Deloney v. Warr Acres City of

        UNITED STATES DISTRICT COURT FOR THE                         
           WESTERN DISTRICT OF OKLAHOMA                              

BRYSON DELONEY,                 )                                         
                           )                                         
Plaintiff,                 )                                         
                           )                                         
v.                              )  Case No. CIV-22-576-G                  
                           )                                         
CITY OF WARR ACRES, a           )                                         
municipal corporation,          )                                         
                           )                                         
Defendant.                 )                                         

                        ORDER                                        
Now before the Court is a Motion to Consolidate (Doc. No. 12) filed by Defendant 
City of Warr Acres.  Plaintiff Bryson Deloney has not responded; however, the Motion 
states that Plaintiff is opposed to the relief requested therein.         
Defendant seeks to consolidate the instant case with Jordaesha Burleson v. City of 
Warr Acres et al., No. CIV-22-575-G, pursuant to Rule 42 of the Federal Rules of Civil 
Procedure.                                                                
  Rule 42(a) permits a district court to consolidate actions “involv[ing] a 
common question of fact or law.”  Rule 42(a), Fed. R. Civ. P. The decision 
to  consolidate  cases  “which  appear  to  be  of  like  nature  and  concern 
themselves  with  the  same  or  similar  questions  rests  within  the  sound 
discretion of the trial court.”  Skirvin v. Mesta, 141 F.2d 668, 672-73 (10th 
Cir. 1944) (citing Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 286 
(1892)).  The party seeking consolidation has the burden to show the benefits 
of consolidation or the risk of injury to the moving party if the actions are 
not consolidated.  Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978).  
The mere fact that a defendant has been sued in separate cases involving 
similar subject matter does not require a court grant a motion to consolidate.  
PHR, LLC v. Leland, 2007 WL 4268772, *4 (N.D. Okla. Nov. 30, 2007)   
(citing American Emp. Ins. Co. v. King Resources Co., 545 F.2d 1265, 1269-
70 (10th Cir. 1976)).                                                
Wedel Grp. XVIII, LLC v. Emps. Mut. Cas. Co., No. CIV-11-1113-F, 2011 WL 13116080, 
at *1 (W.D. Okla. Dec. 16, 2011) (alteration in original). 
 The Court concludes that Defendant has not shown that consolidation of this action 
with Burleson is warranted at this time.  Although both lawsuits  arise out of the same 
incident and are brought against Defendant, they are brought by separate plaintiffs who 
allege distinct injuries and damages.  While Defendant cites efficiencies regarding joint 
discovery  and  depositions,  the  parties  are  free  to  stipulate  to  discovery  modifications 
regardless of whether these actions are formally consolidated.  See Fed. R. Civ. P. 29. 
 Accordingly, Defendant’s Motion to Consolidate (Doc. No. 12) is DENIED without 
prejudice.  If it should appear to Defendant later in the proceedings that consolidation of 
this action with Burleson is warranted—e.g., for pretrial hearings or trial—Defendant may 
re-urge its request to the Court. 
 IT IS SO ORDERED this 24th day of February, 2023. 

                                             (Barba    B. Kadota 
                                            United States District Judge