Cleveland v. Ludwig Institute for Cancer Research Ltd ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DON CLEVELAND, et al., Case No.: 19cv2141 JM(JLB) Related Case No: 21cv871 JM(JLB) 12 Plaintiffs, 13 v. ORDER DENYING PLAINTIFFS’ 14 LUDWIG INSTITUTE FOR CANCER MOTION TO CONSOLIDATE RESEARCH LTD., et al., 15 16 Defendants. 17 18 19 Presently before the court is Plaintiffs Don Cleveland, Arshad Desai, Frank 20 Furnari, Richard Kolodner, Paul Mischel, Karen Oegema, and Bing Ren’s Motion to 21 Consolidate under Federal Rule of Civil Procedure 42(a) (Doc. No. 66). Pursuant 22 to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for resolution 23 without oral argument. For the reasons set forth below, Plaintiffs’ Motion to Consolidate 24 is DENIED. 25 I. BACKGROUND 26 In the instant Motion, Plaintiffs move to consolidate Cleveland v. Ludwig, et al., 27 19cv2141 JM(JLB) (hereinafter, “Ludwig I”) with Cleveland v. Ludwig, 28 1 21cv871 JM(JLB) (hereinafter, “Ludwig II”). A brief description of the two actions is set 2 forth below. 3 a. Ludwig I, Case No. 19cv2141 JM(JLB) 4 On November 7, 2019, Plaintiffs filed their initial Complaint in Ludwig I against 5 Defendants Ludwig Institute of Cancer Research, Ltd., Edward McDermott, Chi Van 6 Dang, and John. L. Notter. (Compl. at ¶¶ 16-19.)1 On January 30, 2020, Plaintiffs filed a 7 First Amended Complaint (“FAC”). (Doc. No. 3.)2 On June 17, 2020, the court granted- 8 in-part Defendants’ Motion to Dismiss Plaintiffs’ FAC. (Doc No. 25). 9 On July 8, 2020, Plaintiffs filed a Second Amended Complaint (“SAC”). (Doc. 10 No. 26.) According to the SAC, Plaintiffs are “internationally acclaimed cancer research 11 scientists and physicians.” Id. at ¶ 1. Plaintiffs allege that between 1996 and 2016, 12 Defendant Ludwig recruited Plaintiffs to move their research laboratories to the San 13 Diego Branch of the Ludwig Institute for Cancer Research. Id. at ¶¶ 1, 26-32. 14 Subsequently in 2018, Plaintiffs allege Defendant Ludwig announced it would cease 15 funding and “halt the ‘continuous active conduct of medical research’” at the San Diego 16 Branch. Id. at ¶ 15. As a consequence, Plaintiffs allege Defendant breached various 17 contractual obligations owed to Plaintiffs under an Affiliation Agreement with the 18 University of California San Diego and Laboratory Support and Intellectual Property 19 Agreements entered with the individual Plaintiffs. Id. at ¶¶ 3, 15. Plaintiffs further allege 20 Defendants “maliciously defamed” Plaintiffs by making purportedly false statements, 21 including that Defendants were withdrawing funding “because Plaintiffs were not 22 performing cancer research at a level on par with their seniority and the funding 23 provided.” Id. at ¶¶ 22-23. 24 Plaintiffs asserted the following fifteen causes of action in their SAC: declaratory 25 relief (Count I); breach of contract (Count II); breach of the covenant of good faith and 26 27 1 All citations to this section are to Ludwig I. 28 2 1 fair dealing (Count III); defamation (Count IV); false light invasion of privacy (Count V); 2 breach of intellectual property contract (Count VI); breach of good faith and fair dealing 3 (Count VII); promissory estoppel (Count VIII); and breach of laboratory contracts 4 (Counts IX-XV). Id. at ¶¶ 52-91. 5 On November 25, 2020, the court granted in part Defendants’ partial motion to 6 dismiss Plaintiffs’ SAC. (Doc. No. 32.) Specifically, the court dismissed Count I with 7 respect to Plaintiffs’ claims based on the Affiliation and Intellectual Property Agreements 8 and Counts II, III, and VI. Id. at 28. On February 2, 2021, the court issued a scheduling 9 order and the case proceeded to discovery. (Doc No. 43). 10 b. Ludwig II, Case No. 21cv871 JM(JLB) 11 On May 5, 2021, Plaintiffs filed a Complaint in Ludwig II solely against Defendant 12 Ludwig Institute of Cancer Research, Ltd. (Doc. No. 1).3 In their Complaint, Plaintiffs 13 assert six causes of action arising primarily under labor and employment laws. Id. 14 Specifically, Plaintiffs assert that: Defendant retaliated against Plaintiff Kolodner after 15 Plaintiff Kolodner disclosed his belief Defendant’s 2020 and 2021 budget for the San 16 Diego Branch was insufficient to meet Defendant’s various legal obligations (Count I); 17 Defendant retaliated against all Plaintiffs after each declined to sign a “Transition 18 Agreement and Release” (Count II); age discrimination (Count III); wrongful adverse 19 employment action in violation of public policy (Count IV); failure to timely pay wages 20 (Count V); and unfair competition (Count VI). Id. at ¶¶ 44-94. On May 12, 2021, the 21 Ludwig II action was deemed related to the Ludwig I action and transferred to this court 22 pursuant to the low number rule, Local Rule 40.1. (Doc. No. 4). Defendant’s response to 23 Plaintiffs’ Complaint is due on or before July 6, 2021. (Doc. No. 9). 24 II. ANALYSIS 25 Rule 42(a) of the Federal Rules of Civil Procedure allows a district court to 26 consolidate cases when actions before it “involve a common question of law or fact[.]” 27 28 3 1 Fed. R. Civ. P. 42(a). District courts have broad discretion to grant or deny 2 consolidation. Inv’rs Research Co. v. United States Dist. Court for Cent. Dist., 3 877 F.2d 777 (9th Cir. 1989). In determining whether consolidation is appropriate, a 4 court “weighs the saving of time and effort that consolidation would produce against any 5 inconvenience, delay, or expense that it would cause.” Huene v. United States, 6 743 F.2d 703, 704 (9th Cir. 1984). Therefore, even where a common question exists, 7 consolidation is inappropriate “if it leads to inefficiency, inconvenience, or unfair 8 prejudice to a party.” EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998). 9 In their Motion, Plaintiffs argues the Ludwig I and Ludwig II cases should be 10 consolidated for a single trial because both actions “involve the same or similar facts and 11 events.” (Doc. No. 66-1 at 6). Specifically, Plaintiffs argue consolidating the cases 12 would minimize the duplication of effort, prevent Plaintiffs from incurring additional 13 resources litigating related actions in separate cases, and avoid the danger of inconsistent 14 rulings. Id. 15 In their Response, Defendants assert they are agreeable to coordinating the two 16 cases with a reasonable extension of time. (Doc. No. 68 at 5-9, 11). Nevertheless, 17 Defendants argue consolidating the two cases for trial is premature at this stage as: (1) 18 some or all of the claims in the Ludwig II case may be disposed of with further motion 19 practice; and (2) the Ludwig I and Ludwig II cases raise distinct issues of law and fact. 20 (Id. at 9-10). 21 In this district, two different procedures apply to related actions. First, the low 22 number rule of L.R. 40.1 generally provides for the coordinated treatment of actions that 23 arise from “the same or substantially identical transactions”; involve “the same or 24 substantially the same parties or property”; or call for the resolution of “the same or 25 substantially identical questions of law.” L.R. 40.1(e). Here, the Ludwig II action has 26 already been low-numbered to Ludwig I. As a consequence, the same district and 27 magistrate judges will hear all matters in both cases, thereby mitigating any risk of 28 inconsistent rulings. 1 The second procedure provides for consolidation of two actions as if they were the 2 same case. Where two related actions present the same factual or legal issues, 3 consolidation provides that the two cases proceed under a single case number. Here, the 4 court finds it most sensibile to maintain the Ludwig I and Ludwig II cases separately. At 5 this juncture, the Ludwig I and Ludwig II cases are at very different phases of the pretrial 6 process. Ludwig I was filed over a year before Ludwig II. An Early Neutral Evaluation 7 (“ENE”) has already been held in Ludwig I and discovery is proceeding accordingly, with 8 fact discovery set to close only a few months from now. In contrast, the Ludwig II case is 9 at a significantly earlier pretrial stage. Defendant has not yet responded to Plaintiffs’ 10 Complaint in Ludwig II and no other schedules have been set. Consolidating the cases at 11 this juncture would have the effect of significantly delaying the resolution of the earlier- 12 filed Ludwig I case. See Mills v. Beech Aircraft Corp., 886 F.2d 758, 762 (5th Cir. 1989) 13 (“Consolidation may properly be denied in instances where the cases are at different 14 stages of preparedness for trial.”). Further, while the two cases have some factual 15 similarities, Plaintiffs have alleged different causes of action in these cases, thereby 16 presenting the court with different legal questions. The potentially significant legal 17 differences between the two cases also weighs against premature consolidation. 18 III. CONCLUSION 19 For the reasons set forth above, the court DENIES Plaintiffs’ Motion to 20 Consolidate. 21 IT IS SO ORDERED. 22 DATED: July 2, 2021 23 JEFFREY T. MILLER 24 United States District Judge 25 26 27 28