United States District Court, S.D. Ohio, Western Division
UNITED STATES FIRE INSURANCE CO., Plaintiff/Crossclaim Plaintiff
WATERFRONT ASSOCIATES, INC., Defendant/Third-Party Plaintiff,
C&B MARINE, LLC, Third-Party Defendant/Crossclaim Defendant HOSEA PROJECT MOVERS, LLC, et al., Plaintiffs,
WATERFRONT ASSOCIATES, INC., et al., Defendants.
J. Bowman, M.J., Barrett, J.
OPINION AND ORDER
Stephanie K. Bowman United States Magistrate Judge.
first of the two cases listed in the above caption has been
referred to the undersigned magistrate judge by U.S. District
Judge Susan J. Dlott for all purposes. (See Order of
June 8, 2017). The second case listed in the above caption is
assigned to U.S. District Judge Michael R. Barrett, with no
referral. However, for the reasons that follow, the
undersigned concludes that the two cases should be
consolidated into a single action, pursuant to Federal Rule
of Civil Procedure 42.
January 23, 2015, United States Fire Insurance Company
(“U.S. Fire”) initiated Civil Action No.
1:15-cv-46 against Waterfront Associates
(“Waterfront”). Plaintiff's original
complaint sought a judgment from this Court to declare an
insurance policy issued on a barge/restaurant
(“Barge”) owned by Waterfront to be void ab
initio, or in the alternative, to declare that there is
no coverage for the Barge and ordering Waterfront to pay U.S.
Fire $500, 000.00 plus interest, costs, and attorney's
fees. (Doc. 1).
Court first issued Scheduling Orders that required the
parties to disclose fact witnesses by November 16, 2015 and
expert witnesses by February 1, 2016, with a final discovery
deadline of April 15, 2016. (Docs. 20, 22). Near the close of
discovery, on March 18, 2016, Waterfront filed its third
party complaint against C&B Marine, LLC
(“C&B”), alleging that C&B's
negligence had caused the sinking of the Barge. (Doc. 35). On
May 6, 2016, U.S. Fire filed a cross-claim against C&B,
contingent upon U.S. Fire being subrogated to Waterfront for
the claimed loss of the Barge. U.S. Fire argues that if
C&B is responsible for the sinking of the Barge, then
C&B should be held liable to U.S. Fire for the $500, 000
in Policy proceeds that U.S. Fire previously advanced to
C&B on behalf of Waterfront. (Doc. 39).
filed a motion to stay proceedings and to compel arbitration,
which motion the undersigned recommended denying on November
8, 2016. (Doc. 48). Over objections, District Judge Susan J.
Dlott adopted that R&R, denying C&B's motion to
compel arbitration and to dismiss the case. (Doc. 56). An
Amended Calendar Order was filed soon after. Currently, all
fact discovery is scheduled to be completed by October 18,
2017, with a final discovery deadline of March 1, 2018. No
trial date has yet been scheduled in Case No. 1:15-cv-46, but
a settlement conference has been set for October 30, 2017.
April 19, 2017, C&B filed a motion to consolidate Case
No. 15-cv-46 with a later-filed case, Civil Action No.
15-cv-799. The second case was filed by Hosea Project Movers,
LLC and Hosea Demolition Movers, Inc. (collectively
“Hosea”) against Waterfront Associates, Inc. and
C&B Marine, LLC on December 17, 2015. In its original
complaint, and as amended March 22, 2016, Hosea alleges that
it entered into a July 3, 2014 letter agreement with
Waterfront, in which Hosea was to remove certain personal
property from the Barge belonging to Waterfront and its owner
Jeff Ruby, and to transport that property to Mr. Ruby's
warehouse. (Doc. 15 at ¶¶11-12). Hosea alleges that
Hosea had ownership rights to other personal property on the
Barge, valued at $85, 000. (Id. at ¶35).
Thereafter, Hosea “had the right and the obligation to
use its best efforts to sell the Waterfront Barge and, after
deducting for certain specific costs and expenses, to split
the net proceeds equally with Waterfront Associates.”
(Id. at ¶15). Hosea alleges that Waterfront had
the obligation to maintain its insurance policy on the Barge,
with insurance costs to be split equally. (Id. at
¶16). If Hosea was unable to sell the Barge by January
1, 2015, Hosea was to demolish it, scrap the hull, and after
deducting shared expenses, split the net salvage value with
Waterfront. (Id. at ¶17). Hosea states that it
did not intervene Case No. 1:15-cv-46, because it believed
its interests were “adequately protected by
Waterfront.” (Id. at ¶22).
Hosea filed its separate suit seeking “a constructive
trust over those [insurance] proceeds if and when this Court
declares that Waterfront Associates is entitled to some or
all of those proceeds.” (Id. at ¶23). In
addition to its constructive trust claim, Hosea alleges that
Waterfront breached an agreement to permit Hosea access to
the Barge, thereby depriving Hosea contract funds and of
personal property over which Hosea had become the owner.
(Id. at ¶¶33-35). Hosea's complaint
alleges tortious interference against C&B, and additional
counts for conversion and negligence against both Waterfront
and C&B. (Id. at ¶¶41-56). Hosea seeks
compensatory damages, punitive damages, and attorney's
fees. (See generally Doc.15).
Case No. 1:15-cv-799 was first filed in December 2015, it was
assigned to U.S. District Judge Michael R. Barrett. Both
Judge Barrett and the district judge to whom Case No.
1:15-cv-46 was previously assigned filed a Related Case Memo
that indicated their intention to keep the cases separately
assigned. During a status conference held on August
15, 2016, however, the parties and Judge Barrett expressed an
interest in holding global settlement discussions to resolve
both cases. (Minute Order of 8/15/16). Although a global
settlement has not been achieved, several parties have now
filed formal motions to consolidate the two cases.
(See Doc. 31 in Case No. 1:15-cv-799). Based upon
the procedural developments to date, the undersigned
concludes that consolidation is now appropriate.
April 19, 2017, Hosea and C&B filed a joint motion to
consolidate Case No. 1:15-cv-799 with the earlier filed Case
No. 1:15-cv-46. A nearly identical motion was filed by
C&B in Case No. 1:15-cv-46. Because Case No. 1:15-cv-799
remains before Judge Barrett and has not been referred, this
Order technically addresses only the motion pending in Case
No. 1:15-cv-46. At the same time, because the Order grants
the motion to consolidate, the Order is being filed in both
alone opposes consolidation, arguing that it will be
“significantly prejudiced” by being “forced
to litigate two separate and distinct breach of contract
cases” because Hosea allegedly has no connection to
U.S. Fire, and consolidation will “create more
work” because Case No. 1:15-cv-799 is already
“ripe for summary disposition” given several
pending dispositive motions. (Doc. 65 at 1-2 in Case No.
dispositive motions to which Waterfront refers include both
motions to dismiss and a motion for summary judgment. Shortly
after Case No. 1:15-cv-799 was filed, Waterfront filed a
motion to dismiss based on a lack of subject matter
jurisdiction. In February 2016, C&B filed a separate
motion to dismiss for failure to state any claim against it.
(Doc. 9). Soon after, Hosea filed its Amended Complaint,
mooting those early motions to dismiss. (See Minute
Order of 8/15/16). However, on April 15, 2016, C&B filed
a new motion to dismiss the first amended complaint,
maintaining that the amended complaint against C&B also
fails to state any claim as a matter of law. On ...