A Norfolk U.S. District Court Magistrate Judge will consolidate these two actions: Sherwin-Williams’ suit against Norfolk Coating Services LLC and its owner Michael Winterling for unpaid invoices, and Norfolk Coating’s suit against Sherwin-Williams for breach of contract, breach of implied warranty and fraud related to Sherwin-Williams’ allegedly faulty refurbishment of a sprayer that resulted in peeling paint on ballast tanks painted by Norfolk Coating.
Federal Rule of Civil Procedure 42 provides that if actions before the court involve a common question of law or fact, the court may consolidate the actions. The critical question is whether the specific risks of prejudice and possible confusion from consolidation are overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one and the relative expenses to all concerned of the single-trial, multiple-trial alternatives.
The court grants Norfolk Coating’s and Winterling’s motions to consolidate Case 212 with Case 188 because the two cases involve common questions of law and fact. Case 212 and the counterclaim in Case 188 are almost identical, and will require the fact finder to determine to what extent Norfolk Coating is liable to Sherwin-Williams for unpaid invoices. The determination in these collection actions will be based on the same documents and witnesses. The only unique issues added by Case 212 are whether Winterling is a co-obligor on the account and, if so, whether he would be entitled to any setoff from the resolution of the Sprayer litigation. Because Case 212 and the counterclaim in Case 133 involve similar defendants, the same alleged failure to pay invoices, the same document and witnesses and the same defenses, consolidation of the cases is appropriate. Allowing Sherwin-Williams to litigate their collection action in two separate cases would result in duplication of efforts by the parties as well as the court, and would create the risk of inconsistent judgments. The benefits of consolidation, avoiding inconsistent judgments and promoting efficiency, significantly outweigh any potential prejudice or confusion caused by consolidation of the cases.
Although Case 188 is a jury trial and Case 212 is a bench trial, one trial can include both jury and non-jury issues. And during oral argument, counsel agreed that there will likely be a summary disposition of Sherwin-Williams’ claims for unpaid invoices in both cases. Sherwin-Williams argues that a jury may be confused in adjudicating a set-off. However, consolidating these actions will avoid the risk of inconsistent judgments and promote judicial economy by having one fact finder determine the liability of Norfolk Coating and Winterling to Sherwin-Williams for the unpaid invoices. Any risk of prejudice or confusion is clearly outweighed by the benefits of consolidation.
Motions to consolidate are granted.
Norfolk Coating Services LLC v. The Sherwin-William Co. (Miller) No. 2:14c188, Sept. 2, 2014; USDC at Norfolk, Va. VLW 014-3-463, 6 pp.