United States District Court, N.D. Georgia, Atlanta Division
RICHARD H. WALKER and PATRICE A. GEORGE, Plaintiffs,
COUNTRYWIDE HOME LOANS SERVICES, INC.; CITIGROUP GLOBAL MARKETS REALTY CORPORATION; CITIGROUP MORTGAGE LOAN TRUST, INC.; U.S. BANK, NA, as trustee for Securitized Trust Citigroup Mortgage Loan Trust 2007-6 Trust; COUNTRYWIDE HOME LOANS SERVICING, LP; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, MERS; DOES 1 THROUGH 100 INCLUSIVE, et al., Defendants.
FINAL REPORT AND RECOMMENDATION
Catherine M. Salinas United States Magistrate Judge
matter is before the Court on Defendant Mortgage Electronic
Registration Systems, Inc., Countrywide Home Loans Inc., and
Bank of America, N.A., successor by merger to BAC Home Loans
Servicing LP f/k/a/ Countrywide Home Loans Servicing LP's
(collectively, “Defendants”) Motion to
Consolidate Actions pursuant to Federal Rule of Civil
Procedure 42(a). [Doc. 6]. For the reasons discussed below, I
RECOMMEND that Defendants' Motion to
Consolidate Actions be GRANTED.
around July 31, 2017, Plaintiffs Richard H. Walker and
Patrice A. George (collectively, “Plaintiffs”)
filed a complaint against numerous defendants in the Superior
Court of Gwinnett County, raising claims for wrongful
foreclosure and breach of contract, among other things,
arising out of their mortgage dealings with the defendants.
[Civil Action No. 1:17-cv-03307-MHC-CMS (“First
Lawsuit”), Doc. 1-1]. On August 31, 2017, the
defendants removed the case to this Court on the basis of
diversity jurisdiction; that action is currently pending as
Civil Action No. 1:17-cv-03307-MHC-CMS (“Walker
I”). [First Lawsuit, Doc. 1].
before Walker I was removed to this Court, Plaintiffs
commenced the instant action, Civil Action No.
1:17-cv-03052-MHC-CMS (“Walker II”) on August 14,
2017. [Doc. 1]. Plaintiffs' Complaint in this case is
identical to the Complaint filed in Walker I.
[Compare Doc. 1 with First Lawsuit, Doc.
1-1]. Plaintiffs have named all of the same defendants from
Walker I in this lawsuit, and the attorneys for all the
parties are the same in both Walker I and Walker II.
now move to consolidate the instant action with Walker I
pursuant to Federal Rule of Civil Procedure 42(a). Defendants
argue that the two actions should be consolidated because
they are identical lawsuits that involve the same parties,
claims, and facts. [Doc. 6 at 3]. Defendants also argue that
consolidation would further the interests of judicial economy
and efficiency. [Id. at 2]. Plaintiffs did not file
a response to the Motion; therefore, Defendants' Motion
is deemed unopposed. See LR 7.1(B), NDGa.
(“Failure to file a response shall indicate that there
is no opposition to the motion.”).
42(a) of the Federal Rules of Civil Procedure allows a court
to consolidate actions pending before it if the actions
“involve a common question of law or fact[.]”
Fed.R.Civ.P. 42(a). This Rule “codifies a district
court's inherent managerial power to control the
disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants.”
Young v. City of Augusta, 59 F.3d 1160, 1168 (11th
Cir. 1995) (internal quotations omitted). “District
court judges in this circuit have been urged to make good use
of Rule 42(a) in order to expedite the trial and eliminate
unnecessary repetition and confusion.” Id. at
1169 (quotation omitted and alterations adopted).
decision to consolidate cases is committed to the sound
discretion of the trial court. See Young, 59 F.3d at
1168 (Rule 42(a) “is permissive and vests a purely
discretionary power in the district court.”) (quotation
marks and citations omitted); Hendrix v.
Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th
Cir.1985) (“A district court's decision under Rule
42(a) is purely discretionary.”). In exercising its
discretion, the Court must determine:
Whether the specific risks of prejudice and possible
confusion are 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
Hendrix, 776 F.2d at 1495 (quotation omitted and
alterations adopted); Eghnayem v. Boston Sci. Corp.,
No. 16-11818, 2017 WL 4681345, at *3 (11th Cir. Oct. 19,
2017). “The party seeking consolidation bears the
burden of establishing that consolidation under Rule 42(a) is
appropriate.” Halo Wireless, Inc. v. TDS Telecomm.
Corp., No. 1:11-CV-2749-RWS, 2012 WL 246393, at *3
(N.D.Ga. Jan. 26, 2012).
with Defendants that consolidation of Walker I and Walker II
is appropriate, because it is clear from the face of both
Complaints that the actions raise identical claims and arise
out of the same occurrence. See Hargett v. Valley Fed.
Sav. Bank, 60 F.3d 754, 765-66 (11th Cir. 1995)
(“The proper solution to problems created by the
existence of two or more cases involving the same parties and
issues, simultaneously pending in the same court would be to
consolidate them under Rule 42(a).” (internal quotation
marks and citation omitted)). Here, both Complaints state
identical legal theories and factual allegations.
[Compare Doc. 1 with First Lawsuit, Doc.
1-1]. Plaintiffs have brought both lawsuits against the same
defendants, and the parties are represented by the same
counsel in both actions. [Id.]. Due to the common
issues of law and fact, consolidation will economize both
judicial resources and the resources of the parties.
Plaintiffs have not raised any concerns regarding potential
prejudice or confusion that might arise from consolidation,
nor do I find that such prejudice and confusion exist. In
Walker I, Defendants have filed a Motion to Dismiss, and the
Court granted a stay of discovery pending ruling on the
Motion to Dismiss. [First Lawsuit, Docs. 4-6]. Walker II (the
instant case) has had no substantial proceedings of record
since its initiation. Other than an Order denying
Plaintiffs' Application for Temporary Restraining Order,
Preliminary Injunction, and ...