Opinion
Civil Action No. 2:00cv49-D-B
June 7, 2000
OPINION
Before the court is the Plaintiffs' motion to file an amended complaint and to remand this cause to the Chancery Court of DeSoto County, Mississippi. Upon due consideration, the court finds that the motion should be granted in part and denied in part. In addition, the court, sua sponte, orders that this case be consolidated with Marett v. Scott, et al., Civil Action No. 2:99cv244-D-B, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure.
Factual Background A. Marett I
On December 13, 1999, Defendants (hereinafter Marett) filed a complaint against Plaintiffs (hereinafter Scott) alleging breach of contract, breach of fiduciary duty, breach of duty of good faith and fair dealing, unjust enrichment, tortious breach of contract, as well as a request for imposition of a constructive trust and equitable lien upon property owned by Plaintiffs. Approximately one month later, on January 17, 2000, Marett filed a Notice of Lis Pendens, pursuant to Mississippi Code Annotated § 11-47-3 and thereafter recorded the Notice in the Chancery Court of DeSoto County, Mississippi. Scott filed an answer and counterclaim on February 16, 2000, alleging, inter alia, slander of title and requesting preliminary injunctive relief to have the lis pendens set aside as inappropriate under the facts and circumstances of the case.
B. Marett II
On February 23, 2000, Scott filed a complaint in the Chancery Court of DeSoto County, Mississippi, which also included a claim for slander of title and a request for preliminary injunctive relief to have the chancery court set aside the lis pendens as a cloud upon Plaintiffs' title in the subject property. As in Marett I, Plaintiffs filed a motion for a preliminary injunction in the chancery court. Prior to a hearing on Scott's motion for injunctive relief, Marett properly removed the action to this court on the basis of diversity of citizenship.
On March 20, 2000, this court conducted a hearing in Marett I and by opinion and order dated April 10, 2000, granted preliminary injunctive relief to Scott ordering that the notice of lis pendens be removed from the subject property.
Scott presently moves the court to allow amendment of the Marett II complaint to omit their claims for slander of title and money damages and to limit the complaint as an action to simply remove the cloud on title caused by the lis pendens. Scott further contends that upon granting this amendment, the court should abstain from deciding the lis pendens issue and remand the case to the Chancery Court of DeSoto County.
Discussion
At the outset, the court notes that this case was properly removed to this court on the basis of diversity of citizenship, 28 U.S.C. § 1332. That this court has proper jurisdiction over this cause of action is not substantially in dispute. Additionally, the court notes that the counterclaims asserted by Scott in Marett I and the claims asserted by Scott in Marett II, for slander of title, are virtually identical. Furthermore, the relief sought in Marett II, a preliminary injunction removing the notice of lis pendens, has previously been granted by this court.
Having reviewed the record in both Marett I and Marett II, the court finds that Scott's motion to amend shall be granted, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. Plaintiffs shall have seven (7) days to serve and file their amended complaint to assert the claims as provided in the attached exhibit "D" to their "Motion for Leave to File Amended Complaint and Motion to Remand." Although Marett opposes the Plaintiffs' motion to amend, the court's decision to deny the motion to remand and to sua sponte consolidate these cases, discussed below, will alleviate any prejudice that may otherwise befall the Defendant.
Scott further seeks to have the court remand this cause to the Chancery Court of DeSoto County, Mississippi, arguing that the court should exercise its discretion and abstain from hearing this action due to the predominate state law issues involved. Scott's position in this regard is intriguing as there was neither a request nor a suggestion of abstention in Marett I wherein the court decided the very issue, the propriety of the lis pendens, that is present in Marett II. Indeed, this court granted the injunctive relief sought by Scott and lifted the notice of lis pendens, which Scott now contends is such a predominate state law issue that it is a matter of substantial public concern for the State of Mississippi. These positions are incongruous and further illustrate the gamesmanship at hand in these causes of action. It appears to the court that the parties are utilizing these dual cases merely as leverage for tactical advantage. This cause is properly before the court on the basis of diversity jurisdiction and shall not be remanded to the state court for relief which this court has previously granted.
Rule 42(a) of the Federal Rules of Civil Procedure provides:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
It appears well-settled that Rule 42(a) should be used to expedite trial and eliminate unnecessary repetition and confusion. Miller v. United States Postal Service, 729 F.2d 1033, 1036 (5th Cir. 1984). Moreover, a motion to consolidate is not required; the court may invoke Rule 42(a) sua sponte. Id.; American Home Assurance Co. v. Roxco, Ltd., 81 F. Supp.2d 674, 681 (S.D.Miss. 1999). Consolidation does not so completely merge the cases as to deprive a party of any substantial rights that he may have had if the actions had proceeded separately, for the two suits retain their separate identities and each requires the entry of a separate judgment. Id.
Here, Marett I and Marett II involve identical parties and common questions of law and fact. In an effort to avoid unnecessary costs or delay and to preclude any further tactical maneuvering between the cases, the court concludes that these causes of action should be consolidated. Consolidation shall not adversely affect either Scott's or Marett's rights in either case.
A separate order in accordance with this opinion shall issue this day.
SO ORDERED, this the _____ day of June 2000.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that:
Plaintiffs' motion to amend is GRANTED, Plaintiffs shall have seven (7) days to serve and file their amended complaint to assert the claims as provided in the attached exhibit "D" to their "Motion for Leave to File Amended Complaint and Motion to Remand";
Plaintiffs' motion to remand is DENIED; and
this case is consolidated with Marett v. Scott, et al., Civil Action No. 2:99cv244-D-B.
SO ORDERED, this the _____ day of June 2000.