Filed: Dec. 31, 2019
Latest Update: Dec. 31, 2019
Summary: MEMORANDUM OPINION AND ORDER GRAY H. MILLER , Senior District Judge . Pending before this court is Plaintiff Eric Bowers's ("Bowers") motion to consolidate (Dkt. 8), Defendant BackChina, LLC's ("BackChina") response (Dkt. 9), and Bowers's late-filed reply to BackChina's response. 1 "District courts enjoy substantial discretion in deciding whether and to what extent to consolidate cases." Hall v. Hall, 138 S.Ct. 1118 , 1131, 200 L.Ed. 2d 399 (2018). See also Frazier v. Garrison I.S.D.,
Summary: MEMORANDUM OPINION AND ORDER GRAY H. MILLER , Senior District Judge . Pending before this court is Plaintiff Eric Bowers's ("Bowers") motion to consolidate (Dkt. 8), Defendant BackChina, LLC's ("BackChina") response (Dkt. 9), and Bowers's late-filed reply to BackChina's response. 1 "District courts enjoy substantial discretion in deciding whether and to what extent to consolidate cases." Hall v. Hall, 138 S.Ct. 1118 , 1131, 200 L.Ed. 2d 399 (2018). See also Frazier v. Garrison I.S.D., ..
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MEMORANDUM OPINION AND ORDER
GRAY H. MILLER, Senior District Judge.
Pending before this court is Plaintiff Eric Bowers's ("Bowers") motion to consolidate (Dkt. 8), Defendant BackChina, LLC's ("BackChina") response (Dkt. 9), and Bowers's late-filed reply to BackChina's response.1
"District courts enjoy substantial discretion in deciding whether and to what extent to consolidate cases." Hall v. Hall, 138 S.Ct. 1118, 1131, 200 L.Ed. 2d 399 (2018). See also Frazier v. Garrison I.S.D., 980 F.2d 1514, 1532 (5th Cir. 1993) (same). Courts consider whether: the actions are pending before the same court; involve common parties; involve common questions of law or fact; there is any risk of prejudice or confusion versus risk of inconsistent adjudications; consolidation would promote judicial economy. Parker v. Hyperdynamics Corp., 126 F.Supp.3d 830, 835 (S.D. Tex. 2015) (Harmon, J.) (citing Frazier, 980 F.2d at 1531).
Here, the actions are all pending in this district, but they are not before the same court. The defendant—who opposes consolidation—is the same, but the plaintiffs are different in each case.2 Although each plaintiff asserts a single claim for copyright infringement against BackChina, each case involves a different photograph. Dkt. 9 ¶¶ 1-6. In each case, BackChina has asserted a fair use defense. "Fair use is a mixed question of law and fact." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed. 2d 588 (1985) (citing Pac. & S. Co. v. Duncan, 744 F.2d 1490, 1495 n.8 (11th Cir. 1984)). A court must consider four factors in determining fair use: "(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential market for or value of the copyrighted work." Id. at 560-61. Because each case involves a different plaintiff and a different photograph, the mixed question of law and fact in each case will necessarily be different. So there is little judicial economy to be had. Although the court disagrees with BackChina that it would be prejudiced by consolidation,3 because all other factors weigh against consolidation, Bowers's motion (Dkt. 8) is DENIED.
