When actions involving common questions of law or fact are pending before a court, the court may order a joint hearing or trial of any or all of the matters in issue in the actions and may order that the actions be consolidated.143 Such an order may be upon the motion of a party or upon the court’s own motion. Although the courts generally take a favorable view of consolidation, the mere fact that a common question is present, and that consolidation is therefore permissible, does not mean that the trial court judge must order consolidation. Consolidation is nothing more than a case management tool. Thus, the grant or denial of a motion to consolidate is within the discretion of the court.144 Such discretion may be exercised to limit the extent of consolidation. For example, consolidation may be granted limited to pre-trial proceedings.144.1 The purpose of consolidation is to permit the business of the courts to be dispatched with expedition and economy while providing justice to the parties.144.2
The burden is on the movant to show that consolidation is desirable. The initial inquiry is whether the cases share a common question of law or fact. The next question is whether justice can be administered without multiple suits. In order to answer that question, the court must weigh the possible saving of time and effort that consolidation would advance against any inconvenience, delay, or expense that it would occasion. Generally, consolidation is appropriate when any confusion or prejudice does not outweigh efficiency concerns.144.3
In determining whether actions should be consolidated, a court will consider (i) whether evidence will overlap by having some of the same witnesses or documents; (ii) whether continued separation will impose duplication, double expense, and not be conducive to the expedition of trial; (iii) whether consolidation will cause undue surprise or hardship to a party; (iv) whether separate judgments may be given to separate parties to prevent any prejudice; and (v) whether confusion will result from the combination of the cases.145 A court will also consider whether one case involves a claim of punitive damages whereas the other does not.146 All these factors are subject to the overriding limitation that any consolidation be reasonable and not prejudicial to the rights of any party.147
Actions need not be identical before they may be consolidated. Consolidation may be ordered where different damage claims are filed if the commonality requirement is satisfied. Also, where enough common and related issues exist such that it would needlessly waste both time and manpower to require separate trials, the parties need not be the same.147.1
Prior to 1977, if separate actions had been instituted in two different counties, Delaware’s Constitution prohibited joinder of the actions.148 In 1977, the Constitution was amended to delete the requirement that actions be tried in the county in which they were commenced. Now there appears to be no barrier to consolidating cases brought in different counties.
143. Ch. Ct. R. 42(a); Super. Ct. Civ. R. 42(a); Comm. Pls. Ct. Civ. R. 42(a); Fam. Ct. Civ. R. 42(a).
144. Union Mutual Life Ins. Co. v. Dewey, 270 A.2d 833 (Del. Super. 1970); Olson v. Motiva Enterprises, LLC, C.A. Nos. 02C-04-263JRS, 02C-05-168JRS, 02C-05-169JRS & 02C-05-190JRS, slip op. at 12, Slights, J. (Del. Super. July 22, 2003).
144.1. E.g., Bartron v. Pettit, C.A. No. 06C-05-269-JOH, slip op. at 8, Herlihy, J. (Del. Super. Nov. 27, 2007).
144.2. Freibott v. Miller, C.A. Nos. 08C-11-025-RFS (Sussex County), 09C-02-059-MMJ (New Castle County), slip op. at 3, Stokes, J. (Del. Super. July 9, 2009); Olson v. Motiva Enterprises, LLC, C.A. Nos. 02C-04-263JRS, 02C-05-168JRS, 02C-05-169JRS & 02C-05-190JRS, slip op. at 12, Slights, J. (Del. Super. July 22, 2003).
144.3. Connelly v. Kingsland, C.A. No. 08C-05-031 (JTV), slip op. at 5, Vaughn, J. (Del. Super. July 30, 2010).
145. Olson v. Motiva Enterprises, LLC, C.A. Nos. 02C-04-263JRS, 02C-05-168JRS, 02C-05-169JRS & 02C-05-190JRS, slip op. at 14, Slights, J. (Del. Super. July 22, 2003); Hoyle v. Mueller, C.A. No. 88C-SE9 & 89C-MY22, slip op. at 9-10, Graves, J. (Del. Super. Feb. 13, 1990); Minor v. Toulson, C.A. Nos. 78C-NO-47, 100 & 80C-SE-40, slip op. at 3-5, Martin, J. (Del. Super. Nov. 4, 1982). See also Williams v. Howard Johnson Co., C.A. Nos. 909 & 926, slip op. at 3, O’Hara, J. (Del. Super. Feb. 4, 1976).
146. Hutchison v. Willey, C.A. Nos. 79C-MR-104 & 78C-SE-95, slip op. at 2-3, Longobardi, J. (Del. Super. July 22, 1980) (ORDER), opinion clarified, C.A. Nos. 79C-MR-104 & 78C-SE-95, Longobardi, J. (Del. Super. Aug. 13, 1980) (ORDER). Even in such circumstances, however, a joint trial may still be appropriate if the trial is then bifurcated, with the damages portion tried separately. Id.
147. Williams v. Howard Johnson Co., C.A. Nos. 909 & 926, slip op. at 4, O’Hara, J. (Del. Super. Feb. 4, 1976).
147.1. Freibott v. Miller, C.A. Nos. 08C-11-025-RFS (Sussex County), 09C-02-059-MMJ (New Castle County), slip op. at 4, Stokes, J. (Del. Super. July 9, 2009).
148. Del. Const. art. I § 9; Brandywine Mushroom Corp. v. Thompson, 137 A.2d 746, 747 (Del. Super. 1958).
© 2010 David L. Finger