United States of America v. Arizona, State of, et al

Filing 91

RESPONSE in Opposition re 69 First MOTION to Consolidate Cases filed by United States of America. (Wilkenfeld, Joshua)

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Tony West Assistant Attorney General Dennis K. Burke United States Attorney Arthur R. Goldberg Assistant Director, Federal Programs Branch Joshua Wilkenfeld (NY Bar #4440681) Varu Chilakamarri (NY Bar #4324299) U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W. Washington, DC 20530 Tel. [phone]/Fax [phone] [e-mail] Attorneys for the United States

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA The United States of America, Plaintiff, v. The State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, No. 2:10-cv-1413-PHX-SRB PLAINTIFF'S RESPONSE TO THE MOTION OF MARTIN H. ESCOBAR TO CONSOLIDATE

Defendants.

INTRODUCTION The United States respectfully submits this memorandum in opposition to the motion by Martin H. Escobar to consolidate the instant action with Escobar v. Brewer, No. CV-10-0249-TUC-SRB (D. Ariz.). Consolidation of the two cases is inappropriate because individualized issues present in the Escobar case but not the instant action would prejudice or delay the United States' lawsuit. ARGUMENT The Federal Rules of Civil Procedure allow separate lawsuits to be consolidated where the "actions before the court involve a common question of law or fact." Fed. R.

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Civ. P. 42(a). Although a district court has "broad discretion" in evaluating a motion to consolidate (Paxonet Communs., Inc. v. Transwitch Corp., 303 F. Supp. 2d 1027, 102829 (N.D. Cal. 2003)), this Court has explained that "[c]onsolidation is inappropriate . . . if it leads to inefficiency, inconvenience, or unfair prejudice to a party." See Glass v. Intel Corp., 2007 U.S. Dist. LEXIS 57666, at *11 (D. Ariz. 2007). Similarly, "consolidation may be inappropriate if individual issues predominate" or if the issues in one case will "confus[e]" the adjudication of another case. See Lewis v. City of Fresno, 2009 U.S. Dist. LEXIS 57083, at *3-4 (E.D. Cal. 2009) (internal citations omitted). See also Campbell v. PriceWaterhouseCoopers, 2008 U.S. Dist. LEXIS 75756 (E.D. Cal. 2008) ("Factors to be weighed [in evaluating a motion to consolidate] include the risk of prejudice and confusion."). Consolidation may also be rejected if one case presents an issue that need not be adjudicated in the other case. See, e.g., W. Watersheds Project v. United States Forest Serv., 2009 U.S. Dist. LEXIS 1359 (D. Idaho 2009) (rejecting consolidation because one of the cases involved a waiver issue that was not present in the other case, and because rejecting consolidation "keeps [the] case simple and avoids delay"). Thus, if the plaintiff in one case "rel[ies] on different legal theories to support their claims" than a plaintiff in the second case, consolidation may prove unduly prejudicial. Behrend v. Klein, 2006 U.S. Dist. LEXIS 68652 (E.D.N.Y. 2006). This Court should reject the instant motion to consolidate because Escobar v. Brewer presents significantly different issues from the instant dispute. Defendants have moved to dismiss the Escobar claims for lack of standing ­ an issue that is not present in the United States' lawsuit against Arizona. Although the United States does not offer any opinion on the merits of the standing issue in Escobar, the dispute itself creates a sufficient distinction between the cases as to recommend against consolidation. See, e.g., W. Watersheds Project v. United States Forest Serv., 2009 U.S. Dist. LEXIS 1359 (D. Idaho 2009).

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Additionally, although both disputes challenge the constitutionality of certain sections of S.B. 1070, the United States has challenged a larger portion of the statute than the Escobar plaintiffs ­ who have only challenged Sections 2, 3, and 6 of S.B. 1070 ­ and has sought to vindicate very different interests than those presented in Escobar. Whereas the United States has sought to prevent Arizona from interfering with its enforcement priorities, undermining foreign policy, and harassing lawfully present aliens, the Escobar preemption argument claims primarily that S.B. 1070 negates certain specific provisions of the INA. Additionally, Plaintiff Escobar has brought claims under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution that are not implicated by the United States' lawsuit. These different legal theories recommend against consolidation. See Behrend v. Klein, 2006 U.S. Dist. LEXIS 68652 (E.D.N.Y. 2006). Consolidation will likewise delay the United States' litigation. A preliminary injunction has already been entered in United States v. Arizona. By contrast, Plaintiff Escobar's motion for a preliminary injunction will not be fully briefed until August 20, 2010. See Order of July 13, 2010 (Docket No. 78). Consolidation with Escobar would thereby prejudicially delay the instant litigation. See Glass v. Intel Corp., 2007 U.S. Dist. LEXIS 57666, at *11-12 (rejecting consolidation so as to avoid "unreasonable delay" in one of the actions). Moreover, consolidation will not necessarily promote judicial efficiency. Although Plaintiff Escobar conclusorily claims that consolidation would "avoid[] duplication of effort," reduce "time, legal fees and costs, and . . . simplify the adjudication of the underlying dispute" (Motion at 2), Plaintiff Escobar has not in any way explained how such judicial economy will arise. As discussed above, a preliminary injunction has already been issued in the United States' lawsuit. Future proceedings are ill suited to consolidated efforts because the United States has challenged different sections of the statute from Plaintiff Escobar, has advanced different preemption arguments from Plaintiff Escobar, and seeks to protect different interests from Plaintiff Escobar. 3

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"The moving party bears the burden of showing consolidation is appropriate." See Lewis v. City of Fresno, 2009 U.S. Dist. LEXIS 57083, at *4. Plaintiff Escobar has failed to meet this burden, having failed to establish what efficiencies would result from consolidation (beyond those already achieved from having all the related cases before the same judge), and having failed to address the individual issues involved in Escobar v. Brewer. See In re Consolidated Parlodel Litig., 182 F.R.D. 441, 447 (D.N.J. 1998) ("I conclude that the predominance of individual issues . . . prevent Plaintiffs from meeting their burden on this motion to consolidate under Rule 42."). This Court should therefore deny the motion to consolidate. CONCLUSION For the foregoing reasons, the Court should deny the motion to consolidate the instant action with Escobar v. Brewer, No. CV-10-0249-TUC-SRB (D. Ariz.).

DATED: August 2, 2010 Respectfully Submitted, Tony West Assistant Attorney General Dennis K. Burke United States Attorney Arthur R. Goldberg Assistant Director, Federal Programs Branch /s/ Joshua Wilkenfeld Joshua Wilkenfeld (NY Bar #4440681) Varu Chilakamarri (NY Bar #4324299) U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W. Washington, DC 20530 Tel. [phone]/Fax [phone] [e-mail] Attorneys for the United States

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on August 2, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the CM/ECF registrants on record in this matter. /s/ Joshua Wilkenfeld Joshua Wilkenfeld