United States District Court, E.D. Texas, Sherman Division
TEXAS FARMERS INSURANCE COMPANY as subrogee of Jose Prince and as subrogee of Jose Nieves
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendant Louisiana-Pacific
Corporation's Motion for Severance (Dkt. #15). After
considering the relevant pleadings, the Court finds that the
motion should be granted.
Corporation (“LP”) manufactures TechShield, a
radiant barrier product used in home construction. The
TechShield product reflects a roof's radiant heat away
from a home's attic, leading to improved energy
efficiencies and lowering utilities costs to homeowners.
(Dkt. #15 at p. 2).
Jose Prince's (“Prince”) and Jose Nieves'
(“Nieves”) residences had the TechShield product
installed, which was designed, manufactured, marketed, sold,
and distributed by LP. (Dkt. #7 at ¶ 7). Texas Farmers
Insurance Company (“Farmers”) insured both
Prince's and Nieves' real and personal property (Dkt.
#7 at ¶ 6). On May 23, 2015, lightning struck the Nieves
residence in Round Rock, Texas. (Dkt. #15 at p. 3). The
following day, lightning struck the Prince residence in
Frisco, Texas during a different storm. Each house caught
fire after being struck by lightning, causing substantial
structural damage to the residences as well as damage to
personal property. Farmers, in its amended complaint, alleges
that the lightning strikes at both homes
“energized” the TechShield radiant barrier (Dkt.
#7 at ¶ 9). Farmers also alleges that TechShield caused
both fires because TechShield “failed to withstand and
safely dissipate the lighting induced current, ” and
“ignited a fire” in the homes' attic space
that spread by igniting “nearby combustibles” in
each attic (Dkt. 16 at pp. 1-2). Therefore, Farmers claims
that LP's “improper design, manufacture, and
marketing” of TechShield caused the damage. As a result
of the home fires, Farmers, pursuant to insurance policies it
had with both Prince and Nieves, paid them $432, 477.50 and
$468, 419.16, respectively (Dkt. # 16 at p. 10).
November 22, 2016, Farmers, as subrogee of both Prince and
Nieves, submitted an amended complaint alleging strict
products liability, negligence, and breach of implied
warranties claims to recoup damages paid to Prince and Nieves
as a result of the fires. (Dkt. #16). Farmers joined its
claims under Rule 18 of the Federal Rules of Civil Procedure
for each independent home fire. On December 23, 2016, LP
filed this Motion to Sever the two claims brought by Farmers,
arguing that Rule 21 of the Federal Rules makes bringing the
claims together unwarranted (Dkt. #15). LP asserts that the
Court should sever the two claims because they do not arise
out of the same transaction or occurrence; do not share
common issues of law or fact; will require different evidence
and witnesses to prove them; and joining the claims together
would be costly, inefficient, and prejudicial to LP (Dkt.
#15). On January 5, 2017, Farmers filed a response (Dkt.
#16). On January 12, 2017, LP filed a reply (Dkt. #17).
of the Federal Rules of Civil Procedure establishes that
“[o]n motion or on its own, the court may at any time,
on just terms, add or drop a party, ” and “[t]he
court may sever any claim against a party.”
Fed.R.Civ.P. 21. Under Rule 21, a “district court has
the discretion to sever an action if it is misjoined or might
otherwise cause delay or prejudice.” Applewhite v.
Reichhold Chems., 67 F.3d 571, 574 (5th Cir.
1995). Trial courts have broad discretion to sever issues to
be tried before it. Brunet v. United Gas Pipeline
Co., 15 F.3d 500, 505 (5th Cir. 1994). But courts will
refuse to sever claims if “the court believes that it
only will result in delay, inconvenience, or added
expense.” In re Rolls Royce Corp., 775 F.3d
671, 680 n.40 (5th Cir. 2014).
under Rule 21 creates “two separate actions or suits
where previously there was but one.” U.S. v.
O'Neil, 709 F.2d 361, 368 (5th Cir. 1983). When a
single claim is severed, it proceeds as a “discrete,
independent action, and a court may render a final,
appealable judgment in either one of the resulting
properly joined the Prince and Nieves claims under Rule 18.
Rule 18 is a broad joinder rule, permitting parties to
“join as many claims as it has against an opposing
party.” Fed.R.Civ.P. 18. However, not all claims
properly joined under Rule 18 should proceed to a single
trial. The official commentary of Rule 18 states, “it
is emphasized that amended Rule 18(a) deals only with
pleading, ” and “a claim properly joined as a
matter of pleading need not be proceeded with together with
the other claims if fairness or convenience justifies
separate treatment.” Fed.R.Civ.P. 18: Notes of Advisory
Committee of Rule - 1966 Amendment. This district recognizes
that severance is “especially appropriate” if
trying claims together would “confuse the jury due to
legal and factual differences.” Delce v.
AMTRAK, 180 F.R.D. 316, 319 (E.D. Tex. 1998);
see Charles Alan Wright, et al., Fed. Prac. & P.
§ 1583 (April 2017) (“Rule 18(a) only deals with
joinder as an initial matter; the district court may decide
that for convenience, or to avoid prejudice, properly joined
claims should be treated separately for trial
purposes.”). Thus, the Court finds fairness,
efficiency, jury confusion, and possibility of prejudice the
primary considerations in the severance analysis.
argues, and the Court recognizes, that courts often utilize
Rule 21 to sever claims improperly joined under Rule 20 of
the Federal Rules. However, the Court may utilize Rule 20
cases in determining whether to sever properly joined Rule 18
claims. Our district has maintained that Rule 21
“should be read in conjunction with Rules 18, 19 and
20, ” because Rule 21 contains no standards governing
its operation, but is invoked when violation of another rule
occurs. Americans for Fair Patent Use, LLC v. Sprint
Nextel Corp., No. 2:10-CV-237-TJW, 2011 WL 98279, at *2
(E.D. Tex. Jan. 12, 2011). And the Fifth Circuit has held
that “district courts have considerable discretion to
deny joinder when it would not facilitate judicial economy
and when different witnesses and documentary proof would be
required for plaintiff's claims.” Acevedo v.
Allsup's Convenience Stores, Inc., 600 F.3d 516, 522
(5th Cir. 2010). Therefore, the Court finds it appropriate to
utilize Rule 20 cases in determining whether to sever
properly joined claims to the extent they weigh on fairness,
judicial economy, and prejudice.
motion for severance asserts multiple reasons as to why
trying the Prince and Nieves claims together would cause
unfairness, inconvenience, and prejudice to LP. First, LP
asserts that vastly different witnesses and documentary proof
will be necessary to adjudicate each claim. As stated above,
this Court has broad discretion to sever claims when
“different witnesses and documentary proof would be
required” to prove each claim, and severance is
appropriate if trying the claims together would
“confuse the jury due to legal and factual
differences.” Acevedo, 600 F.3d at 522;
Delce, 180 F.R.D. at 319. District courts in the
Fifth Circuit have considered such factors when deciding to
grant motions to sever. For example, in Guilbeau,
the Western District of Louisiana considered a motion to
sever medical patients' claims against medical product
manufacturers. See Guilbeau v. Wyeth, Inc., No.
09-1652, 2010 WL 2216710, at *2 (W.D. La. May 28, 2010). The
court concluded that because each plaintiff's
“witnesses would necessarily include the individual
plaintiff and all of his or her physicians, healthcare
facility representatives and fact witnesses, undue prejudice
and unnecessary jury confusion would likewise occur.”
each claim will likewise involve the individual homeowner,
vendors that conducted repairs to each home, investigators
who examined each individual home, and other witnesses with
knowledge unique to only one of the claims. For example,
seven distinct companies have information unique to the
Nieves claim, and ten distinct companies have information
unique to the Prince claim (Dkt. #15 at p. 8). While Farmers
contends that all of the witnesses in these companies are
damages witnesses, the damages Prince and Nieves suffered
will require entirely different calculations resulting from
claim-specific testimony. If tried together, the jury would
have to consider extensive testimony regarding the conditions
unique to each house before the fire, the resulting
structural damage unique to each house, property damage
unique to each claim, as well as living expenses unique to
both Prince and Nieves, which is likely to cause confusion.
Guilbeau, 2010 WL 2216710, at *2. Additional
witnesses likely to testify in this case include: the Round
Rock and Frisco Fire Departments, the cause and origin
investigators who examined each house, the claims adjusters
for both Prince and Nieves, as well as Prince and Nieves
themselves. These witnesses will only be able to testify
regarding the specific fire in which they were involved. This
will result in even more technical, claim-specific testimony
that the jury will have to distinguish between each claim
throughout. Farmers asserts that the cause and origin
expert's testimony will include “common
indicators” at both fire scenes unique to radiant
barrier fires generally. However, Farmers must still use its
witnesses and experts to prove that TechShield was the cause
in fact of each individual fire to prevail on their strict
products liability and negligence claims. See Gill v.
Ethicon Inc., No. ...