Tokio Marine Highland Insurance Services Inc v. CD Smith Construction Inc

Filing 14

ORDER signed by Chief Judge Pamela Pepper on 1/27/2025 GRANTING (11 in 24-cv-1462-PP)(9 in 24-cv-1483-JPS) defendant's motion to consolidate. Clerk of Court to REASSIGN Case No. 24-cv-1483 to Chief Judge Pepper and indicate that Case No. 24-cv-1 462 is lead case. Parties to caption all future pleadings/filings using consolidated case caption and file only in Case No. 24-cv-1462. By end of day 2/3/2025, parties to file status report informing the court whether they can comply with Rule 26(f) report and scheduling conference deadlines set in Case No. 24-cv-1462 at Dkt. No. 6. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TOKIO MARINE HIGHLAND INSURANCE
SERVICES, INC., f/k/a WNC Insurance Services, Inc.
as subrogee of Becher 1st Street, LLC
and ENDURANCE AMERICAN SPECIALTY
INSURANCE COMPANY,
Plaintiffs,
Case No. 24-cv-1462-pp
v.
C.D. SMITH CONSTRUCTION, INC.,
Defendant.

ZURICH AMERICAN INSURANCE COMPANY,
as subrogee of Michels Corporation,
Plaintiff,
Case No. 24-cv-1483-jps
v.
C.D. SMITH CONSTRUCTION, INC.,
Defendant.

ORDER GRANTING DEFENDANT’S RULE 7(H) EXPEDITED NONDISPOSITIVE MOTION TO CONSOLIDATE CASES
(CASE NO. 24-CV-1462, DKT. NO. 11; CASE NO. 24-CV-1483, DKT. NO. 9)

On December 10, 2024, defendant C.D. Smith Construction, Inc. filed a
Rule 7(h) expedited, non-dispositive motion asking the court to consolidate the
above cases. See Case No. 24-cv-1462, Dkt. No. 11; Case No. 24-cv-1483, Dkt.
No. 9. None of the plaintiffs—in either case—oppose the defendant’s motion to
consolidate. Case No. 24-cv-1462, Dkt. No. 11 at ¶7; Case No. 24-cv-1483, Dkt.
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No. 9 at ¶7. Because the cases involve the same defendant, the same incident
and the same claim, the court will grant the motion.
I.

Background
On October 7, 2024, plaintiff Tokio Marine Highland Insurance Services,

Inc. filed a complaint against the defendant in Milwaukee County Circuit
Court. Case No. 24-cv-1462, Dkt. No. 1-1. The complaint asserted a single
negligence claim related to an explosion that occurred on December 12, 2020
at a parking garage the defendant was constructing. Id. at ¶¶11, 20, 28-31. On
November 13, 2024, the defendant filed a notice removing the case to federal
court based on diversity jurisdiction. Id. at Dkt. No. 1.
On November 4, 2024, plaintiff Zurich American Insurance Company
filed a complaint against the defendant in Milwaukee County Circuit Court.
Case No. 24-cv-1483, Dkt. No. 1-1. This complaint asserted a single negligence
claim related to the same explosion that occurred at the parking garage under
construction by the defendant. Id. at ¶¶9, 18, 25-28. Zurich’s allegations and
claim are either identical or substantially similar Tokio Marine’s. Compare
Case No. 24-cv-1462, Dkt. No. 1-1 with Case No. 24-cv-1483, Dkt. No. 1-1. On
November 15, 2024, the defendant filed a notice removing the case to federal
court based on diversity jurisdiction. Case No. 24-cv-1483, Dkt. No. 1.
On December 10, 2024, the defendant filed the instant motion to
consolidate. Case No. 24-cv-1462, Dkt. No. 11; Case No. 24-cv-1483, Dkt. No.
9. The defendant asserted that “consolidation is appropriate because the
complaints are substantively identical” and explained that “[b]oth cases involve
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(1) the same defendant; (2) the construction of the same parking garage; and
(3) the same negligence claim related to an explosion that occurred on
December 12, 2020.” Case No. 24-cv-1462, Dkt. No. 11 at ¶3; Case No. 24-cv1483, Dkt. No. 9 at ¶3. The defendant stated that “[c]onsolidation of these
cases will conserve the resources of all parties and promote judicial economy.”
Id. at ¶5. The defendant contended that, “[a]bsent consolidation, the parties
will face undue and irreparable prejudice because both matters have
intertwined claims and facts, thereby creating a high risk of conflicting
judgments and duplicative discovery.” Id. at ¶6.
II.

Applicable Law
Rule 42(a) of the Federal Rules of Civil Procedure states:
(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.

The Seventh Circuit reviews a district court’s decision on consolidation “only
for abuse of discretion.” Star Ins. Co. v. Risk Marketing Group, Inc., 561 F.3d
656, 660 (7th Cir. 2009) (citation omitted). “In deciding whether to consolidate
cases, courts exercise broad discretion and try to consolidate where possible.”
SJ Props. Suites v. Dev. Opportunity Corp., Case Nos. 09-cv-533, 09-cv-569,
2009 WL 3790009, at *1 (E.D. Wis. Nov. 12, 2009) (citing United States v.
Knauer, 149 F.2d 519, 520 (7th Cir. 1945)). “Consolidation is preferred to avoid
unnecessary duplication of efforts in related cases and promote judicial

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economy and efficiency.” Id. (citations omitted); see also Habitat Educ. Ctr.,
Inc. v. Kimbell, 250 F.R.D. 390, 394 (E.D. Wis. 2008) (“When common
questions of law or fact are present, cases should be consolidated if
consolidation will streamline the litigation without causing the parties undue
prejudice.”). Courts should decline to consolidate if consolidation would lead to
confusion or prejudice. SJ Props. Suites, 2009 WL 3790009, at *1.
III.

Analysis
The cases “involve a common question of law or fact.” Fed. R. Civ. P.

42(a). Both lawsuits raise a single negligence claim against the defendant,
relating to the defendant’s construction of the same parking lot. Case No. 24cv-1462, Dkt. No. 1-1, Case No. 24-cv-1483, Dkt. No. 1-1. Both complaints
allege that the defendant breached its duty of care through a series of failures,
which resulted in the December 12, 2020 explosion. Case No. 24-cv-1462, Dkt.
No. 1-1 at ¶¶16-21, 28-31; Case No. 24-cv-1483, Dkt. No. 1-1 at ¶¶15-19, 2528. The only significant difference between the two cases is the identities of the
plaintiffs. This difference does not outweigh the similarities that warrant
consolidation. The court will grant the defendant’s motion to consolidate.
IV.

Conclusion
The court GRANTS the defendant’s Rule 7(h) expedited non-dispositive

motion to consolidate cases. Case No. 24-cv-1462, Dkt. No. 11; Case No. 24-cv1483, Dkt. No. 9.
The court ORDERS that the Clerk of Court must REASSIGN Case No.
24-cv-1483 to Chief Judge Pepper.
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Under Civil Local Rule 42(b) (E.D. Wis.), the court ORDERS that going
forward, the parties must caption all pleadings and other filings using the
consolidated case caption for this case and that all pleadings and filings must
be filed and docketed only in Case No. 24-cv-1462. The court ORDERS that the
Clerk of Court must place a notation on the docket sheet for each of the cases,
indicating that Case No. 24-cv-1462 is the lead case and that Case No. 24-cv1483 is a member case.
The court ORDERS the parties to file a joint status report by the end of
the day on February 3, 2025 informing the court whether they are able to
comply with the deadlines set in the court’s November 21, 2024 order setting
the February 24, 2025 scheduling conference and the February 10, 2025 Rule
26(f) report deadline. Case No. 24-cv-1462, Dkt. No. 6.
Dated in Milwaukee, Wisconsin this 27th day of January, 2025.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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