Elliot v. Humana, Inc.Elliot v. Humana, Inc.
This is a class action arising from alleged violations of the
I. BACKGROUND
Humana is a corporation headquartered in Louisville, Kentucky, that sells health insurance and related services. [DE 14 at 58]. On June 21, 2022, Elliot filed this class action against Humana, alleging violations of the TCPA. [DE 1]. The complaint alleges that Humana placed unsolicited prerecorded or artificial voice calls to non‑customers’ cellular phones without consent, failed to provide a compliant opt‑out mechanism, and failed to maintain or honor an internal do‑not‑call registry. [See id. at 3–4, 6–7].
On April 9, 2025, this Court granted class certification and certified the following modified Prerecorded Calls Class:
All persons or entities through the United States (1) to whom Humana placed, or caused to be placed, a call (2) directed to a number assigned to a cellular telephone service, but not assigned to a current account holder of Humana or a person who consented to receive calls on behalf of an account holder (3) in connection with which Humana used an artificial or prerecorded voice, (4) four years from the filing of this action through the date of class certification.
[DE 205 at 6521]. The effective date of the class is June 21, 2018 (four years before the action was filed) to April 9, 2025 (the date of class certification). [Cf. DE 1; DE 205].
On August 28, 2025, a separate action styled Kousiry v. Humana Inc. was filed in the United States District Court for the Middle District of Florida. See Compl., Kousiry v. Humana Inc., Case No. 6:25‑cv‑01663‑JSS‑DCI (M.D. Fla. filed Aug. 28, 2025), Dkt. No. 1. The Kousiry action involves near-identical allegations that Humana violated the TCPA and seeks certification of a “Prerecorded Voice Class.” See id. (alleging that Humana “knowingly makes thousands of prerecorded calls without consent to wrong numbers and non-customers, despite knowing the phone numbers are wrong and often after being asked to stop calling” in violation of
On March 26, 2026, Humana moved—pursuant to the first‑to‑file doctrine and
Elliot has now proceeded to the class notice process. The parties dispute whether, and to what extent, additional discovery is required for the purposes of identifying members of the
Both Elliot and Kousiry have been referred to Magistrate Judge Lindsay. [See DE 237 (referring Elliot to the magistrate “to create a new scheduling order and address the parties’ potential discovery dispute” discussed supra); Kousiry v. Humana Inc., Case No. 3:26‑cv‑00231‑RGJ-CHL, Dkt. No. 44 (referring Kousiry “for resolution of all litigation planning issues, entry of scheduling orders, and disposition of non‑dispositive matters, including discovery)].
II. ANALYSIS
A. Motion to Consolidate
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District courts have broad discretion when determining whether consolidation is appropriate. Stemler v. Burke, 344 F.2d 393, 396 (6th Cir. 1965). But courts should ensure “that consolidation does not result in unavoidable prejudice or unfair advantage,” Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993). The goal of consolidation “is to administer the court’s business with expedition and economy while providing justice to the parties.” Advey, 962 F.2d at 1181. To that end, courts consider the following factors when deciding whether to consolidate cases:
Whether the specific risks of prejudice and possible confusion are overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives.
Cantrell, 99 F.2d at 1011 (Cantrell factors). Thus, consolidation is “not justified or required simply because the actions include a common question of fact or law.” Banacki v. OneWest Bank, FSB, 276 F.R.D. 567, 571 (E.D. Mich. 2011). Balancing these factors, courts routinely decline to consolidate cases that are “not in similar stages of development.” Borden v. Coll., No. 1:16-CV-519, 2016 WL 5791649, at *2 (S.D. Ohio Oct. 4, 2016). See also De Angelis v. Nat’l Ent. Grp. LLC., No. 2:17-CV-924, 2019 WL 1024954, at *4 (S.D. Ohio Mar. 4, 2019) (finding “the Hogan litigation is sufficiently farther advanced than the VM3015 litigation to make consolidation inappropriate” but ordering the parties to coordinate discovery efforts for the sake of judicial economy). Likewise, courts have observed that “the fact that both cases are pending before the
As an initial matter, these two cases—one a certified class action and the other a putative class action—are in substantially different stages of litigation. The Elliot class has been certified, upheld on appeal, and is now in the class notice process. Fact discovery substantially closed in 2024, and a scheduling order is being set by the magistrate judge. [See DE 61; DE 237]. Plaintiff has proposed a trial date of September 13, 2027. [DE 255]. In contrast, Kousiry remains in fact discovery. [Id.].
Nevertheless, Humana argues that consolidation is appropriate because “[t]his action and the Kousiry case involve nearly identical factual allegations and legal theories.” [DE 241 at 6990]. There does not appear to be a genuine dispute that the claims in Elliot and Kousiry arise from substantially the same, if not identical, alleged courses of conduct by Humana. [Compare id. (“In short, both actions allege violations of the TCPA based on substantially the same alleged prerecorded calling practices related to the same Humana program, during overlapping time periods.”), with DE 244 at 7013 (distinguishing Kousiry only because it “involves later conduct outside the time period certified in Elliot”)]. That the cases involve common questions of law or fact favors consolidation. Thus, Humana asserts, consolidating the two matters “will materially advance judicial efficiency and conserve substantial judicial and party resources” by eliminating the need for “duplicative written discovery, overlapping depositions, and repetitive pretrial motion
Yet Humana overstates the extent to which inefficiencies would be eliminated by consolidation. Despite Humana’s concession that “[t]he putative class in the Kousiry action is almost entirely encompassed within the Prerecorded Calls Class already certified in this case,” Humana has stated that “further discovery and investigation are likely to reveal case-specific facts demonstrating that Kousiry lacks viable claims against Humana and that his allegations are unsuitable for class-wide treatment.” [Id. at 6990 n.2, 6991]. Further, “Humana maintains that certification of the class was not appropriate and reserves all rights to challenge certification of the class, including the class as extending to the Kousiry claims. Humana further reserves all rights to challenge certification of the class in appellate review.” [Id. at 6986 n.1]. Thus, while it appears that consolidation may streamline some discovery in Kousiry, the benefits of consolidation will not arise until trial or, at the very earliest, summary judgment. The certified class in Elliot will be forced to wait while the parties in Kousiry engage in case-specific discovery, relitigate class certification, and, address additional arguments at the dispositive motion stage.
The Court is persuaded by other courts in this circuit denying consolidation of cases in substantially dissimilar procedural postures. In LSP Technologies, Inc. v. Metal Improvement Co., LLC, No. 2:10-cv-526, 2010 WL 3447834 (S.D. Ohio Aug. 30, 2010). The court found that the two cases shared some common questions of fact and law, that discovery could overlap, and that consolidation would obviate the need for two Markman hearings and two trials. Id. at *2. However, the court also found that the cases were in dissimilar stages of development—the second case was filed nearly two-and-one-half years later than the first–and that consolidation would further delay the
Likewise, in Roxane Laboratories, Inc. v. Abbott Laboratories, the Southern District of Ohio again found that there were common issues in two patent cases between identical parties but nonetheless refused to consolidate them. Nos. 2:12-cv-312, 2:13-cv-645, 2:13-cv-708, 2013 WL 5217571 (S.D. Ohio Sept. 16, 2013). Once again, the court found several common issues of law and fact. Id. at *2. Yet, the court found that consolidation was not appropriate because (1) the two cases were pending before the same judge, so discovery could be coordinated even without consolidation, (2) the cases were at significantly different stages of litigation because the second case was filed fifteen months after the first, and (3) consolidation would require significant delay of the first case and thus hinder expeditious resolution of that case. Id. at *3.
So too here. As Humana notes, both cases have been referred to Magistrate Judge Colin H. Lindsay for resolution of all litigation planning issues, entry of scheduling orders, and disposition of non‑dispositive matters, including discovery. [DE 241 at 6988]. And the cases are both before the presiding Judge. The fact that both cases are pending before the same judicial officers minimizes the risk of inconsistent results and lessens the burden on the Court. Roxane Lab’ys, Inc., 2013 WL 5217571, at *3. See also Does No. 1 v. Springboro Cmty. City Sch. Dist., No. 1:19-CV-785, 2022 WL 219368, at *3 (S.D. Ohio Jan. 25, 2022) (“[T]he Court finds the risk of inconsistent adjudication is minimal. Both cases are before this Court.”). Further, Humana acknowledges that “what has already been produced in this case is equally applicable in the Kousiry case, and all that will be required is limited individual discovery with respect to Kousiry and a supplementation of the class discovery, which is already being conducted.” [DE 249 at 7182]. Cf.
Finally, although Humana has only requested consolidation, the Court notes that there are other remedies available to reduce the burden of duplicative litigation.1 To the extent that the Kousiry action proceeds on behalf of a putative class with substantially overlapping claims as the certified class in Elliot, judicial economy may militate in favor of a stay. Because neither party has raised the issue, the Court does not address it here.
Accordingly, having considered the relevant Cantrell factors, the Court finds that consolidation is inappropriate. Humana’s motion to consolidate [DE 241] is DENIED.
Next, Humana requests that it be permitted to withdraw its motion for summary judgment, with leave to refile, because “[t]here is a substantial likelihood that the factual record will materially expand as a result of (i) the additional discovery Plaintiff seeks and (ii) the anticipated consolidation of the Kousiry Action, which will bring with it a new plaintiff, new facts, and discovery.” [DE 240 at 6976]. Because the Court will not consolidate Kousiry with Elliot, the Court need only address Humana’s arguments regarding the additional discovery Elliot has requested for the purposes of class notice.
In short, the Court finds Humana’s motion to withdraw is premature. Humana has already objected to the additional discovery proposed by Elliot on the grounds that it “seeks records for all Humana calls during the ‘entire class period’ of nearly seven years, ‘whether related to a [Special Needs Plan] call or any other type of call.’” [DE 245 at 7021]. According to Humana, “[a]pproval would require reopening discovery, redoing expert analyses, revisiting dispositive motions, and a complete re-do of class certification itself given the new Rule 23 issues that will become insurmountable—transforming this action into an entirely different and far more protracted case.” [Id.]. Those objections are properly before the magistrate as part in parcel of the determination of the class notice plan. Although permitting renewed motions for summary judgment may be appropriate “when the moving party has expanded the factual record,” Coach, Inc. v. Chen, No. 1:16-CV-00200-GNS-HBB, 2022 WL 10146662, at *3 (W.D. Ky. Oct. 17, 2022), the scope of the additional discovery in this case remains speculative. And even if the magistrate approves Elliot’s proposed notice plan, Humana must show that the expanded factual record is material to the claims and defenses “on which summary judgment is sought.” Id.
III. CONCLUSION
Having thus considered the parties’ filings and the applicable law, and being otherwise sufficiently advised, the Court ORDERS as follows:
- Humana’s Motion for Reassignment and Consolidation [DE 241] is DENIED as moot as to reassignment and DENIED as to consolidation.
- Humana’s Motion to Withdraw Motion for Summary Judgment with Leave to Renew or, Alternatively, to Stay Resolution [DE 240] is DENIED without prejudice.
August 4, 2026
Rebecca Grady Jennings, District Judge
United States District Court