Adams v. Comair

251 F.R.D. 258
CourtDistrict Court, E.D. Kentucky
DecidedJune 23, 2008
DocketMaster File No. 5:06-CV-316-KSF. Nos. 5:07-CV-339-KSF, 5:07-CV-270-KSF, 5:07-CV-300-KSF, 5:06-CV-371-KSF, 5:07-CV-317-KSF, 5:07-CV-316-KSF, 5:07-CV-318-KSF, 5:07-CV-319-KSF, 5:07-CV-320-KSF, 5:06-CV-400-KSF, 5:07-CV-124-KSF, 5:07-CV-322-KSF, 5:07-CV-315-KSF, 5:07-CV-324-KSF, 5:07-CV-315-KSF, 5:06-CV-429-KSF, 5:07-CV-269-KSF, 5:07-CV-326-KSF, 5:06-CV-385-KSF
StatusPublished

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Bluebook
Adams v. Comair, 251 F.R.D. 258 (E.D. Ky. 2008).

Opinion

[259]*259OPINION AND ORDER

KARL S. FORESTER, Senior District Judge.

This matter is before the Court on the Motion of the United States to dismiss Comair’s erossclaims filed against the United States in the above actions. Having been fully briefed, this motion is ripe for review.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Of the original forty-seven Passenger Plaintiff (“Plaintiffs”) cases arising from the crash of Comair Flight 5191, twenty-nine have not yet settled their cases with Comair, and this matter is proceeding to trial on all liability issues and on damages for three exemplar plaintiffs in less than forty-five days.1 The cases were consolidated for all pretrial purposes. [DE 284], In each of the passenger cases, Comair filed third-party complaints against the United States, seeking indemnity, contribution or apportionment. In January 2008, the Plaintiffs announced they “will be filing suit against the FAA in the next thirty days.” [DE 1387, p. 9]. Some Plaintiffs amended their complaints to add claims against the United States, and Comair filed crossclaims. [DE 2305, p. 2]. The Plaintiffs listed above, however, filed separate actions against the United States and then moved to consolidate their action against the United States with their pending case against Comair, stating “the actions involve common parties and similar and/or identical issues of law and/or fact, and it is in the interest of judicial efficiency for the matters to proceed in consolidated fashion for all purposes.” See e.g. DE 1484 (Thomason). The motions were granted, and all future filings were required to be filed in the single, consolidated case. See e.g. DE 1543.

In March 2008, Comair moved to file cross-claims against the United States in the above cases; no response was filed and the motion was granted. [DE 1744, 1868]. On May 2, 2008, the United States filed a dispositive motion to dismiss Comair’s crossclaims on the ground that the consolidation of a single [260]*260plaintiffs case against Comair with that same plaintiffs ease against the United States did not merge the eases into a single cause of action. [DE 2119]. Accordingly, the United States argued that it and Comair were not coparties in the same cause of action and no erossclaim is authorized under Fed.R.Civ.P. 13(g).

II. ANALYSIS

A. Standard for Motion to Dismiss

To withstand a motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, — U.S. -,-, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In ruling upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), all of a plaintiffs allegations are presumed true, and the complaint is construed in the light most favorable to the plaintiff. Hill v. Blue Cross and Blue Shield of Michigan, 409 F.3d 710, 716 (6th Cir.2005).

B. Consolidation of the Actions

The United States relies on an early case interpreting 28 U.S.C. § 734:

Under the statute, 28 U.S.C. § 734, consolidation is permitted as a matter of convenience and economy in administration, but does not 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 Ry. Co., 289 U.S. 479, 496-497, 53 S.Ct. 721, 77 L.Ed. 1331 (1933). That case involved a Senior Circuit Judge usurping the authority of New York District Judges to appoint receivers in bankruptcy. A separate action was filed before a District Judge challenging the authority of the Senior Circuit Judge to appoint himself to handle all receivership appointments. The court ordered the two cases consolidated over objections of the parties, but was reversed on appeal.

The United States further relies on several Sixth Circuit decisions repeating and quoting Johnson. Lewis v. ACB Bus. Services, Inc., 135 F.3d 389, 412-13 (6th Cir.1998); Patton v. Aerojet Ordnance Co., 765 F.2d 604, 606 (6th Cir.1985); Stacey v. Charles J. Rogers, Inc., 756 F.2d 440, 442-43 (6th Cir.1985); Kraft, Inc. v. Local Union 327 Teamsters, Chauffeurs, Helpers & Taxicab Drivers, 683 F.2d 131, 133 (6th Cir.1982). In the most recent of these decisions, the court said: “Therefore, it is the district court’s responsibility to ensure that parties are not prejudiced by consolidation.” Lewis, 135 F.3d at 412-13, citing 9 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2385 (2d ed.1994).

In the updated edition of Federal Practice and Procedure, the authors read Fed.R.Civ.P. 42(a) more expansively. 9A Fed. Prac. & Proc. Civ.2d § 2382 (2008). Consolidation under Rule 42(a) is used in three different senses:

(1) When all except one of several actions are stayed until one is tried, in which case, the judgment in the one trial is conclusive as to the others. This is not actually a consolidation but sometimes is referred to as such.
(2) When several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. An illustration of this is the situation in which several actions are pending between the same parties stating claims that might have been set out originally as separate counts in one complaint.
(3) When several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to another.
Rule 42(a)(1) and (2) refer separately to the district court’s power to order a joint trial and to the power to order the actions consolidated. Therefore, the rule seems to authorize both the second and third of the procedures just described.

Id. The authors note that much of the case law relies on Johnson to limit the result to the third procedure.

[261]

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251 F.R.D. 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-comair-kyed-2008.