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consolidating actions stemming from same disaster
Summary of this case from Canal Barge Company v. Tubal-Cain Marine ServicesOpinion
P-00-CA-028.
November 29, 2000.
ORDER GRANTING DEFENDANTS' MOTION TO CONSOLIDATE
On this day, the Court considered the Defendants' Motion to Consolidate the above-styled action with Cause Number P-00-CA-027, styled Ramona Esparza and Jesus Esparza, Individually and as Parents of Fernando Esparza, Deceased, Plaintiffs v. Michael J. Cloonan, d/b/a Tyger River Transport Co., and Ruston Pruett, Defendants. The Motion to Consolidate was filed on September 25, 2000. The Plaintiffs filed a Response to the Motion on October 6, 2000, and the Defendants filed a Reply to the Response on October 16, 2000. In addition, a hearing on the matter was held on November 21, 2000. After due consideration of the arguments and submissions of the parties, the Court is of the opinion that the Defendant's Motion to Consolidate should be GRANTED.
FACTUAL BACKGROUND
Both the above-styled case and Cause Number P-00-CA-027, styled Ramona Esparza and Jesus Esparza, Individually and as Parents of Fernando Esparza, Deceased, Plaintiffs v. Michael J. Cloonan, d/b/a Tyger River Transport Co., and Ruston Pruett, Defendants, arose out of an accident that occurred on July 9, 1999. On that day, a semi-trailer truck driven by Defendant Ruston Pruett collided with an automobile driven by Imelda Irene Trevizo Esparza. The accident took place 21.7 miles south of Marfa, Texas, on U.S. Highway 67. Fernando Esparza, the husband of Imelda Irene Trevizo Esparza, was a passenger in the automobile. Defendant Michael J. Cloonan, doing business as Tyger River Transport Co., was the owner of the semi-truck driven by the Defendant Ruston Pruett. Both Imelda and Fernando Esparza died as a result of the collision.
On July 3, 2000, two lawsuits were filed in the Pecos Division of the United States District Court for the Western District of Texas. The first, Cause Number P-00-CA-027 (the "Esparza action"), was filed by Ramona and Jesus Esparza (the "Esparza plaintiffs") against Michael J. Cloonan, d/b/a Tyger River Transport Co., and Ruston Pruett for the wrongful death of their son, Fernando Esparza. The second lawsuit, Cause Number P-00-CA-028 (the "Trevizo action"), was filed by Francisco and Maria Trevizo (the "Trevizo plaintiffs") against the same defendants for the wrongful death of their daughter, Imelda Irene Trevizo Esparza. Both sets of Plaintiffs allege that the Defendant Ruston Pruett was negligent in operating the semi-truck owned by Defendant Michael J. Cloonan d/b/a Tyger River Transport Co. The Defendants allege as an affirmative defense in both causes of action that Imelda Irene Trevizo Esparza's own negligence in driving her automobile caused or contributed to the accident. The Defendants have not yet alleged that Fernando Esparza was negligent in causing the accident. Moreover, the Esparza plaintiffs have not alleged, in the wrongful death action on behalf of their son Fernando Esparza, that Imelda Irene Trevizo Esparza's negligence caused the accident, either solely or in conjunction with the negligence of the Defendants.
DISCUSSION
The Federal Rules of Civil Procedure permit consolidation of cases when actions involving a common question of law or fact are pending before the court. In particular, Rule 42 states:
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). The objective of Rule 42 is to give a court "broad discretion to decide how cases on its docket are to be tried so that the business of the court may be dispatched with expedition and economy while providing justice to the parties." 9 CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2382 (2d ed. 1995). Rule 42(a) has not been changed since it was originally implemented in 1938. See id.
As stated, Rule 42(a) allows a district judge to consolidate actions pending before the court that involve a common question of law or fact. Consolidation does not, however, extinguish the separate identity of the actions. See McKenzie v. United States, 678 F.2d 571, 574 (5th Cir. 1982). Moreover, even though there may be a common question of law or fact in several cases, a court is not required to consolidate the actions in their entirety. See generally 9 WRIGHT MILLER, supra § 2382. Rather, the court may order consolidation of cases merely for the purposes of a joint hearing or trial of the common issue or of other particular issues. Id.
A court may order consolidation on its own initiative and without the consent of the parties to the actions. See id. § 2383; St. Bernard Gen. Hosp., Inc. v. Hospital Serv. Ass'n of New Orleans, Inc., 712 F.2d 978, 989 (5th Cir. 1983) (citing In re Air Crash Disaster at Florida Everglades on Dec. 29, 1972, 549 F.2d 1006, 1013 (5th Cir. 1977)). In deciding whether to consolidate, a court should weigh the saving of time and effort that consolidation would produce against any inconvenience, delay, or expense that would result from the consolidation. 9 WRIGHT MILLER, supra § 2383; see also St. Bernard Gen. Hosp., 712 F.2d at 989 (citing In re Dearborn Marine Service, Inc., 499 F.2d 263, 270-71 (5th Cir. 1974)). Furthermore, the mere presence of a common question of law or fact does not mandate consolidation; a district judge may refuse a request to consolidate cases if the common question is not a central one, if consolidation will cause delay in one or more of the individual cases, or if consolidation will lead to confusion or prejudice in the management or trial of the case. See, e.g., DuPont v. Southern Pac. Co., 366 F.2d 193, 196 (5th Cir. 1966). Consolidation is improper if it aligns a party in one part of the litigation with other parties with whom the first party has a conflicting interest in other parts of the consolidated litigation. Id.
With this background in mind, the Court now turns to helpful, although older, Fifth Circuit precedent regarding the consolidation of cases such as the ones at bar. In McWhorter v. Ryder Tank Line, Inc., 387 F.2d 635 (5th Cir. 1968), a mother filed two wrongful death actions on behalf of her two minor sons. Both sons died when the automobile in which one son was the driver and the other son was a passenger collided with a truck owned and operated by the defendant Ryder Tank Line, Inc. Id. Two separate suits were filed in state court in Georgia and then removed to federal district court and consolidated. Id. On appeal, the plaintiff argued that the separate wrongful death cases were improperly consolidated for trial. Id. In particular, she contended that the consolidation of the cases led to jury confusion as to the disparate standards of care that applied to the driver and the passenger of the vehicle. Id. The Fifth Circuit found that the cases were properly consolidated for trial and that the district court's instructions to the jury were adequate. Id. at 636.
McWhorter supports consolidation in this instance. First, the factual scenario in McWhorter and the factual scenario in these cases are virtually identical; both sets of facts involved an automobile accident in which a plaintiff-driver and a plaintiff-passenger were killed. Second, if consolidation was appropriate in McWhorter, where the plaintiff-passenger's standard of care was at issue, then a fortiori consolidation is appropriate here because so far the Defendant has not alleged negligence on the part of the Plaintiff-passenger Fernando Esparza. Third, even if Fernando Esparza's negligence becomes an issue in this case at a later time, McWhorter illustrates the propriety of jury charge that adequately distinguishes the standards of care that may apply to a driver and a passenger of a vehicle. See id. at 635-36. For all these reasons, McWhorter clearly argues in favor of consolidating the two cases before the Court.
The Plaintiffs cite three cases in support of their argument against consolidation here: DuPont v. Southern Pacific Company, 366 F.2d 193 (5th Cir. 1966); Atkinson v. Roth, 297 F.2d 570 (3d Cir. 1961); and Capstraw v. New York Cent. R.R. Co., 15 F.R.D. 267 (N.D.N.Y. 1954). Each of these cases is distinguishable from the two cases presently before the Court.
In DuPont v. Southern Pacific Company, 366 F.2d 193 (5th Cir. 1966), the Fifth Circuit held that it was reversible error for the district court to consolidate cases arising out of a railroad crossing accident. In that case, a train collided with an automobile occupied by a driver and three guest passengers, all of whom were killed in the accident. Id. at 194. Four separate suits were originally filed for the wrongful death of each occupant of the vehicle. Id. The trial court then sua sponte consolidated all four cases for trial and bifurcated the liability and damages portions of the trial. Id. In addition, the court required the attorneys representing the plaintiffs to designate a lead counsel for trial. Id.
The plaintiffs in DuPont objected to the consolidation on the grounds that it would create confusion and prejudice, and that the designation of lead counsel would result in a conflict of interests between the survivors of the driver and the survivors of the passengers. Id. at 195. In particular, the survivors of the passengers alleged that the negligence of the driver and the negligence of the operators of the train combined to result in the death of the passengers in the automobile. Id. They argued that consolidation created confusion and was prejudicial to their case because the negligence of the driver of the automobile could not be imputed to the guest passengers under Louisiana law. Id. The trial court overruled the objection to consolidation, and the jury returned a verdict for the defendant against both the survivors of the driver and the survivors of the passengers. Id.
On appeal, the Fifth Circuit concluded that the trial court committed reversible error in consolidating the four cases and in requiring the plaintiffs to designate lead counsel to represent all plaintiffs. Id. The court first discussed the applicability of Rule 42(a) in general:
Trial judges are urged to make good use of Rule 42(a) of the Federal Rules of Civil Procedure where there is involved a common question of fact and law as to the liability of the defendant in order to expedite the trial and eliminate unnecessary repetition and confusion; and where the parties are represented by different counsel and the trial court permits full and complete development of the evidence by all parties, equal opportunity for argument, a clear and complete charge on the facts and the law applicable to the respective theories of all parties, the order of consolidation by the trial judge will not be disturbed on appeal except for abuse of discretion.
Id. at 195-96 (citations omitted). The court then explained that it constitutes reversible error for a trial judge to consolidate cases where, under the facts and circumstances of the particular case, the result of the consolidation is prejudice to the rights of the parties. Id. Under the particular facts of DuPont, the survivors of the guest passengers contended that the accident resulted from the concurrent negligence of the driver of the automobile and the defendant. Id. The court held that this contention made the trial court's order of consolidation, together with its requirement of designating a lead counsel to represent all of the plaintiffs, prejudicial to the rights of the parties. Id. at 198. The reason for the prejudice was that, "[i]n representing all plaintiffs, lead counsel must contest contributory negligence on the part of the driver, but in doing so he increases his burden and prejudices the interest of his clients, the survivors of the passengers, since the negligence of the driver not being imputed to the passengers will permit the survivors of the passengers to recover notwithstanding a finding of contributory negligence on the part of the driver." Id. at 196.
DuPont is distinguishable from the cases at bar because in that case the trial court required all plaintiffs to proceed under the direction of a lead counsel, despite conflicts between the plaintiffs. No such requirement will be imposed here, thereby rendering DuPont inapposite. While DuPont does not apply here, the other Fifth Circuit case cited above, McWhorter v. Ryder Tank Line, Inc., 387 F.2d 635 (5th Cir. 1968), is almost directly on point. As mentioned before, McWhorter clearly argues in favor of consolidation here, even if the standard of care of Fernando Esparza later becomes an issue in the consolidated case.
The Plaintiffs also argue that the Court should follow the Third Circuit case of Atkinson v. Roth, 297 F.2d 570 (3d Cir. 1961), in refusing to consolidate the two pending actions. In Atkinson, seven actions were instituted in the trial court stating claims arising out of a collision between an automobile driven by Atkinson and a tractor-trailer driven by Roth. Id. at 572. Atkinson had five passengers in his vehicle, and two of the passengers died in the accident. Id. Atkinson sued Roth and his employers, and one of the employers asserted a counterclaim against Atkinson for damages to the tractor-trailer. Id. In addition, several lawsuits were filed by or on behalf of Atkinson's passengers that named both Atkinson and Roth as defendants. Id. The Third Circuit held that it was improper for the trial court to consolidate for trial the Atkinson-Roth suit with the various claims arising out of the injury to, and death of, the passengers. Id. at 575. According to the court, "such consolidation in this instance burdened the parties, the court and the jury with an overcomplication of issues and necessary instructions." Id.
Plaintiffs' reliance on Atkinson is misplaced. That case involved the consolidation of various separate actions by numerous plaintiffs, some against both the drivers in the case, Atkinson and Roth. See id. In this case, the Esparza Plaintiffs have not yet stated a cause of action against both drivers, Imelda Esparza and Ruston Pruett. At this time, they have only sued Ruston Pruett and Michael Cloonan for the wrongful death of their son. As such, there is presently no conflict of interest between and no risk of prejudice to the Plaintiffs in this case, because the survivors of Fernando Esparza, Imelda Irene Trevizo Esparza's sole passenger, have chosen not to name her in their lawsuit. Even if this were to happen after the completion of discovery in the consolidated case, consolidation still might not be destroyed.
Finally, the Plaintiffs cite Capstraw v. New York Cent. R.R. Co., 15 F.R.D. 267 (N.D.N Y 1954) in support of their argument against consolidation. Capstraw involved a head-on collision between two trains owned by the defendant. Id. at 268. The engineer (Capstraw) and the brakeman (Sielagowski) of one of the trains each sued the railroad company under the Federal Employers' Liability Act (FELA). Id. In refusing to consolidate the two cases, the trial court recognized a potential conflict of interest between the two plaintiffs because, although each of the two complaints was directed only against the railroad, a provision of FELA concerning the negligence of a fellow employee would have led to an evidentiary problem concerning a dismissal notice from the railroad to Capstraw after accident. Id. at 268-69. The court explained that the dismissal notice could be an important part of Siegalowski's case but that it would likely be inadmissible in Capstraw's case. Id. at 269. Although a jury instruction in the consolidated case might theoretically cure this problem, the court was satisfied that the joint trial would lead to confusion of the jury and prejudice to the rights of the plaintiffs. Id. at 268-69.
Capstraw is distinguishable from the two actions pending before the Court because here there is no potential evidentiary problem at this point with consolidation. The dismissal notice at issue in Capstraw has no present analog in the two cases at bar. As such, the "serious obstacle to joinder for trial" that existed in Capstraw is not present here. Id. at 268. Neither is there currently a threat that "joinder might set plaintiff against plaintiff," as so far the Esparza plaintiffs have not alleged negligence on the part of Imelda Esparza. Id. at 268. Moreover, even if they do later allege such negligence, consolidation may not be automatically defeated.
Having distinguished the cases Plaintiffs cite in opposition to consolidation, the Court now turns to a trial court case that is virtually indistinguishable from the two cases at bar. In Getz v. Robinson, 232 F. Supp. 763 (W.D.Pa. 1964), the district court for the Western District of Pennsylvania considered a set of facts strikingly similar to the facts before this Court. In Getz, a lawsuit arose after an automobile driven by Getz collided with an automobile driven by Robinson. The primary question in the case was whether Getz had crossed over to Robinson's side of highway and caused the collision or whether Robinson had crossed over to Getz's side of the highway and caused the collision. Id. at 765. Ramos, who was a passenger in Robinson's automobile at the time of the collision, sued Getz but not Robinson, even though diversity of citizenship existed between Ramos and Robinson. Id. Neither did Ramos assert concurrent negligence on the part of Getz and Robinson. Id. In concluding that the two cases, viz., Robinson's case against Getz and Ramos's case against Getz, were properly tried together, the district court reasoned that "[t]he issues of negligence and contributory negligence on the part of the drivers had to be litigated in each action even if tried separately. To have tried the cases separately may have resulted in inconsistent verdicts." Id. The district court also explained why no prejudice to the plaintiffs would result from consolidation:
In the cases at bar, the driver, Robinson, also had to keep his counterclaims free from contributory negligence, but in this he was not at `cross purposes' with his passenger, for Ramos did not sue Robinson, and in the Ramos complaint, pretrial narrative, and at trial, in all respects, he was in accord with his host, Robinson, in asserting that the driver, Getz, was the negligent cause of the collision. Thus, the purposes of Robinson and his passenger, Ramos, were parallel-the testimony of each tended to exonerate Robinson of all negligence and establish that the driver, Getz, was the sole negligent cause of the accident. . . . There never was any contention, suggestion, or testimony on the part of Ramos that his host, Robinson, was responsible in any way for the accident or his injuries.
Id. at 766.
It is difficult to see how the holding and reasoning of the Getz case do not apply equally to the case before this Court. Indeed, the factual scenario in the case at hand is virtually indistinguishable from that in Getz. Both the Esparza action and the Trevizo action allege negligence solely on the part of the Defendants Ruston Pruett and Michael Cloonan. The primary question, as reflected in the original complaints and original answers in the two actions, is whether Imelda Irene Trevizo Esparza crossed over to Ruston Pruett's side of the highway or whether Ruston Pruett crossed over to Imelda Irene Trevizo Esparza's side of the highway. The survivors of Fernando Esparza, the only passenger in the case, have sued the Defendant driver but not the "host" driver, Imelda Esparza. Nor have they asserted concurrent negligence on the part of Imelda Esparza and the Defendant driver.
Precisely as stated in Getz, the issues of negligence and contributory negligence on the part of the two drivers will have to be litigated in each action even if the two cases are tried separately. Moreover, at trial, the Trevizo Plaintiffs will have to keep their case free from contributory negligence, but in doing so they will not be at "cross purposes" with the Esparza Plaintiffs because the latter have not sued the former. Rather, at least for the present moment, the Esparza Plaintiffs are in accord with the Trevizo Plaintiffs in asserting that the driver Ruston Pruett was the negligent cause of the collision. Because the purposes of the Esparza Plaintiffs and the Trevizo Plaintiffs appear to be parallel at this time, the Court must conclude that no prejudice to the parties will result from the consolidation of these two cases, at least in light of the present status of the cases. See generally Getz, supra, at 795-96.
It is interesting to note that the Getz court addressed the same argument as advanced by the Plaintiffs in this case:
In their opposition to a joint trial, the plaintiffs relied on Atkinson v. Roth, 297 F.2d 570 (3d Cir. 1962). We did not think that authority was controlling in the cases at bar. In Atkinson there was a collision between two vehicles, and some of the seven passengers sued the host driver, Atkinson, and some sued the other driver, Roth, and his alleged employers. Also the host driver, Atkinson, sued Roth and his alleged employers. There were the usual counterclaims and third- party actions. The driver, Atkinson, as plaintiff, was obliged to keep his case free from contributory negligence and thus was at `cross purposes' with his passenger plaintiffs.
Getz v. Robinson, 232 F. Supp. 763, 765-66 (W.D.Pa. 1964) (footnote omitted). As explained previously, there are no such "cross purposes" at issue in this case because the survivors of Fernando Esparza, Imelda Irene Trevizo Esparza's sole passenger, have chosen not to name her in their lawsuit. Therefore, Atkinson is distinguishable from the cases at bar. DuPont is distinguishable for the same reason and also because the trial court in that case required the plaintiffs to designate a lead counsel despite conflicts between the plaintiffs. Capstraw is distinguishable because it involved an evidentiary issue that is not presently before this Court. Finally, it is important to reiterate that even if the Esparza plaintiffs allege negligence on Imelda Esparza's part after the completion of discovery in the case, consolidation still might not be destroyed.
CONCLUSION
Because the questions of law and fact are essentially the same in both causes of action, the Court is of the opinion that the two lawsuits should be consolidated. At the present moment, the Esparza Plaintiffs are in accord with the Trevizo Plaintiffs in asserting that the driver Ruston Pruett was the negligent cause of the collision. Because the purposes of the Esparza Plaintiffs and the Trevizo Plaintiffs appear to be parallel at this time, the Court must conclude that no prejudice to the parties will result from the consolidation of these two cases, at least in light of the present status of the cases. Moreover, because the Esparza action was filed first, the Court is of the opinion that the two cases should be consolidated under the cause number assigned to the Esparza action.
Accordingly,
It is ORDERED that Cause Number P-00-CA-027 (the Esparza action) and Cause Number P-00-CA-028 (the Trevizo action) are consolidated for all purposes, including trial.
It is FURTHER ORDERED that the consolidation is WITHOUT PREJUDICE to the Plaintiffs raising issues of prejudice after the conclusion of discovery.
It is FURTHER ORDERED that the two above-numbered and -styled cases are consolidated under Cause Number P-00-CA-27.