West Bend Mutual Insurance Company v. United States

Filing 15

ORDER signed by Magistrate Judge Nancy Joseph on 1/10/2022. NOW, THEREFORE, IT IS ORDERED that Plaintiffs' motion to consolidate (Case No. 20-CV-1854, Docket # 14 ; Case No. 21-CV-1039, Docket # 14 ) is GRANTED. IT IS FURTHER ORDERED that Case No. 21-CV-1039 is consolidated under Case No. 20-CV-1854. All future filings related to Case No. 21-CV-1039 must be filed in Case No. 20-CV-1854. (cc: all counsel)(rcm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WEST BEND MUTUAL INSURANCE COMPANY,
Plaintiff,
v.

Case No. 20-CV-1854-NJ

UNITED STATES,
Defendant.
and
DONALD TOMLINSON,
Plaintiff,
UNITED STATES OF AMERICA DEPARTMENT
OF HEALTH AND HUMAN SERVICES, BLUE
CROSS BLUE SHIELD OF WISCONSIN, and
WEST BEND MUTUAL INSURANCE COMPANY,
Involuntary Plaintiffs,
v.

Case No. 21-CV-1039-PP

UNITED STATES POSTAL SERVICE, MICHAEL
N. ANDERSON, and UNITED STATES,
Defendants.

ORDER ON PLAINTIFFS’ UNOPPOSED MOTION TO CONSOLIDATE

The Plaintiffs in two related cases—Plaintiff West Bend Mutual Insurance Company
in West Bend Mutual Insurance Company v. United States, Case No. 20-CV-1854-NJ (“West
Bend”), filed December 16, 2020, and pending before this Court; and Plaintiff Donald
Tomlinson in Tomlinson, et al. v. United States Postal Service, et al., Case No. 21-CV-1039-PP

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(“Tomlinson”), filed September 7, 2021, and also pending before this Court (collectively,
“Plaintiffs”)—by and through their undersigned counsel, have moved the Court to
consolidate the above-captioned actions, as well as any subsequently filed or transferred
related actions, for all purposes, including pretrial proceedings and trial, pursuant to
Federal Rule of Civil Procedure 42(a) (“Rule 42(a)”). The United States does not oppose
consolidation of the Related Actions. (Docket # 14 in Case No. 20-CV-1854.) For the reasons
stated below, Plaintiffs’ motion is granted.
LEGAL STANDARD
Federal Rule of Civil Procedure 42(a)(2) provides that a court, in its discretion, may
consolidate actions if they “involve a common question of law or fact.” See also King v. Gen.
Elec. Co., 960 F.2d 617, 626 (7th Cir. 1992) (reviewing district court’s decision to consolidate
for abuse of discretion). Common questions of law or fact need not predominate, but there
must be at least one. Enter. Bank v. Saettele, 21 F.3d 233, 236 (8th Cir. 1994); 9A Charles A.
Wright & Arthur R. Miller, Federal Practice & Procedure § 2382 (3d ed. 2008) (“Consolidation
must be denied if there is no common question of law or fact tying the cases together.”). “A
common question is one that must be answered identically in each case in which it is
presented.” Brown v. Friedal, Nos. 18-CV-1777, 18-CV-1910, 18-CV-1913, 2019 WL 913591,
at *1 (E.D. Wis. Feb. 25, 2019). A court may consider such factors as judicial economy,
avoiding delay, and avoiding inconsistent or conflicting results, as well as any potential
prejudice such as the possibility of juror confusion or administrative difficulties. Habitat Educ.
Ctr., Inc. v. Kimbell, 250 F.R.D. 390, 394 (E.D. Wis. 2008) (citing 8 James Wm. Moore, Moore’s
Federal Practice §§ 42.10[4][a], 42.10[5] (3d ed. 2008)).

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ANALYSIS
Common questions of law and fact predominate in these cases. Both lawsuits stem
from a September 8, 2019 motor vehicle accident involving Donald Tomlinson and a United
States Postal Service automobile operated by Michael N. Anderson. In West Bend’s lawsuit
(20-CV-1854), West Bend, acting as Tomlinson’s insurer, sues the United States for damages
stemming from the motor vehicle accident pursuant to the Federal Tort Claims Act
(“FTCA”). (Docket # 1 in Case No. 20-CV-1854.) In Tomlinson’s lawsuit (21-CV-1039), he
sues the United States Postal Service, Anderson, and the United States under the FTCA for
damages arising out of the same accident. (Docket # 1 in Case No. 21-CV-1039.) West Bend
is an involuntary plaintiff in Tomlinson’s lawsuit. Whether the United States is liable for
negligence based on Anderson’s conduct will be decided in both lawsuits. Thus, consolidation
of these cases will be more efficient for the parties and the court, and will avoid inconsistent
results.
For these reasons, Plaintiffs’ motion to consolidate will be granted. Pursuant to
Eastern District of Wisconsin Civil Local Rule 42(b), the cases will be consolidated under
Case Number 20-CV-1854.
ORDER
NOW, THEREFORE, IT IS ORDERED that Plaintiffs’ motion to consolidate (Case
No. 20-CV-1854, Docket # 14; Case No. 21-CV-1039, Docket # 14) is GRANTED.
IT IS FURTHER ORDERED that Case No. 21-CV-1039 is consolidated under Case
No. 20-CV-1854. All future filings related to Case No. 21-CV-1039 must be filed in Case No.
20-CV-1854.
Dated at Milwaukee, Wisconsin this 10th day of January, 2022.

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BY THE COURT

_____________
_____________
_
___
__
NANCY JOSEPH
JOSEPH
SEP
United States Magistrate Judge

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