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Kane v. Roth

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


July 28, 2006

GINA KANE AND MARY DEATHERAGE, PLAINTIFFS,
v.
DAVID ROTH, VANTAGE HOMES, INC., UNITED STATES OF AMERICA, AND ROTH FAMILY LIMITED PARTNERSHIP, DEFENDANTS.

The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Two separate cases (Kane v. Roth, et al., No. 06-cv-0326-WDS, and Deatherage v. Roth, No. 06-cv-0327-DRH) were filed in this District and -- ultimately -- transferred to the undersigned District Judge, who had been assigned to this lawsuit when it previously was pending here. Both suits arise from an October 2004 car accident in Fairview Heights, Illinois. Mary Deatherage was a passenger in a vehicle being driven by Gina Kane. Kane's vehicle was struck by a vehicle being driven by Emmerson Buie, an F.B.I. agent, who was acting within the scope of his employment for the United States of America ("USA") at the time of the accident.

Buie was dismissed, and the USA was substituted for him, in Case No. 06-cv-0327, under the provisions of the Federal Tort Claims Act. Buie was dismissed, and the USA was added as a Defendant, via amended complaint in Case No. 06-cv-0326.

The undersigned Judge conducted threshold review in Case No. 06-cv-0327, found subject matter jurisdiction to lie, and tracked that case on June 22, 2006. Case No. 06-cv-0326 had not yet been tracked when Judge Stiehl granted a motion to consolidate the two cases on July 24, 2006.

Thus, now before the undersigned Judge is a single consolidated action involving both Kane's claims and Deatherage's claims against four Defendants -- (1) David Roth, (2) Vantage Homes, Inc., (3) the USA, and (4) the Roth Family Limited Partnership. The parties also have filed counterclaims and/or third-party claims involving the City of Fairview Heights, Illinois.

The Court now CLARIFIES that -- IN ALL FUTURE PLEADINGS -- counsel shall refer to this case listing both Plaintiffs (Gina Kane and Mary Deatherage) as well as the four named Defendants and shall LIST THE CASE NUMBER as 06-cv-0326-MJR. After this Order, no further reference should be made to Case No. 06-cv-0327, as that case has been consolidated into Case No. 06-cv-0326.

The consolidation presents two problems easily rectified. First, there exist two separate complaints. Second, one case had been tracked and assigned a firm trial date, but not the lower-numbered "lead" case (the number of which now governs the consolidated whole).

The Court DIRECTS Plaintiffs' counsel -- by August 18, 2006 -- to file a second amended complaint naming all parties to the consolidated action. Once any of the named Defendants has answered or otherwise responded to the second amended complaint, the Court will track the consolidated action, assign a firm trial date, and schedule a final pretrial conference herein. The dates for the final pretrial conference and trial may (but will not necessarily) be the same as those assigned in the now-defunct case (No. 06-cv-0327).

The Court further CLARIFIES that the Honorable Philip M. Frazier (who had the lower-numbered case, 06-cv-0326) will be the Magistrate Judge handling the now-consolidated action.

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Court

20060728

© 1992-2006 VersusLaw Inc.



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