O'Donahue v. Tuugiiboss Trans Inc

• Court: District Court, W.D. Washington
• Decided: April 8, 2024
• Docket: 3:23-cv-06028
• Status: Unknown

Opinion

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5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 MICHAEL A. O'DONAHUE, 9 CASE NO. 3:23-cv-06028-GJL Plaintiff, v. 10 AMENDED ORDER ON MOTION TO CONSOLIDATE TUUGIIBOSS TRANS INC., et al., 11 Defendants. 12 13 This matter comes before the Court on Defendants’ Motion to Consolidate (“Motion”). 14 Dkt. 16.1 For the reasons discussed below, the Court DENIES the Motion. Dkt. 16. 15 I. BACKGROUND 16 On August 24, 2023, Plaintiff Michael A. O’Donahue filed a Complaint against 17 Defendants in Pierce County Superior Court. Dkt. 1-1, O’Donahue v. Tuugiiboss Trans Inc., et 18 al., Pierce County Superior Court Cause No. 23-2-09229-1. In the Complaint, Plaintiff alleges 19 that on November 3, 2020, Defendant Batzaya Sukhee, an employee of Defendant Tuugiiboss 20 Trans Inc. (“TTI”), negligently struck Plaintiff’s vehicle at an intersection in Fife, Washington, 21 while operating a company semi-truck vehicle. Dkt. 1-1 at 2–3. As a result of Defendant 22 Sukhee’s alleged negligence, Plaintiff suffered “personal injuries,” “physical pain,” “a 23

24 1 The parties have consented to proceed before a Magistrate Judge. See Dkt. 9. 1 substantial decrease in the quality of . . . daily life,” as well as “has incurred and will incur 2 economic and non-economic damages of a nature and amount that will be proven at trial.” Id. at 3 3–4. Plaintiff seeks damages for pain and suffering, past and future medical expenses, and 4 related fees and costs. Id. at 5.

5 On September 19, 2023, Defendants were personally served with a copy of the Summons 6 and Complaint in the Pierce County case. See Dkt. 12-2, Ex. 2. On November 9, 2023, 7 Defendants filed a Notice of Removal to federal court. See Dkt. 1. Plaintiff moved to remand the 8 case to state court, arguing Defendants missed the 30-day window to remove set by 28 U.S.C. 9 § 1446(b)(1). Dkt. 12. In an Order entered on January 19, 2024, the Court denied Plaintiff’s 10 Motion to Remand. See Dkt. 15. 11 On February 13, 2024, Defendants filed the instant Motion. Dkt. 16. In the Motion, 12 Defendants request the Court consolidate this case with Allstate Fire and Casualty Insurance 13 Company Subrogee of Michael A. O’Donahue v. Tuugiiboss Trans Inc., et al., Pierce County 14 Superior Court Cause No. 23-2-05392-9, filed on March 14, 2023 (“March 2023 Pierce County

15 Complaint”). See id. 16 The Plaintiff in the March 2023 Pierce County Complaint, Allstate Fire and Casualty 17 Insurance Company Subrogee of Michael A. O’Donahue (“Allstate”), filed the action in state 18 court against Defendants seeking monetary damages as a result of the same November 3, 2020, 19 motor vehicle accident involving Plaintiff O’Donahue and Defendant Sukhee. See Dkt. 17 at 5– 20 8. Defendants argue consolidation of this case with the Pierce County case is appropriate because 21 the Plaintiffs in both actions seek recovery in the form of monetary damages arising out of the 22 same motor vehicle accident. Dkt. 16 at 4. In addition to the common legal and factual questions 23

24 1 presented, consolidation of these matters would avoid duplicating time and effort across both 2 cases. Id. Consolidation will also ensure speedy and consistent resolution of these matters. Id. 3 In connection with the Motion, Defendants have filed a Declaration of their counsel, 4 Alyana L. Nicholes, Esquire, attaching the March 2023 Pierce County Complaint, as well as a

5 Certificate of Service of the Motion upon counsel for Plaintiff Allstate. See Dkt. 17. Neither 6 Plaintiff O’Donahue nor Plaintiff Allstate has filed a response to the Motion. See Dkt. However, 7 the Court notes that counsel for Allstate does not appear to be admitted for practice in the 8 Western District of Washington District Court or to have applied to appear Pro Hac Vice in this 9 case. 10 II. DISCUSSION 11 Defendants rely on Federal Rule of Civil Procedure 42(a) for the requested consolidation. 12 See Dkt. 16. Rule 42(a) provides, in part, “If actions before the court involve a common question 13 of law or fact, the court may . . . consolidate the actions[.]” Fed. R. Civ. P. 42(a). Further, under 14 Rule 42(a), the Court has broad discretion regarding whether to consolidate cases. Pierce v. Cty.

15 of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008). The Court must “weigh[] the saving of time and 16 effort consolidation would produce against any inconvenience, delay, or expense that it would 17 cause.” Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984). 18 However, Rule 42(a) permits consolidation only of cases “before the court.” Fed. R. Civ. 19 P. 42(a); see also LR 42(a) (“If a party seeks to have its case consolidated with one or more cases 20 pending in this district, the party may file a motion to consolidate the cases.”) (emphasis added). 21 As such, Rule 42(a) does not authorize a federal court to take a lawsuit filed in state court and 22 consolidate it with a lawsuit filed in federal court, even if “there is an identity of the parties, 23 subject matter, and requested relief.” Devenny v. Lakewood Fire District 2, Case No. C10-5002

24 1 KLS, 2010 WL 11685177, at *2 (W.D. Wash. June 1, 2010) (holding the court is not authorized 2 to consolidate its federal case with a case proceeding in state court); 9A C. Wright & A. Miller, 3 Federal Practice and Procedure § 2382 (3d ed. 2023) (“a court may not consolidate an action 4 pending in federal court with an action pending in state court.”).

5 In addition, Local Rule 42 requires the parties to meet and confer and attempt to reach an 6 agreement regarding consolidation of the cases. LR 42(b). Here, Defendants have provided no 7 evidence that the parties met and conferred regarding consolidation. 8 Upon review of the Motion, the attached Declaration, and relevant record, the Court 9 concludes that it does not have the authority to take a case from state court, for which there is no 10 removal authority, and consolidate it with a case in federal court. Rather, the Court would be 11 able to address a motion to consolidate these cases only if they are both pending in this District. 12 See Fed. R. Civ. P. 42(a); LR 42(a). 13 In order to do so, however, Defendants would need to seek formal removal of Allstate v. 14 Tuugiiboss Trans Inc., Cause No. 23-2-05392-9, from the Pierce County Superior Court. See 28

15 U.S.C. § 1441(a). Once, and only if, the case is removed from state court and brought to this 16 Court under a new case number, and the parties have met and conferred, could the Court 17 properly entertain a motion to consolidate the cases at that time. See Fed. R. Civ. P. 42(a); LR 18 42. 19 Defendants’ Motion (Dkt. 16) is DENIED. 20 Dated this 8th day of April, 2024. 21 A 22 23 Grady J. Leupold United States Magistrate Judge 24