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

Filing 92

RESPONSE to Motion re 44 MOTION to Consolidate Cases filed by Janice K Brewer. (Bouma, John)

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

Doc. 92

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

John J. Bouma (#001358) Robert A. Henry (#015104) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Phone: [phone] Fax: [phone] [e-mail] [e-mail] [e-mail] Joseph A. Kanefield (#015838) Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Telephone: [phone] Fax: [phone] [e-mail] Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA David Salgado, et al., Plaintiffs, v. Jan Brewer, et al., Defendants. The United States of America, Plaintiffs, v. The State of Arizona, et al., Defendants. No. CV 10-1413-PHX-SRB No. CV-10-00951-PHX-SRB GOVERNOR BREWER'S RESPONSE TO PLAINTIFFS' MOTION TO CONSOLIDATE

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Snell & Wilmer L.L.P.

Dockets.Justia.com

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

Defendant Janice K. Brewer ("Governor Brewer") hereby responds to plaintiffs' motion to consolidate Salgado v. Brewer, et al., Case No. CV-10-00951-PHX-SRB (the "Salgado Case") with United States v. Arizona, et al., Case No. CV-10-1413-PHX-SRB (the "Federal Case") (doc. 84). Plaintiffs' motion should be denied. First, consolidation is premature because Governor Brewer's motion to dismiss the case based (in part) on plaintiffs' lack of standing remains pending. Second, consolidation is inappropriate in light of the different legal arguments presented by the parties in the two actions and the differing procedural postures of the cases. I. PROCEDURAL BACKGROUND Both actions are one of seven pending cases that challenge the validity of Senate Bill 1070, as amended by House Bill 2162 ("SB 1070"). On June 11, 2010, Governor Brewer moved to dismiss the First Amended Complaint in the Salgado Case on the grounds that plaintiffs lack standing to pursue these claims and that they failed to state a claim upon which relief can be granted (doc. 39). Plaintiffs in the Salgado Case also filed a motion for preliminary injunction that sought to enjoin the enforcement of SB 1070 before its effective date of July 29, 2010 (doc. 33). Both pending motions were the subject of oral argument on July 15, 2010. In addition, on June 24, 2010, plaintiffs in the Salgado Case moved for leave to file a Second Amended Complaint that added additional plaintiffs to this action (doc. 52). On July 28, 2010, the Court entered an order in the Federal Case granting in part and denying in part the plaintiff's motion for preliminary injunction, and enjoining the enforcement of certain provisions of SB 1070. On July 29, 2010, Governor Brewer appealed the preliminary injunction order in the Federal Case to the U.S. Court of Appeals for the Ninth Circuit. II. LEGAL STANDARD Rule 42 of the Federal Rules of Civil Procedure permits consolidation of cases involving a common question of law or fact. See Fed. R. Civ. P. 42(a); LRCiv 42.1(b).
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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

The district court has broad discretion to determine whether consolidation is appropriate, and in making this determination, should "balance the interest in judicial convenience against the potential for delay, confusion and prejudice that may result from such consolidation." Sapiro v. Sunstone Hotel Investors, L.L.C., No. CV03-1555-PHX-SRB, 2006 U.S. Dist. LEXIS 21234, *3 (D. Ariz. Apr. 4, 2006) (quoting Bank of Montreal v. Eagle Assoc., 117 F.R.D. 530, 532 (S.D.N.Y. 1987)). Plaintiffs bear the burden of showing that consolidation will not lead to inefficiency, inconvenience, or unfair prejudice. See Lewis v. City of Fresno, No. CV-F-08-1062 OWW/GSA, 2009 U.S. Dist. LEXIS 57083, at *4 (E.D. Cal. July 6, 2009). III. ARGUMENT Plaintiffs present little explanation in support of their motion to consolidate these cases other than to say that the two cases "assert virtually identical claims" and seek the same relief (doc. 84). In truth, there are important differences between the two cases. Governor Brewer submits that consolidation is inappropriate and that plaintiffs' motion should be denied. First, the plaintiffs in the Salgado Case have not yet demonstrated that they have suffered cognizable injuries that would grant them standing to pursue their claims. Governor Brewer has moved to dismiss plaintiffs' First Amended Complaint in the Salgado Case on this ground (doc. 39). This motion to dismiss was argued to the Court on July 15, 2010 and remains pending. Governor Brewer submits that it would not serve the interests of judicial economy to take action to consolidate cases before it is clear whether the action will proceed. See Y.P. Corp. v. Sitrick and Co., No. CV-05-0769-PHX-SRB, 2005 U.S. Dist. LEXIS 32513, at *19 (D. Ariz. Dec. 8, 2005) (motion to consolidate is moot when one suit is dismissed). On the other hand, no such challenge has been made in the Federal Case. Until the issue of standing is resolved, the motion to consolidate is premature. Second, there are notable differences in the legal and factual issues raised in the two cases. As noted in the opposition brief of the United States filed in the Federal Case
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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

(doc. 85), the plaintiffs in the Salgado Case challenged a more limited portion of SB 1070 than the United States in the Federal Case. Further, although both cases (like all seven of the cases challenging SB 1070) raise preemption issues, the United States raises preemption issues that are unique to the claimed interest of the federal government. Plaintiffs in the Salgado Case also have not explained why these two cases should be consolidated, but the remaining five cases that also challenge SB 1070 should not. Finally, consolidation may delay the resolution of the Federal Case and complicate matters on appeal because the cases are proceeding on different schedules. As the Court is aware, on July 29, 2010, Governor Brewer appealed the Court's preliminary injunction order to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit has already set a briefing schedule and placed the case on its calendar. On the other hand, Governor Brewer's motion to dismiss and plaintiffs' motion for preliminary injunction in the Salgado Case remain pending, as well as plaintiffs' motion for leave to file a second amended complaint. Consolidating a case that is already on appeal with a case that has numerous pending motions at the district court level is likely to lead to delay and unneeded complexity. See Sapiro, 2006 U.S. Dist. LEXIS 21234, at *4 ("Factors such as differing trial dates or stages of discovery usually weigh against consolidation.") (citing Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2383 (1995)). Contrary to plaintiffs' argument, consolidating cases with such different procedural postures is likely to lead to additional time and effort on the part of all counsel, and higher fees and costs for all parties involved. IV. CONCLUSION For these reasons, Governor Brewer requests that the motion to consolidate be denied.

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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

RESPECTFULLY SUBMITTED this 2nd day of August, 2010. SNELL & WILMER L.L.P. By s/ John J. Bouma John J. Bouma Robert A. Henry Joseph G. Adams One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 By s/ Joseph A. Kanefield with permission Joseph A. Kanefield Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona

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Snell & Wilmer L.L.P.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

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 a Notice of Electronic Filing to the CM/ECF registrants on record.

By

s/ John J. Bouma

11809867

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