background.
Plaintiffs are 116 dairy farmers who opted out of a settlement approved by this
court in a class action case, Allen v. Dairy Farmers ofAmerica, Inc., No. 5:09-cv-230. In
January 2019, Defendants sought summary judgment on a number of grounds, including
an argument that Plaintiffs could not establish antitrust injury on an individualized basis.
Plaintiffs responded that their antitrust expert, Professor Einer Elhauge, opines that
Defendants' alleged conspiracy suppressed the price of raw milk by the same amount
across the relevant market, enabling Plaintiffs to assert that market-wide price
suppression affected each of them in the same manner individually. The court denied
Defendants' motion for summary judgment on that issue.
On January 29, 2020, Defendants moved to sever or separate Plaintiffs' claims for
trial (Doc. 159), asserting that they have a due process right to present an individualized
defense that will be prejudiced if they are forced to defend against 116 claims in a single
trial. In addition, they claim that a trial of 116 individual claims will be rife with the
potential for juror confusion and may result in spillover of the evidence as the jury
struggles to focus on each claim and defense separately. Defendants point out that
Plaintiffs chose to forgo class action certification and should not be permitted to present
their claims as a class, with only certain representative Plaintiffs presenting evidence, at
Plaintiffs opposed the motion on February 19, 2020, contending that severance
would prejudice their case by delaying its adjudication and by unnecessarily burdening
judicial economy for individual claims that rely on a common body of proof. Defendants
replied on March 11, 2020. The court heard oral argument on March 27, 2020, at which
time it took the motion under advisement.
Conclusions of Law and Analysis.
Standard of Review.
Although Defendants' motion is styled as a motion to sever "pursuant to [Fed. R.
Civ. P.] 21[,]" they ask that the court order severance under either Rule 21 or,
alternatively, Fed. R. Civ. P. 42(b). 1 Rule 21 permits a court "at any time, onjust terms"
to "add or drop a party" or "sever any claim against a party." Fed. R. Civ. P. 21.
Separation of claims for trial is also authorized by Rule 42(b ), which provides that "[f]or
convenience, to avoid prejudice, or to expedite and economize, the court may order a
separate trial of one or more separate issues, claims, crossclaims, counterclaims, or thirdparty claims." Fed. R. Civ. P. 42(b). "The Second Circuit has accorded trial courts broad
discretion to employ either [Rule 21 or Rule 42(b)]" to sever claims, because both rules
apply the same standard. Lluberes v. City of Troy, 2014 WL 1123413, at *23 (N.D.N.Y.
Mar. 21, 2014) (citing New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir.
In ruling on motions to sever claims pursuant to Rule 21 or to separate them for
trial pursuant to Rule 42(b), the court must consider: "'(l) whether the claims arise out of
the same transaction or occurrence; (2) whether the claims present some common
questions of law or fact; (3) whether settlement of the claims or judicial economy would
be facilitated; (4) whether prejudice would be avoided if severance were granted; and ( 5)
District courts have "wide discretion to manage ... litigation under either" Rule 21 or Rule 42.
Acevedo Garcia v. Vera Monroig, 351 F.3d 547,559 (1st Cir. 2003). However, "[t]he distinction
between the two rules is that separate trials [under Rule 42(b)] usually will result in one
judgment, but severed claims [under Rule 21] become entirely independent actions to be tried,
and judgment entered thereon, independently." Lluberes v. City a/Troy, 2014 WL 1123413, at
*23 (N.D.N.Y. Mar. 21, 2014) (internal quotation marks and citation omitted).
whether different witnesses and documentary proof are required for the separate claims."'
N Jersey Media Grp. Inc. v. Fox News Network, LLC, 312 F.R.D. 111, 114 (S.D.N.Y.
2015) (quoting Oram v. Sou/Cycle LLC, 979 F. Supp. 2d 498, 502-03 (S.D.N.Y. 2013)).
"Severance requires the presence of only one of these conditions[,]" Lewis v. Triborough
Bridge & Tunnel Auth., 2000 WL 423517, at *2 (S.D.N.Y. Apr. 19, 2000), and "district
courts have broad discretion to sever any party or claim from an action." N Jersey
Media Grp. Inc., 312 F .R.D. at 114. Although Defendants contend that the prejudice
they will suffer if severance is denied and the necessity of different proof for their
individualized defenses are conclusive, the court analyzes all five factors. See id. at 115
(noting that while the presence of one factor alone can support severance, courts granting
severance generally find more than one factor favors that result).
Whether Plaintiffs' Claims Arise Out of the Same Transaction or
Occurrence and Present Common Questions of Law or Fact.
Defendants identify certain individualized factual issues that may arise at trial as
they defend against each Plaintiffs claim. However, Defendants appear to overstate the
impact of individualized evidence they plan to present, as they deposed only seven of the
Plaintiffs after representing that they would need to depose as many as thirty Plaintiffs
while reserving their right to depose all 116 if necessary. (See Doc. 41 at 14; id. n.2.)
District courts in the Second Circuit "repeatedly have interpreted the phrase 'same
transaction' to encompass 'all logically related claims.'" Agnesini v. Doctor's Assocs.,
Inc., 275 F.R.D. 456,459 (S.D.N.Y. 2011) (quoting Barnhart v. Town ofParma, 252
F.R.D. 156, 160 (W.D.N.Y. 2008)). "Where ... plaintiffs' claims under the same
statutory framework arise from different circumstances and would require separate
analyses, they are not logically related." Costello v. Home Depot U.S.A., Inc., 888 F.
Supp. 2d 258,264 (D. Conn. 2012). In contrast, claims may be logically related, and
therefore better suited to being joined for trial, where "defendants' [alleged] wrongdoing
occurred pursuant to a policy or practice." N Jersey Media Grp. Inc., 312 F .R.D. at 115.
The "common question of law or fact" severance factor often overlaps with the
"transaction or occurrence" factor, such as where plaintiffs allege harm from the same
model of defective product. See, e.g., Allstate Ins. Co. v. Electrolux Home Prods., Inc.,
2017 WL 10718329, at *4 (D. Conn. Sept. 18, 2017) (noting that common questions of
fact were identified in analysis of transaction or occurrence factor). In the related context
of joinder under Fed. R. Civ. P. 20, "the same series of transactions or occurrences
[inquiry] ... essentially consumes the second requirement that there arise a question of
law or fact common to all joined parties." Fed. Trade Comm 'n v. Endo Pharms., Inc.,
2016 WL 6124376, at *4 (E.D. Pa. Oct. 20, 2016).
The severance analysis considers the presence of "any question of law or fact
common to all[,]" Costello, 888 F Supp. 2d at 264 (emphasis in original) (internal
quotation marks and citation omitted), and whether there is a "logical relationship
between the factual backgrounds giving rise to each claim," Agnesini, 275 F.R.D. at 459
(internal quotation marks omitted). Plaintiffs assert Defendants' alleged anticompetitive
practices caused antitrust injury to them individually as well as to the entire relevant
market. They urge the court to find the vast majority of evidence is common to all
Plaintiffs, each of whom pursues the same legal theories for both liability and damages.
On balance, because Plaintiffs' claims rely on a common body of proof and
although individual circumstances may be important, the "same transaction or
occurrence" and "common question of law or fact" factors weigh against severing
Plaintiffs' claims. See, e.g., N Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan,
Inc., 2015 WL 777248, at* 11 (E.D.N.Y. Feb. 13, 2015), report and recommendation
adopted, 2015 WL 1345814 (E.D.N.Y. March 25, 2015) (finding claims were part of
same transaction or occurrence for severance purposes where they "ar[o]se from the same
chain of events and [were] not simply intertwined because of an overlap in the parties");
see also El Aguila Food Prods., Inc. v. Gruma Corp., 167 F. Supp. 2d 955, 960 (S.D.
Tex. 2001) (finding that although antitrust claims were "individualized to some extent,"
they involved defendant's "overarching and integrated policies and strategies" across
geographic regions, which weighed against severance).
Whether Severance Would Facilitate Settlement or Promote Judicial
A single trial will often be the most efficient way to resolve related claims, but it is
not the de facto approach to promoting judicial economy. See N. Jersey Media Grp. Inc.,
312 F .R.D. at 117 ("While one trial is usually more efficient than two, this is not always
the case.") (citations omitted). "[O]ne long, combined trial in which the [c]ourt must
constantly caution the jury" to consider each Plaintiff on an individual basis, even if only
in the context of defenses, may be less efficient than several trials presenting a more
manageable number of individual claims. Cestone v. Gen. Cigar Holdings, Inc., 2002
WL 424654, at *3 (S.D.N.Y. Mar. 18, 2002). In the distinct but not dissimilar context of
consolidation under Fed. R. Civ. P. 42(a), the Second Circuit has observed that "[t]he
benefits of efficiency can never be purchased at the cost of fairness[,]" Malcolm v. Nat 'l
Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993), and has cautioned courts to remain
"mindful of the dangers of a streamlined trial process in which testimony must be
curtailed and jurors must assimilate vast amounts of information." Id. (quoting In re
Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 853 (2d Cir. 1992)).
Defendants identify several ways in which severance may yield judicial efficiency
by making later trials shorter and more focused. This argument finds support in the use
of "bellwether" trials in cases that involve significant numbers of claimants or
defendants. "A bellwether trial ... allows a court and jury to give the major arguments
of both parties due consideration without facing the daunting prospect of resolving every
issue in every action." Dixon v. Scott Fetzer Co., 2016 WL 10514834, at *2 n.1 (D.
Conn. May 31, 2016) (internal quotation marks and citation omitted). A bellwether trial
may also serve as "a test case that is typically used to facilitate settlement in similar cases
by demonstrating the likely value of a claim or by aiding in predicting the outcome of
... questions of causation or liability." Id. (quoting Briggs v. Merck Sharp & Dohme,
796 F.3d 1038, 1051 (9th Cir. 2015). In addition, the parties may agree at the outset that
the outcome of a bellwether trial will bind parties in other cases involving common
issues. Alternatively, the parties may agree that
the claims of a representative plaintiff or plaintiffs are tried, but the
outcome of the trial is binding only as to the parties involved in the trial
itself. The results of the trial are used in the other cases purely for
informational purposes as an aid to settlement.
Dunson v. Cordis Corp., 854 F.3d 551, 555 (9th Cir. 2017).
In this case, severing Plaintiffs' claims for trial may in fact be the most efficient
way to proceed because Defendants are entitled to call each Plaintiff as a witness
regardless of how Plaintiffs choose to establish their claims. The evidence pertaining to
all 116 Plaintiffs will be substantial, making it challenging for both the court and the jury
to consider each Plaintiff and his or her claims on a truly individualized basis. Dividing
Plaintiffs into smaller groups for trial will facilitate the fair consideration of Defendants'
proof while respecting Plaintiffs' decision to pursue individual rather than class claims.
In addition, the parties may gain useful insights that prompt resolution of contested issues
or the lawsuit as a whole. Considerations of judicial economy and facilitation of
settlement thus weigh slightly in favor of severing Plaintiffs' claims for trial.
Whether Severance Would Avoid Prejudice to the Parties.
Defendants' primary argument in favor of severance is that they will be severely
prejudiced if Plaintiffs are permitted to proceed in a single trial because it will be
virtually impossible for a jury to keep straight the individualized facts pertaining to each
of the 116 Plaintiffs. They additionally assert that there is a risk that the jury will
improperly generalize the circumstances applicable to one or a few Plaintiffs to the entire
group as a result of either confusion or bias. In response, Plaintiffs contend that granting
severance would cause them prejudice by delaying resolution of their claims.
The risk that a jury will be confused and struggle to parse the facts in a multiplaintiff case is undeniable and increases with the number of individual parties. See, e.g.,
Costello, 888 F. Supp. 2d at 266 (finding that evidence concerning claims of thirty-nine
plaintiffs "could easily confuse a jury even with the clearest of jury instructions"). 2
Courts have found a risk of prejudice from jury confusion in similar circumstances. See, e.g.,
Ulysse v. Waste Mgmt. Inc. of Fl., 2013 WL 11327137, at *4 (S.D. Fla. Sept. 13, 2013), aff'd,
645 F. App'x 838 (11th Cir. 2016) (holding that "[c]onducting a trial with seventy-nine
Plaintiffs assert that "[m]ultiple trials of the same claims ... pose a significant risk
of inconsistent jury verdicts." (Doc. 172 at 6.) In contrast, Defendants argue that there is
no risk of inconsistent verdicts because, as a prerequisite to finding Defendants liable to
any individual Plaintiff for antitrust violations, a jury would be required to find that
Defendants' anticompetitive conduct injured that specific Plaintiff. See At!. Richfield Co.
v. USA Petroleum Co., 495 U.S. 328, 334 (1990) (holding that a private plaintiff seeking
antitrust damages must prove injury "attributable to an anti-competitive aspect of the
practice under scrutiny"). Although Plaintiffs' market-wide theory of liability and
damages creates some risk that, if separate trials are conducted, one jury might find that
Defendants' conduct was anticompetitive while a second jury might reach a contrary
conclusion, that risk does not outweigh the danger of prejudice due to jury confusion.
Although Plaintiffs further cite delay as a form of prejudice, they identify no
support for a conclusion that the prospect of delay outweighs the importance of ensuring
a fair trial. Instead, the court's paramount concern must be ensuring a properly instructed
jury can perform its critical function. See Malcolm, 995 F.2d at 350 ("a fair and impartial
trial to all litigants is the foremost concern" of courts considering joinder or separation of
claims) (internal quotation marks and citation omitted); see also Thompson v. Sanderson
Farms, Inc., 2006 WL 2559852, at *6 (S.D. Miss. Sept. 1, 2006) (granting motion to
sever and finding that "the potential for jury confusion and prejudice to the defendant
[p]laintiffs is inefficient, unmanageable, and would severely prejudice" defendant); Hofmann v.
EM/ Resorts, Inc., 2010 WL 9034908, at *3 (S.D. Fla. July 21, 2010) (observing that if the case
reached trial, "the potential for prejudice would be far too great to permit a single trial, as the
jury would have trouble distinguishing which facts applied to each of the approximately twohundred [p]laintiffs and forty-plus [d]efendants"); Acevedo Garcia v. Vera Monroig, 204 F.R.D.
26, 30 (D.P.R. 2001), ajf'd, 351 F.3d 547 (1st Cir. 2003) (denying motion for reconsideration of
order severing claims for trial and noting that "having fewer [p]laintiffs testify in each trial
would provide the jury with the ability to understand and remember the evidence and witness
testimony" applicable to eighty-two individual plaintiffs).
would offset any possible benefits of a joint trial" notwithstanding greater expense and
delay for plaintiffs).
A single trial involving all 116 Plaintiffs poses a real threat of juror confusion and
spillover of evidence that may prejudice Defendants and deprive them of a fair trial. This
factor thus weighs heavily in favor of granting Defendants' motion to sever. See Acevedo
Garcia v. Vera Monroig, 204 F.R.D. 26, 29 (D.P.R. 2001), aff'd, 351 F.3d 547 (1st Cir.
2003) ( finding severance was necessary due to "the likelihood of jury confusion when
subjecting one jury to the causes of action of [eighty-two] [p ]laintiffs").
Whether Different Witnesses and Documentary Proof Are Required
for Plaintiffs' Separate Claims.
Plaintiffs plan to rely on "the same evidence" to demonstrate liability, antitrust
impact, and damages with respect to each individual Plaintiff. (Doc. 172 at 6) (emphasis
omitted). They therefore argue that the overlap in witness testimony and documentary
proof weighs against severance. Defendants counter that they have the right to present
individualized evidence and to challenge Plaintiffs' proof on that basis. They cite the
deposition testimony of several Plaintiffs to illustrate the type of individualized evidence
their defense requires.
"[N]early every trial involving multiple [parties] will involve some separate issues
of fact that call for testimony from different witnesses on entirely unrelated matters," but
"the more appropriate question is whether separate trials will require substantial overlap
of witnesses or documentary proof." N Jersey Media Grp., Inc., 312 F.R.D. at 117
(internal brackets, quotation marks, and citation omitted) (emphasis added). In this case,
there will be significant overlap of evidence presented by Plaintiffs and some overlap of
evidence presented by Defendants. Consequently, "the possibility of duplicat[iv]e
presentation of evidence at each trial weighs against severance." Kirk v. Metro. Transp.
Auth., 2001 WL 25703, at *3 (S.D.N.Y. Jan. 10, 2001).
Limited Separation of Plaintiffs' Claims for Trial is Appropriate.
The Second Circuit has held that "[c]onsiderations of convenience and economy
must yield to a paramount concern for a fair and impartial trial." Malcolm, 995 F.2d at
350 (quoting Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990)); see also
Lluberes, 2014 WL 1123413, at *23 (granting motion to sever and holding that prejudice
of defending against multiple distinct claims in one trial was "not outweighed by the
facilitation of judicial economy that would be served from trying all claims in one trial").
In this case, a single trial with 116 Plaintiffs, each seeking individual damages, would
produce an unwieldly body of evidence with the real risk that the jury will not address the
claims on an individual basis no matter how strenuously and carefully the court instructs
them to do so, not because of juror dereliction of duty, but solely because of the difficulty
of keeping 116 claims separate. Defendants are entitled to a fair trial. Plaintiffs, in
contrast, have chosen not to seek class certification. If their claims are severed for trial,
they will still be entitled to pursue their claims on an individualized basis, albeit with
For the foregoing reasons, the court GRANTS IN PART Defendants' motion to
sever or separate claims for trial (Doc. 159).
Basis for Severance.
In their motion, Defendants ask the court to sever Plaintiffs' claims for trial
pursuant to Rule 21 or, in the alternative, to order separate trials pursuant to Rule 42(b ).
Beyond stating these alternative requests for relief, Defendants do not address whether
severance resulting in independent final judgments in each proceeding or separation of
claims to be resolved by a single final judgment is more appropriate. Plaintiffs have not
addressed that issue in their opposition. The court therefore RESERVES JUDGMENT
on the issue of whether claims will be severed pursuant to Rule 21 or separated for trial
pursuant to Rule 42(b) and hereby ORDERS the parties to file supplemental memoranda
oflaw addressing this question within thirty (30) days of the date of this Opinion and
The Number of Plaintiffs in the First Trial.
Defendants ask the court to limit the size of each separate trial to six to nine
Plaintiffs chosen by both Defendants and Plaintiffs to reflect a fair cross-section of the
Plaintiffs. If adopted, this approach would result in twelve to nineteen trials, which
would squander judicial and party resources. Even in the context of criminal trials, courts
have found more numerous parties appropriate. See, e.g., United States v. Casamento,
887 F.2d 1141, 1149 (2d Cir. 1989) (affirming convictions following joint trial oftwentyone defendants notwithstanding denial of motion to sever); United States v. Segura, 2000
WL 1849723, at *5 (D. Conn. Nov. 29, 2000) (denying motion to sever based on asserted
prejudice of joint trial for nineteen of thirty-six defendants charged by a single
indictment); United States v. Castellano, 610 F. Supp. 1359, 1410-12 (S.D.N.Y. 1985)
(denying motion to sever claims against twenty-one defendants charged on seventy-eight
counts, finding that risks of jury confusion and prejudicial spillover were "overstated"
and could be managed appropriately where alleged criminal conduct and evidence thereof
was relevant to existence of overarching RICO conspiracy).
In recognition of the need to balance the preference for a single trial of related
claims against fairness concerns, courts determine the appropriate degree of severance
where the "case is complex enough to warrant severance, but the [evidence] is
sufficiently unified to support as minimal a severance as possible." United States v.
Gray, 173 F. Supp. 2d 1, 9 (D.D.C. 2001) (granting limited severance where trial of
seventeen defendants on 158 counts was expected to last six to twelve months). Here,
Plaintiffs' claims are "sufficiently unified" so that a first trial of twenty (20) Plaintiffs
will preserve Defendants' right to a fair trial without needlessly prejudicing Plaintiffs'
presentation of their claims or causing undue delay. Thereafter, the court may order a
greater or lesser number of Plaintiffs in a subsequent trial or trials based upon its
As for Defendants' suggestion that they be permitted to participate in selecting
which Plaintiffs present their claims in the first trial, while this may be appropriate in a
true "bellwether" trial, it is not appropriate in this case absent an agreement by the parties
to treat the first trial as binding on certain aspects of the trials that take place thereafter.
Defendants have asked for severance for reasons wholly unrelated to whether Plaintiffs'
claims are representative of a larger class of claims. Plaintiffs, in tum, have not sought
class action certification. Plaintiffs are thus entitled to select which claims they seek to
present first. If that selection results in the presentation of Plaintiffs' strongest claims
first, Defendants may be deemed to have accepted that risk.
Defendants' motion to sever or separate claims for trial (Doc. 159) is GRANTED
IN PART. Plaintiffs are ORDERED to select a group of not more than twenty (20)
Plaintiffs whose claims will be included in the first trial, which will begin on July 1, 2020
consistent with the court's Scheduling Order. Plaintiffs are required to make that
designation within twenty (20) days of this Opinion and Order. With regard to whether
severance should be granted pursuant to Rule 21 or Rule 42(b), the parties are hereby
ORDERED to file supplemental memoranda of law addressing that question within thirty
(30) days of the date of this Opinion and Order.
Dated at Burlington, in the District of Vermont, this
/.5 day of May, 2020.
cStates District Courtge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?