Hertel v. Errez
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court considered a joint motion by plaintiffs and most defendants to consolidate two shareholder derivative cases, accept service, and appoint co-counsel. The court denied the motion because one defendant, J. Drew Byelick, had not joined the motion or received notice, and the court directed the plaintiff to file a new motion if Byelick declined to agree.
| What the court decided | The model |
|---|---|
Denial of the joint motion to consolidate cases, accept service, and appoint co-counsel“Court DENIES the joint motion to consolidate cases, accept service and appoint co-counsel.” | agree with court The court's decision is procedurally sound. A 'joint' motion implies the consent of all parties. Because Defendant Byelick was not a party to the motion and had not been served, the court could not grant the relief as requested without violating due process or the requirement for unanimous consent in such procedural stipulations. Denying the motion and directing the plaintiff to file a proper motion (likely a motion to consolidate under Rule 42(a) or a motion for appointment of counsel) is the correct procedural step to ensure all parties are heard. |
The order itself: sound — The order correctly identifies that a 'joint' motion requires the participation of all parties. Since one defendant was missing, the court properly denied the motion as filed. The reasoning is concise and directly addresses the procedural defect. It does not need to reach the merits of consolidation or counsel appointment because the procedural vehicle was flawed.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTY HERTEL, derivatively on Case No.: 23cv1165-GPC(SBC) behalf of RYVVL INC. f/k/a 12 GREENBOX POS, ORDER DENYING JOINT MOTION 13 TO CONSOLIDATE CASES, Plaintiff, ACCEPT SERVICE AND APPOINT 14 v. CO-COUNSEL 15 BEN ERREZ, FREDI NISAN, J DREW [Dkt. No. 8.] 16 BYELICK, BENJAMIN CHUNG, GENEVIEVE BAER, WILLIAM 17 CARAGOL, EZRA LANIADO and 18 DENNIS JAMES Defendants, 19 20 and 21 RYVVL, INC., Nominal Defendant, 22 23 Before the Court is a joint motion to consolidate the cases of Hertel v. Errez, Case 24 No. 23cv1165-GPC(SBC), and Gazaway v. Errez, 23cv1425-LAB(BLM), accept service, 25 26 27 28 1 || and appoint co-lead counsel in these shareholder derivative complaints.! (Dkt. No. 8.) 2 || Plaintiffs in the joint motion are Christy Hertel and Marcus Gazaway, the plaintiffs in the 3 shareholder derivative complaints. Defendants who joined in the joint motion are 4 || Ben Errez, Fredi Nisan, Benjamin Chung, Genevieve Baer, William Caragol, Ezra 5 || Laniado, Dennis James, and Nominal Defendant Ryvvl, Inc. (Dkt. No. 8.) Defendant J. 6 || Drew Byelick is absent from the joint motion and no proof of service of the joint motion 7 been filed indicating Mr. Byelick received notice of the joint motion. 8 “Defendants’ indication that the present motion is brought as a ‘joint’ motion is 9 somewhat misleading.” Ruiz v. Jimenez, Case No.: 22cv233-LL-WVG, 2022 WL 10 || 867010, at *3 n. 3 (S.D. Cal. Mar. 22, 2022) (quoting Harville v. Cnty. Comm'n of 11 || Lawrence Cnty., Alabama, No. cv-08-C-0222-NE, 2008 WL 11379962, at *1 n. 3 (N.D. 12 || Ala. Nov. 19, 2008)). “Typically, ‘joint’ motions are brought by all parties to a particular 13 |}lawsuit....” Jd.; see also Maisel v. AEH Co., Inc., Case No.: 3:21-cv-01493-BEN-DEB, 14 WL 4551939, at *1 n. 2 (S.D. Cal. Oct. 5, 2021) (same). 15 Here, Defendant Byelick has not joined in the “joint motion.” Because granting 16 || the joint motion will impact Mr. Byelick, who has not been provided notice of the joint 17 || motion, and also in the interest of avoiding piecemeal litigation, and judicial efficiency, 18 Court DENIES the joint motion to consolidate cases, accept service and appoint co- 19 ||counsel. To the extent Mr. Byelick declines to agree to the joint motion, Plaintiff must 20 || file the appropriate motion with the Court. 21 IT IS SO ORDERED. 22 ||Dated: August 25, 2023 C2. □□ 23 Hon. athe Cok. 4 United States District Judge 25 |} 27 |!" At the time the joint motion was filed, the two cases had not been low numbered. In this district, 28 consolidation cannot occur with two cases assigned to different district judges. However, because the two cases were low numbered on August 24, 2023, the joint motion to consolidate is now permissible.