Cox v. Baenen et al

Filing 164

ORDER Lifting Stay in this Case, Directing Plaintiff to Respond to Motions to Dismiss 147 and 152 by 2/10/17, and Denying Plaintiff's Motion to Consolidate Cases 158 . ((kwb), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DW AYNE A. COX,
Plaintiff,
v.

Case No. 15-CV-395

MICHAEL BAENEN, YANA PUSICH,
AMY BASTEN, CHRIS TIMMERS,
RANDY MATTISON, SCOTT LEURQUIN,
SMA CONSTRUCTION SERVICES,
MIKE ABHOLD, BURT FEUCHT, AND
LIBERTY MUTUAL INSURANCE COMPANY,
Defendants.

ORDER LIFTING STAY IN THIS CASE, DIRECTING PLAINTIFF TO RESPOND TO
MOTIONS TO DISMISS (DOC. 147, 152) BY FEBRUARY 10, 2017, AND DENYING
PLAINTIFF’S MOTION TO CONSOLIDATE CASES (DOC. 158)
Defendants Abhold, Feucht, SMA Construction Services, and Liberty Mutual
Insurance Company have filed motions to dismiss the amended complaint to which
the plaintiff has not responded. However, the court is mindful that recently, pro bono
counsel agreed to represent the plaintiff. Hence, in the interest of justice, plaintiff will
be given the opportunity to file a response to the defendants’ motions.
Plaintiff’s Motion to Consolidate
On August 29, 2016, while plaintiff was proceeding pro se, he filed a motion
to consolidate this case with a case that was filed by another prisoner regarding the
claims that are at issue here. (Ledford v. Baenen, Case Number 16-CV-665-DEJ).
Defendants Abhold, Feucht, and SMA Construction oppose the motion. They

contend that it would be inappropriate and prejudicial to consolidate the cases
because it would allow W illiam Ledford (the prisoner plaintiff in 16-CV-665) to
relitigate claims against them that were dismissed previously.
The court may consolidate pending actions that involve “a common question
of law or fact.” Fed. R. Civ. P. 42(a)(2). Consolidation is committed to the sound
discretion of the trial judge. Canedy v. Boardman, 16 F. 3d 183, 185 (7th Cir. 1994);
see also W right & Miller, Federal Practice & Procedure § 2383 (W estlaw 2016)
(district court given broad discretion to decide whether consolidation under Rule
42(a) would be desirable and the district judge’s decision is inevitably highly
contextual).
Plaintiff’s and Ledford’s cases involve claims related to alleged exposure to
toxic gas fumes during a construction project at Green Bay Correctional Institution.
W hile these cases involve similar claims, differences between them lead the court
to conclude that it would not be prudent to consolidate them. First, in this case the
court granted plaintiff’s motion to appoint counsel and recruited a pro bono attorney
to represent him, whereas in Ledford the court denied his request for counsel.
Second, allowing the motion to consolidate would give Ledford the opportunity
to relitigate an argument that was rejected by the court. In Ledford, Magistrate
Judge Jones dismissed the John Doe defendants at the screening of the complaint

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stage, reasoning that they were not state actors.1 (See Van Loo Aff., Ex. A at 7;
Simpson Aff., Ex. A at 7.) Ledford sought review of that decision, by way of a motion
to amend and a subsequent motion for reconsideration, and the motions were
denied. (See Van Loo Aff., Exs. A, B.) Consequently, consolidation of the cases
would prejudice the defendants and give Ledford another opportunity to litigate
arguments that have been rejected as well as increase costs and delay. See Fed.
R. Civ. P. 42(a). For these reasons,,
IT IS ORDERED that the stay in this case is LIFTED.
IT IS FURTHER ORDERED that plaintiff respond to defendants’ motions to
dismiss (Docket 147, 152) on or before February 10, 2017.
IT IS FURTHER ORDERED that plaintiff’s motion to consolidate (Docket 158)
is denied.
Dated at Milwaukee, Wisconsin, this 17th day of January, 2017.
BY THE COURT
/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
U.S. District Judge

1

Mr. Ledford originally nam ed as defendants in his com plaint John Doe Construction Com pany, John
Doe Construction Com pany CEO, John Doe Construction Com pany Site Supervisor(s), and John Doe
Construction Com pany Site Em ployees. (Sim pson Aff. dated July 18, 2016, Ex. A at 3-4.)

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