While Liberty Mutual’s and Standard Fire’s motions to sever have been pending, the Branch docket has had a severe case motion sickness. Judge Vance offered the cure in short order in what is a really short Order denying both motions as “premature”.
A typical Sarah Vance Order is detailed and lengthy – and this one is neither. When I read it the first time, I thought it would just take a few minutes to compose this post; but, then, I read it again and that was hours ago and this is my fourth sentence. Obviously, I’ve done more thinking than writing. Is it short and lacking in detail because it would be “premature” to say more or is she deliberately guarded?
She gives only one reason for denying the two motions to sever:
There appear to be at least one or more common issues of law or fact in this action that warrant consolidation under Rule 42 of the Federal Rule of Civil Procedure, at least in the pretrial phase of this case. See FED. R. CIV. P. 42(a) (“If actions before the court involve a common question of law or fact, the court may . . . consolidate the actions.”).
The reason is followed by what I’d call “passing mention” of several “common issues of law or fact”:
For example, there appear to be common issues regarding the procedures employed by FEMA and NFIP, the manner in which Branch learned of the properties listed in the First Amended Complaint, and Branch’s method of determining the amount that the insurers allegedly should have paid under the flood policies.
My education and experience is in behavioral science, not law; and from that perspective, this is a “because I am your mother and I said so” Order. Judge Vance may not have intended that; but, in her position, I would have done it a heartbeat. My suggestions, however, would not have been as nicely worded as those of Judge Vance:
The Court finds that a consolidated discovery process will promote judicial economy and reduces the burdens on all parties involved. The parties may also combine motion practice when they assert the same positions.
Further, while common discovery will be beneficial in some respects, no party is required to participate in any discovery that does not affect its potential liability. There may also be the potential to share expert witnesses, document depositories, and the like.
This ruling shall not prejudice the right of any defendant to move for severance once further discovery is taken and the Court is able to assess the nature of the evidence that will be presented at trial.
If Judge Vance’s suggestions don’t cure the motion sickness evident on the docket, someone needs to tell the defendants that throwing up multiple versions of motions, responses and replies designed to stall and limit discovery makes them look as guilty as sin.