ORDER

CAROL B. AMON, Chief District Judge.

Plaintiffs in the above-captioned action have sought a determination that the action is related, pursuant to Division of Business Rule 50.3.1, to Fraser v. Medisys Health Network, Inc., No. 10-cv-I342 (SJF). Hon. Jack B. Weinstein, the assigned district court judge, has referred the application to this Court, pursuant to subsection (d) of Rule 50.3.1. Having reviewed the application and the parties' submissions, and finding that plaintiffs have not demonstrated good cause for their late application for relatedness, and that a substantial saving of judicial resources is not likely to result from assigning both cases to the same judge and magistrate judge, the Court denies plaintiffs' application.

SO ORDERED.

ORDER

Plaintiffs have sought for a judicial determination of relatedness pursuant to Local Rule 50.3.1(d), contending that their case is "related" to Fraser v. Medisys Health Network, Inc., No. 10-CV-1342 (SJF) (ARL), under the standard set forth in Local Rule 50.3.1(a).

Local Rule 50.3.1(a) provides that a "civil case is `related' to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transaction or events, a substantial saving of judicial resources is likely to result from assigning both cases to the same judge and magistrate judge." The determination of relatedness "shall be made by a judge or judges designated by the chief judge, who shall not include the judge to whom the case has been randomly assigned or the judge to whom the case will be assigned if it is determined to be `related.'" E.D.N.Y. Local Rule 50.3.1(d).

It should be noted that this court's Local Rules limit the time in which an application for a judicial determination of relatedness can be made; "an application must be made after the date when at least a majority of the defendants have been served with the complaint, but not more than 30 days after that date unless the judge passing on the application permits a later filing for good cause shown." See id.

Accordingly, the plaintiffs' request for a related-case determination, see Letter of January 27, 2012, Polanco et al. v. Brookdale Hospital Medical Center, No. 11-CV-2102 (E.D.N.Y. Jan. 27, 2012), CM/ECF No. 27, is respectfully referred to the chief judge of this court. Attached to this order are:

SO ORDERED.

I am an attorney for the plaintiffs in the above-referenced action.

The plaintiffs' current attorneys assumed representation of the plaintiffs after the plaintiffs' previous attorney withdrew. We gather from the previous motion practice in this action that there had been past conversation with the court and the parties concerning whether this action is related to Fraser v. MediSys Health Network, Inc. et al, 10 CV 1342 (SJF) (ARL). We understand that the plaintiffs' position was that these cases were unrelated.

Upon assuming representation of the plaintiffs, we examined anew on behalf of the plaintiffs the pleadings in this action and the Fraser action and the extent to which the cases may be related. We believe these cases are related under the standard given in the district's guidelines for division of business. It seems that the Polanco plaintiffs' claims are substantially within the class claims contained in the pleadings of the Fraser action. Multiple questions of law and fact are common to both actions. Although some discovery has occurred in the Polanco action, we suggest that substantial efficiencies remain to be gained from management of both actions together by the same judges, and we would anticipate moving for consolidation. Accordingly, we apply for a determination of whether the cases are related.

We believe the circumstance of a change of attorneys and the benefit to the parties and the court of the efficiencies to be gained constitute the good cause shown to support a decision by this court to allow this late application for determination of whether the cases are related, if the court agrees that such a determination is in the interest of the court and the parties.

In accordance with the guidelines for division of business, we have conferred with the attorneys for the defendant, and the defendant concurs that the cases are related.

This firm represents defendant the Brookdale Hospital Medical Center ("Brookdale") in the above-referenced case. We write in response to Plaintiffs' January 26, 2012 letter application (Dkt. No. 47) seeking a related case determination with the first-filed Fraser v. MediSys Health Network, Inc., No. 10-CV-1342 (SJF) (E.D.N.Y.). Although Brookdale agrees that the Court may consider the cases related, consolidation is nevertheless inappropriate.

The Fraser case was filed on March 24, 2010 — approximately thirteen months prior to the Polanco case — and there have been (1) substantive rulings issued in that putative collective action that are inapplicable to the Polanco case, (2) inconsistent adjudications between the two cases, and, perhaps most significantly, (3) a stay is in place and discovery has not even begun in the Fraser case. By contrast, the Polanco case is scheduled for trial on February 27, 2012. Brookdale would be put to additional significant expenditure and unnecessary delay should the cases be consolidated on the eve of the Polanco trial.

Moreover, on January 30, 2012, Brookdale moved to dismiss the Polanco action under Rule 41(b) for failure to prosecute, given Plaintiffs' continuing pattern of refusing to comply with their discovery obligations despite this Court's explicit warning that the consequence of such continued behavior is dismissal of their claims. Plaintiffs' current counsel has exhibited no more success in managing this litigation than was demonstrated by predecessor counsel who withdrew, with trial approaching, because Plaintiffs refused to cooperate or heed his advice.

Accordingly, the resulting prejudice to Brookdale created by an award of consolidation at this late juncture, and the possible confusion of the issues between the cases, given their varying procedural histories and substantive rulings, far outweigh any efficiencies that may be gained by consolidation. See. e.g., Transeastern Shipping Corp. v. India Supply Mission, 53 F.R.D. 204, 206 (S.D.N.Y. 1971) ("If the court were to order consolidation now, the cases which were ready for or close to trial would have to be held up pending completion of pretrial in the other cases . . . In such a situation courts have consistently denied consolidation.") (citing Fisher v. Donbar Development Corp., 42 F.R.D. 655 (E.D.N.Y. 1967)); see also Haas v. Brookhaven Mem'l Hosp., No. 07-CV-4788 (NGG), 2008 U.S. Dist. LEXIS 106632, at *2 (E.D.N.Y. Mar. 26, 2008) (consolidation improper where plaintiff "made no showing on the record that consolidation would assist judicial economy or that unnecessary delays or confusion in the resolution of these proceedings would be avoided by consolidation.").

Conversely, if the Polanco plaintiffs withdraw their case and opt into the Fraser case, their claims would, in essence, be "consolidated" into the Fraser litigation, thereby promoting substantial efficiencies.

Respectfully submitted,

I am an attorney for the plaintiffs in the above-referenced action. At the suggestion of your chambers, this letter supplements the plaintiffs letter of January 27, 2012, and explains the procedural basis and standard of review for that letter.

The plaintiffs letter is an application for a judicial determination of the relatedness of civil cases, pursuant to Rule 50.3.1 of the Guidelines for the Division of Business Among District Judges.

The plaintiffs seek a late determination of whether this action is related to the Fraser action. Rule 50.3.1(d) states, "Any party may apply for such a determination by filing with the clerk a letter of no more than three single-spaced pages explaining why the standard [for related cases] is met. . . ." Because this application is late, it cannot be considered "unless the judge passing on the application permits a later filing for good cause shown." The plaintiffs are requesting such a determination from Your Honor of good cause shown, and for Your Honor to pass along the application. The plaintiffs defer to their discussion in the January 27, 2012, letter on the merits of that issue.

Rule 50.3.1(d) provides that the determination of relatedness is to be made by a judge, designated by the chief judge, who is not "the judge to whom the case has been randomly assigned" (Your Honor) or "the judge to whom the case will be assigned if it is determined to be related" (Judge Feuerstein). Therefore, the decision on relatedness will be made by another judge, provided Your Honor passes along the application.

Pursuant to the rule, the applicant, the plaintiffs, are required to serve the letter application on all other parties, who are allowed to respond. The applicant is also required to confer in good faith to reach agreement on whether the case is related. The parties have conferred and the defendant has responded. The parties both agree that this case meets the standard for relatedness in Rule 50.3.1.

Despite what the content of the defendant's response may indicate, this is not a motion for consolidation. Because the two cases are not before the same judge, a motion for consolidation cannot be made in this action at this time. The effect of a determination of relatedness would be to put the cases before the same judge. If that occurs, a motion for consolidation would be possible, but would not be required. The defendant's arguments on the issue of consolidation are not relevant to this application, and should be saved for a motion for consolidation, if ever brought, in the Fraser action.

I thank the court for its consideration.