Gabriel v. OneWest Bank, FSB Do not docket in 4:12cv324. Case is consolidated under 4:11cv3356.
4:12-cv-00324
S.D. Tex.Apr 5, 2012Background
- Two related foreclosure actions were filed by Floyd J. Gabriel against OneWest Bank, FSB, later consolidated for purposes of efficiency.
- Case H-11-3356 involves Gabriel pro se against OneWest; case H-12-324 includes Gabriel and Racquel Davis represented by counsel Frank A. Rush.
- Both actions allege wrongful foreclosure on the same property and share common questions of law and fact.
- Defendant moved to consolidate under Rule 42(a); the court evaluated factors including common issues, parties, stage of litigation, and potential efficiencies.
- Gabriel in H-11-3356 missed scheduling conferences and a dismissal motion was pending; Rush represents plaintiffs in H-12-324.
- The court granted consolidation, ordering that the cases proceed under H-11-3356, and directed counsel to clarify representation and respond to the pending motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consolidation is appropriate under Rule 42(a). | Gabriel (H-11-3356) argues consolidation saves time and avoids duplication. | OneWest argues common issues and efficiency support consolidation; separate actions would be duplicative. | Consolidation granted; appropriate under Rule 42(a). |
| Impact of Gabriel's self-representation on consolidated proceedings. | Gabriel's pro se status in H-11-3356 should not mechanically prevent consolidation. | Consolidation is still appropriate given common issues and efficiency, despite Gabriel's representation status. | Consolidation approved with conditions related to representation. |
| Procedural steps following consolidation regarding representation. | Rush may represent Gabriel in both actions; if so, he should file a joint response to the motion to dismiss. | If Rush does not represent in both actions, Gabriel must respond personally. | Court ordered Rush to confirm representation within seven days and file/coordinate responses within specified deadlines. |
| Effect of consolidation on scheduling and future judgments. | Consolidation should streamline proceedings and allow unified handling of issues. | Consolidation does not merge suits into a single action but helps avoid inconsistent adjudications. | Consolidation does not merge actions but preserves separate identities while allowing joint proceedings. |
Key Cases Cited
- Mills v. Beech Aircraft Corp., 886 F.2d 758 (5th Cir. 1989) (courtwide discretion in consolidation; factors for consideration)
- Frazier v. Garrison I.S.D., 980 F.2d 1514 (5th Cir. 1983) (actions retain separate identity after consolidation)
- McKenzie v. U.S., 678 F.2d 571 (5th Cir. 1982) (consolidation preserves separate actions; separate judgments possible)
- Miller v. U.S. Postal Serv., 729 F.2d 1033 (5th Cir. 1984) (emphasis on maintaining separate judgments after consolidation)