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Dustin A. Boes v. United States of America

September 2, 2011


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, Dustin A. Boes, alleges that defendant, United States of America, violated the Federal Tort Claims Act (FTCA), specifically 28 U.S.C. §§ 2671, 1346(b)(1), through the actions of its agents Jeff Metzinger and Chad Mosteller. In a separate action pending before this court, Boes v. Metzinger. 08-CIV-4180-KES (Metzinger), Boes asserts various state-law causes of action and a 42 U.S.C. § 1983 claim against Metzinger and Mosteller. The United States moves to consolidate this case and Metzinger. Boes resists. The motion is granted.


The pertinent facts to this order are as follows: During the relevant time period, Metzinger was a police officer for the city of Pierre in South Dakota and Mosteller was an agent for South Dakota's Division of Criminal Investigation. Both were members of the Northern Plains Safe Trails Drug Enforcement Task Force, which the Federal Bureau of Investigation oversees. On February 21, 2007, Metzinger swore out a probable cause affidavit, which Boes alleges contained false statements that Boes sold illegal drugs on June 6, 2006, and October 23, 2006.

As a result of Metzinger's affidavit, a criminal complaint was issued on February 21, 2007, and, pursuant to an arrest warrant, Boes was arrested and jailed on April 7, 2007. Boes spent that Saturday evening, Easter Sunday, and Monday morning in jail before being bonded out. During discussions with Metzinger and Mosteller on April 8, 2007, Boes alleges that he offered specific facts showing that they arrested the wrong individual.

Boes's initial appearance was scheduled for April 9, 2007. Before that appearance, Boes's attorney contacted the South Dakota Attorney General's Office and explained that Boes was innocent. The Attorney General agreed and dismissed the charges against Boes.

On May 8, 2007, the South Dakota Attorney General issued a letter stating that "Boes was wrongfully identified and arrested on or about April 8, 2007. Mr. Boes was in no way involved in any criminal activity." Docket 1 at ¶ 31.

In this action, Boes alleges that he sustained emotional and physical injury, pain and suffering, lost wages, damage to his reputation, impairment of his earning capacity, and miscellaneous expenses and that Metzinger and Mosteller proximately caused his injuries. Boes seeks an award in the amount of $250,000.

In Metzinger, Boes alleges the same facts in an almost identical complaint, and he asserts a § 1983 cause of action and state-law claims of malicious prosecution, false arrest, and intentional infliction of emotional distress against Metzinger and Mosteller. Civ. 08-4180, Docket 1. Boes seeks an unspecified amount of money from Mosteller and Metzinger as damages.


Pursuant to Federal Rule of Civil Procedure 42(a)(2), if two "actions before the court involve a common question of law or fact, the court may . . . consolidate the actions . . . ." The federal rules permit consolidation " 'as a matter of convenience and economy in administration' " but consolidation " 'does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.' " Enterprise Bank v. Saettele, 21 F.3d 233, 235 (8th Cir. 1994) (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933)). Consolidated suits maintain their independent identities. Horizon Asset Mgmt., Inc. v. H & R Block, Inc., 580 F.3d 755, 769 (8th Cir. 2009) ("A consolidated case 'retain[s] its independent status,' and plaintiffs in a consolidated action . . . are still 'entitled to a decision on the merits of their claims.' "(alteration in original) (quoting DeGraffenreid v. Gen. Motors Assembly Div., 558 F.2d 480, 486 (8th Cir. 1977))).

" 'The threshold issue is whether the two proceedings involve a common party and common issues of fact or law.' " Enterprise Bank, 21 F.3d at 235 (quoting Seguro de Servicio de Salud v. McAuto Sys. Group, 878 F.2d 5, 8 (1st Cir. 1989)). Even if the defendants are not identical, consolidation may still be appropriate if common questions of fact or law exist. 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2382 (3d ed. 2008) ("If an appropriate common question exists, federal courts have often consolidated actions despite differences in the parties.").

If the threshold question is met, the court then weighs "the saving of time and effort that . . . Rule 42(a) would produce against any inconvenience, delay, or expense that it would cause for the litigants and the trial judge." Id.; see also EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998) ("Consolidation is inappropriate, however, if it leads to inefficiency, inconvenience, or unfair prejudice to a party."). The district court has broad discretion to consolidate cases under Rule 42. Enterprise Bank, 21 F.3d at 235.

This action and Metzinger involve a common party because Boes is the plaintiff in both actions. There are many identical factual issues between the actions. Both actions involve the same two actors, Metzinger and Mosteller, and the same underlying facts surrounding the February 2007 affidavit, Boes's April 7, 2007, arrest, and the April 8, 2007, interrogation. While Boes may need to ...

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