Tolliver et al v. United States of America

Filing 18

ORDER to Consolidate. Case No. C10-5060RBL has been consolidated into this case, C10-5056RBL. All future documents are to be filed under Case No. C10-5056RBL. Signed by Judge Ronald B. Leighton. (DN)

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Hon. Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ROBERT AND JONI FRANCIS, as Personal Representatives of the ESTATE OF VANNA K FRANCIS; and ROBERT AND JONI FRANCIS, husband and wife, the marital community therof, Plaintiffs, v. THE UNITED STATES OF AMERICA; DEPARTMENT OF INTERIOR; BUREAU OF INDIAN AFFAIRS, Defendants. (Please note on Motion Calendar for: April 19, 2010)

No. C10-cv-5060-RBL STIPULATED MOTION AND ORDER TO CONSOLIDATE

Without waiver of any claim or defense any party may assert in this action, pursuant to Fed. R. Civ. P. 42, Plaintiffs Robert and Joni Francis, in their capacity of personal representatives to the estate of Vanna K. Francis and on behalf of their marital community ("Plaintiffs"), and Defendant, the United States of America (collectively, "the parties"), by and through their undersigned counsel, hereby move the Court for an order consolidating this action with a related case currently pending in this district also before the Honorable Ronald B. Leighton: Marla Tolliver, Individually and as Personal Representative of the Estate of Ronald Scroggins v. The United States of America, Bureau of Indian Affairs, and the Department of Interior; WDWA Case No. 10-CV-5056-RBL ("Tolliver").1

The United States is concurrently filing a notice in Tolliver to record in that matter this Stipulated Motion to Consolidate.
STIPULATED MOTION TO CONSOLIDATE ­ 1 (C10-cv-5060-RBL)
700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101-1271 [phone]

1

UNITED STATES ATTORNEY

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Plaintiffs in Tolliver, Marla Tolliver and Larry Scroggins, through their undersigned attorney, concur in the present Stipulated Motion to Consolidate. The parties seek to consolidate these cases because they involve common questions of law and fact and the consolidation of these cases will promote judicial efficiency and conservation of resources, without prejudicing any party. I. RELEVANT FACTS Plaintiffs in this matter and Plaintiffs in Tolliver allege that, on or about March 18, 2007, Vanna K. Francis and Ronald Scroggins respectively were passengers in a motor vehicle that went off the Lower Elwha Road and into the Elwha River resulting in their deaths. Plaintiffs in this matter and Plaintiffs in Tolliver bring this matter against the United States under the Federal Tort Claims Act ("FTCA"), and allege that the United States, through its agencies, builds, maintains and/or services the Lower Elwha Road, its road signs and its lighting, which did not adequately or properly warn of the hazardous conditions or the presence of the Elwha River at the end of the Lower Elwha road. II. STIPULATION Fed. R. Civ. P. 42 allows a district court to consolidate actions that "involve a common question of law or fact." Fed. R. Civ. P. 42(a). The purpose of consolidation is to enhance efficiency and to avoid the substantial danger of inconsistent adjudications. See Bristol-Myers Squibb Co. v. Safety Nat'l Casualty Corp., 43 F.Supp.2d 734, 744 (E.D. Tex. 1999). The Court has "broad discretion under this rule to consolidate cases pending in the same district." See Investors Research Company v. United States District Court for the Central District of California, 877 F.2d 777, 777 (9th Cir. 1989). The decision to consolidate is premised on a balancing test that weighs the saving of time and effort versus inconvenience, delay and expense. See Bristol-Myers, 43 F.Supp.2d at 744. However, typically, consolidation is favored. See Johnson v. Celotex Corporation, 899 F.2d 1281, 1284 (2nd Cir. 1990). The threshold question when Fed. R. Civ. P. 42(a) is invoked is whether common questions of law or fact exist that warrant consolidation of the actions. See Enterprise Bank v. Saettele, 21 F.3d 233, 235 (8th Cir. 1994); Bank of Montreal v. Eagle Associates, 117 F.R.D.
UNITED STATES ATTORNEY

STIPULATED MOTION TO CONSOLIDATE ­ 2 (C10-cv-5060-RBL)

700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101-1271 [phone]

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530, 532 (S.D.N.Y. 1987). This action involves questions of law and fact that are closely related to the issues raised in Tolliver. Specifically, the cases involve a common party: the United States. See Seguro de Servicio de Salud v. McAuto Sys., 878 F.2d 5, 8 (1st Cir. 1989). Both actions involve common issues of fact: both arise from the same motor vehicle accident. See Cantrell v. GAF Corp., 999 F.2d 1007, 1010-11 (6th Cir. 1993). Both actions involve common issues of law: both are brought against the United States under the FTCA for the same type of alleged negligence. This Court has previously recognized as much, in Tolliver, stating, that Tolliver "is directly related to C10-5060RBL Francis v. USA." See Tolliver at Dkt. 7. Additionally, Plaintiff Larry Scroggins in Tolliver is represented by the same counsel as Plaintiffs in this matter. Finally, the parties are unaware of any prejudice that will flow to Plaintiffs here or in Tolliver from proceeding in a consolidated action. No party has engaged in a Fed. R. Civ. P. 26(f) conference, exchanged initial disclosures, prepared a Joint Status Report, or engaged in any type of discovery. Thus, none of the lawsuits have progressed to the point where prejudice from delay should be a concern. See, e.g., Switzenbaum v. Orbital Sciences Corp., 187 F.R.D. 246, 248 (E.D. Va. 1999). Therefore, the parties, by and through their respective undersigned counsel, hereby STIPULATE, AGREE, and JOINTLY REQUEST that the Court consolidate the two actions. Plaintiffs in Tolliver, Marla Tolliver and Larry Scroggins, through their undersigned attorney, concur in the present stipulation. III. CONCLUSION For the foregoing reasons, the parties' respectfully ask this Court to grant their Stipulated Motion to Consolidate and order this action consolidated with Marla Tolliver, Individually and as Personal Representative of the Estate of Ronald Scroggins, v. The United States of America, Bureau of Indian Affairs, and the Department of Interior; WDWA Case No. 10-CV-5056-RBL, under the first-filed case number. //
UNITED STATES ATTORNEY

STIPULATED MOTION TO CONSOLIDATE ­ 3 (C10-cv-5060-RBL)

700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101-1271 [phone]

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So stipulated and respectfully submitted this 19th day of April, 2010.

DATED: April 19, 2010.
MARTENS + ASSOCIATES PS /s/ Steven A. Stolle STEVEN A. STOLLE ROSE K. MCGILLIS RICHARD L. MARTENS 705 5th Ave S, Suite 150 Seattle , WA 98104 Phone: [phone] Fax: [phone] Email: [e-mail] Attorneys for Plaintiffs

DATED: April 19, 2010. JENNY A. DURKAN United States Attorney /s/ J. Michael Diaz J. MICHAEL DIAZ, WSBA No. 38100 PRISCILLA CHAN, WSBA No. 91005 Assistant United States Attorneys U.S. Attorney's Office for the Western District of Washington 700 Stewart Street, Suite 5220 Seattle, Washington 98101 Telephone: [phone] Fax: [phone] Email: [e-mail] Attorneys for the United States of America

Concurring herewith:

DATED: April 19, 2010.
/s/ Karen L. Unger KAREN L. UNGER, P.S. Attorney at Law 332 E. 5th, Suite 100 Port Angeles, WA 98362 Phone: [phone] Fax: [phone] Email: [e-mail] Attorney for Plaintiff Marla Tollivar in Tolliver MARTENS + ASSOCIATES PS /s/ Steven A. Stolle STEVEN A. STOLLE ROSE K. MCGILLIS 705 5th Ave S, Suite 150 Seattle , WA 98104 Phone: [phone] Fax: [phone] Email: [e-mail] Attorneys for Plaintiff Larry Scroggins in Tolliver

STIPULATED MOTION TO CONSOLIDATE ­ 4 (C10-cv-5060-RBL)

700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101-1271 [phone]

UNITED STATES ATTORNEY

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ORDER The parties having so stipulated, it is so ORDERED. The Clerk of this Court is hereby ORDERED to consolidate the present matter with Marla Tolliver, Individually and as Personal

Representative of the Estate of Ronald Scroggins, v. The United States of America, Bureau of Indian Affairs, and the Department of Interior; WDWA Case No. 10-CV-5056-RBL, under the first-filed case number.
DATED this 21st day of April, 2010.

A

RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE

STIPULATED MOTION TO CONSOLIDATE ­ 5 (C10-cv-5060-RBL)

700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101-1271 [phone]

UNITED STATES ATTORNEY