United States District Court, D. Colorado
EL TAPATIO, INC., d/b/a EL TEJADO MEXICAN RESTAURANT, Plaintiff,
HAMILTON SPECIALTY INSURANCE COMPANY, Defendant.
T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
Judge Scott T. Varholak This matter comes before the Court on
the parties' Joint Motion to Consolidate Civil Action No.
1:19-CV-01922-NYW and Civil Action No. 19-CV-01924-REB-NRN
with this Action and Enter a Stay of Action (the
“Motion”), filed on November 1, 2019. [#19] The
parties in the instant matter have consented to proceed
before the undersigned United States Magistrate Judge for all
proceedings, including entry of a final judgement. [##14-15]
This Court has carefully considered the Motion and related
briefing, the entire case file and the applicable case law.
For the following reasons, the Motion is
Rule of Civil Procedure 42(a) 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). 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. Am. Family Mut. Ins. Co.,
220 F.R.D. 366, 367 (D. Colo. 2004).
El Tapatio, Inc., d/b/a El Tejado Mexican Restaurant,
originally filed the instant action in the Broomfield Country
District Court in May 2019. [#4] The case was removed to this
Court on July 3, 2019. [#1] The instant action arises out of
a disputed property insurance claim. [See generally
#4] Plaintiff alleges that in May 2017, its property located
in Broomfield, Colorado, covered by an insurance policy
issued by Defendant, was damaged as a result of a hail and
wind storm. [Id.] Plaintiff filed a claim with
Defendant, and alleges that Defendant has failed to issue
payment for the physical losses and damages to the property,
as outlined by repair estimates, and that Defendant has
failed to conduct a full, fair, and thorough investigation of
Plaintiff's claim. [Id. at 10-12] Plaintiff
brings the following causes of action: a request for
declaratory relief to compel appraisal, breach of contract,
bad faith breach of insurance contract, and unreasonable
delay and denial of payment of covered benefits, in violation
of Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116.
[Id. at 12-19]
same time the instant action was filed, Plaintiff filed very
similar complaints against Defendant that have since been
removed to this Court. El Tapatio, Inc. v. Hamilton
Specialty Insurance Company, Civil Action No.
19-cv-01922-NYW [##1, 4] (“El Tapatio
II”); El Tapatio, Inc. v. Hamilton Specialty
Insurance Company, Civil Action No. 19-cv-01924-REB-NRN
[##1, 5] (“El Tapatio III”). Those cases
are largely identical to the instant matter, and arise out of
Plaintiff's claims for hail and wind damage under the
same general insurance policy, except that the cases involve
properties in Englewood and Arvada, respectively, and repair
estimates specific to the damage to those properties. El
Tapatio II [#4]; El Tapatio III [#5]. All three
matters assert identical causes of action.
parties argue that consolidation of the three cases is
appropriate because the cases involve the same parties, and
“saliently identical questions of law and fact”-
namely, Plaintiff's claims for coverage under the same
commercial insurance policy issued by Defendant, in relation
to alleged property damage following a wind and hail storm in
May 2017. [#19 at ¶¶ 2-3] The parties note that
Defendant utilized the same third-party risk management group
to administer the claims at issue in all three matters, and
that the third-party risk manager utilized the same
representatives to adjust the claims. [Id. at ¶
4] The parties further indicate that they retained and
utilized public adjusters, engineers, experts, and
contractors common to all three claims, and therefore
anticipate that there will be significant overlap of fact and
expert witnesses across all three cases. [Id. at
Court agrees that the three cases raise common questions of
fact and law and that consolidation is appropriate. At the
heart of all three cases is coverage under the same insurance
policy issued by Defendant for property damage after a May
2017 hail and wind storm. Judicial economy is
“unquestionably served by consolidation, ” where,
as here, “it will eliminate the need for various
judicial officers to address and rule on substantially the
same issues” in three different cases. Skaggs v.
Level 3 Commc'ns, Inc., No. 09-cv-00200-PAB-CBS,
2009 WL 458682, at *2 (D. Colo. Feb. 24, 2009). The Court
finds that the common questions of fact and law, and
resulting overlap of discovery, outweigh any delay that may
result from consolidation.
parties further move for a 90-day stay of the consolidated
case in order to accommodate the parties' agreement to
enter into appraisal under the insurance policy in all three
lawsuits. [#19 at 1, 4] In determining whether to grant a
stay, the Court considers the following factors: (1) the
interest of the plaintiff in proceeding expeditiously with
discovery and the potential prejudice to the plaintiff of a
delay; (2) the burden on the defendant of proceeding with
discovery; (3) the convenience to the Court of staying
discovery; (4) the interests of nonparties in either staying
or proceeding with discovery; and (5) the public interest in
either staying or proceeding with discovery. See String
Cheese Incident, LLC v. Stylus Shows, Inc., No.
1:03-cv-01934-LTB-PA, 2006 WL 894955, at *2 (D. Colo. Mar.
30, 2006). As to the first two factors, the parties agree to
a stay and acknowledge that they will not be prejudiced by a
stay. [#19 at 4] Under the third factor, the Court finds that
a 90-day stay will not inconvenience the Court, and appraisal
efforts may enable the parties to resolve certain issues in
this litigation without the need for Court intervention.
Under the fourth factor, the parties indicate that they are
unaware of any nonparty interests in a stay of this matter.
Finally, there is a “public interest [in] promoting the
voluntary resolution of disputes.” Rocky Mountain
Wild v. Vilsack, No. 09-cv-01272-WJM, 2013 WL 3233573,
at *8 (D. Colo. June 26, 2013). The Court thus concludes that
a 90-day stay of the consolidated case is appropriate.
for the foregoing reasons, the Court ORDERS
1. The Join Motion to Consolidate [#19] is
2. In accordance with the Court's inherent power to
control its docket, and pursuant to Federal Rule of Civil
Procedure 42(a), El Tapatio II, Civil Action No.
19-cv-01922-NYW, and El Tapatio III, Civil Action
No. 19-cv-01924-REB-NRN are CONSOLIDATED
into the above-caption action (the “Consolidated
3. The Consolidated Case shall be the lead case and all
future filings shall be made in this action.
4. The Clerk shall re-docket the following filings on the
Consolidated Case docket from El Tapatio II: ECF
Nos. 4 and 18, and the following filing from El Tapatio
III: ECF No. 5.
5. Since the same attorneys have already entered their
appearance on behalf of Plaintiff and Defendant,
respectively, in all three cases, the Court will deem their