Desimone Hospitality Services, LLC v. West Virginia-American Water Company, No. 2:2014cv14845 - Document 2 (S.D.W. Va. 2014)

Court Description: MEMORANDUM OPINION AND ORDER: that the cases are consolidated for purposes of briefing and resolving the matter of remand; that Desimone Hospitality Services v. WV American Water Co., civil action 2:14-14845, is designated as the lead case with all further filings to be captioned and docketed in that case pending further Order of the Court; that counsel are directed to designate by agreement no more than three of their number from each of the plaintiff and the defendant sides to serve as liais on counsel for purposes of the consultations and to notice the designated lawyers on the record on or before 5/1/2014 and that liaison counsel are directed to meet and confer no later than 5/8/2014 for purposes of arriving at a proposed stipulated briefing schedule, etc. Signed by Judge John T. Copenhaver, Jr. on 4/18/2014. (cc: attys; any unrepresented party) (cds)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON DESIMONE HOSPITALITY SERVICES, LLC, Plaintiff, Lead Civil Action No.: 2:14-14845 (A.P. 2:14-2036) v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. SHAPE SHOP, INC. and THELMA FAYS, LLC d/b/a THELMA FAYS CAFE, Plaintiffs, v. Civil Action No. 2:14-14846 (A.P. No. 2:14-2008) FREEDOM INDUSTRIES, INC. and AMERICAN WATER WORKS SERVICE COMPANY, INC. and WEST VIRGINIA AMERICAN WATER COMPANY, Defendants. NOEL HARDMAN and BRIAN VANNOY and DIANA JOHNSON and COURTNEY HARPER and KATHRYN CASTO and ROBERT STRINGER and KIMBERLY LAPSLEY and TIMOTHY WILBURN and MEAGAN KRASYK and HEIDI STRICKLEN and MARK STRICKLEN and SONJA MARSHALL and MARLENE DIAL and MARGARET SUE ZALENSKI and JOSEPH ZALENSKI and JAMES PARSONS and JANET ATKINS and KEITH ROEHL and LISA ROEHL and CARL CHADBAND and KRISTI CHADBAND and WILLIAM LIPSCOMB and DEBRA LIPSCOMB and APRIL HARRIS and ARMELIA PANNELL and LENOX CHANDLER and 1 JOHNETTE JASPER and LATAUSHA TAYLOR and KEVIN STUBBLEFIELD and MARTHA STUBBLEFIELD and TAMMY PARSONS, Plaintiffs, v. Civil Action No. 2:14-14847 (A.P. No. 2:14-2009) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, Defendants. MADDIE P. FIELDS, Plaintiff, v. Civil Action No. 2:14-14848 (A.P. No. 2:14-2010) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, Defendants. RODOCO, INC. d/b/a DONUT CONNECTION, and ALMOST HEAVEN BURGERS, INC. d/b/a CHECKERS DRIVE-IN RESTAURANT and HARGIS UNLIMITED, LLC d/b/a KANAWHA CITY COIN LAUNDRY and MELANIE MARTIN and MEGAN SPEARS and SYRRA SALON LLC and PAUL KIRK d/b/a BARE KNUCKLES TATTOO SHOP, Plaintiffs, v. Civil Action No. 2:14-14849 (A.P. No. 2:14-2011) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, Defendants. 2 EG & K INC. and RUSTY A. CARPENTER, Plaintiffs, v. Civil Action No. 2:14-14850 (A.P. No. 2:14-2012) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, and JOHN DOE CORPORATION 1 THROUGH 5 and JOHN DOE, Defendants. SUSAN K. DYER individually and on behalf of all others similar situated, Plaintiff, v. Civil Action No. 2:14-14851 (A.P. No. 2:14-2013) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, Defendants. 5 CORNERS CAFà , LLC and THE VINTAGE BARBER SHOP and JUSTIN A. AMOS, Plaintiffs, v. Civil Action No. 2:14-14852 (A.P. No. 2:14-2014) FREEDOM INDUSTRIES, INC., Defendant. 3 CANDICE HENRY MAHOOD and CARRIE ANN SAMUELS and KATHERINE ELLA GRUBB and KELLI OLDHAM and ELIZABETH GRUBB, Plaintiffs, v. Civil Action No. 2:14-14853 (A.P. No. 2:14-2015) FREEDOM INDUSTRIES, INC. and DENNIS FARRELL and WEST VIRGINIA AMERICAN WATER COMPANY and OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR FREEDOM INDUSTRIES, INC., Defendants. VON HARVEY, Plaintiff, v. Civil Action No. 2:14-14854 (A.P. No. 2:14-2016) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER and AMERICAN WATER WORKS SERVICE COMPANY, INC. and OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR FREEDOM INDUSTRIES, INC., Defendants. 4 PRAY CONSTRUCTION COMPANY and A-LEX, INC. and GRUMPY S GRILLE, LLC and TWOD INC., Plaintiffs, v. Civil Action No. 2:14-14855 (A.P. No. 2:14-2017) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR FREEDOM INDUSTRIES, INC., Defendants. JOE FAZIO S RESTAURANT, INC., Plaintiff, v. Civil Action No. 2:14-14856 (A.P. No. 2:14-2018) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER, Defendants. LAURA GANDEE, individual and as representative of others similarly situated, Plaintiff, v. Civil Action No. 2:14-14857 (A.P. No. 2:14-2019) FREEDOM INDUSTRIES, INC., Defendant. 5 JOHN NELSON and WANDA TRIBBIE, an individual and as representative of and along with other stylists or barbers, located in Kanawha, Putnam, Boone, Jackson, Cabell, Clay Lincoln, Logan and Roane Counties similarly situated, Plaintiffs, v. Civil Action No. 2:14-14858 (A.P. No. 2:14-2022) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER COMPANY, Defendants. KUPPEL LLC d/b/a DREAM TANK d/b/a CAPITOL DOME BAR & GRILLE and REEMA FAMILY HAIRSTYLING, Plaintiffs, v. Civil Action No. 2:14-14859 (A.P. No. 2:14-2023) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER, Defendants. 6 SHANNON LARWA and SHANNON S SUITE SALON, LLC d/b/a SHANNON S SUITE SALON and JENNIFER SCHOOLCRAFT and INNOV8 SALON, LLC d/b/a INNOV8 SALON, LLC and ALEX MORGADO and MORGADO DESIGN, LLC d/b/a MORGADO DESIGN and JOHN PATRICK BURGESS, DDS and MADIGAN RAE BURGESS, DDS, individually and on behalf of all others similarly situated, Plaintiffs, v. Civil Action No. 2:14-14860 (A.P. No. 2:14-2024) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER COMPANY, Defendants. CORNELLISUS D. CHRISTIAN, Plaintiff, v. Civil Action No. 2:14-14861 (A.P. No. 2:14-2025) FREEDOM INDUSTRIES, INC., Defendant. JOHN LEVIN and LOUISA LEVIN on behalf of themselves and all others situated, Plaintiffs, v. Civil Action No. 2:14-14862 (A.P. No. 2:14-2026) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER COMPANY, Defendants. 7 GRAZIANO INVESTMENTS, INC. and CATERING UNLIMITED, INC. and SHELTON S OF KANAWHA CITY, LLC and ERIC BOOTH individually and on behalf of others similarly situated, Plaintiffs, v. Civil Action No. 2:14-14863 (A.P. No. 2:14-2027) FREEDOM INDUSTRIES, INC., Defendant. HAIR WE ARE, INC., Plaintiff, v. Civil Action No. 2:14-14864 (A.P. No. 2:14-2029) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER, Defendants. JUNE GURSKI and JOHN DOE BUSINESS OWNER, Plaintiffs, v. Civil Action No. 2:14-14865 (A.P. No. 2:14-2030) FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY and JOHN DOE CORPORATION 1 THROUGH 5 and JOHN DOE, Defendants. 8 LITTLE BO PEEP DAYCARE and KIDS R US DAYCARE and PAULINE'S HOUSE OF CURLS and JANE GURSKI and PAULA MILLER, individually and on behalf of others similarly situated, Plaintiffs, v. Civil Action No.: 2:14-14866 (A.P. 2:14-2031) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. BOBBY L. TUCKER and REBA TUCKER, his wife, Plaintiffs, v. Civil Action No.: 2:14-14867 (A.P. 2:14-2032) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. MAID IN THE USA, INC., doing business as Maid to Perfection of Charleston, Plaintiff, v. Civil Action No.: 2:14-14868 (A.P. 2:14-2030) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. 9 OTIS TUCKER and DANETTE TUCKER, his wife, Plaintiffs, v. Civil Action No.: 2:14-14869 (A.P. 2:14-2034) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. THE TOWN OF BUFFALO, Plaintiff, v. Civil Action No.: 2:14-14870 (A.P. 2:14-2035) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. RONNIE ALLEN BRISCOE and DENISE EVON BRISCOE, Plaintiffs, v. Civil Action No.: 2:14-14871 (A.P. 2:14-2037) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. DEBORAH J. HEDRICK, Plaintiff, v. Civil Action No.: 2:14-14872 (A.P. 2:14-2038) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. 10 WILLIAM DESIMONE, JR. and DEANNA L. DESIMONE, Plaintiffs, v. Civil Action No.: 2:14-14873 (A.P. 2:14-2039) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. LARRY NEWHOUSE and BRENDA NEWHOUSE, Plaintiffs, v. Civil Action No.: 2:14-14874 (A.P. 2:14-2040) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. WELLINGTON'S, INC., a West Virginia corporation, doing business as Wellington's Cafe' & Catering, Plaintiff, v. Civil Action No.: 2:14-14875 (A.P. 2:14-2041) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. 11 DARRELL L. MOORE and TAMMY MOORE, his wife, Plaintiffs, v. Civil Action No.: 2:14-14876 (A.P. 2:14-2042) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. GARY N. DEWEESE and CONNIE L. DEWEESE, Plaintiffs, v. Civil Action No.: 2:14-14877 (A.P. 2:14-2043) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. GERALDINE JOHNS, Plaintiff, v. Civil Action No.: 2:14-14878 (A.P. 2:14-2044) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. 12 CHRISTOPHER M. DEWEESE and LORI L. DEWEESE, Plaintiffs, v. Civil Action No.: 2:14-14879 (A.P. 2:14-2045) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. CHRISTOPHER JORDAN, Plaintiff, v. Civil Action No.: 2:14-14880 (A.P. 2:14-2046) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. SANDYLOU & TIFFANY 2, LLC, a West Virginia corporation, doing business as Angaleno's Pizza, Plaintiff, v. Civil Action No.: 2:14-14881 (A.P. 2:14-2047) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. MARGIE JORDAN, Plaintiff, v. Civil Action No.: 2:14-14882 (A.P. 2:14-2048) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. 13 NICK KONNOVITCH, Plaintiff, v. Civil Action No.: 2:14-14883 (A.P. 2:14-2049) WEST VIRGINIA-AMERICAN WATER COMPANY and FREEDOM INDUSTRIES, INC., Defendants. MISTY HARRIS, Plaintiff, v. Civil Action No.: 2:14-14884 (A.P. 2:14-2050) WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. MARY BARBER Plaintiff v. Civil Action No.: 2:14-14885 (A.P. No. 2:14-2051) WEST VIRGINIA AMERICAN WATER COMPANY Defendant WARREN SHAMBLIN and JESSICA SHAMBLIN, Plaintiffs v. Civil Action No.: 2:14-14886 (A.P. No. 2:14-2052) WEST VIRGINIA AMERICAN WATER COMPANY Defendant 14 BUFFALO VOLUNTEER FIRE DEPARTMENT, INC., Plaintiff v. Civil Action No.: 2:14-14887 (A.P. No. 2:14-2053) WEST VIRGINIA AMERICAN WATER COMPANY Defendant TRENT FORBIS and LESLI FORBIS Plaintiffs v. Civil Action No.: 2:14-14888 (A.P. No. 2:14-2054) WEST VIRGINIA AMERICAN WATER COMPANY Defendant EJ&K ENTERPRISES, LLC and SOUTH HILLS MARKET & CAFà , LLC Plaintiffs v. Civil Action No.: 2:14-14889 (A.P. No. 2:14-2055) WEST VIRGINIA AMERICAN WATER COMPANY Defendant JASON BROGAN Plaintiff v. Civil Action No.: 2:14-14890 (A.P. No. 2:14-2056) WEST VIRGINIA AMERICAN WATER COMPANY Defendant 15 AM & GH LLC, doing business as Grano, and L AND G FOODS, INC. and SAHARA CATERING & RESTAURANT, INC., and MADELINES CAFà INC., and MOUND CLEANERS, INC., and NEXUS ATHLETIC CLUBS, INC., and CITY FITNESS, INC., and NAUTILUS FITNESS CENTER, INC., and KINETIX FITNESS LLC, and PAUL WALTON, JR., and TABETHA PEIROS and BART A. ROBERTS and KRISTI MADDOX, and all others similarly situated, Plaintiffs v. Civil Action No.: 2:14-14891 (A.P. No. 2:14-2057) WEST VIRGINIA AMERICAN WATER COMPANY Defendant FALBO & MONDAY, PLLC, and similiarly situated, Plaintiffs v. Civil Action No.: 2:14-14892 (A.P. No. 2:14-2058) WEST VIRGINIA AMERICAN WATER COMPANY Defendant 16 J. E., individually and on behalf of their minor child, K.E., Plaintiff v. Civil Action No.: 2:14-14893 (A.P. No. 2:14-2059) WEST VIRGINIA AMERICAN WATER COMPANY Defendant MELISSA JEAN MEDLEY, Plaintiff v. Civil Action No.: 2:14-14894 (A.P. No. 2:14-2060) WEST VIRGINIA AMERICAN WATER COMPANY Defendant RICHARD GRAVELY, Plaintiff v. Civil Action No.: 2:14-14895 (A.P. No. 2:14-2061) WEST VIRGINIA AMERICAN WATER COMPANY Defendant 17 SCOTT MILLER and BAR 101, LLC, and ICHIBAN, individually and on behalf of all others similarly situated, Plaintiffs v. Civil Action No.: 2:14-14896 (A.P. No. 2:14-2062) WEST VIRGINIA AMERICAN WATER COMPANY Defendant MARK STRICKLAND, Plaintiff v. Civil Action No.: 2:14-14897 (A.P. No. 2:14-2063) WEST VIRGINIA AMERICAN WATER COMPANY Defendant DANIEL CLEVE STEWART, Plaintiff v. Civil Action No.: 2:14-14898 (A.P. No. 2:14-2064) WEST VIRGINIA AMERICAN WATER COMPANY Defendant 18 KRISTY ORD and SHERRI VANCE and CAMBREE VANCE and ANN PERRINE and SANDRA BOWLES and JENNIFER TOTTEN and WILLIAM G. JONES, Plaintiffs v. Civil Action No.: 2:14-14899 (A.P. No. 2:14-2065) WEST VIRGINIA AMERICAN WATER COMPANY Defendant ADELPHIA, INC., on behalf of themselves and all others similarly situated, doing business as Adelphia Sports Bar & Grill, doing business as Capitol Car Wash, doing business as Spyros Parking Lots, Plaintiffs v. Civil Action No.: 2:14-14900 (A.P. No. 2:14-2067) WEST VIRGINIA AMERICAN WATER COMPANY Defendant 19 KANAWHA GOURMET SANDWICHES, LLC, individually and on behalf of all others similarly situated Plaintiff v. Civil Action No.: 2:14-14901 (A.P. No. 2:14-2028) FREEDOM INDUSTRIES, INC., and WEST VIRGINIA AMERICAN WATER and OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR FREEDOM INDUSTRIES, INC., Defendants MEMORANDUM OPINION AND ORDER Pending are certain motions to remand filed on various dates in each of the above-styled adversary proceedings except for Christian v. Freedom Industries, Inc., 2:14-14861. These motions are subject to a briefing order entered in the bankruptcy court on March 27, 2014. The assignment of these formerly miscellaneous actions was entered April 10, 2014. On April 16, 2014, the court withdrew the references of the cases to the bankruptcy court. The court presently has under consideration certain administrative steps to achieve the just, speedy, and efficient resolution of the litigation. The purpose of this memorandum opinion and order is to address a limited consolidation of the cases pending the further order of the court. 20 I. Freedom is a West Virginia corporation engaged primarily in the production of specialty chemicals for the mining, steel, and cement industries. It is also a leading supplier of freeze conditioning agents, dust control palliatives, flotation reagents, water treatment polymers, and other specialty chemicals. Freedom operates two production facilities in West Virginia, namely, in Nitro ( Nitro Facility ) and Charleston ( Charleston Facility ). On January 9, 2014, an apparent leak occurred in one of Freedom s storage tanks located at the Charleston Facility. On January 17, 2014 ( Petition Date ), Freedom petitioned in this district for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101. At the time of filing of the omnibus motions to withdraw reference, 62 civil actions had been instituted against various defendants relating to the incident. Freedom contends it is foreseeable that, in those cases where it is not named, parties will assert indemnity or contribution claims against it at a later time. On February 21 and 22, 2014, Freedom removed to the bankruptcy court those state actions in which it was named a defendant. On February 24, 2014, West Virginia American 21 Water Company ( WVAWC ) removed to this court as related-to cases each of the state actions in which Freedom was not named.1 The factual allegations in all of the cases arise from the alleged leak. According to Freedom, the claims vary and rely on a range of legal and equitable theories. No one disputes, however, that the plaintiffs assert one or more of four categories of claims as follows: (a) physical personal injury tort claims, such as bodily injury, emotional distress and/or requests for medical monitoring to detect bodily injury in the future; (b) non-physical personal injury tort claims, such as annoyance, loss of enjoyment, nuisance and inconvenience; (c) property-related claims, such as trespass, property damage, and loss of use of property; and (d) financial claims, such as lost income or loss-of-business claims. 1 Two cases were instituted in the district court invoking federal question jurisdiction. Two more were removed and invoke diversity jurisdiction under the Class Action Fairness Act ( CAFA ) and 28 U.S.C. § 1332(d)(2). The remaining actions were instituted in various state circuit courts and removed as adversary proceedings pursuant to 28 U.S.C. §§ 1334 and 1452(a). 22 II. A. The Governing Standard Federal Rule of Civil Procedure 42(a) provides as follows: (a) Consolidation. 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. Fed. R. Civ. Proc. 42(a). Our court of appeals affords broad discretion to district courts in assessing the desirability of consolidation, recognizing the superiority of the trial court in determining how best to structure similar pieces of litigation. See A/S J. Ludwig Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928, 933 (4th Cir. 1977) ( District courts have broad discretion under F.R.Civ.P. 42(a) to consolidate causes pending in the same district. ). It has, however, provided guidelines for exercising that discretion. See Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982). Those guidelines essentially balance the specific risks of prejudice and possible 23 confusion with the potential for inconsistent adjudications of common factual and legal issues and the burden on available judicial resources posed by multiple lawsuits. Id. at 193. Efficiency from a time and cost perspective are also considered. Id.. The risk of inconsistent adjudications, substantial expense to the parties, and inefficient use of court resources markedly increases here if the court declines consolidation at least to some extent. Consolidation for purposes of adjudicating the motions for remand, with coordinated and consolidated briefing, would avoid each of those undesirable outcomes and diminish the chances of confusion and prejudice that might otherwise result. For example, an individual consideration of dozens of sets of remand briefs, with differing arguments by the parties, might lead to remand in some cases but not others depending upon the precise grounds raised by particular plaintiffs seeking a return to state court. The length of time required to resolve each of these actions separately, and the expenses associated therewith, also militate strongly in favor of consolidation as to the remand motions. 24 Based upon the foregoing, a limited consolidation is appropriate. Additionally, other initial procedural devices are in order at this time. The court, accordingly, ORDERS as follows: 1. That the above-styled civil actions be, and hereby are, consolidated for purposes of briefing and resolving the matter of remand; 2. That Desimone Hospitality Services v. West Virginia American Water Company, civil action 2:14-14845, be and hereby is, designated as the lead case, with all further filings to be captioned and docketed in that case pending the further order of the court; 3. That counsel for the parties be, and hereby are, directed to designate by agreement no more than three of their number from each the plaintiff and the defendant sides to serve as liaison counsel for purposes of the consultations required below and to notice the designated lawyers on the record on or before May 1, 2014; and 4. That, in lieu of the briefing order entered in the bankruptcy court on March 27, 2014, liaison counsel be, and hereby are, directed to meet and confer no 25 later than May 8, 2014, for purposes of arriving at a proposed stipulated briefing schedule designed to result in a single set of omnibus briefing that addresses all of the arguments for remand found in the pending remand motions. The Clerk is directed to forward copies of this written opinion and order to all counsel of record. DATED: April 18, 2014 John T. Copenhaver, Jr. United States District Judge 26

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