United States District Court, S.D. Texas, Houston Division
STANLEY J. FERNANDES, individually and on behalf of all others similarly situated, Plaintiff,
VMOC LLC, VMLH LLC, JAN AHMED AHMAD, and BARKAT ALI, Defendants.
MEMORANDUM AND ORDER
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE
2018, Stanley Fernandes sued VMOC LLC, VMLH LLC, Jan Ahmed
Ahmad, and Barkat Ali, alleging violations of the Fair Labor
Standards Act overtime-pay requirement. (Docket Entry No. 1).
Fernandes alleges that the defendants, owners and operators
of a Valero gas station, paid him and similarly situated
employees a fixed sum each week, although they routinely
worked more than 40 hours each work week. (Id. at
¶¶ 49, 50, 51). The defendants move to consolidate
this case with Fernandes v. Complex OMV, Inc., et
al, No. H-18-1475, to compel interrogatory answers, and
for a continuance. (Docket Entry Nos. 19, 21-22). The motions
are denied, for the reasons set out below.
The Motion to Consolidate
defendants argue that the court should consolidate this case
with Complex OMV because “the cases are
virtually identical, there is the same Plaintiff in both
cases, and consolidation will promote convenience and
judicial economy.” (Docket Entry No. 19). Fernandes
responds that there “are significant differences in the
two cases that prevent consolidation.” (Docket Entry
No. 20 at 3).
Federal Rule of Civil Procedure 42(a), “[i]f 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.” The district court has broad discretion in
determining whether there are common questions of law and
fact, whether to consolidate, and to what extent. Mills
v. Beech Aircraft Corp., 886 F.2d 758, 761-62 (5th Cir.
1989). The court may consider “whether the actions are
pending before the same court; . . . any risk of prejudice or
confusion from the consolidation, and the risk of
inconsistent adjudications of common factual or legal
questions if the matters are tried separately; and whether
consolidation will save time and expense.”
Moller-Maersk v. Safewater Lines, No. H-13-1726,
2017 WL 416296, at *4 n.8 (S.D. Tex. Jan. 31, 2017).
“Consolidation may properly be denied in instances
where the cases are at different stages of preparedness for
trial.” Mills, 886 F.2d at 762 (citing St.
Bernard Gen. Hosp., Inc. v. Hosp. Serv. Ass'n of New
Orleans, Inc., 712 F.2d 978, 990 (5th Cir. 1983)).
this case and Complex OMV share some facts, those
similarities do not warrant consolidation. Fernandes worked
as a clerk at the Valero gas station from February 2014 to
December 2017. In this case, Fernandes sued the Valero
station's current owners and operators, alleging that
they failed to pay him overtime, as required by the FLSA. In
Complex OMV, which is before Judge Ellison of this
Division and set for trial in September 2019, Fernandes sued
the ownership group that sold the Valero station to the
defendants in this case in June 2017, alleging similar
claims. The cases are not before the same judge. This case,
unlike Complex OMV, is rapidly approaching trial.
Fernandes does not allege that he worked for the ownership
groups at the same time, eliminating the risk of inconsistent
adjudications. The defendants have not explained why they
have moved to consolidate on the eve of trial, 11 months
after Fernandes filed the two lawsuits. No. factor weighs in
favor of consolidation. The motion, (Docket Entry No. 19), is
The Motion to Compel
defendants' motion to compel, (Docket Entry No. 21), is
inconsistent with this court's procedures, which require
a “party wishing to make a discovery motion [to]
arrange for a conference with the court before the
preparation and submission of any motion papers.”
(Docket Entry No. 15 at 2). The motion, (Docket Entry No.
21), is stricken. The defendants must file a premotion
dispute letter by April 10, 2019, explaining
the basis for the ruling they seek and why they waited to
seek relief until after the January 25, 2019, discovery
deadline. Fernandes must respond by April 13,
2019. The parties' submissions are each limited
to three pages. The court will hear argument at the docket
call set for April 15, 2019.
The Motion for a Continuance
defendants have moved for a continuance, arguing that
Fernandes has failed to respond to several discovery
requests. (Docket Entry No. 22). The motion is denied. The
defendants failed to take action within the discovery period
and now seek a delay a week before the long-scheduled docket
call. To the extent that there are legitimate discovery
differences or disagreements, the court will make adjustments
or order steps necessary to avoid prejudice at the docket
call scheduled for April 15, 2019.
motions, (Docket Entry Nos. 19, 21-22), are denied.
The parties must appear for docket call ...