United States District Court, D. South Dakota, Southern Division
ORDER GRANTING IN PART MOTION TO CONSOLIDATE
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
case, No. 16-4060, and a related case, No. 16-4168, arise out
of an alleged affair between Traci Hylland and Russell Flaum.
Traci is married to Richard Hylland. The Hyllands are South
Dakota residents but maintain a home in Indian Wells,
California. Russell is married to Virginia Flaum. The Flaums
are Illinois residents who also maintain a home in Indian
Wells, California. Russell and Traci first met at a country
club in Indian Wells in late 2014. They started playing
tennis together and this progressed to other activities,
including going out to eat, attending tennis tournaments, and
meeting up in Palm Desert or Beverly Hills, California.
returned to South Dakota on May 17, 2015, but she and Russell
continued to communicate through the mail, internet, and
telephone. Many of these communications were romantic in
nature. In July 2015, Richard mailed a package concerning
Russell's relationship with Traci to Virginia, the
Flaums' children, and others in Illinois. The package
alleged that Traci and Russell engaged in sexual intercourse
in California and contained what appeared to be messages
Russell sent to Traci then discovered by Richard.
March 2016, Richard sued Russell in South Dakota state court
for alienating the affection of Traci. Russell removed the
case to this Court and moved to dismiss for lack of personal
jurisdiction. At the hearing on Russell's motion, Richard
through counsel acknowledged that he claims that the
alienation of affection tort was committed after Traci
returned to South Dakota in mid-May of 2015 and that Richard
is making no claim in this case that any of the conduct in
California supports a cause or action or recovery here.
California law does not recognize a claim for alienation of
affection. In November 2016, this Court denied Russell's
motion to dismiss, finding that personal jurisdiction over
Russell existed because Russell intentionally directed his
conduct at South Dakota, and because the alleged effects of
his conduct were suffered in South Dakota.
December 2016, Virginia filed a separate lawsuit against
Traci in this Court alleging that Traci had alienated
Russell's affections in 2015. Civ. No. 16-4168, Doc. 1.
Virginia has amended her complaint to add Richard as a
defendant and to assert two claims for invasion of privacy
against him. Civ. No. 16-4168, Doc. 10. According to
Virginia, her alienation of affections claim against Traci
and Richard's alienation of affections claim against
Russell are based on the same telephone calls, texts, and
emails. Virginia's invasion of privacy claims concern the
packages Richard mailed to Illinois. Russell then amended his
answer in No. 16-4060 to add a counterclaim against Richard
for two counts of invasion of privacy. Civ. No. 16-4060, Doc.
28. Like Virginia's invasion of privacy claims,
Russell's invasion of privacy claims concern the packages
Richard sent to Illinois.
has moved to consolidate this case, No. 16-4060, with
Virginia's case against the Hyllands, No. 16-4168, Civ.
No. 16-4060, Doc. 29. Russell argued that the two cases
involve common questions of law and fact and that judicial
economy would be served by consolidating the cases for all
Hyllands then moved for judgment on the pleadings or,
alternatively, summary judgment in No. 16-4168. Civ. No.
16-4168, Doc. 16. The Hyllands argued that Illinois law
governs all of Virginia's claims, that her claims fail
under Illinois law, and that Virginia's invasion of
privacy claims are barred by the statute of limitations.
Richard filed an opposition to Russell's motion to
consolidate in No. 16-4060. Civ. No. 16-4060, Doc. 32.
Richard argued that consolidation would prejudice him because
Illinois law on alienation of affections is less favorable
than South Dakota law.
then filed a motion in No. 16-4168 asking this Court to
either deny or continue the Hyllands' motion for judgment
on the pleadings. Civ. No. 16-4168, Doc. 25. Virginia
contended that Russell deleted all of the messages Traci sent
him, and that Virginia therefore needs discovery to acquire
the communications Traci sent to Russell. Virginia argued
that this Court should not decide the choice of law issue
until the record is more fully developed.
12, 2017, Virginia filed a motion to compel discovery in No.
16-4168, asserting that the Hyllands' responses to
Virginia's interrogatories and request for production
were deficient. Civ. No. 16-4168, Doc. 34. Virginia's
motion mainly concerned Traci's communications with
Russell but also sought some information about Richard's
delivery of the packages in Illinois. Among Other things,
Virginia asked the Hyllands to produce all of the electronic
devices they have used since 2015 so that a forensic expert
could search them for communications between Traci and
Russell. The Hyllands produced an additional 272 pages of
documents on June 23, 2017, but Virginia remained unsatisfied
with the Hyllands' discovery responses.
13, 2017, Russell filed a motion to compel in No. 16-4060
seeking much of the same information as Virginia's motion
to compel in No. 16-4168. Civ. No. 16-4060, Doc. 36. Richard
in No. 16-4060 produced the same 272 pages of documents he
and Traci produced in No. 16-4168.
to promote convenience and economy in judicial
administration, Rule 42(a) of the Federal Rules of Civil
Procedure allows courts to consolidate cases involving
"a common question of law or fact." Fed.R.Civ.P.
42(a); see also Enter. Bank v. Saettele, 21 F.3d
233, 235 (8th Cir. 1994). District courts have broad
discretion to consolidate cases, although consolidation is
not appropriate "if it leads to inefficiency,
inconvenience, or unfair prejudice to a party." EEOC
v. HBE Corp., 135 F.3d 543, 550-51 (8th Cir. 1998). The
moving party bears the burden of showing that consolidation
is appropriate. Peters v. Woodbury Cty., 291 F.R.D.
316, 318 (N.D.Iowa 2013).
two cases clearly involve common questions of law and fact.
Richard's alienation of affections claim arises out of
the same facts and involves the same evidence as Traci's
alienation of affections claim. And Russell and
Virginia's claims against Richard for invasion of privacy
are essentially identical. Consolidating No. 16-4060 and No.
16-4168 for purposes of discovery and all other pretrial
proceedings will avoid duplicative discovery and motion
practice and will not prejudice the Hyllands. At this time,
however, this Court will deny without prejudice Russell's
motion to consolidate the cases for trial. Richard argued
that consolidating the cases will cause him prejudice because
the jury will not be able to apply the different standards
for alienation of affections under South Dakota and Illinois
law. This Court has not decided which state's law governs
Virginia's claims and will not do so until it has held a
joint hearing on the Hyllands' motion for judgment on the
pleadings, Virginia's motion to deny or continue the
Hyllands' motion for judgment on the pleadings, and the
motions to compel in each case. Once this Court has decided
the choice of law issue, Russell may renew his motion to
consolidate the Cases for trial. See Braddock v. Frontera
Produce, Ltd., 2014 WL 1411764, at *2-3 (D. Neb. Apr.
11, 2014) (consolidating cases for discovery purposes but
denying the motion to consolidate the cases for trial without
prejudice to the moving party refiling the motion at a later
time); Groh v. State Farm Mut. Ins. Co., 2011 WL
13680, at *2 (S.D. Ohio Jan. 3, 2011) (same).