United States District Court, D. Colorado
CYPRESS ADVISORS, INC., d/b/a The Cypress Group, Plaintiff/Counter Defendant,
KENT MCCARTY DAVIS, a/k/a Carty Davis, d/b/a Cypress International, Inc., Defendant/Counter Claimant/Third-Party Plaintiff,
DEAN ZUCCARELLO, Third-Party Defendant.
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Consolidate
Related Cases for Trial [Docket No. 175] filed by Cypress
Advisors, Inc. and Dean Zuccarello. Cypress and Mr.
Zuccarello move the Court to consolidate this case with
Cypress Advisors, Inc. v. Kent McCarty Davis and C
Squared Advisors, LLC, No. 17-cv-01219-MSK-KLM, for
purposes of trial. Defendant Kent McCarty Davis opposes
consolidation on the ground that it would “have the
effect of indefinitely staying trial in this action”
and would complicate the trial proceedings. Docket No. 182 at
8-9. For the reasons discussed below, the Court will grant
Cypress and Zuccarello's request to consolidate these
actions for purposes of trial.
42(a) of the Federal Rules of Civil Procedure provides that,
“[i]f actions before the court involve a common
question of law or fact, the court may . . . consolidate the
actions.” Fed.R.Civ.P. 42(a)(2). Pursuant to Local Rule
42.1, the judge assigned to the lowest numbered case decides
whether consolidation is warranted. D.C.COLO.LCivR 42.1. The
decision whether to consolidate actions involving common
questions of law or fact is committed to the sound discretion
of the district court. Shump v. Balka, 574 F.2d
1341, 1344 (10th Cir. 1978). The purpose of Rule 42(a) is
“to give the court broad discretion to decide how cases
on its docket are to be tried so that the business of the
court may be dispatched with expedition and economy while
providing justice to the parties.” Breaux v.
American Family Mut. Ins. Co., 220 F.R.D. 366, 367 (D.
Colo. 2004) (quoting 9 C. Wright & A. Miller, Federal
Practice & Procedure § 2381 at 427 (2nd ed. 1995)).
Therefore, the Court will consider both judicial economy and
fairness to the parties in exercising its discretion under
Rule 42(a). See Harris v. Illinois-California Express,
Inc., 687 F.2d 1361, 1368 (10th Cir. 1982).
appears to be no real dispute that these cases involve common
questions of fact and law. Both lawsuits involve the same
parties and arise from a common nucleus of fact -
namely, the “actions that Davis took around the time he
left Cypress, ” including his alleged efforts to
compete with Cypress and interfere with its existing client
relationships. Docket No. 175 at 11; see also Docket
No. 173 at 4-7; Cypress Advisors, Inc. v. Kent
McCarty Davis and C Squared Advisors, LLC, No.
17-cv-01219-MSK-KLM, Docket No. 1 at 5-15. The lawsuits also
involve overlapping legal claims for misappropriation of
trade secrets under Colorado law. See Docket No. 28
at 16-17; Cypress Advisors, Inc. v. Kent McCarty Davis
and C Squared Advisors, LLC, No. 17-cv-01219-MSK-KLM,
Docket No. 1 at 15-16.
the legal and factual overlap between the two cases, the
Court finds that consolidation would promote judicial
economy. The 2016 action is set for a seven-day jury trial
beginning on October 21, 2019. Docket No. 187. Although
consolidation may add one day to the current trial schedule,
see Docket No. 173 at 31, it would obviate the need
to hold two seven-day jury trials and eliminate the risk of
inconsistent jury verdicts.
efficiency benefits of consolidation also outweigh any
possible prejudice to the parties. Davis argues that he will
be prejudiced by consolidation because it will indefinitely
stay trial in this action pending resolution of the summary
judgment motion in Judge Krieger's case. See
Docket No. 182 at 5, 9. Since the filing of Davis's
response, however, that summary judgment motion has been
resolved. While it is true that consolidation - and any
corresponding increase in the trial length - may require the
trial to be rescheduled, that risk would exist even in the
absence of consolidation, given that there are multiple
criminal trials currently set for the same two-week period in
October, any one of which would take precedence over the
trial in this case.
also contends that consolidation will complicate the trial by
requiring amendment of the final pretrial order and
submission of additional jury instructions. Docket No. 182 at
9. The alternative, however, is to have two final pretrial
orders and two separate sets of jury instructions. Davis
fails to explain why that would be preferable to simply
amending the final pretrial order in this case and submitting
a few additional jury instructions. In any event, the
significant efficiencies that will be gained by consolidating
these actions outweigh any risk of prejudice to the parties.
foregoing reasons, it is
that the Motion to Consolidate Related Cases for Trial
[Docket No. 175] is GRANTED. It is further
that, pursuant to Fed.R.Civ.P. 42(a) and D.C.COLO.LCivR 42.1,
Civil Action Nos. 16-cv-01935-PAB-MEH and 17-cv-01219-MSK-KLM
shall be consolidated for trial. It is further
that, pursuant to D.C.COLO.LCivR 42.1, Civil Action No.
17-cv-01219 shall be assigned to Chief Judge Philip A.
Brimmer. It is further
that Civil Action 17-cv-01219 shall hereafter be referred to
the magistrate judge assigned to the lowest numbered case,
Magistrate Judge Michael E. Hegarty. It is further
that, within three days of this order, the parties shall
jointly contact Judge Hegarty's chambers to set a
supplemental final pretrial conference. It is further
that, as of the date of this order, all future pleadings and
other filings shall be filed in this case ...