309 F.R.D. 193
D.N.J.2015Background
- ACR Energy Partners (ACR) filed the Original Action in federal court asserting possessory/property claims (trespass, conversion) and seeking injunctive, declaratory, and monetary relief relating to ACR’s claimed energy distribution system at the former Revel casino.
- Polo North declined to contract with ACR, allegedly sought alternative energy providers, and allegedly intended to interfere with ACR’s distribution system; Polo North moved to dismiss the Original Action for lack of subject-matter jurisdiction.
- Polo North filed a separate state-court action (the Removed Action) seeking to eject ACR from a central utility plant on land owned by Polo North; ACR removed that case to federal court and Polo North moved to remand.
- ACR moved to consolidate the Removed Action with the Original Action, arguing identical facts and issues (notably ACR’s rights under 11 U.S.C. § 365(h)) and judicial economy.
- The court evaluated consolidation under Fed. R. Civ. P. 42(a) and declined to consolidate for all purposes, citing (1) cases holding that improperly removed actions may not be deemed “before the court” for Rule 42(a) consolidation and (2) procedural differences in consequences if jurisdiction is lacking (remand vs. dismissal) that make full consolidation inappropriate.
- The court granted consolidation limited to issuing a single, consolidated decision on the common jurisdictional issue; ACR may renew a full-consolidation motion if the court retains jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Removed Action and Original Action should be consolidated for all purposes under Fed. R. Civ. P. 42(a) | Consolidation is appropriate because the cases involve the same operative facts and identical legal issues (ACR’s possessory rights under § 365(h)), promoting consistency and efficiency | The Removed Action was improperly removed and thus not properly “before the court”; procedural differences (remand vs. dismissal) counsel against full consolidation | Denied without prejudice for full consolidation; court will not consolidate actions for all purposes now |
| Whether the court may resolve the common jurisdictional question in a single, consolidated decision | Consolidated resolution ensures consistent adjudication and judicial economy | Even if consolidated generally is improper, the court can nevertheless decide common legal questions together | Granted limited: the court will decide the jurisdictional issue in a single, consolidated decision |
Key Cases Cited
- A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204 (3d Cir. 2014) (district courts have broad power to manage and consolidate cases with common questions)
- Ellerman Lines, Ltd. v. Atl. & Gulf Stevedores, Inc., 339 F.2d 673 (3d Cir. 1964) (consolidation permissible where actions share common questions of law or fact)
- United States v. Brandt Constr. Co., 826 F.2d 643 (7th Cir. 1987) (an improperly removed case is not pending before the district court for Rule 42(a) consolidation purposes)
- Bradgate Assocs., Inc. v. Fellows, Read & Assocs., Inc., 999 F.2d 745 (3d Cir. 1993) (procedural distinctions between removed and originally filed actions govern remand vs. dismissal outcomes)
- Mourik Int’l B.V. v. Reactor Servs. Int'l Inc., 182 F. Supp. 2d 599 (S.D. Tex. 2002) (same principle that improperly removed cases are not proper consolidation candidates)
- Grove Press, Inc. v. City of Phila., 300 F. Supp. 281 (E.D. Pa. 1969) (court declined full consolidation but resolved a common issue across both cases in a single decision)