United States District Court, S.D. Florida
ORDER ON BRAZTECH'S MOTION TO
G. TORRES UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Braztech International
L.C.'s ("Defendant" or "Braztech")
motion to consolidate this action with William Burrow and
Oma Louise Burrow v. Forjas Taurus and Braztech, case
no. l:16-cv-21606-EGT (the "Burrow case").
On November 6, 2017, Suzanne M. Bedwell ("Ms.
Bedwell") and Ernest D. Bedwell ("Mr.
Bedwell") (the "Bedwell Plaintiffs") filed
their response [D.E. 73] to which Braztech replied on
November 13, 2017. [D.E. 76]. Therefore, Braztech's
motion is now ripe for disposition. After careful
consideration of the motion, response, reply, the benefit of
oral argument, the record presented, the relevant authority,
and for the reasons discussed below, Braztech's motion is
GRANTED in part and DENIED in
The Bedwell Case
Bedwell Plaintiffs filed this action (the
"Bedwell case") on September 16, 2016
(four months after the Burrow case) in the United
States District Court for the District of Alaska as a
proposed class action alleging negligent design or
manufacture of Rossi-brand .357 Magnum revolvers. [D.E.
On January 20, 2015, Ms. Bedwell purchased a Magnum revolver
at an outdoor equipment retailer in Wasilla, Alaska. On
February 21, 2015, Ms. Bedwell, along with her husband and
son, drove to an ammunition store to purchase supplies before
driving to Palmer, Alaska to engage in target practice. In
the process of exiting the motor vehicle in the parking lot,
the revolver inadvertently fell out of its holster, landed on
its hammer, and unintentionally discharged a round of
ammunition that struck Ms. Bedwell's son in his left leg.
Ms. Bedwell suggests that the accidental discharge of the
firearm was directly and proximately caused by the
firearm's defective condition, including manufacturing
and/or design defects. As a result of the injury to Ms.
Bedwell's son, Alaska state troopers were called to the
scene. After hearing Ms. Bedwell's explanation for the
cause of the accident, the officers took the firearm into
April 14, 2015, Alaska state troopers tested Ms.
Bedwell's firearm for a potential misfiring defect by
tapping the revolver on the hammer with a small mallet. The
test allegedly resulted in an unintentional misfiring of the
weapon. Plaintiff then purchased three additional Rossi .357
revolvers and a local gunsmith tested them for defects. Out
of the three, one discharged in the same way as Ms.
Bedwell's revolver when struck on the hammer with a
mallet. As such, Ms. Bedwell filed this class action seeking
to force Braztech to recall, repair, and/or repurchase the
defective. 357 revolvers sold to Ms. Bedwell and the class.
Specifically, the Bedwell Plaintiffs seek to represent a
proposed class that includes "[a]ll individuals in the
United States and its territories who own a Rossi .357 Magnum
revolver." [D.E. 75-1]. The Magnum revolvers include
models R46202, R46102, R97206, and R97104.
the Bedwell Plaintiffs allege that Braztech violated the
Florida Deceptive and Unfair Trade Practices Act, committed
two counts of negligence (failure to warn and failure to
test), and breached several warranties. Judge Sedgwick, in
the District of Alaska, transferred this case to the Southern
District of Florida pursuant to the first-filed rule because
there was substantial overlap between Bedwell and
The Burrow Case
Burrow and Oma Louise Burrow (the "Burrow
Plaintiffs") filed their complaint on May 5, 2016 with
allegations that certain handguns that Forjas Taurus
manufactured - and that Braztech distributed in the United
States - are defective and unreasonably dangerous.
Specifically, the Burrow Plaintiffs claim that several
handguns share safety features with identical designs and
that they are prone to drop-fires. The Burrow Plaintiffs own
a Rossi .38 Special which allegedly discharges when dropped.
As such, the Burrow Plaintiffs seek to represent a proposed
class that includes "[a]ll individuals in the United
States who own a Revolver." [D.E. 75-1]. The revolvers
are defined as models R35102, R35202, R85104, R97206, R97104,
Court issued its Scheduling Order in the Burrow case
on June 28, 2016. That Order initially established a trial
date of March 5, 2018 with a discovery deadline of October 4,
2017 and a deadline for motions for October 9, 2017. These
deadlines were subsequently extended and a new trial date is
set for July 16, 2018. The discovery deadline is now February
2, 2018 and the deadline to file motions is April 13,
2018. To date, the Burrow Plaintiffs have issued
discovery requests to both Braztech and Forjas Taurus, and
both defendants have produced documents in
response. On November 8, 2017, the Burrow Plaintiffs
filed a motion to intervene to Braztech's motion to
consolidate. [D.E. 75-1].
motion seeks to consolidate Bedwell with
Burrow pursuant to Fed.R.Civ.P. 42(a), which
provides that "[i]f actions before the court involve a
common question of law or fact, the court may: (1) join for
hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or (3) issue any other orders to
avoid unnecessary cost or delay." Rule 42(a) codifies a
trial court's managerial power '"to control the
disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for
litigants.'" In re Air Crash Disaster at
Florida Everglades, 549 F.2d 1006, 1012 (5th Cir.
1977) (quoting Landis v. North American
Co., 299 U.S. 248, 254 (1936)). The Eleventh Circuit has
"encouraged trial judges to 'make good use of Rule
42(a) ... in order to expedite the trial and eliminate
unnecessary repetition and confusion."' Hendrix
v. Raybestos-Manhattan, Inc., 776 F.2d 1492,
1495 (11th Cir. 1985) (quoting Dupont v. Southern Pacific
Co., 366 F.2d 193, 195 (5th Cir. 1966)). The decision on
whether to consolidate under Rule 42(a) is purely
discretionary, yet the district court must determine the
[W]hether the specific risks of prejudice and possible
confusion [are] overborne by the risk of inconsistent
adjudications of common factual and legal issues, the burden
on parties, witnesses and available judicial resources posed
by multiple lawsuits, the length of time required to conclude
multiple suits as against a single one, and the relative
expense to all concerned of the single-trial, multiple-trial
Hendrix, 776 F.2d at 1495 (quoting Arnold v.
Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir.
1982)). "The court must also bear in mind the extent to
which the risks of prejudice and confusion that might attend
a consolidated trial can be alleviated by utilizing
cautionary instructions to the jury during the trial and
controlling the manner in which the plaintiffs' claims
(including the defenses thereto) are submitted to the jury
for deliberation." Hendrix, 776 F.2d at 1495.
The Burrow Plaintiffs' Motion to Intervene
ruling on Braztech's motion to consolidate, we must
consider the Burrow Plaintiffs' motion to
intervene. Under Rule 24(a)(2), a district court
must permit anyone to intervene in a case as a
matter of right when the intervener:
(1) is given an unconditional right to intervene by a federal
(2) claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
FED. R. CIV. P. 24(a)(2). "Any doubt concerning the
propriety of allowing intervention should be resolved in
favor of the proposed intervenors because it allows the court
to resolve all related disputes in a single action."
Fed. Sav. & Loan Ins. Corp. v. Falls Chase
Special Taxing Dist., 983 F.2d 211, 216 (11th Cir.
Burrow Plaintiffs claim that they meet all four requirements
under Rule 24(a)(2). This means they must establish that (1)
their motion is timely, (2) they have an interest relating to
the property or transaction underlying Bedwell, (3)
they are situated in a way that the disposition of
Bedwell may impede or impair their ability to
protect their interests, and (4) the original parties are
inadequate to protect their interests. See Sierra Club,
Inc. v. Leavitt, 488 F.3d 904, 910 (11th Cir. 2007);
see also Chiles v. Thornburgh, 865 F.2d 1197, 1213
(11th Cir. 1989) (internal citation omitted).
with the question of timeliness, courts consider several