United States District Court, D. New Mexico
MEMORANDUM AND ORDER OF CONSOLIDATION
matter comes before the Court on Defendants' Motion to
Consolidate, filed on March 7, 2017. (Doc. 7). Defendants
move under Fed.R.Civ.P. 42(a) to consolidate the following
cases with this one for all purposes, including trial: (1)
Gerhardt v. Mares, et al., Civ. No. 17-255 MCA/CG;
(2) Dale v. Mares, et al., Civ. No. 17-256 MCA/SCY;
and (3) Bartoo v. Mares, et al., Civ. No. 17-257
KG/GJF. On April 30, 2017, Plaintiff Mark Milner filed a
response opposing the Motion to Consolidate, and, in the
alternative, suggesting consolidation for only pretrial
purposes. (Doc. 14). Defendants filed a reply on May 15,
2017. (Doc. 17).
actions before a 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.” Fed.R.Civ.P. 42(a). Whether to grant a motion
to consolidate is in the trial court's discretion.
See Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir.
1978). Once the district court determines there is a common
question of law or fact, the court weighs the interest of
judicial convenience in consolidating the cases against the
delay, confusion, and prejudice that consolidation might
cause. The Servants of the Paraclete, Inc. v. Great
American Ins. Co., 866 F.Supp. 1560, 1572 (D.N.M. 1994).
The party moving for consolidation bears the burden of
proving that consolidation is desirable. Id.
case, common questions of law and fact predominate. The same
Defendants are sued in each case and, as Plaintiff Milner
concedes, the cases raise the same legal questions, i.e.,
whether Defendants violated the Fourteenth Amendment rights
of the various Plaintiffs. (Doc. 14) at 2. Plaintiff Milner,
however, notes that a “difference of the value of the
damages” exists as to each Plaintiff and that this
difference in the value of damages will prejudice and confuse
a jury if the cases are tried together. Id. For this
reason, Plaintiff Milner suggests, in the alternative, that
the Court “only consider consolidation for pre-trial
purposes….” Id. Even so, Plaintiff
Milner argues that limited pretrial consolidation “is
not likely to prove helpful in conserving judicial
resources.” Id. Plaintiff cites Ulibarri
v. Novartis Pharmaceuticals Corp., wherein District
Court Judge Judith Herrera found that consolidating actions
for only pretrial purposes does not conserve court resources,
because “judges in the newer cases will have to read
all decisions made by their colleague[s] and review the
evidence in order to become sufficiently familiar with the
case to try the remaining issues.” 303 F.R.D. 402,
404-05 (D.N.M. 2014).
to Plaintiff Milner's first argument against
consolidation, the mere fact that damages differ as to each
plaintiff does not preclude a joint trial of consolidated
cases. See Fields v. Atchison, Topeka & Santa Fe Ry.
Co., 1996 WL 109536, at *2 (D. Kan.) (finding that
“[t]he fact that one suit involves a claim for damages
not involved in the other suit does not preclude
consolidation.” (citation omitted)); Attala
Hydratane Gas, Inc. v. Lowry Tims Co., 41 F.R.D. 164,
165 (N.D. Miss. 1966) (holding that “potential
confusion on the part of jurors on the issue of damages is
not a sufficient reason to refuse consolidation under the
circumstances of these cases….”); Popejoy v.
Fladung, 14 F.R.D. 450 (W.D. Mo. 1953) (“Motion to
consolidate cases against common defendant would be granted
over plaintiffs' objection that jury would be confused
solely on question of damages.”). In fact, judicial
economy favors a joint trial which resolves different damages
determinations. See, e.g., Blagg v. Line, 2012 WL
90439, at *3 (N.D. Okla.) (finding that defendants'
request that each plaintiff try damages issues separately
“would result in an unnecessary waste of the
parties' and the Court's resources.”).
Moreover, any potential issues of unfair prejudice with
respect to the determination of damages can be addressed
through appropriate jury instructions. Id. (holding
that defendants “overstate the risk of prejudice from a
joint trial on damages and any risk of unfair prejudice can
be eliminated through proper limiting instructions to the
jury.”); Fields, 1996 WL 109536, at *2
(“[j]ury instructions can be prepared so as not to
confuse the jury on the different damages issues.”
Judge Herrera's statements regarding the inefficiency of
consolidating cases just for pretrial purposes actually
support a consolidation for all purposes, including trial.
The Court also notes that separate lawsuits and trials would
require duplicative evidence on the issue of underlying
constitutional violations and could possibly result in
inconsistent verdicts on whether Defendants violated
Plaintiffs' constitutional rights.
the cases share common questions of fact and law, and the
interest of judicial convenience in consolidating the cases
outweighs any delay, confusion or prejudice that
consolidation might cause. Defendants have shown that
consolidation under Rule 42(a) is appropriate.
Defendants' Motion to Consolidate (Doc. 7) is granted;
Gerdhardt v. Mares, et al, Civ. No. 17-255 MCA/CG;
Dale v. Mares, et al, Civ. No. 17-256 MCA/SCY; and
Bartoo v. Mares, et al, Civ. No. 17-257 KG/GJF are
consolidated into this case, Milner v. Mares, et al,
Civ. No. 17-254 KG/LF, for all purposes, including trial; and
pleadings will be filed forthwith in Milner v. Mares, et
al, Civ. No. 17-254 KG/LF.
 Additionally, the same attorneys are
involved in all of the ...