
    Nos. 15-75 and 76-77.
    May 27, 1977
    Ernest A. Bryant, Jr., et al.
    
      Michael D. Rubin, attorney of record for plaintiffs.
    
      Rutan & Tucker, H. Roger Howell, Leonard A. Hampel, and John J. Murphy, of counsel.
    
      
      John E. Lindskold, with whom was Assistant Attorney General Peter R. Taft, for defendant.
    Before davis, Judge, Presiding, nichols and bennett, Judges.
    
   "The two cases above-entitled are instituted by the same persons to recover on the same set of facts. Plaintiffs are riparian landowners whose property was all located on the Santa Ana River in Southern California and downstream from Prado Dam, which is operated by the U. S. Army Engineers. In four suits in the United States District Court, Central District of California, they claimed damages by flooding, predicated on a taking and on a negligence theory. Pursuant to decision of the Ninth Circuit, the negligence claims have been dismissed and the taking claims transferred here. The clerk has docketed them as one case, No. 76-77. No. 15-75 was filed here originally as a precaution and a motion to dismiss on authority of 28 U.S.C. § 1500 has been held in suspense. Now plaintiffs move to consolidate the cases and defendant moves to dismiss No. 15-75 on the ground of its identity with No. 76-77.

"On consideration of the motions and supporting memos, but without oral argument, the court concludes that the cases should be consolidated and neither one dismissed. It would appear that, despite 28 U.S.C. § 1500, the two cases were concurrently maintainable on a theory, in each court, not available in the other. The court, is not advised what rights, if any, might be lost to plaintiffs if No. 15-75 is dismissed, and to be on the safe side, it is better practice to avoid dismissal. The cases should be consolidated for all purposes, not just for trial.

"Accordingly, plaintiffs’ motion for consolidation is granted and defendant’s motions to dismiss are denied. The cause is remanded to the Trial Division for further proceedings.”  