Monster Concrete LLC v. Innovative Construction

[1] 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Jul 21, 2020 SEAN F. MCAVOY, CLERK [4] 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [6] 7 BEDROCK MASONRY, INC, United States for the benefit and use NO: 2:19-CV-429-RMP 8 of Bedrock Masonry, Inc., an Idaho NO: 2:19-CV-375-SMJ corporation, 9 ORDER GRANTING PLAINTIFF’S Plaintiff, MOTION TO CONSOLIDATE [10] v. [11] INNOVATIVE CONSTRUCTION & 12 DESIGN LTD, a Washington corporation; BERKLEY 13 INSURANCE COMPANY, a Delaware corporation, [14] Defendants. [15] 16 BEFORE THE COURT is a Motion to Consolidate Pursuant to Fed. R. Civ. P. 17 42(a) by Plaintiff Bedrock Masonry, Inc. (“Bedrock”), ECF No. 17. Having 18 reviewed Bedrock’s Motion and attachments, ECF No. 17; Defendants Innovative 19 Construction & Design, Ltd. (“ICD”) and Berkley Insurance Company’s (“Berkley”) 20 Response in opposition to the Motion, ECF No. 18; Bedrock’s Reply, ECF No. 19; 21 the remaining record; and the relevant law, the Court is fully informed. 1 BACKGROUND 2 Bedrock moves to consolidate the above-captioned action with a lawsuit 3 pending between Plaintiff Monster Concrete, Inc. (“Monster”) and Defendants ICD 4 and Berkley in this District, Case No. 2:19-cv-375-SMJ. Bedrock and Monster were 5 both subcontractors in the Bureau of Reclamation’s Grand Coulee Dam Fire Station, 6 Contract No. R16PC00143 (the “Project”). See ECF No. 17-1 at 2; 17-2 at 2. ICD 7 was the general contractor on the Project. ECF No. 11 at 10. 8 Bedrock asserts that Bedrock and Monster worked on the project “during the 9 same general period,” and both Bedrock and Monster ceased working on the Project 10 after alleged nonpayment by ICD. See ECF No. 17-1 at 2; 17-2 at 2. Defendants 11 counter that the timeframes and scopes of work for the subcontract between ICD and 12 Bedrock differ significantly from those in the subcontract between ICD and 13 Monster. ECF No. 18 at 6. Bedrock allegedly entered a subcontract with ICD to 14 provide “masonry labor and materials” on October 24, 2016, and began its scope of 15 work on the Project on April 9, 2018. ECF No. 1 at 3. Monster allegedly entered a 16 subcontract with ICD to provide concrete construction services for the Project on 17 December 11, 2017, and began its scope of work the same month. ECF No. 1 at 3 in 18 Case No. 2:19-cv-375-SMJ. Bedrock’s subcontract allegedly provided for Bedrock 19 to perform the scope of work for a fixed price while Monster’s subcontract provides 20 for performance on a time and materials basis. ECF Nos. 1 at 3; 1 at 3 in Case No. 21 2:19-cv-375-SMJ. 1 Monster filed its Complaint on October 31, 2019, asserting the following 2 causes of action against ICD or Berkley, as noted: breach of contract (ICD); 3 quantum meruit/unjust enrichment (ICD); negligent misrepresentation (ICD); 4 violation of the Washington Consumer Protection Act (ICD); promissory estoppel 5 (ICD); fraud (ICD); and foreclosure against Miller Act Payment Bond (Berkley). 6 ECF No. 1 at 7−11 in Case No. 2:19-cv-375-SMJ. 7 On December 31, 2019, ICD and Berkley answered the Complaint and raised 8 the following affirmative defenses: failure to state a claim upon which relief can be 9 granted; material breach of the subcontract, excusing nonperformance; material 10 breach of the subcontract, disentitling Monster from making a claim against the 11 bond issued by Berkley; claims subject to the right of offset; doctrine of unclean 12 hands; breach of the covenant of good faith and fair dealing; claims barred by 13 doctrines of estoppel, laches, and waiver; and full performance by ICD of all 14 contractual obligations to Monster. ECF No. 9 at 7−8 in Case No. 2:19-cv-375- 15 SMJ. Additionally, ICD asserted the following counterclaims against Monster: 16 breach of contract/breach of good faith and fair dealing; unjust enrichment; and 17 promissory estoppel. Id. 18 Bedrock filed its Complaint in the instant lawsuit on December 23, 2019. 19 ECF No. 1. Bedrock’s Complaint raised the same causes of action against ICD and 20 Berkley as those raised by Monster’s Complaint in Case No. 2:19-cv-375-SMJ. 21 ECF No. 1 at 7. When ICD and Berkley filed their Answer on February 21, 2020, 1 Defendants raised the same affirmative defenses, and ICD raised the same 2 counterclaims, as those raised in Case No. 2:19-cv-375-SMJ against Monster. 3 Monster, ICD, and Berkley exchanged their initial disclosures pursuant to 4 Fed. R. Civ. P. 26(a)(1)(A) on February 13, 2020, and Bedrock, ICD, and Berkley 5 exchanged their initial disclosures on March 31, 2020. ECF Nos. 17-4, 17-5, 17-6, 6 and 17-7. The witnesses disclosed by Plaintiff and Defendants in the instant lawsuit 7 closely mirror the witnesses disclosed in Case No. 2:19-cv-375-SMJ. Id. 8 LEGAL STANDARD 9 Rule 42(a), Fed. R. Civ. P., permits courts to consolidate actions pending in 10 the same district that “involve a common question of law or fact . . . .” Actions, 11 however, need not be identical prior to consolidation under Rule 42. See Takeda v. 12 Turbodyne Techs., Inc., et al., 67 F. Supp. 2d 1129, 1133 (C.D. Cal. 1999) (writing 13 that Rule 42 does not “demand[] that the actions be identical before they may be 14 consolidated”). District courts have broad discretion regarding whether to 15 consolidate. In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987). 16 Generally, courts weigh “the interest in judicial convenience against the potential for 17 delay, confusion, and prejudice caused by consolidation.” Paxonet 18 Communications, Inc. v. TranSwitch Corp., 303 F. Supp. 2d 1027, 1028 (N.D. Cal. 19 2003) (citation omitted). 20 DISCUSSION 21 Bedrock contends that common issues of fact and law exist in this lawsuit and 1 Monster’s lawsuit against Defendants. ECF No. 19 at 2. However, ICD and 2 Berkley respond that the claims and counterclaims in the two lawsuits pertain “to 3 entirely separate contracts, involving entirely unrelated scopes of work, and alleging 4 distinctly separate breaches.” See ECF No. 18 at 7−9. 5 Bedrock further asserts that consolidation of the two lawsuits is likely to result 6 in cost savings for all parties involved. ECF No. 19 at 4. ICD and Berkley respond 7 that Bedrock’s Motion is “a transparent attempt to strategically 1) combine financial 8 resources by sharing the costs for a single litigation team and 2) to allow Plaintiffs to 9 jointly present evidence from each other’s claims which would otherwise be 10 irrelevant and prejudicial if presented in separate trials.” ECF No. 18 at 5. 11 However, Defendants do not provide any specific types of evidence that they 12 anticipate would be irrelevant or prejudicial if the cases were consolidated. 13 Defendants further assert that issues of convenience and economy must not 14 predominate over “the paramount concern for a fair and impartial trial.” ECF No. 18 15 at 3−4 (citing In re Repetitive Stress Injury Litig., 11 F.3d 368 , 373 (2d Cir. 1993, on 16 reh’g, 35 F.3d 637 (3d Cir. 1994) (internal quotation omitted)). 17 The Court finds that consolidation is prudent and warranted in these matters 18 and that the overlaps that Bedrock has set forth in briefing this Motion, between the 19 claims, counterclaims, affirmative defenses, evidence, and counsel in the two 20 lawsuits, will result in reduced costs and increased efficiencies in the resolution of 21 the two Complaints, as well as the affirmative defenses and counterclaims. While 1 the Court acknowledges that there are distinct factual determinations that may have 2 to be made regarding Monster and Bedrock and their respective relationships with 3 Defendants and to the Project, the similarities between the two matters is more than 4 superficial, as Defendants would have the Court believe. The Court also finds that 5 consolidation of these two contractual disputes does not risk the confusion and 6 potential for injustice discussed in the caselaw cited by Defendants, which addressed 7 the mass litigation context. See ECF No. 18 at 3−4 (quoting the following from In 8 re Repetitive Stress Injury, 11 F.3d at 373: “‘The systemic urge to aggregate 9 litigation must not be allowed to trump our dedication to individual justice, and we 10 must take care that each individual plaintiff’s—and defendant’s—cause not be lost 11 in the shadow of a towering mass litigation.’”) (quoting In re: Brooklyn Navy Yard 12 Asbestos Litig., 971 F.2d 831, 853 (2d Cir. 1992) (emphasis in Defendants’ brief 13 removed)). “[A]n act of consolidation does not affect any of the substantive rights 14 of the parties.” J.G. Link & Co. v. Continental Cas. Co., 470 F.2d 1133, 1138 (9th 15 Cir. 1972). Bedrock’s request for relief under Fed. R. Civ. P. 42(a) is granted. 16 Accordingly, IT IS HEREBY ORDERED: 17 1. Plaintiff Bedrock’s Motion to Consolidate, ECF No. 17, is 18 GRANTED. 19 2. The District Court Clerk is instructed to consolidate Case Nos. 2:19-cv20 429-RMP and 2:19-cv-375-SMJ under the 2:19-cv-429-RMP case number. [21] 1 All future filings for these consolidated actions shall be made under Case No. 2 2:19-cv-429-RMP. The file for Case No. 2:19-cv-375-SMJ shall be closed. 3 IT IS SO ORDERED. The District Court Clerk is directed to enter this 4 Order and provide copies to counsel. 5 DATED July 21, 2020. [6] s/ Rosanna Malouf Peterson 7 ROSANNA MALOUF PETERSON United States District Judge