BARKLEY v. OLYMPIA MORTGAGE CO

company arose out of "separate incidents and separate claims. . . ." 586 N.Y.S.2d at 305. Here, as noted above, the factual patterns and claims are common to all actions. Also inapposite is H. H. Robertson, where the appellate court affirmed the denial of a motion to consolidate two separate actions brought by different contractors against the same real estate developer arising out of different contracts with the developer. Although the parties' claims involved the same construction site, the court concluded that the two actions, inter alia, involved "different parties" and "different factual issues[.]" 554 N.Y.S.2d at 176. In Dean Witter Reynolds, the appellate court found that consolidation of actions concerning share prices for a real estate investment trust was not warranted where actions were commenced by different parties to enforce distinct insurance policies. 452 N.Y.S.2d at 405.

By contrast, plaintiffs' reliance on Hargraves v. Capital City Mortg. Corp., 140 F. Supp. 2d 7 (D.D.C. 2000) is persuasive. The Hargraves court denied the motion of a lending company and its president for separate trials where the court found that proof of the plaintiffs' claims of racially discriminatory lending practices "will be interwoven, particularly as to the expert witness testimony regarding patterns of racially discriminatory lending." 140 F. Supp. 2d at 28. The court observed that there "are distinct advantages in having the claims tried together, including the minimization of expense and delay, and the convenience of the parties and the Court." Id. at 29.

Although the instant actions involve different parcels of real property, as discussed above, the alleged fact patterns and law in each case are substantially the same and will require similar and overlapping fact and expert testimony and evidence. Thus, considerations of judicial efficiency strongly favor consolidation of the six above-captioned actions because they involve essentially the same legal theories, questions of law and fact, many of the same remaining defendants, and will require much of the same evidence.

Based upon the existence of many common factual and legal issues, and the overlapping nature of the evidence expected to be presented at trial, the court further finds that the risk of inconsistent verdicts here is significant, which factor further favors consolidation. Where the individual plaintiffs expect to rely on the same factual and expert evidence to establish their claims, they should not be required to try their claims in separate trials and risk being subject to inconsistent verdicts.

The UH Defendants contend that they will be "severely prejudiced" by a joint trial. (UH Defs. Consolidation Mem. at 6.) The contend that if the plaintiffs present their claims in one trial, the "jury will of necessity gather the preconceived notion that some conspiracy must have existed to bring all these people together against the defendants." ( Id. at 4.) They contend that plaintiffs' "common ancestry, background, and appearance . . . will cause any reasonable juror to believe that perhaps something is wrong, because otherwise how did all these people of like background come together." ( Id.) They further contend that the "respective sales in each of the actions are so dissimilar and the trial may prove so unwieldy, that . . . a joint trial will result in jury confusion. . . ." ( Id. at 6.)

Similarly, the Wachovia Defendants, as Rule 19 parties, contend that plaintiffs' "attempts to show a `pattern and practice' will undoubtedly result in an inference by the jury that all of the defendants (including Wachovia and Bayview) were involved in the same pattern and practice." (Wachovia Defs. Consolidation Mem. at 5.) The Wachovia Defendants request that the court order separate trials pursuant to Rule 42(b) on their defenses because "Bayview is nothing more than a servicer and Wachovia is a holder in due course of its mortgage." ( Id. at 6.) The Wachovia Defendants are concerned that evidence of alleged fraud and property flipping "will result in sympathetic jurors more concerned with compensating Lodge than whether or not Bayview or Wachovia had actual knowledge or Lodge's claim." ( Id. at 7.)

The Wachovia Defendants' Memorandum of Law is not paginated, but the court has paginated its copy of the Memorandum. Page 1 of the court's copy of the Memorandum begins on the "Introduction" page.

Rule 42(b) provides, in relevant part, that "[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims."

The UH Defendants' concerns regarding prejudice or confusion arising out of "pattern and practice" evidence do not outweigh the significant benefits of consolidation. Indeed, courts routinely consolidate cases involving allegedly discriminatory or unlawful practices or policies. See EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998) (affirming the district court's Rule 42(a) consolidation of claims of two plaintiffs alleging employment discrimination as (1) the cases had common questions of law and fact; (2) both plaintiffs sought to present similar evidence about a climate of racial hostility; (3) the same evidence was relevant to both plaintiffs in establishing why one was fired and why the other perceived a climate of racial discrimination); Caronia v. Hustedt Chevrolet, Nos. 05-cv-3526, 05-cv-4148, 05-cv-4149, 05-cv-4230, 2009 U.S. Dist. LEXIS 120971, at *10-*13 (E.D.N.Y. Dec. 29, 2009) (despite differences in various plaintiffs' causes of action for sexual discrimination and retaliation, the court ordered consolidation for trial due to a "substantial overlap" in the factual and legal issues); BD v. DeBuono, 193 F.R.D. 117, 141-43 (S.D.N.Y. 2000) (consolidation under Rule 42(a) of actions where plaintiffs' claims that defendants maintained an unconstitutional practice or policy limiting a particular therapy for the treatment of autism); LeGrand v. New York City Transit Auth., No. 95-cv-333, 1999 U.S. Dist. LEXIS 8020, at *23 (E.D.N.Y. May 26, 1999) (consolidation under Rule 42(a) of pregnancy discrimination suits warranted given common legal issue of existence of same unlawful discriminatory practice or policy of defendant); cf. Alaniz v. Zamora-Quezada, 591 F.3d 761, 774 (5th Cir. 2009) (affirming denial of a Rule 42(b) motion for separate trials where the plaintiffs each alleged "continuous sex discrimination involving the same modus operandi" and were "based on a similar series of transactions that were committed by the same defendant over a relatively short time span"); Alexander v. Fulton County, 207 F.3d 1303, 1324-25 (11th Cir. 2000) (affirming the district court's refusal to order separate trials under Rule 42(b) where 18 plaintiffs alleged a systematic pattern of racial discrimination by one particular supervisor, even though the plaintiffs complained of different adverse employment decisions and had different work histories), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Hargraves, 140 F. Supp. 2d at 28 (denying motion Rule 42(b) motion to sever, discussed above).

Similarly, consolidation will not prejudice Bayview or Wachovia's defenses. Plaintiffs correctly point out that, as "holders" of a negotiable instrument, the Wachovia Defendants' liability is limited to the instrument. ( See Pls. Consolidation Mem. at 6.) See Primavera Familienstiftung v. Askin, 173 F.R.D. 115, 130 (S.D.N.Y. 1997) ("Consolidation `does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.'" (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933))). Further, the Wachovia Defendants' concerns that the jury will compensate Lodge out of sympathy are merely speculative and insufficient to overcome the benefits of a joint trial.

Finally, any risk of confusion or prejudice at trial can be mitigated with jury instructions and verdict sheets. The Second Circuit has observed that "the risks of prejudice and confusion may be reduced by the use of cautionary instructions to the jury and verdict sheets outlining the claims of each plaintiff." Johnson, 899 F.2d at 1285 (citation omitted); see Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1008 (2d Cir. 1995) (risk of confusion or prejudice avoided in consolidated action where district court used "intelligent management devices" such as "special verdict forms to help the jury approach deliberations in a well-organized fashion"), vacated on other grounds sub nom. Consorti v. Owens-Corning Fiberglas Corp., 518 U.S. 1031 (1996); Caronia, 2009 U.S. Dist. LEXIS 120971, at *13 (finding that the defendants' "concerns regarding prejudice and juror confusion can be adequately addressed through the use of cautionary instructions to the jury and carefully crafted verdict sheets"); Franco v. Ideal Mortg. Bankers, Ltd., No. 07-cv-3956, 2009 U.S. Dist. LEXIS 91570, at *19 (E.D.N.Y. Sept. 28, 2009), aff'd, 2009 U.S. Dist. LEXIS 104550 (E.D.N.Y. Nov. 3, 2009). Indeed, the court will order the parties to submit proposed jury instructions and verdict sheets prior to trial.

Accordingly, the court, in its discretion, grants plaintiffs' motion to consolidate the above-captioned six actions for trial. The Wachovia Defendants' request for a separate trial is denied.

IV. CONCLUSION

For the foregoing reasons, the defendants' motions for summary judgment are denied and plaintiffs' motion to consolidate is granted. The parties shall confer about the length of the trial and dates of their availability for trial after December 10, 2010, and shall jointly advise the court of the same, in writing, by September 16, 2010.

SO ORDERED.

Dated: Brooklyn, New York

September 13, 2010