United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff Simon Russell’s Motion to
Consolidate. (Doc. 55). Plaintiff originally filed this
personal injury action on November 13, 2014 against
Defendants Mauricio Flores (“Flores”) and Werner
Enterprises, Inc. (“Werner”). (Doc. 1). Plaintiff
seeks damages from Werner for injuries he sustained when a
truck driven by Flores in the course and scope of his
employment with Werner collided with Plaintiff’s
vehicle. (Doc. 1). The Court previously granted
Plaintiff’s motion to dismiss Defendant Flores without
prejudice from this action. (Docs. 11, 13).
February 16, 2016, Plaintiff opened a new action by filing a
civil complaint against Flores. (CV-16-0088-TUC-RM). On March
15, 2016, Plaintiff filed a Motion to Consolidate Russell
v. Werner, CV-14-02474, with Russell v. Flores,
CV-16-00088. (Doc. 55). The Motion has been fully briefed,
and the Court heard oral argument from the parties on June
27, 2016. For the following reasons, the undersigned
recommends that the District Judge grant Plaintiff’s
Motion to Consolidate.
FACTUAL AND PROCEDURAL BACKGROUND
November 13, 2014, Plaintiff, by and through prior counsel,
filed a single complaint against Werner Enterprises, Inc. and
Mauricio Alberto Flores and Jane Doe Flores, a married
couple. (Doc. 1). At that time, Flores was facing a criminal
charge of endangerment in Graham County Superior Court
related to the same accident at issue in this civil case.
(Doc. 55 at 3). On February 12, 2015, this Court granted
Plaintiff’s Motion to Dismiss Defendants Flores and
Jane Doe Flores without prejudice. (Docs. 11, 13).
March 17, 2015, a telephonic Rule 16 scheduling conference
was held before the Court. (Doc. 21). Pursuant to that
conference and Rule 16(b) of the Federal Rules of Civil
Procedure, this Court ordered the parties to abide by the
stipulated schedule and rules. Id. The parties were
given until May 1, 2015 for leave to move to join additional
parties or to amend pleadings, and the order stated that
thereafter, the Court would not entertain such motions unless
good cause was shown under Rule 16 of the Federal Rules of
Civil Procedure. Id. at 1-2.
25, 2015 the parties filed a stipulation to request that the
Court continue the discovery and disclosure deadlines by
sixty (60) days “so as to allow newly substituted
counsel and the parties additional time to conduct any
necessary discovery and adequate time to prepare for
trial.” (Doc. 32). The Court granted the stipulation
and continued the deadlines by 60 days. (Doc. 33).
September 29, 2015 the parties made a second request that the
Court continue discovery and disclosure deadlines by an
additional ninety (90) days. (Doc. 40). The parties explained
that the continuance was necessary because Plaintiff had been
unable to depose Flores due to the ongoing criminal case.
(Doc. 40 at 2). The parties further stated that Plaintiff
should have the opportunity to depose Flores and to conduct
additional discovery related to aggravated liability and
punitive damages before providing final expert opinions on
those topics, and that more time should be given to Werner to
do the investigation and work necessary to adequately assess
the Plaintiff’s damages. Id. The Court granted
the parties’ stipulation and continued the deadlines by
90 days. (Doc. 41).
January 7, 2016 the parties filed a third request to continue
certain discovery and disclosure deadlines. (Doc. 48). The
parties explained that Flores’ criminal case was still
ongoing and as result Flores would invoke his Fifth Amendment
rights if deposed prior to his criminal sentencing. (Doc. 48
at 1). The Court granted the parties’ stipulation and
extended the deadlines as requested. (Doc. 51).
January 21, 2016 Flores pled guilty to the criminal charge
and was sentenced. (Doc. 55 at 3). Plaintiff’s counsel
deposed Flores the following day. Id.
February 8, 2016, the parties filed a fourth request to
extend the discovery and disclosure deadlines. (Doc. 53). The
parties explained that although Flores had been deposed, the
parties needed more time to schedule additional depositions,
review transcripts, and provide rebuttal opinions.
Id. at 1-2. The parties also explained that
Plaintiff had undergone another collision-related surgery in
January 2016, and that his treating medical providers were
now in a position to provide opinions regarding
Plaintiff’s prognosis and future care needs.
Id. at 2. The Court granted the parties’
stipulation and extended the requested deadlines. (Doc. 54).
unspecified time following Flores’ plea deal and
deposition, Plaintiff’s counsel approached Werner about
a stipulation to allow Plaintiff to add Flores as a defendant
in Russell v. Werner, but Werner stated it would
object. (Doc. 55 at 3). Plaintiff’s counsel explains
that because of their concerns regarding the “statute
of limitations and anticipated briefing on whether good cause
exists to add Flores to the lower-numbered case, ”
Plaintiff filed the separate action against Flores on
February 16, 2016. Id. at 3-4. On March 15, 2016
Plaintiff filed the present motion to consolidate the two
cases. (Doc. 55). Plaintiff contends that consolidation is
appropriate because both cases “arise from the same
event, involve substantially the same parties and claims,
call for a determination of substantially the same questions
of law, and if not consolidated, would entail substantial
duplication of labor if heard by separate judges or in
separate trials.” Id. at 2.
concedes that the claims against it and Flores both arise out
of the same event, that there is commonality among the
parties, and that typically under these circumstances such
claims would be consolidated. (Doc. 61 at 3). However, Werner
argues that granting consolidation at this stage in the
proceedings would cause inconvenience, delay, and significant
expense, and would result in an extended stay of the lawsuit.
Id. at 1, 4. Flores similarly argues that
consolidation is inappropriate because the two cases involve
distinct questions of law and are at different stages of the
pre-trial process. (Doc. 65 at 2). Flores also argues that
either Werner or Flores will be prejudiced if consolidation
is granted due to a possible complication involving
Flores’ conviction in the related criminal matter and
A.R.S. § 13-807. Id. at 3. Finally, Werner and
Flores argue that Plaintiff has failed to “show good
cause to file what amounts to be an amended pleading”
under Fed.R.Civ.P. 16. (Doc. 61 at 1; Doc. 65 at 2).
considering the parties’ pleadings and the oral
arguments, the undersigned concludes ...