Fitzwater et al v. CONSOL Energy, Inc. et al

Filing 90

MEMORANDUM OPINION AND ORDER pursuant to the motion to consolidate (Civil Action No. 1:17-cv-03861) and 85 Notice of filing of motion to consolidate Case No. 1:17-cv-03861 with Case No. 2:16-cv-09849; the court ORDERS that Casey, Civil Action 1:17-cv-03861, is consolidated with Fitzwater, Civil Action 2:16-cv-09849; the Fitzwater case is designated as the lead action, and all further filings shall be captioned and docketed in this case. Signed by Judge John T. Copenhaver, Jr. on 12/22/2017. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
BENNY FITZWATER,
and CLARENCE BRIGHT, on behalf of
themselves and others similarly situated,
Plaintiffs,
v.

Civil Action No. 2:16-cv-09849

CONSOL ENERGY, INC., and
CONSOLIDATION COAL CO., and
FOLA COAL CO., LLC, and
CONSOL OF KENTUCKY, INC., and
KURT SALVATORI
Defendants.
EMMETT CASEY, JR.,
and CONNIE Z. GILBERT, on behalf of
themselves and others similarly situated,
Plaintiffs,
v.

Civil Action No. 1:17-cv-03861

CONSOL ENERGY, INC.,
CONSOLIDATION COAL CO.,
BUCHANAN MINING CO., LLC, and
KURT SALVATORI
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the motion to consolidate
the above-styled cases filed on September 29, 2017 by the
defendants in the Casey matter (ECF No. 11) with notice given in
the Fitzwater case that same day (ECF No. 85).

1

Both cases seek to certify a class of retired mine
workers whose medical, prescription drug, dental, vision, and
life insurance benefits were terminated by defendants in 2014 or
2015.

See Fitzwater Pls.’ Mem. Supp. Mot. Certify Class at 2;

Casey Compl. at 9, 24.
Federal Rule of Civil Procedure 42(a) covers the
matter of consolidation and provides as follows:
(a)

Consolidation. 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.

Fed. R. Civ. P. 42(a). “[C]laims brought against the same
defendant, relying on the same witnesses, alleging the same
misconduct, and answered with the same defenses, clearly meet”
the standard of Fed. R. Civ. P. 42(a).

Harris v. L & L Wings,

132 F.3d 978, 981 n.2 (4th Cir. 1997).
Consolidation is appropriate when doing so will foster
clarity, efficiency, and the avoidance of confusion and
prejudice.

Allfirst Bank v. Progress Rail Servs. Corp., 178 F.

Supp. 2d 513, 520 (D.Md. 2001) (citing Arnold v. Eastern
Airlines, 681 F.2d 186, 192-93 (4th Cir. 1982)).

“District

courts have broad discretion under F.R. Civ. P. 42(a) to

2

consolidate causes pending in the same district.” A/S J. Ludwig
Mowinckles Rederi v. Tidewater Constr. Corp., 559 F.2d 928, 933
(4th Cir. 1977).

Our court of appeals has identified factors to

guide the district courts in exercising this discretion:
The critical question for the district court in the
final analysis [is] whether [1] the specific risks of
prejudice and possible confusion [are] overborne by
the risk of inconsistent adjudications of common
factual and legal issues, [2] the burden on parties,
witnesses and available judicial resources posed by
multiple lawsuits, [3] the length of time required to
conclude multiple suits as against a single one, and
[4] the relative expense to all concerned of the
single-trial, multiple-trial alternatives.
Arnold 681 F.2d at 193.
Defendants in the Casey matter argue that all of the
factors favor consolidation of the action with Fitzwater.
Defs.’ Mem. Supp. Mot. Consolidation at 6.

Plaintiffs respond

that they do not oppose consolidation of the cases for the
purposes of discovery, but they do not consent to the
consolidation for any other purposes at this time.
Defs.’ Mot. Consolidation at 1.

Pls.’ Resp.

Plaintiffs emphasize that the

“factual allegations and many of the witnesses are distinct in
these cases because they involve two separate groups of mine
sites in different regions, meaning the two cases would
necessarily proceed under independent tracks as distinct
subclasses even if they were ultimately consolidated for trial.”
Id.

3

It appears to the court that consolidation of these
matters is appropriate because both proposed classes bring
claims raising the same factual and legal issues.

Both cases

are brought against substantially similar defendants and assert
the same seven1 causes of action for the same termination of
retiree benefits.

These benefits were terminated at the same

time and in the same manner for the putative class members in
both actions.

See Fitzwater Am. Compl. at ¶¶ 25-27; Casey

Compl. at ¶¶ 24-26.

Although the proposed class in Casey worked

at different mine sites from the proposed class in Fitzwater,
all of the sites at issue were operated by CONSOL Energy, Inc.
and its subsidiaries.

Additionally, the proposed class in

Fitzwater already includes workers from multiple mine sites in
both West Virginia and Kentucky.

Accordingly, there is little

risk of prejudice or confusion resulting from consolidation.
Consolidation is further appropriate because it will
reduce the burden on parties, witnesses, and the court; will
reduce expenses to the parties; and will not substantially
increase the time required to resolve both suits.

The

1 The proposed class in Fitzwater asserts an additional claim
for coercive interference, 29 U.S.C. § 1141, but does not seek
class certification on that matter. See Pls.’ Mem. Supp. Mot.
Certify Class at 13.

4

“interests of judicial economy” are best served by consolidation
when there is “substantial overlap” between two related cases.
Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1473 (4th Cir.
1996); see also Eldridge v. McCabe, Weisberg & Conway, LLC, Nos.
1:12-CV-00287-RDB, 1:12-cv-00395-ELH, 2012 U.S. Dist. LEXIS
56403 at *3 (D.Md. Apr. 20, 2012).
Plaintiffs acknowledge that proceeding with separate
discovery would be duplicative in time, cost, and resources.
Pls.’ Resp. Defs.’ Mot. Consolidation at 4.

Indeed, these

inefficiencies apply to further briefings and trial for the
resolution of the same claims which, if continuing separately,
would result in the burden of duplicative proceedings, witness
testimony, and costs to the parties.

Plaintiffs’ concern about

the inconvenience of travel to Charleston for putative class
members does not outweigh the efficiencies of consolidation,
especially when the proposed Fitzwater class already includes
“hundreds of beneficiaries . . . . distributed geographically
across several southern counties of West Virginia and the
Commonwealth of Kentucky, and perhaps adjacent states.”
Mem. Supp. Mot. Certify Class at 7.

5

Pls.’

supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016

Last day for Rule 26(f) meeting.
court, to file Report of that Casey, Civil
02/15/2016 TheLast day accordingly, ORDERSParties= Planning
Meeting. See L.R. Civ. P. 16.1.
Action 1:17-cv-03861, be, and it hereby is, consolidated with
02/22/2016 Civil Action conference at 4:30 p.m. at the case is C.
Scheduling 2:16-cv-09849. The Fitzwater Robert
Fitzwater,
Byrd United States Courthouse in Charleston, before
designated asthe undersigned, unless canceled. filings shall be
the lead action, and all further Lead counsel
directed to appear.
captioned
docketed in that case.
02/29/2016 andEntry of scheduling order.
03/08/2016

Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is requested to transmit this memorandum

The Clerk is requested to transmit this Order and
opinion and order to all counsel of record and any unrepresented
Notice to all counsel of record and to any unrepresented
parties.
parties.
DATED: January 5, 22, 2017
DATED: December 2016
John T. Copenhaver, Jr.
United States District Judge

6