United States District Court, D. Maryland
CX REINSURANCE COMPANY, LTD.
LEADER REALTY CO., et al. CX REINSURANCE COMPANY, LTD.
SINGER REALTY CO., et al. CX REINSURANCE COMPANY, LTD.
BENJAMIN L. KIRSON CX REINSURANCE COMPANY, LTD.
HOMEWOOD REALTY INC., et al. CX REINSURANCE COMPANY, LTD.
MILDRED K. CAPLAN CX REINSURANCE COMPANY, LTD.
B&R MANAGEMENT, INC., et al.
MEMORANDUM AND ORDER
K. Bredar United States District Judge.
before the Court in these six cases are identical motions to
consolidate, which have been referred to the undersigned for
decision. The motions have been briefed, and no hearing is
required, see Local Rule 105.6 (D. Md. 2016). They
will be denied.
cases are all brought by CX Reinsurance Company, Limited
(“CX Re”), against various landlords and
affiliated individuals and entities. CX Re claims in each
case it is entitled to rescission of a commercial insurance
policy issued by CX Re to protect the various Defendants from
liability for personal injury or property damage arising from
Defendants' leasing of residential properties to tenants.
CX Re's claim of rescission is based upon its allegations
that Defendants, in submitting their applications for
insurance coverage, gave false answers in response to
questions about prior lead-paint violations. That
information, CX Re alleges, was material to its decision
whether to insure and, if so, under what terms insurance
would be offered. Further, CX Re claims it was defrauded by
Defendants' misrepresentations and seeks damages.
Standard for Consolidation
Rule of Civil Procedure 42(a) permits, but does not mandate,
consolidation of cases that involve a common question of law
or fact. The Supreme Court has stated, “[C]onsolidation
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, 496-97
(1933); Intown Props. Mgmt., Inc. v. Wheaton Van Lines,
Inc., 271 F.3d 164, 168 (4th Cir. 2001). If a common
question of law or fact exists, then the district court must
weigh the competing considerations to determine if
consolidation is desirable.
The critical question for the district court in the final
analysis was whether the specific risks of prejudice and
possible confusion were overborne by the risk of inconsistent
adjudications of common factual and legal issues, the burden
on parties, witnesses and available judicial resources posed
by multiple lawsuits, the length of time required to conclude
multiple suits as against a single one, and the relative
expense to all concerned of the single-trial, multiple-trial
alternatives. See Fed.R.Civ.P. 42(a); see generally 9 C.
Wright & A. Miller, Federal Practice & Procedure:
Civil s 2383 (1971).
Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193
(4th Cir. 1982). If the common issue is not central to the
resolution of the cases or if consolidation will lead to
delay in the processing of one of the individual cases, then
consolidation may be denied. 9A C. Wright & A. Miller,
Federal Practice & Procedure: Civil
§ 2383, at 40-43 (3d ed. 2008). The decision lies within
the discretion of the district court. A/S J. Ludwig
Mowinckles Rederi v. Tidewater Constr. Co., 559 F.2d
928, 933 (4th Cir. 1977).
threshold consideration in deciding if cases should be
consolidated is whether different cases present a common
question of either fact or law. Having considered relevant
case authorities, the Court concludes these six cases do not
present either a common question of fact or a common question
case has the same Plaintiff, who has asserted claims of fraud
and rescission in each action. Moreover, Movants contend that
Defendants are likely to assert the same defenses, such as
statute of limitations or laches, among others. However,
identical legal theories do not constitute a common question
of law. Gardner v. Cardinal Constr., Inc., No.
C13-2001, 2013 U.S. Dist. LEXIS 101396, at *5-6 (N.D. Iowa
July 18, 2013); Liberty Lincoln Mercury, Inc. v. Ford
Mktg. Corp., 149 F.R.D. 65, 81 (D.N.J. 1993) (“the
mere fact that two cases assert similar theories of
recovery does not constitute a ‘common question of
law' so as to warrant consolidation”); Walter
E. Heller & Co. v. Tuscarora Cotton Mill, 1974 U.S.
Dist. LEXIS 13035, at *1-2 (M.D. N.C. Mar. 29, 1974) (noting
dearth of cases “wherein consolidation has been ordered
solely on the basis of identical legal theories”).
Thus, for example, resolving whether fraud occurred in one
case will not resolve whether fraud occurred in another case.
No common question of law rules the outcome of these six
there a common question of fact. Cases in which a
common question of fact has been found are those arising from
the same set of facts. See, e.g., Coyne &
Delany Co. v. Selman, 98 F.3d 1457, 1463-64 (4th Cir.
1996) (two suits alleging breach of fiduciary duty and
professional malpractice by same defendants based upon
establishment of one ERISA plan); Russell v. United
States, No. 1:12-cv-0407, 2012 U.S. Dist. LEXIS 95400,
at *5-7 (M.D. Pa. July 9, 2012) (cases arose out of same
alleged incident, at same time, in same place, and involved
same defendants); Jacobs v. Castillo, 612 F.Supp.2d
369, 372-73 (S.D.N.Y. 2009) (cases involved same plaintiffs
suing medical professionals for same type of malpractice with
same resulting injury in same time period); Jones v.
Qwest Commc'ns Int'l, Inc., No. Civ.
06-3523MJDAJB, 2007 WL 4179385, at *3 (D. Minn. Nov. 20,
2007) (both cases involved identical questions of law and
fact as to whether defendant violated Fair Labor Standards
Act in its treatment of its sales consultants); Internet
Law Library, Inc. v. Southridge Cap. Mgmt. LLC, 208
F.R.D. 59, 60-62 (S.D.N.Y. 2002) (both cases involved
questions of fact pertaining to same agreement between same
parties); Allfirst Bank v. Progress Rail Servs.
Corp., 178 F.Supp.2d 513, 515-16 (D. Md. 2001) (each
case “mirror image” of other case as to parties
present cases, however, no one set of facts is shared by any
two cases. For example, in 15-3054, CX Re issued an insurance
policy based upon an application executed by Charles
Piccinini on behalf of Leader Realty, Inc., and the policy
listed the specific properties it covered. Whether Defendants
in 15-3054 made a material misrepresentation on their
application that resulted in damage to CX Re is a distinct
factual question from whether any other defendants in any
other case made a material misrepresentation on other policy
applications pertaining to other properties. Although the
cases share factual similarities, they do not share one
factual question such that resolution of it in one case
drives the resolution of the rest of the cases. Other cases
have followed this principle in denying consolidation.
See, e.g., Singh v. Carter, No. CV 16-399
(BAH), 2016 WL 2626844, at *9-10 (D.D.C. May 6, 2016) (each
plaintiff claiming same type of discrimination by same
defendant situated differently); Hicks v. Grove,
Civ. No. ELH-12-1422, Civ. No. ELH-13-2592, 2014 U.S. Dist.
LEXIS 24088, at *4-7 (D. Md. Feb. 25, 2014) (cases against
different defendants at one detention center arose from
distinct events and alleged different types of conduct);
Gardner, at *8-10 (each case turned on circumstances
particular to each plaintiff even though both alleged same
kind of discrimination by same defendant employer); Joe
Hand Promotions, Inc. v. Dock St. Enters., Civ. No.
WMN-11-1973, 2011 U.S. Dist. LEXIS 141242, at *4-6 (D. Md.
Dec. 8, 2011) (cases by different plaintiffs claiming
unauthorized broadcasts based on broadcasts on different
nights and involved different fees).
found no common question of law or fact, the Court need not
proceed to the next part of the analysis to determine whether
considerations of pragmatism and fairness weigh in favor of
or against consolidation, although in that regard, no savings
of judicial resources can be foreseen because of the need to
resolve each case on its own facts. Nevertheless, the Court
has considered Movants' argument pertaining to some
overlapping concerns in discovery and deems it expedient to
designate a single magistrate judge, at the discretion of
each individual presiding judge, as overseer of discovery
issues affecting more than one case. Discovery issues
pertaining only to one case will be handled in the fashion
deemed appropriate by the respective presiding judge.