United States District Court, D. Nebraska
COVENTRY HEALTH CARE OF NEBRASKA, INC. d/b/a Aetna Better Health of Nebraska, Plaintiff,
NEBRASKA DEPARTMENT OF ADMINISTRATIVE SERVICES; NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES; DOUG PETERSON, in his official capacity as Attorney General of the State of Nebraska; BYRON DIAMOND, in his official capacity as Director, Nebraska Department of Administrative Services; COURTNEY PHILLIPS, CEO of the Nebraska Department of Health and Human Services; and CALDER LYNCH, in his official capacity as Director of the Nebraska Department of Health and Human Services Division of Medicaid and Long Term Care, Defendants. AMERIHEALTH NEBRASKA, INC., d/b/a Arbor Health Plan, Plaintiff,
NEBRASKA DEPARTMENT OF ADMINISTRATIVE SERVICES; NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES; BYRON L. DIAMOND, Director of the Nebraska Department of Administrative Services; FRANCIS BOTELHO, Administrator of the Nebraska Department of Administrative Services Materiel Division; COURTNEY N. PHILLIPS, Chief Executive Officer of the Nebraska Department of Health and Human Services; and CALDER LYNCH, Director of the Nebraska Department of Health and Human Services Division of Medicaid and Long-Term Care, Defendants.
D. Thalken United States Magistrate Judge.
matter is before the court after the defendants and
defendant-intervenors filed a Joint Motion to Consolidate
(Filing No. 32 in case 4:16CV3094; Filing No. 26 in case
4:16CV3100). Coventry Health Care of Nebraska, Inc.
(Coventry) filed a response (Filing No. 39 in case
4:16CV3094). Coventry indicates it does not oppose
consolidation to the extent such consolidation does not delay
proceedings. AmeriHealth Nebraska, Inc. did not respond to
the defendants’ motion.
Rule of Civil Procedure 42(a) governs consolidation of
separate actions and provides: “If actions before the
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). “Consolidation of
separate actions presenting a common issue of law or fact is
permitted under Rule 42 as a matter of convenience and
economy in judicial administration. The district court is
given broad discretion to decide whether consolidation would
be desirable and the decision inevitably is
contextual.” 9 Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 2383 (2d ed.
1994). Whether to grant a Rule 42(a) motion to consolidate is
within the sound discretion of the court. United States
Envtl. Prot. Agency v. Green Forest, 921 F.2d 1394,
1402-03 (8th Cir. 1990). The “court [must] weigh the
saving of time and effort that consolidation under Rule 42(a)
would produce against any inconvenience, delay, or expense
that it would cause . . . .” Wright & Miller,
supra, § 2383. “[D]istrict courts generally take a
favorable view of consolidation . . . .” Id.
Furthermore, “[a]ctions involving the same parties are
apt candidates for consolidation.” Id. §
2384. However, under Fed.R.Civ.P. 42(b), consolidation is
considered inappropriate “if it leads to inefficiency,
inconvenience, or unfair prejudice to a party.”
EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir.
review of the cases, the court is convinced these actions
involve nearly all of the same defendants and the same
issues. Additionally, the cases involve common, although not
identical, questions of law and fact. The allegations in the
plaintiffs’ separate complaints indicate the plaintiffs
were unsuccessful bidders from Nebraska’s 2016
selection of contractors qualified to provide Medicaid
managed care programs for physical health, behavioral health,
and pharmacy services to eligible Nebraska citizens. The
plaintiffs allege federal due process, federal Medicaid
regulation, and Nebraska state law violations. Due to the
similarities between the cases, the same documents will be
part of discovery in both cases and the parties will likely
present similar motions and arguments during discovery.
Consolidation during the discovery phase will avoid
duplicative parallel activities. Consolidation for discovery
will promote the goals of efficient use of judicial resources
without leading to inconvenience, delay, unfair prejudice, or
additional expense. Both cases are at an early stage of
litigation and pending a motion for preliminary injunction.
In the event the proceedings are delayed, such delays will
likely impact both cases equally. While Coventry opposed
moving the preliminary injunction hearing, the court already
rescheduled the hearing for the convenience of the court and
the parties. Weighing the relevant factors, the court finds
the cases should be consolidated. Nevertheless, the court may
separate the cases at a later time, if necessary, prior to
trial. Upon consideration, IT IS ORDERED:
defendants’ Joint Motion to Consolidate (Filing No. 32
in case 4:16CV3094; Filing No. 26 in case 4:16CV3100) are
two above-captioned cases are consolidated for all purposes.
No. 4:16CV3094 is hereby designated as the “Lead
Case.” Case number 4:16CV3100 is hereby designated as
the “Member Case.”
court’s CM/ECF System has the capacity for
“spreading” text among the consolidated cases. If
properly docketed, the documents filed in the Lead Case will
automatically be filed in all Member Cases. To this end, the
parties are instructed to file all further documents related
to discovery (except those described in paragraph 5) in the
Lead Case, No. 4:16CV3094, and to select the option
“yes” in response to the System’s question
whether to spread the text.
parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay filing
fees electronically using pay.gov; or to file items related
to service of process.
6. If a
party believes that an item in addition to those described in
paragraph 4 should not be filed in all the consolidated
cases, the party must move for permission to file the item in
one or more member cases. The motion must ...