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Russell v. Werner Enterprises Inc.

United States District Court, D. Arizona

July 20, 2016

Simon Russell, Plaintiff,
Werner Enterprises Incorporated, Defendant.



         Pending 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).

         On 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.


         On 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).

         On 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.

         On June 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).

         On 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).

         On 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).

         On 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.

         On 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).

         At an 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.

         Werner 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.[1] 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).

         After considering the parties’ pleadings and the oral arguments, the undersigned concludes ...

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