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Unpaid overtime lawsuits severed for trial

Where two lawsuits involving alleged unpaid overtime were previously consolidated for discovery and pretrial purposes, they will now proceed to separate trials. Separate trials promote convenience, minimize the risk of prejudice to all parties and promote judicial expedition and economy.


These cases involve lawsuits from 10 of defendants’ current or former employees. Five of those plaintiffs were employed by defendants as “Loan Processors.” The other five plaintiffs were employed by defendants as “Loan Officers.” The court previously consolidated the cases for pretrial and discovery purposes. Now before the court is defendants’ motion for separate trials.


Separate trials would promote convenience. Before the consolidated trial was removed from the docket, it was set for 14 days. Plaintiffs identified 30 “Expect to Call” witnesses and 15 “May Call” witnesses, while defendants identified nine “Expect to Call” witnesses and four “May Call” witnesses.

While it is unclear what (if any) overlap there is between the witnesses plaintiffs expect to call in the two cases, there is only one witness that defendants intend to call that overlaps between the two cases. Managing 40-plus potential witnesses is certainly a difficult task, especially in a jury trial that stretches across three weeks where many of the witnesses reside out-of-state.

It appears that separating the trials would eliminate some of defendants’ witnesses in each trial, specifically those witnesses who defendants only intend to offer in one case or the other. Similarly, while the extent of the overlap for plaintiffs’ witnesses between the two cases is somewhat unclear, it is apparent that separate trials would allow some witnesses to only be called for one trial and not the other.

To be sure, plaintiffs will likely present some common evidence in the two trials. But Rule 42(b) does not instruct courts to hold a single trial if two trials would have some overlapping evidence. Moreover, the extent of overlapping evidence is likely limited.

Separate trials would also promote convenience for the parties, the jury and the court. Some of the plaintiffs reside out-of-state and separating the trials would enable the plaintiffs to travel only to those proceedings which are relevant to their own claims. Similarly, holding separate trials is convenient for the parties, their counsel, the jury and the court, as there would be fewer exhibits and witnesses to consider at one time. Two separate trials is also less of a burden on the court’s resources and each separately-empaneled jury’s time, as there are not any clear efficiencies that would result from a single trial.


Holding two trials also minimizes the risk of prejudice to all parties. There are 10 separate individualized inquiries that the jury must make Empaneling one jury to make all of those assessments increases the risk that the jury might find one supervisor (or one plaintiff) to not be credible and make a generalization about all of the supervisors or plaintiffs as a result.

Plaintiffs’ only prejudice argument is that they are prejudiced by having to “present the same case twice.” But that is no prejudice. There are plenty of situations where parties have to present similar cases multiple times—indeed, that is the entire point of the multidistrict litigation structure that Congress has created. Without any other articulation of specific prejudice that arises from two trials (and the court being unable to find any prejudice), the court is satisfied that the prejudice factor weighs in favor of two trials.

Judicial economy

Finally, separate trials promotes judicial expedition and economy. Generally, “a single trial will be more expedient and efficient.” However, in this case, the economies of a single trial are minimal: while there is some overlapping evidence, most of the evidence is highly individualized, meaning that the total amount of trial days is not significantly lessened by a single trial, and plaintiffs have not offered anything to suggest the contrary.

Moreover, the parties will be able to more efficiently and effectively present their evidence at a second trial, having seen what issues are undisputed in the first trial. Finally, there is no risk of inconsistent adjudications here, as the legal issues are straightforward; all that remains is for a jury to make the requisite factual findings for each individual plaintiff.

Defendants’ motion for separate trials granted.

Hughes v. NVR Inc., Case No. 1:21-cv-1018, May 10, 2023. EDVA at Alexandria (Alston). VLW 023-3-251. 7 pp.

VLW 023-3-251

Virginia Lawyers Weekly