United States District Court, E.D. Arkansas, Jonesboro Division
Kristine G. Baker United States District Judge.
the Court is a joint motion to consolidate filed by separate
defendants E&S Contracting, Inc., Mark McDaniels, and
Coastal Drilling East, LLC (Dkt. No. 17). The defendants
request that the Court consolidate this action with Elton
Smith v. E&S Contracting, Inc., et al., Case No.
3:17-cv-00005-KGB pursuant to Federal Rule of Civil Procedure
42(a). Plaintiff Elton Smith does not object to the
consolidation of these actions. Plaintiff Jerry Mross argues
that the motion to consolidate should be “denied, or in
the alternative, granted only for purposes of discovery[,
]” with Mr. Mross's claims being tried separately
from Mr. Smith's claims (Dkt. No. 20, at 3).
is no dispute that both actions arise out of an automobile
accident involving Mr. Mross and Mr. Smith that occurred in
Crittenden County, Arkansas, on December 4, 2015 (Dkt. No.
18, at 1; Dkt. No. 21, at 1). Mr. Mross was the driver of a
vehicle in which Mr. Smith was a passenger (Id.).
Both sue separate defendants E&S Contracting, Inc., Mark
McDaniels, and Coastal Drilling East, LLC, for damages
allegedly caused by the defendants' negligence.
defendants argue, and Mr. Smith does not dispute, that these
actions should be consolidated as they “involve common
issues of law and fact” and “consolidation will
serve the interests of judicial economy by preventing
duplicative discovery and motion practice” (Dkt. No.
18, at 2). The defendants also contend, and Mr. Smith does
not dispute, that “no party will suffer prejudice due
to the consolidation of these actions” (Id.).
In response, Mr. Mross “agrees that both the Mross and
Smith cases involve common questions of law and/or
fact” and “that consolidation of the two cases
for purposes of discovery will serve the interests of
judicial economy and convenience” (Dkt. No. 21, at 2).
However, Mr. Mross argues that the Court should deny the
motion to consolidate these cases, or order separate trials
for each plaintiff, because complete consolidation of these
cases would result in unfair prejudice (Id., at 3).
Mross claims that he would be prejudiced for two reasons.
First, he alleges that Mr. Smith was arrested at the scene of
the accident for violation of his parole and that Mr.
Smith's criminal issues, which Mr. Mross contends
“are likely admissible, ” would be unfairly
prejudicial to Mr. Mross before a jury (Dkt. No. 20, at 2-3).
Second, Mr. Mross contends that there is a “gross
disparity” between the injuries and damages he
allegedly suffered and the injuries and damages Mr. Smith
allegedly suffered in the accident (Dkt. No. 21, at 3). Mr.
Mross argues that consolidation of these cases would
prejudice him because “it would be confusing for the
jury to keep track and differentiate between the various
injuries, treatment plans and expert testimony offered by
each Plaintiff at trial” (Id.).
Rule of Civil Procedure 42(a) provides that a court may
consolidate actions if they “involve a common question
of law or fact.” Federal Rule of Civil Procedure 42(b)
provides that “to avoid prejudice . . . the court may
order a separate trial of one or more separate issues [or]
claims . . . .” There is no dispute that Mr. Mross and
Mr. Smith's cases involve a number of common questions of
law and fact and that consolidation would prevent duplicative
discovery (Dkt. No. 18, at 2; Dkt. No. 21, at 2). The Court
finds that consolidation would also prevent duplicative
motion practice, as the issue of liability appears to be the
same in both cases. Therefore, the Court grants
defendants' joint motion to consolidate (Dkt. No. 17).
action is consolidated with Elton Smith v. E&S
Contracting, Inc., et al., Case No. 3:17-cv-00005-KGB.
Under General Order 39 of the United States District Court
for the Eastern District of Arkansas, if a motion for
consolidation is granted, “the consolidation cases will
be assigned to the judge with the lower (lowest) case
number.” Here, the Mross case has the lower
case number. Therefore, the Smith case shall be
consolidated with and into the Mross case before the
undersigned Judge. All parties are directed to make filings
only in Jerry Mross v. E&S Contracting, Inc., et
al., Case No. 3:16-cv-00223-KGB, going forward. The
Clerk of the Court is directed to file a copy of this Order
in Elton Smith v. E&S Contracting, Inc., et al.,
Case No. 3:17-cv-00005-KGB.
extent that Mr. Mross moves for a separate trial pursuant to
Federal Rule of Civil Procedure 42(b), the Court denies his
request without prejudice. Based on the existing record, the
Court is not persuaded that separate trials are necessary to
avoid prejudice to Mr. Mross. Mr. Mross argues that he would
be prejudiced by the admission of Mr. Smith's alleged
criminal issues as well as the alleged disparity between his
claimed damages and Mr. Smith's claimed damages. At this
stage of the litigation, the Court determines that it would
be premature to determine that separate ...