United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
the Court is the motion of defendants F.M.J. Restaurant, Inc.
and Royal Restaurant, Inc. (collectively,
“defendants”) to sever or, in the alternative,
for separate trials. (Doc. No. 28 [“Mot.”].)
Plaintiffs filed an opposition brief (Doc. No. 30
[“Opp'n”]) and defendants filed a reply (Doc.
No. 31 [“Reply”]). For the reasons set forth
herein, the motion is denied.
case, each of the four plaintiffs alleges that she is a
“well-known model, actor, and businesswoman, ”
(Doc. No. 5, First Amended Complaint (“FAC”),
¶¶ 16-19), whose image has been
“misappropriat[ed], misuse[d], and alter[ed] . . . by
[d]efendants in order to promote their gentlemen's clubs,
Diamond Lodge, Diamond Royale, and Diamond Club[.]”
(Id. ¶ 1.) They allege that defendants F.M.J.
Restaurant, Inc., Royal Restaurant, Inc., and Renato6,
“share a website . . . that contains links to separate
web pages for each respective club[, ]” and that
defendants “use their websites and online social media
marketing platforms to market and advertise [the three clubs]
as having ‘World Class Adult Entertainment” with
“Stunning Entertainers.'” (Id.
their motion to sever, defendants argue that each
plaintiff's claim is separate and that the claims were
improperly joined because they “do not arise out of the
same transaction or occurrence and the questions of fact are
not common to all plaintiffs as required by Fed.R.Civ.P.
20.” (Mot. at 378.) They further argue that “neither
settlement nor judicial economy would be facilitated by
allowing plaintiffs to join their claims together in this
action.” (Id.) Instead, defendants assert that
“prejudice would result to [them] by allowing all of
the plaintiffs to continue with their claims in one
action.” (Id.) Defendants ask that the
plaintiffs' claims be severed or, in the alternative,
that each plaintiff's claim be tried separately to a
separate jury, and that an order be issued requiring
mandatory attendance of each plaintiff at all court events
and hearings. (Id. at 384.)
support of their motion, defendants rely upon cases from the
Northern District of Ohio that apply the “logical
relationship” test to determine “whether the
issues of law and fact raised by the claims are largely the
same and whether substantially the same evidence would
support or refute all claims.” (Mot. at 382 (citing
cases).) Defendants cite other opinions by this court for the
proposition that “‘[m]ere factual similarity
between claims is not enough to show that claims arise from
the same transaction or occurrence.'” (Id.
at 382-83 (citing cases).) Finally, defendants point to a
case from the Southern District of Florida where
defendants' motion to sever eighteen (18) of the nineteen
(19) plaintiffs was granted upon findings that
“‘[t]he fact-specific nature of plaintiffs'
claims precludes any conclusion that judicial economy would
be served by joinder and that each plaintiff has different
factual allegations to support her claim.'”
(Id. at 383 (citing Gibson v. Cent. Fla.
Liquors, Inc., No. 1:16-cv-61152-UU, slip op. at 3 (S.D.
Fla. June 23, 2016) (see Doc. No. 28-1).)
opposition, although plaintiffs concede that the three
defendants “are distinct corporate entities with
separate liability to each [p]laintiff, ” (Opp'n at
395), they claim that defendants “coordinated their
marketing efforts and used the same marketing consultant to
acquire and post” their images. (Id.)
Plaintiffs argue that their causes of action “arise
from  the same course of conduct perpetrated by
[d]efendants, which raises numerous common issues of law and
fact.” (Id.) Thus, in plaintiffs' view,
joinder of these plaintiffs is not only permitted by the
federal rules but is encouraged as a means of serving
judicial economy while not prejudicing defendants.
(Id. at 395- 96.)
reply, defendants “concede that they [the moving
defendants] acted with each other in light of the fact that
they have a common owner, ” (Reply at 422), but they
resist any allegation that they acted in concert with
Renato6, LTD and claim that pursuing all the claims against
all three defendants in one suit “would be highly
prejudicial . . . [because] Renato6's posting of images
has no commonality with the facts surrounding the images
posted by [the moving defendants].” (Id. at
423.) They also argue that plaintiffs have failed to
recognize, or to respond to, the question of prejudice to the
defendants because “[t]he jury may punish defendants
improperly due to the number of plaintiffs or may award more
to one plaintiff based on the damage evidence presented in
regard to a different plaintiff.” (Id.)
Finally, defendants argue that the Court should take
direction from the management of asbestos cases, where,
although discovery may be consolidated,  the claims are
tried separately and given different case numbers.
(Id. at 424.)
parties have been misjoined, a district court may drop a
party or sever a claim against a party, but may not dismiss
the action on that basis.” Roberts. v. Doe,
No. 16-2082, 2017 WL 3224655, at *2 (6th Cir. Feb. 28, 2017)
(citing Fed.R.Civ.P. 21 and cases). The rules do not define
misjoinder; therefore, courts typically look to the
preconditions for permissive joinder set forth in
Fed.R.Civ.P. 20(a) to evaluate whether severance may be
warranted. Under Rule 20, parties and/or claims may be joined
in one action if “(A) they assert [or have asserted
against them] any right to relief jointly, severally, or in
the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to
all plaintiffs [or all defendants] will arise in the
action.” Fed.R.Civ.P. 20(a)(1), (2).
The ‘same transaction or occurrence' requirement is
a flexible concept, but the ultimate determination is whether
there are enough factual occurrences to ensure that joinder
is fair. Mere factual similarity between claims is not enough
to show that claims arise from the same transaction or
Burgos v. Bob Evans Farms, Inc., No. 2:11-55-DCR,
2011 WL 4528476, at *1 (E.D. Ky. Sept. 28, 2011) (quotation
marks and citation omitted).
gravamen of plaintiffs' complaint, especially as relevant
to the instant motion, can be ...