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Consolidation of pleadings

California

,

United States of America

Issue

When can actions with different plaintiffs be consolidated in the federal court?

Conclusion

Fed. R. Civ. P. 42(a)(2) provides that a court may consolidate actions before it if the actions involve a common question of law or fact.

Under Fed. R. Civ. P. 42, the main question a court must address when deciding whether to consolidate actions is whether there are common questions of law or fact. (Single Chip Systems Corp. v. Intermec Ip Corp.)

Once a court has determined that there are common questions of law or fact, the court must weigh the benefits of consolidation against any inconvenience, delay, or expense that it would cause. The party seeking consolidation bears the burden of establishing that the benefits of consolidation outweigh any prejudice that it would cause. (Single Chip Systems Corp. v. Intermec Ip Corp., Campbell v. PriceWaterhouseCoopers, Wonderly v. Youngblood, In re Equity Funding Corp. of Amer. Sec. Litigation)

When deciding whether to consolidate actions pursuant to Fed. R. Civ. P. 42, considerations of convenience and economy must yield to the paramount concern of a fair and impartial trial. The factors to be weighed in the decision to consolidate include the risk of prejudice and confusion; the risk of inconsistent adjudications of common factual and legal issues; the burden on parties, witnesses, and available judicial resources; delay; and expense. (Campbell v. PriceWaterhouseCoopers)

Whether pleadings should be consolidated is a separate question. Fed. R. Civ. P. 42 limits the court's power to order consolidation of pleadings to instances where the consolidation may tend to avoid unnecessary costs or delay. Consolidation of pleadings should not be ordered where the consolidation would cause serious prejudice to the right of a party to litigate its claims or defenses. (In re Equity Funding Corp. of Amer. Sec. Litigation)

No published decisions were identified that discussed the factors the court should consider when deciding whether to consolidate Fair Labor Standards Act actions with that of different plaintiffs.

Law

Fed. R. Civ. P. 42(a)(2) provides that a court may consolidate actions before it if the actions involve a common question of law or fact:

(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.

(b) SEPARATE TRIALS. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.

In Single Chip Systems Corp. v. Intermec Ip Corp., 495 F.Supp.2d 1052 (S.D. Cal. 2007), the United States District Court for the Southern District of California explained that under Fed. R. Civ. P. 42, the main question a court must address when deciding whether to consolidate actions is whether there are common questions of law or fact. After determining that there are common questions of law or fact, the court must weigh the benefits of consolidation, such as saving time and effort, against any inconvenience, delay, or expense that it would cause. The court may consider factors such as disparate trial dates or different stages of discovery as weighing against the consolidation of the actions. The party seeking consolidation bears the burden of establishing that the benefits of consolidation outweigh any prejudice that it would cause (at 1057):

Consolidation under Rule 42(a) is left to the broad discretion of the district courts. Investors Research, Co. v. United States Dist. Court, 877 F.2d 777 (9th Cir. 1989). Pursuant to Rule 42 of the Federal Rules of Civil Procedure:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Fed.R.Civ.P. 42(a). Thus, under Rule 42, the main question a court must address is whether there are common questions of law or fact. A reviewing court then must "weigh[] the saving of time and effort consolidation would produce against any inconvenience, delay or expense that it would cause." Huene v. United States, 743 F.2d 703, 704 (9th Cir.1984). The court may consider factors such as disparate trial dates or different stages of discovery as weighing against consolidation of the cases. 9 Wright & Miller, Federal Practice and Procedure § 2383 (2006). The party seeking consolidation bears the burden of establishing that the judicial economy and convenience benefits of consolidation outweigh any prejudice. Indiana State District Council of Laborers and Hod Carriers Pension Fund v. Gecht, 2007 WL 902554 *1 (N.D.Cal. March 22, 2007).

Whether pleadings should be consolidated is a separate question. In In re Equity Funding Corp. of Amer. Sec. Litigation, 416 F.Supp. 161 (C.D. Cal. 1976), the United States District Court for the Central District of California explained that the consolidation of pleadings for pretrial purposes is within the discretionary power of the district court. Fed. R. Civ. P. 42 limits the court's power to order consolidation of pleadings to instances where the consolidation may tend to avoid unnecessary costs or delay. Consolidation of pleadings should not be ordered where the consolidation would cause serious prejudice to the right of a party to litigate its claims or defenses. Furthermore, pretrial consolidation cannot merge the suits into a single cause, change the rights of the parties, or make those who are parties in one suit parties in another (at 176-177):

Certain defendants claim, however, that an order of consolidation cannot include an order requiring the consolidation of pleadings as accomplished by the Complaint. In support of this contention, defendants rely on Johnson v. Manhattan Railway, 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331 (1933); Garber v. Randell, 477 F.2d 711 (2 Cir. 1973); MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1958); and National Nut Co. of California v. Susu Nut Co., 61 F.Supp. 86 (N.D.Ill.1945). The courts in each of these cases recognized the discretionary power of the district court to fashion consolidated pretrial procedures to further the administration of justice. Johnson v. Manhattan Railway, supra, 289 U.S. at 496, 53 S.Ct. at 727-28, 77 L.Ed. at 1344; Garber v. Randell, supra, at 714; MacAlister v. Guterma, supra, at 68-69; and National Nut v. Susu Nut, supra, at 86. In Garber, for example, the court stated:

"We have recognized that consolidation of stockholders' suits during pretrial stages pursuant to Rule 42 F.R.Civ.P. may benefit both the court and the parties by expediting pretrial proceedings, avoiding duplication and harassment of parties and witnesses, and minimizing expenditure of time and money by all persons concerned. citing MacAlister." at 714.

Although the effect of such pretrial consolidation is not and cannot be to "merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another," Johnson v. Manhattan Railway, supra, 289 U.S. at 496-97, 53 S.Ct. at 727-28, 77 L.Ed. at 1344-45. See also, Garber v. Randell, supra, at 715; In Re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 441-42 (1 Cir. 1972); and MacAlister v. Guterma, supra, at 69, the consolidation of pleadings for pretrial purposes is within the discretionary power of the district court, particularly in the context of complex pretrial proceedings pursuant to 28 U.S.C. § 1407(a). Katz v. Realty Equities Corporation, 521 F.2d 1354 (2 Cir. 1975).

Fed.R.Civ.Pro. 42(a) limits the court's power to order consolidation of pleadings to instances where such an order "may tend to avoid unnecessary costs or delay." It is beyond question the consolidated complaint serves this purpose in this litigation. With regard to the present motions, for example, the court has been able to receive memoranda and hear argument directed to one coherent pleading. Likewise, argument and consideration of class action issues has been made considerably easier by the consolidated complaint, because the court has not had to go through varying and conflicting class allegations that may have been stated in each separate complaint. The burdens of discovery management are lessened by the existence of this consolidated pleading as a reference point. More mundane clerical and administrative details, matters of significant consequence in litigation of this size, have also been made much less burdensome to counsel and the court by the use of the consolidated complaint. Had the court not required the consolidation of pleadings in this litigation, the result could only have been considerable confusion and delay of all pretrial matters caused by an unmanageable hodge-podge of more than one hundred separate actions, each of which would inevitably present its own peculiar problems not related to a just resolution of merits of the claims and defenses present in this litigation. This Court is of the opinion that without resort to the device of the consolidated complaint remand of actions for trial as provided for by § 1407(a) and resolution of any of the actions for which trial will be had in this district could not take place for a number of years. Simply stated, completed pretrial of the actions included in M.D.L. Docket No. 142 would have been impractical without the consolidated complaint.

The cases also limit the power of the court to order consolidated pleadings where such consolidation causes serious prejudice to the right of a party to litigate its claims or defenses. Katz v. Realty Equities Corp., supra, at 1360-62; Garber v. Randell, supra, at 717. Defendants attacking the propriety of the Complaint in this litigation have not shown that any such prejudice has accrued by reason of the consolidation of

[416 F. Supp. 177]

pleadings in this litigation.11 The filing of the Complaint in this litigation was proper and in accordance with the provisions of Fed.R.Civ.Pro. 42(a) and 28 U.S.C. § 1407.12

No published decisions were identified that discussed the factors the court should consider when deciding whether to consolidate Fair Labor Standards Act ("FLSA") actions with that of different plaintiffs; however, the following unpublished decisions may be instructive.

In the unpublished decision of Wonderly v. Youngblood, 1:16-cv-01621-BAK (SKO); 1:16-cv-01638-BAK (SKO) (E.D. Cal. 2022), the United States District Court for the Eastern District of California found that consolidating two plaintiffs' actions for the limited purpose of reviewing the parties' proposed FLSA settlements was appropriate. In both actions, the plaintiffs were suing the defendant under the FLSA related to their roles as a Deputy Sheriff and a Detention Deputy and sought the same type of relief. The Court found that keeping the two actions separate would create a burden on the parties and the court and extend the length of time and amount of money needed to resolve the settlement (at 3-4):

The parties in the Wonderly and Ashley actions seek to consolidate both cases “for settlement purposes” to “promote judicial economy.” (Motion at 8.) Federal Rule of Civil Procedure 42(a) permits the Court to consolidate cases if they “involve a common question of law or fact.” A district court has broad discretion to determine whether and to what extent consolidation is appropriate. See Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 855-56 (9th Cir. 2016); Investors Research Co. v. U.S. Dist. Ct. for the Cent. Dist. of Cal, 877 F.2d 777, 777 (9th Cir. 1989). In deciding whether to consolidate, a court should balance the interest of judicial convenience against “any inconvenience, delay, or expense that it would cause.” Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984); Single Chip Sys. Corp. v. Intermec IP Corp., 495 F.Supp.2d 1052, 1057 (S.D. Cal. 2007). “[T]he law is clear that an act of consolidation does not affect any of the substantive rights of the parties.” J .G Link & Co. v. Continental Cas. Co., 470 F.2d 1133, 1138 (9th Cir. 1972); see also Schnabel v. Lui, 302 F.3d 1023, 1034-35 (9th Cir. 2002).

Here, consolidating Wonderly and Ashley is appropriate. Both actions involve common questions of law and facts as Plaintiffs in both cases are suing Defendant under the FLSA related to their roles working as a Deputy Sheriff or a Detention Deputy. Plaintiffs also seek the same type of relief. “Given the similarity of the two actions, the Court does not believe that any undue delay, confusion, or prejudice would result from consolidation.” Pereira v. Ralph's Grocery Co., No. CV 07-841 PA(FFMX), 2010 WL 6510338, at *2 (CD. Cal. Mar. 24, 2010). “Moreover, keeping [two] separate actions would create a burden on the parties . . . and the court, as well as extend the length

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of time and the expenses necessary to resolve [the settlement].” Taylor v. White Oak Pastures, Inc., No. 1:15-CV-156 (LAG), 2021 WL 5450138, at *2 (M.D. Ga. Jan. 20, 2021). Thus, the Court will consolidate both actions for the limited purpose of reviewing the parties' proposed FLSA settlement. See Pereira, 2010 WL 6510338, at *2 (consolidating actions “for the purposes of settlement”). Accord Vittorioso v. Total Mktg. Concepts, Inc., No. 6:12-cv-1036-Orl-31GJK, 2013 WL 6133731, at *1 (M.D. Fla. Nov. 21, 2013) (consolidating FLSA actions “for settlement purposes”).

In the unpublished decision of Campbell v. PriceWaterhouseCoopers, 2008 U.S. Dist. LEXIS 75756, 2008 WL 3836972 (E.D. Cal. August 14, 2008), the United States District Court for the Eastern District of California explained that when deciding whether to consolidate actions pursuant to Fed. R. Civ. P. 42, considerations of convenience and economy must yield to the paramount concern of a fair and impartial trial. The factors to be weighed in the decision to consolidate include the risk of prejudice and confusion; the risk of inconsistent adjudications of common factual and legal issues; the burden on parties, witnesses, and available judicial resources; delay; and expense (at 6-7):

Federal Rule of Civil Procedure 42(a) provides that "if actions before the court involve a common question of law or fact, the court may . . . consolidate the actions." The decision to grant or deny consolidation is within the discretion of the district court. Investors Research Co. v. United States Dist. Court for Central Dist. of California, 877 F.2d 777, 777 (9th Cir. 1989); In Re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987) ("consolidation is within the broad discretion of the district court"). One of the purposes of consolidation [*7] is to avoid unnecessary costs or delay that would result from proceeding separately with actions involving common issues of law or fact. See, e.g., Equal Employment Opportunity Commission v. HBE Corp., 135 F.3d 543, 550-51 (8th Cir. 1998) (finding consolidation appropriate because it would "avoid the inefficiency of separate trials involving related parties, witnesses and evidence").

To determine whether to consolidate, the court "weighs the interest of judicial convenience against the potential for delay, confusion and prejudice." Sw. Marine, Inc. v. Triple A Machine Shop, Inc., 720 F. Supp. 805, 807 (N.D. Cal. 1989). Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial. Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir. 1990), cert. denied 498 U.S. 920, 111 S. Ct. 297, 112 L. Ed. 2d 250 (1990). Factors to be weighed include the risk of prejudice and confusion; risk of inconsistent adjudications of common factual and legal issues; burden on parties, witnesses, and available judicial resources; delay; and expense. Id.

The Court denied the motion to consolidate the actions of three separate groups of plaintiffs but granted the motion to consolidate two of the groups' actions. The Court found that the first group of plaintiffs had significantly different job duties than the other two groups. Additionally, consolidation of the trial dates in all three cases would significantly delay the trial date already set for the first group of plaintiffs as the other two groups of plaintiffs were at an earlier stage of preparedness (at 8-9):

With respect to the first reason advanced for consolidation, PwC argues that a consolidated trial over the state law claims would be more economical, because there is "substantial overlap" between the Kress and Le putative classes and the original class sought to be certified in Campbell, as well as the claims at issue in all three actions. Indeed, PwC characterizes the putative classes in Kress and Le as "closely-related" to the class certified in Campbell. To argue, as PwC now does, that it would effect a savings of judicial economy to consolidate a trial spanning multiple lines of service (i.e., Assurance, Tax, and possibly Advisory), multiple [*9] divisions within each line of service (e.g., Attest, Systems Process Assurance, and Transactional Service, within Assurance), and job levels (i.e., associate and senior associate) is wholly at odds with what PwC previously represented to the court in the Campbell certification proceedings. There, PwC argued that there were significant differences in the work performed between divisions and between lines of service, class certification would be inappropriate, as the trial would essentially degenerate into several mini-trials. PwC cannot have it both ways.

In addition, all parties appear to be in agreement that consolidated discovery would be appropriate, which can occur without a consolidation of the cases themselves. Duplicative discovery can be avoided by permitting discovery in each related action to be used in all related actions. 2 With respect to motion practice, the parties may (and should) coordinate hearing dates when appropriate, so that motions may be heard on the same day. Accordingly, many of the efficiency gains sought to be achieved by consolidation can also be achieved without consolidation.

2. Inconsistent Judgments

PwC also argues that there will be a risk of inconsistent results absent consolidation. Again, however, if it is true, as PwC previously represented to the court, that there are in fact different job duties performed by Attest associates (the class certified in Campbell) and by other non-Attest employees or by Attest senior associates (the class sought to be certified in Kress and Le), then it is entirely possible that there would be different results reached on the merits. But there would be nothing necessarily inconsistent with those judgments, because they would be decided on the basis of different records. 3

3. Delay, Confusion, or Prejudice

Finally, PwC argues that consolidation would not cause any undue delay, confusion, or prejudice. It is clear that consolidation of the trial dates in all three cases would significantly delay the trial date already set in Campbell (currently scheduled for March 3, 2009), given that Kress and Le are at an earlier stage of preparedness. In order for those latter cases to "catch up," there would likely first be pleadings motions, pre-certification discovery, class certification proceedings, possible Rule 23(f) petitions for appeal, notice proceedings, and actual class notice. This delay would prejudice the plaintiffs in Campbell. 4 Particularly where the savings to judicial economy are dubious, this consideration acquires even greater weight.

For all these reasons, the motion to consolidate Campbell and Le/Kress is DENIED without prejudice to renewal after the class certification issues have been resolved in those latter cases. As the plaintiffs in Kress and Le have indicated a willingness to consolidate between their own cases (and have expressed a desire to file a consolidated, amended complaint), the motion to consolidate is GRANTED as to them.

Alexsei publishing date:
2022-03-14 21:48:19.335180
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