United States District Court, D. Nebraska
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., a Nebraska corporation, and ASSOCIATED WHOLESALE GROCERS, INC., Plaintiffs,
SUPERVALU INC., a Delaware corporation, Defendant. BOROWIAK IGA FOODLINER, INC., Plaintiff/Counter Defendant,
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., and ASSOCIATED WHOLESALE GROCERS, INC., Defendants/Third-Party Plaintiffs/Counter Plaintiffs,
TREVOR BOROWIAK, Third Party Defendant.
Gossett United States Magistrate Judge.
matter comes before the court on the Motion to Consolidate
(Filing No. 23 in Case No. 8:16CV466) filed by Borowiak IGA
Foodliner, Inc. (“Borowiak IGA”), requesting
consolidation of the above-captioned cases. Affiliated Foods
Midwest Cooperative, Inc. (“AFM”) and Associated
Wholesale Grocers (“AWG”) oppose consolidation of
the above cases for trial, but do not oppose consolidation
for discovery purposes. (Filing No. 27 in Case No.
Rule of Civil Procedure 42(a) 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). “For
convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or
more separate issues, claims, crossclaims, counterclaims, or
third-party claims.” Fed. R. Civ. P. 42(b).
“The district court is given broad discretion to decide
whether consolidation would be desirable and the decision
inevitably is contextual.” Cisler v. Paul A.
Willsie Co., Case No. 8:09CV365, 2010 WL 3237222, *2 (D. Neb.
Aug. 13, 2010). The consent of the parties is not
required for consolidation. Id. Whether to grant a
motion to consolidate is within the sound discretion of the
court. Id. When ruling on a motion to consolidate,
“[t]he court must weigh the saving of time and effort
that would result from consolidation against any
inconvenience, expense, or delay that it might cause.
Id.Lawsuits involving the same parties are
“apt candidates for consolidation.” Id.
(quotation and citation omitted). However, consolidation is
inappropriate “if it leads to inefficiency,
inconvenience, or unfair prejudice to a party.”
EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir.
reviewed the matter, the court finds that consolidation for
purposes of discovery and pretrial management is appropriate
at this time. There is no dispute that there are common
facts, agreements, and witnesses in the above cases. The
instant actions both involve certain agreements between AFM
and Borowiak IGA, including a supply agreement. Borowiak
IGA's action against AFM includes a claim that AFM
breached the supply agreement. (Case No. 8:16CV466). In
AFM's action against SuperValu, AFM alleges SuperValu
tortiously interfered with the supply agreement between AFM
and Borowiak IGA. (Case. No. 8:16CV465). 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 and will promote the goals of
efficient use of judicial resources without leading to
inconvenience, delay, unfair prejudice, or additional
expense. Because both cases are in the initial stages of
progression, consolidation of discovery and pretrial
management will conserve judicial resources, as well as the
resources of the parties. Accordingly, IT IS ORDERED:
Borowiak IGA Foodliner, Inc.'s Motion to Consolidate
(Filing No. 23 in Case No. 8:16CV466) is granted, in part. To
the extent that the motion to consolidate asks the cases be
consolidated for trial, it is denied without prejudice to
reassertion at a later date.
two above-captioned cases are consolidated for purposes of
discovery and pretrial management only.
No. 8:16CV466 will be designated as the “Lead
Case” and Case No. 8:16CV465 will be designated as
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 the Member Case. The parties are
instructed to file documents related to discovery (except
those described in paragraph 5) in the Lead Case 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 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 be filed in all the
consolidated cases using the spread text feature.
parties shall have until February 17, 2017, to meet, confer,
and jointly file a report pursuant to Fed. R. ...