United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
Melinda James, fka Melinda Ellis, moves this court to
consolidate the above captioned action
(“Ellis”) with James v. Alessi,
2:18-cv-01398-JAD-GWF (“James”). ECF No.
David Alessi, the sole defendant in James opposed
the motion, (ECF No. 259), and plaintiff replied (ECF No.
260). The court now denies plaintiff's
motion: consolidation is not warranted because the parties to
the actions are not identical, the causes of action arise out
of different facts, and the cases are on significantly
different time tracks.
action has an extensive litigation history which the court
has reiterated in a number of prior orders; therefore, the
court will only detail the most relevant history. On July 14,
2015, after a jury trial, the court entered Judgment against
defendants Alessi Trustee Corporation (“ATC”) and
Alessi & Koenig LLC (“A&K”) in the amount
of $381, 091.04 plus post-judgment interest. ECF No. 218.
However, the parties then reached an agreement staying the
judgment and stipulating that plaintiff would refrain from
enforcing the judgment in exchange for the defendants (1)
executing a promissory note in favor of plaintiff, secured
with a deed of trust against an identified real property, and
(2) making monthly payments towards the promissory note. ECF
Nos. 230, 235. Following the stipulation, defendants only
made three payments to plaintiff and failed to grant
plaintiff the stipulated security interest in the real
property as required. ECF No. 256.
response, plaintiff filed a motion for an order to show cause
(ECF No. 236) which the court granted (ECF No. 245). A&K
failed to respond and filed for bankruptcy on December 13,
2016. ECF No. 256. On August 22, 2017, plaintiff filed a
motion for a status check as no further action had been taken
by either defendant ATC or A&K, and defendant A&K was
still involved in bankruptcy proceedings. ECF No. 248. The
court granted plaintiff's motion and ordered defendants
to respond within 10 days as to why they should not be held
in contempt of court for violation of the court's order.
ECF No. 250. On September 25, 2017, dismissed defendant David
Anthony Alessi (“Alessi”) filed a response to the
court's order (ECF No. 252) to which plaintiff responded
(ECF No. 255). On September 7, 2018, the court determined
that given that ATC and A&K had failed to respond to the
court for over 2 years, and failed to comply with the terms
of the stipulated stay of judgment, the most appropriate
course of action was to vacate the stipulated stay and allow
plaintiff to proceed in enforcing the judgment against both
ATC and A&K. ECF No. 256.
27, 2018, plaintiff filed a new action with the court,
James, alleging breach of contract, breach of
covenant of good faith and fair dealing, fraud in the
inducement, and fraudulent misrepresentation against Alessi
personally regarding the above stipulation. James,
ECF No. 1. Alessi filed a motion to dismiss on August 31,
2018, and discovery was stayed pending resolution of the
motion. James, ECF Nos. 5, 17. While the motion to
dismiss was pending, plaintiff filed a motion to consolidate
James with the above captioned case. ECF No. 258;
James, ECF No. 19. Subsequently, Judge Dorsey
granted in part and denied in part Alessi's motion to
dismiss on May 24, 2019. James, ECF No. 24.
Accordingly, plaintiff amended her complaint (James,
ECF No. 25), and Alessi answered (James, ECF No.
26). Discovery is currently pending in James, and
due to end December 20, 2019. James, ECF No. 29.
Other than the pending motion for consolidation, nothing
further is pending in Ellis.
Rule of Civil Procedure 42 allows a court to consolidate two
or more actions that involve a common question of law or
fact. Fed.R.Civ.P. 42(a). A court has broad discretion under
Rule 42 when determining whether to consolidate actions
pending in the same district: the court may consolidate on a
motion by a party or it may do so sua sponte.
See LR 42-1; Inv'rs Research Co. v. U.S.
Dist. Court for Cent. Dist. of California, 877 F.2d 777,
777 (9th Cir. 1989). In determining if consolidation is
proper, “[t]he court should weigh the time and effort
that consolidation would save against any inconvenience,
delay, or expense it would cause” as well as the
specific risks of prejudice and confusion. Narvaes v. EMC
Mortg. Corp., No. CIV 07-00621 HG-LEK, 2009 WL 1269733,
at *2 (D. Haw. May 1, 2009) (citing Huene v. United
States, 743 F.2d 703, 704 (9th Cir. 1984) and
Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d
Alessi argues that he will be unfairly prejudiced because at
the time the motion to consolidate was filed a fully briefed
motion to dismiss, which Alessi argued would dismiss
James in its entirety, was already before Judge
Dorsey. The court need not address such arguments as prior to
this order, Judge Dorsey granted in part and denied in part
Alessi's motion to dismiss. However, the court is still
not persuaded by plaintiff's arguments that consolidation
of the two at issue cases will avoid ‘substantial
duplicative labor,' that judicial economy will be served,
and that there are common questions of fact in both.
ruling on Alessi's motion to dismiss in James,
Judge Dorsey found that James was not duplicative of
Ellis. The two cases did not involve identical
parties-Alessi, the sole defendant in James was not
a defendant in Ellis as he was dismissed from the
case prior to trial. The cases involve their “own
unique facts”- even though James evolved out
of Ellis. Further, Judge Dorsey found that because
Alessi was not a party to Ellis, after the automatic
A&K bankruptcy stay is lifted, plaintiff will not be able
to collect the Ellis judgment from Alessi
personally. Therefore, a ruling in Ellis will have
no bearing on James.
court agrees with Judge Dorsey and finds that consolidation
is not warranted for the same reasons the two actions are not
duplicative. Further, judicial economy and efficiency will
not be served by consolidating because the actions are on
significantly different time tracks: Ellis is at its
end with only the enforcement of judgment left. Conversely,
James has yet to complete discovery.
cause appearing, IT IS THEREFORE ORDERED that plaintiffs
motion to consolidate (ECF No. 258) is
DENIED. The Clerk of Court is ORDERED to
apply this ruling to plaintiffs motion to consolidate filed
in James v. Alessi, 2:18-cv-01398-JAD-GWF (ECF No.