United States District Court, S.D. New York
June 3, 2005.
JOSEPH OVADIA, et al. Plaintiffs,
TOP TEN JEWELRY CORP., Defendant. JOSEPH OVADIA, et al. Plaintiffs, v. MING FUNG JEWELRY CORP., Defendant.
The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
These are closely related patent infringement actions. In both
cases, plaintiffs Joseph Ovadia and the Ovadia Corporation allege
that either Top Ten Jewelry or Ming Fung Jewelry used, sold and
induced others to use certain of plaintiffs' patented jewelry
cases during the "JA Winter Show", a trade show held at the Jacob
J. Javits Convention Center from January 25-27, 2004; each
complaint also invokes the same five patents: U.S. Patent No.
5,649,625 (the "`625 Patent"), U.S. Patent No. 5,758,765 (the
"`765 Patent") U.S. Patent No. 5,775,484 (the "`484 Patent") U.S.
Patent No. 5,913,417 (the "`417 Patent") and U.S. Patent No.
5,957,274 (the "`274 Patent"). Despite these similarities, the second of the above-captioned
actions was originally assigned to Judge Sweet. By Opinion dated
January 12, 2005, Judge Sweet granted in part and denied in part
Ming Fung's motion for summary judgment, finding insufficient
evidence to support plaintiffs' sale and inducement claims,
and plaintiff's continued use, sale, and inducement claims, but
concluding that a genuine issue of fact remained with respect to
plaintiffs' use claims stemming from the JA Winter Show.
Defendant Top Ten now moves this Court to consolidate the
above-captioned actions for trial. Plaintiff opposes this motion
on the ground that consolidation must be deferred until the Court
resolves a pending motion for partial summary judgment in case
No. 04 Civ. 2690. The Court disagrees, and orders the cases
consolidated for all purposes.
Rule 42(a) provides that a court may order actions consolidated
if they involve "common issues of law or fact." Fed.R.Civ.P.
42(a). In determining the propriety of consolidation, district
courts have "broad discretion", although consolidation is favored
where supported by "considerations of judicial economy." Ferrari
v. Impath, Inc., 2004 WL 1637053, at *2 (S.D.N.Y. July 20, 2004)
(citations and quotations omitted). Consolidation is particularly
appropriate where, as in this case, the complaints contain nearly
identical allegations, involve many of the same parties, and
would not prejudice the plaintiff(s).
Both Top Ten Jewelry Corporation and Ming Fung Jewelry
Corporation are jewelry wholesale companies jointly owned by Ming
Fung and Winnie Fung. (Feb. 1, 2005 Aff. of John L. Moncrief, ¶
(3)(b)). The allegations against each are substantially similar plaintiffs brought both cases pursuant to
35 U.S.C. § 385, and each case involves the same five patents, which were
purportedly violated at the same place and at the same
time.*fn1 Further, should either case go to trial,
plaintiffs' proof of infringement will be the same, namely,
visits to booths allegedly owned and operated by Top Ten and Ming
Fung at the JA Winter Show. For all of these reasons, the Court
finds that consolidation of the two actions will avoid
unnecessary cost or delay, will not prejudice plaintiffs, and
will otherwise promote judicial economy. Accordingly, the Court
orders that the actions be consolidated pursuant to Rule 42(a).
The caption of these consolidated actions shall hereinafter be
referred to as "Joseph Ovadia et al. v. Top Ten Jewelry Corp.,
et al." All relevant documents and submissions shall be
maintained as one file under Master File No. 04 Civ. 2690 (RJH).