Ewing v. Carrier

Record showed that: (1) Dist. Ct. had denied plaintiff’s motion to add two defendants to plaintiffs’ fraud and breach of contract claim; (2) plaintiffs’ lawsuit resulted in $905,000 judgment in plaintiffs’ favor, although defendants’ motion for new trial remained pending; (3) instead of waiting for lawsuit to become final and to appeal Dist. Ct.’s denial of their request to add two defendants, plaintiffs filed second similar lawsuit against said defendants; and (4) second lawsuit was assigned to different Dist. Ct. judge, who ultimately dismissed second lawsuit on claim preclusion grounds. In plaintiffs’ appeal of dismissal of second lawsuit. Ct. of Appeals, in noting Local Rule 40.4, which permits district court judges to consolidate related cases before single judge, found that: (1) plaintiffs should not be permitted to shop judges by filing second lawsuit; (2) defendants in second lawsuit should have asked for transfer to first lawsuit or stay action in second lawsuit until result in first lawsuit had become final; and (3) second Dist. Ct. judge should have taken steps to see that both lawsuits be handled by one judge. Ct of Appeals, in directing that second lawsuit be remanded for purposes of transferring second lawsuit to Dist. Ct. judge in first lawsuit, observed that second lawsuit was unnecessary, regardless of whether plaintiffs actually prevailed in first lawsuit, where, if plaintiffs did prevail in first lawsuit, they had opportunity to proceed against defendants in second lawsuit in any collection proceeding stemming from first lawsuit.