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Winton Transportation, Inc. v. Pat South

October 20, 2006

WINTON TRANSPORTATION, INC., PLAINTIFF
v.
PAT SOUTH, IN HER OFFICIAL CAPACITY AS WARREN COUNTY COMMISSIONER, ET AL. DEFENDANT.



The opinion of the court was delivered by: District Judge Susan J. Dlott

ORDER CONSOLIDATING CASE Nos. 1:05CV471 AND 1:06CV646; VACATING THE COURT'S SEPTEMBER 5, 2006 NOTATIONAL ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT; ORDERING PLAINTIFF TO FILE A CONSOLIDATED COMPLAINT; and DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS' CROSS-: MOTION FOR SUMMARY JUDGMENT

On July 14, 2005, Plaintiff Winton Transportation, Inc. brought suit (hereinafter referred to as "Winton I") against Defendants Pat South, C. Michael Kilburn, and David G. Young, all in their official capacities as Warren County Commissioners. Plaintiff asserts the following claims:

(1) violation of its right to procedural due process, pursuant to 42 U.S.C. § 1983; (2) abuse of discretion; and (3) violation of Ohio Rev. Code § 307.90. Both Plaintiff and Defendants filed motions for summary judgment. (Docs. 16, 23.) Subsequent to the ripening of these motions and the completion of discovery, Plaintiff moved the Court for leave to amend its complaint. (Doc. 51.) With its proposed Amended Complaint, Plaintiff sought to add Warren County Grants Coordinator Jerry Haddix in his individual capacity and to assert a new claim against the Defendant Commissioners for violation of its First Amendment rights. Due to Plaintiff's delay in seeking leave to amend and because both parties had already moved for summary judgment as to the original complaint, the Court denied Plaintiff's Motion for Leave to File an Amended Complaint on September 5, 2006. (Doc. 59.)

Shortly thereafter, Plaintiff filed a new lawsuit (hereinafter referred to as "Winton II" with this court, asserting essentially the same claims as it raised in its proposed amended complaint. (Case No. 1:06CV646, doc. 1.) On October 13, 2006, the Court held a conference to discuss the status of the two cases. During this conference, Plaintiff's counsel assured the Court that the claims raised in Winton II were independent and did not overlap with the claims raised in Winton I. However, after reviewing the complaints in both cases and the parties' motions for summary judgment in Winton I, the Court finds that common questions of law and fact predominate in these two actions.

Accordingly, the Court CONSOLIDATES Winton I, No. 1:05CV471, and Winton II, No. 1:06CV646, pursuant to Fed. R. Civ. P. 42(a).*fn1 The Court additionally VACATES its September 5, 2006 Order Denying Plaintiff's Motion for Leave to File an Amended Complaint (doc. 59) and ORDERS Plaintiff to file a consolidated complaint. Finally, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion for Summary Judgment (doc. 16) and Defendants' Cross-Motion for Summary Judgment (doc. 23).

Susan J. Dlott United States ...


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