Case: 1:12-cv SJD-KLL Doc #: 17 Filed: 06/28/12 Page: 1 of 7 PAGEID #: 108

Transcription

1 Case: 1:12-cv SJD-KLL Doc #: 17 Filed: 06/28/12 Page: 1 of 7 PAGEID #: 108 JAVIER LUIS, UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Plaintiff, v. Case No. 8:12-cv-500-T-33AEP JOSPEH C. ZANG, CARLA BERGMAN, JOE O. ZANG, JOSEPH ZANG BUILDERS, JOSPEH ZANG CUSTOM BUILDERS, ZANG GENERAL CONTRACTORS, INC., MARY ZANG, MARY JILL DONOVAN, MICHAEL MCCAFERTY, DONOVAN LAW, and AWARENESS TECHNOLOGIES, Defendants. / JAVIER LUIS, Plaintiff, v. Case No. 8:12-cv-954-T-33TGW JOSPEH ZANG, CARLA BERGMAN, JOSPEH ZANG CUSTOM BUILDERS, ZANG GENERAL CONTRACTORS, INC., MARY JILL DONOVAN, MICHAEL MCCAFERTY, and DONOVAN LAW, Defendants. / ORDER This matter comes before the Court sua sponte. For the reasons below, the Court consolidates the above-captioned cases.

2 Case: 1:12-cv SJD-KLL Doc #: 17 Filed: 06/28/12 Page: 2 of 7 PAGEID #: 109 I. Background and Procedural History In December 2008, Javier Luis met Catherine Zang in an internet chat room. (Case No. 8:12-cv-500; Doc. # 14 at 15). Since that date, Mr. Luis and Ms. Zang have exchanged copious s, instant messages, and phone calls. Id. at 17. In late 2009, Ms. Zang discovered multiple electronic recording devices throughout her home. Id. at 16. Apparently, Ms. Zang s husband, Joseph Zang, installed the equipment to record Ms. Zang s behavior in anticipation of their pending divorce proceedings. Id. After further inspection, Ms. Zang discovered that her husband had also installed special tracking software on the family computer to monitor her on-line activity. Id. at 22. During the Zangs divorce proceedings, Mr. Zang produced multiple s and messages between Mr. Luis and Ms. Zang, taken from the Zang family computer s hard drive. Id. at 32. Many of these s originated from Mr. Luis s Tampa based computer. Id. at 16. According to Mr. Luis, these s were intercepted and retained without his knowledge or consent. Id. at 22. On March 7, 2012, Mr. Luis filed a pro se Complaint in this Court (Case No. 8:12-cv-500; Doc. # 1), in which he -2-

3 Case: 1:12-cv SJD-KLL Doc #: 17 Filed: 06/28/12 Page: 3 of 7 PAGEID #: 110 alleged that Mr. Zang and others violated 18 U.S.C. 2510, et seq., the Electronic Communications Privacy Act, as well as Florida and Ohio statutes barring wiretapping. Mr. Luis asserts that the Court has federal question jurisdiction over this suit. Id. at 9. Mr. Luis filed an Amended Complaint (Case No. 8:12-cv-500; Doc. # 14) on June 20, 2012, naming additional Defendants and adding claims for invasion of privacy, conspiracy, intentional infliction of emotional distress, defamation, and harassment. Mr. Luis seeks damages in the amount of $54, against each Defendant as well as injunctive relief. Id. at 22. After Plaintiff initiated case 8:12-cv-500 in this Court, various defendants removed a pending, parallel action previously filed by Mr. Luis in Florida state court. That case, 8:12-cv-954, was assigned to the Honorable Elizabeth A. Kovachevich. Therein, Mr. Luis asserted that Mr. Zang and other Defendants violated Florida s Security of Communications Act and violated his privacy rights via wiretapping. (Case No. 8:12-cv-954; Doc. # 2). Defendants removed the action based on the assertion that this Court has diversity jurisdiction. Mr. Luis has moved to remand the 8:12-cv-954 case to state court and various Defendants in case 8:12-cv-954 have moved to dismiss the action. -3-

4 Case: 1:12-cv SJD-KLL Doc #: 17 Filed: 06/28/12 Page: 4 of 7 PAGEID #: 111 On June 21, 2012, Defendants in case 8:12-cv-954 notified Judge Kovachevich of the existence of the earlier filed and related case of 8:12-cv-500. (8:12-cv-954; Doc. # 31). Based on Local Rule 1.04(b), M.D. Fla., Judge Kovachevich assigned case 8:12-cv-954 to the undersigned for all further proceedings. (8:12-cv-954; Doc. # 34). At this juncture, two nearly identical cases are pending before the undersigned District Judge. II. Consolidation Upon review of Federal Rule of Civil Procedure 42, which governs the consolidation of related matters, this Court consolidates the above-captioned cases for all proceedings, including trial Moore's Federal Practice, (Matthew Bender 3d ed.)( The broad managerial power of the district court to consolidate extends to the consolidation of cases where no motion has been brought. ). Rule 42(a), Fed. R. Civ. P., states: If actions before the court involve a common question of law or fact, the court may (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. Id. In Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir. 1985), the Eleventh Circuit, commenting on the -4-

5 Case: 1:12-cv SJD-KLL Doc #: 17 Filed: 06/28/12 Page: 5 of 7 PAGEID #: 112 provisions of Rule 42, Fed. R. Civ. P., noted, This rule is a codification of the trial court s inherent managerial power to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Id. at 1495 (citing In re Air Crash Disaster at Fla. Everglades, 549 F.2d 1006, 1012 (5th Cir. 1977)). The Hendrix court further explained, We have encouraged trial judges to make good use of Rule 42(a) in order to expedite the trial and eliminate unnecessary repetition and confusion. Hendrix, 776 F.2d at A trial court s decision to consolidate similar cases is purely discretionary. Id. However, in determining whether to employ the consolidation provisions of Rule 42(a), Fed. R. Civ. P., the trial court must assess: [w]hether the specific risks of prejudice and possible confusion are overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on the parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits against a single one, and the relative expense to all concerned of the singletrial, multiple-trial alternatives. Hendrix, 776 F.2d at In consideration of the many commonalities between the aforementioned cases, this Court determines that consolidation for all proceedings is appropriate. The consolidation of -5-

6 Case: 1:12-cv SJD-KLL Doc #: 17 Filed: 06/28/12 Page: 6 of 7 PAGEID #: 113 these cases will eliminate the risk of inconsistent adjudications of common factual and legal issues and inconsistent verdicts after separate trials. Further, consolidation will lessen the burden on the parties, will expedite the trial of these cases, and will eliminate unnecessary repetition and confusion. Once consolidation is effected, the Clerk will terminate case 8:12-cv-954, and this action shall proceed under case 8:12-cv-500, the Lead Case. All future pleadings shall be filed in the Lead Case. The parties may re-file in the Lead Case any motions that are currently pending in case 8:12-cv- 954 by July 16, The Court realizes that some duplication of efforts may be necessary if the parties elect to re-file those motions which were pending in case 8:12-cv- 954 in the Lead Case. However, this minor inconvenience will be far outweighed when the two actions are streamlined into one, and the parties are required to abide by only one set of case management deadlines and to participate in only one mediation conference, pretrial conference, and trial. Accordingly, it is now ORDERED, ADJUDGED, and DECREED: -6-

7 Case: 1:12-cv SJD-KLL Doc #: 17 Filed: 06/28/12 Page: 7 of 7 PAGEID #: 114 (1) The Clerk is directed to CONSOLIDATE case 8:12-cv-500-T- 33AEP and case 8:12-cv-954-T-33TGW for all further proceedings. (2) This action shall proceed under the Lead Case of 8:12-cv- 500-T-33AEP, and all future pleadings shall be filed in that case. Case 8:12-cv-954-T-33TGW is administratively closed. (3) The parties may re-file in the Lead Case any motions that are currently pending in case 8:12-cv-954-T-33TGW by July 16, DONE and ORDERED in Chambers, in Tampa, Florida, this 28th day of June Copies: All Counsel and Parties of Record -7-