Ohio Security Insurance Company v. K R Enterprises, Inc. et al

Filing 154

MEMORANDUM OPINION AND ORDER: granting the MOTION by Ohio Security Insurance Company to Consolidate Cases 1:18-cv-01347 and 1:15-cv-16264 (ECF No. 21 in Civil Action 1:18-cv-01347), and the court ORDERS these two cases consolidated; designating 1:15- cv-16264 as the lead case. Having consolidated the cases, the operative scheduling order for both cases is the one entered 11/26/2018 in Civil Action No. 1:18-cv-01347. Accordingly, the Motion to Modify the Court's 1/12/2018 Amended Scheduling Order (ECF No. 153 in Civil Action No. 1:15-cv-16264) is DENIED as moot. The MOTION by Ohio Security Insurance Company to Dismiss Complaint is DENIED (ECF No. 21 in Civil Action 1:18-cv-01347). Nor will the court stay Counts II, III, and IV of that c omplaint. Ohio Security references a stay pending a ruling on a motion for judgment on the pleadings. However, no motion under Federal Rule of Civil Procedure 12(c) is pending before the court. Signed by Senior Judge David A. Faber on 2/1/2019. (cc: counsel of record) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
K.R. ENTERPRISES, INC.,
Plaintiff,
v.

CIVIL ACTION No. 1:18-01347

OHIO SECURITY INSURANCE COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER
This case arises out of Ohio Security’s denial of insurance
coverage to K. R. Enterprises.

Ohio Security filed a declaratory

judgment action in this court seeking a declaration that it has
no duty to defend or indemnify defendant and others in a series
of lawsuits arising out of the unlawful actions of one of
defendant’s former employees.

That action was assigned Civil

Action No. 1:15cv16264.
Thereafter, K. R. Enterprises filed the instant case, also
arising out of Ohio Security’s denial of coverage.
has moved to consolidate the two actions.

Ohio Security

(Doc. No. 21).

Enterprises does not object to the consolidation motion.
Federal Rule of Civil Procedure 42(a) provides:
If 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) consolidate the
actions; or (3) issue any other orders to
avoid unnecessary cost or delay.

K.R.

Consolidation decisions lie within the discretion of the court.
See North Carolina Natural Gas Corp. v. Seaboard Surety Corp.,
284 F.2d 164, 167 (4th Cir. 1960); see also A/S J. Ludwig
Mowinckles Rederi v. Tidewater Construction Corp., 559 F.2d 928,
933 (4th Cir. 1977) (“District courts have broad discretion under
F. R. Civ. P. 42(a) to consolidate causes pending in the same
district.”).

Furthermore, “[a] motion to consolidate is not

required; the court may invoke Rule 42(a) sua sponte.”

Miller v.

United States Postal Serv., 729 F.2d 1033, 1036 (5th Cir. 1984).
It appears to the court that consolidation of these cases is
warranted because not only would consolidation promote judicial
economy, but it would also reduce the financial and other burdens
imposed on the parties and their witnesses.
the court finds:

In so concluding,

1) both cases involve common questions of fact;

2) both cases involve common questions of law; and 3) the parties
will not be prejudiced by consolidation of the two actions.
Based on the foregoing, the motion to consolidate is
GRANTED* and the court ORDERS these two cases CONSOLIDATED.
Civil Action No. 1:15cv16264 is hereby designated as the lead
case.

Having consolidated the cases, the operative scheduling

*

The motion to dismiss K. R. Enterprises complaint is
DENIED. Nor will the court stay Counts II, III, and IV of that
complaint. Ohio Security references a stay pending a ruling on a
motion for judgment on the pleadings. However, no motion under
Federal Rule of Civil Procedure 12(c) is pending before the
court.
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order for both cases is the one entered on November 26, 2018, in
Civil Action No. 1:18-cv-01347.

Accordingly, the Motion to

Modify the Court’s January 12, 2018 Amended Scheduling Order (ECF
No. 153 in Civil Action No. 1:15-cv-16264) is DENIED as moot.
The Clerk is directed to send copies of this Memorandum
Opinion to counsel of record.
IT IS SO ORDERED this 1st day of February, 2019.
ENTER:

David A. Faber
Senior United States District Judge

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