Elgamal v. Bernacke et al

Filing 78

CONSOLIDATION ORDER (Re 2:13-cv-00867-GMS-LOA, 2:14-cv-00040-LOA) ORDERED that Plaintiffs' Motion to Seal Complaint, doc. 1, in CV-14-040-PHX-LOA is GRANTED, nunc pro tunc, to January 9, 2014, and unsealing this action (Elgamal II), except the Complaint itself, doc. 2, shall remain SEALED. FURTHER ORDERED that Defendants' Motion for Consolidation and Transfer, sealed (doc. 74 lodged), 77 filed is GRANTED. The Clerk of Court is kindly directed to consolidate the following two cas es: Elgamal v. Johnson, CV-13-867-PHX-GMS (LOA) (Elgamal I) and Elgamal v. United States of America, CV-14-040-PHX-LOA (Elgamal II). These cases shall be consolidated into the lead case under Case No. CV-13-867-PHX-GMS (LOA). The parties are hereby d irected to utilize only the lead case number and its caption with the addition of United States of America as a defendant on all future filings until further order of the Court. FURTHER ORDERED that Plaintiffs' Motion for Leave to File Second A mended Complaint, (doc. 65 lodged), 76 filed, is conditionally GRANTED, provided Plaintiffs comply with this Order. The Second Amended Complaint, however, must not be the same one lodged under seal on January 9, 2014, doc. 66 , but rather, it mu st include all causes of action Plaintiffs elect to allege in Elgamal I and II, without any mention of the Lilly Memorandum, as if it had not inadvertently been disclosed in the Mata case. The Second Amended Complaint must be initially lodged, not fi led as a public document, within 10 days of the entry of this Order and promptly served on Defendants. FURTHER ORDERED that Plaintiffs are conditionally granted leave to file a different amended complaint than the one lodged on January 9, 2014 in El gamal I as explained herein. FURTHER ORDERED that Defendants' Motion for Stay of Case Proceedings and Motion to Keep Case Filings Under Seal Pending Resolution of Discovery Dispute, doc. 69 , are DENIED. All documents filed under seal before the date of this Order shall remain sealed until further order of the Court. Signed by Magistrate Judge Lawrence O Anderson on 1/30/14. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Lawrence O Anderson on 1/30/14. (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ashraf Elgamal, individually and as)
guardian ad litem for A.E, a minor;)
Amanda Elgamal, an adult,
)
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Plaintiffs,
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vs.
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)
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Jeh Johnson, Secretary of the Department)
of Homeland Security; Alejandro)
Mayorkas, Director of U.S. Citizenship)
and Immigration Services; John Ramirez,)
Field Office Director; Rebecca Bernacke,)
in her individual capacity; Cynthia Harper,)
in her individual capacity,
)
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Defendants.
)
)
)
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Ashraf Elgamal, individually and as)
guardian ad litem for A.E, a minor;)
Amanda Elgamal, an adult,
)
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Plaintiffs,
)
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vs.
)
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United States of America,
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Defendant.
)
)

No. CV-13-867-PHX-GMS (LOA)
(lead case)
CONSOLIDATION ORDER

No. CV-14-040-PHX-LOA

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There are several motions pending in these two related actions. On January 21, 2014,

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Defendants lodged a Motion to Seal and Motion for Consolidation and Transfer, requesting

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consolidation of these nearly identical cases presently assigned to two different judges in the

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District Court of Arizona: Elgamal v. Johnson, CV-13-867-PHX- GMS (LOA) (“Elgamal

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I”) and Elgamal v. United States of America, CV-14-040-PHX-LOA (“Elgamal II”). (Sealed

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docs. 73-74) Defendants represent that Plaintiffs’ counsel in both cases “[i]s not opposed

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to the transfer and consolidation.” (Id. at 2) Defendants indicate both cases arise from the

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same facts and circumstances surrounding the withdrawal of an I-140 petition filed on behalf

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of Plaintiff Ashraf Elgamal. (Id.) The named Plaintiffs are the same in both cases, but the

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defendants are different in each case. The only Defendant in Elgamal II is the United States

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of America (“USA”). Also pending for rulings in Elgamal I are Plaintiffs’ Motion for Leave

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to File Second Amended Complaint, doc. 65, and Defendants’ Motion for Stay of Case

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Proceedings and Motion to Keep Case Filings Under Seal Pending Resolution of Discovery

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Dispute, doc. 69.

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I. Background

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Generally, the pro se Complaint in Elgamal I, filed on April 29, 2013, asserts Bivens1

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claims against several federal employees involved in the investigation of Mr. Elgamal’s

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application for adjustment of his immigration status and his subsequent complaint to the

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Department of Homeland Security’s (“DHS”) Office for Civil Rights and Civil Liberties

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(“CRCL”). Elgamal II alleges causes of action for negligence and negligent supervision

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against Defendant USA, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

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1346, 2670-80, arising out of the Government’s processing of Mr. Elgamal’s application for

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adjustment of status and subsequent complaint to CRCL. The facts alleged by Plaintiffs in

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both cases are virtually identical. The Complaint in Elgamal II was lodged under seal on

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January 9, 2014, pending the Court’s ruling on whether it should be filed under seal, and

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indicates that, inter alia, on or about July 5, 2013, Plaintiffs filed administrative claims with

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U.S. Citizenship and Immigration Services (“USCIS”) as required by the FTCA. (Sealed

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doc. 2, ¶ 7 at 2) Elgamal I was referred to the undersigned Magistrate Judge for all

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See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971).
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appropriate pretrial matters pursuant to Rule 72(a), Federal Rules of Civil Procedure, and

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LRCiv 72.1(a). (Doc. 47) Elgamal II was randomly assigned to this Magistrate Judge

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pursuant to LRCiv 3.7(a)(1).

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Plaintiffs’ counsel first appeared in Elgamal I on June 5, 2013, and, shortly thereafter,

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filed the First Amended Complaint, which is presently sealed pending resolution of the

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parties’ discovery dispute discussed later herein. (Docs. 8-9) Defendants’ counsel appeared

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in Elgamal I on July 12, 2013, not long after service and review of the First Amended

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Complaint. (Doc. 18) Defendant USA appeared in Elgamal II when it lodged and requested

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sealing of its Motion for Consolidation and Transfer on January 21, 2014. To date, no

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defendant has answered or otherwise responded to the complaint in either case.

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Since mid-July 2013, counsel in Elgamal I have been embroiled in a discovery

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dispute regarding the return of an alleged privileged document, known as the “Lilly

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Memorandum,” inadvertently disclosed to Plaintiffs during discovery in a related case,

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Marcella Mata and Ashraf Elgamal v. Janet Napolitano, etc.; et al., CV-12-289-PHX-ROS

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(“Mata”). The Mata case was dismissed without prejudice by a different Arizona District

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Judge on July 15, 2013. (Doc. 18 in CV-12-289-PHX-ROS) On July 19, 2013, the assigned

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District Judge in Elgamal I granted Defendants an extension to answer until after the

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resolution of the parties’ Lilly Memorandum dispute, referred the discovery dispute to the

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undersigned Magistrate Judge for resolution, and ordered all documents disclosing the

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details of the Lilly Memorandum sealed until further order of the Court. (Doc. 23 at 3)

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Relying on Federal Rule of Evidence 502(b) and Federal Rule of Civil Procedure

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26(b)(5)(B), and (c), the Elgamal I Defendants requested a protective order, directing

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Plaintiffs to gather and return to defense counsel all copies of the disputed Lilly

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Memorandum until the Court decides the issues regarding its use, asserting the Lilly

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Memorandum is protected from discovery by the deliberative-process and attorney-client

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privileges. (Sealed doc. 20 at 1-2) On December 23, 2013, and following express Ninth

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Circuit authority that a district court lacks the power to issue a valid protective order to

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compel the return of documents obtained through discovery in a separate action, this
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Magistrate Judge denied without prejudice Defendants’ request that a protective order issue

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in Elgamal I for discovery inadvertently disclosed in the Mata case. (Sealed doc. 63) (citing

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Kirshner v. Uniden Corp. of America, 842 F.2d 1074 (9th Cir. 1988); Whittaker Corp. v.

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Execuair Corp., 736 F.2d 1341, 1347 (9th Cir. 1984)). The docket for the Mata case reflects

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that, on January 10, 2014, Defendants filed, inter alia, a Motion to Reopen and Motion for

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Protective Order. (Docs. 55; sealed doc. 56, CV-12-289-PHX-ROS) The time for briefing

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has not expired.

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On January 9, 2014, Plaintiffs moved for leave to file a Second Amended Complaint

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in Elgamal I. Plaintiffs represent “[t]he primary purposes [for amendment is] adding Jeffrey

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S. Blumberg and Margo Schlanger as individual defendants, streamlining the Bivens causes

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of action, adding allegations concerning the statute of limitations, and updating information

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that has been discovered since the filing of the First Amended Complaint.” (Sealed doc. 66)

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Defendants have not filed any opposition to Plaintiffs’ requested amendment, but have filed

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a Motion for Stay of Case Proceedings and Motion to Keep Case Filings Under Seal Pending

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Resolution of Discovery Dispute. (Doc. 69)

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For the reasons discussed below, the Court will grant the consolidation motion,

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conditionally grant Plaintiffs’ amendment request, and deny Defendants’ motion to stay

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these proceedings pending the parties’ dispute regarding the Lilly Memorandum in the Mata

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case.

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II. Consolidation

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“Under Rule 42(a) of the Federal Rules of Civil Procedure, consolidation is

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appropriate ‘[i]f actions before the court involve a common question of law or fact.’” Hall

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v. Medicis Pharmaceutical Corp., 2009 WL 648626, at *1 (D. Ariz. March 11, 2009). In

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determining whether consolidation is appropriate, a district court “must balance the interest

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of judicial convenience against the potential for delay, confusion and prejudice that may

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result from such consolidation.” Sapiro v. Sunstone Hotel Investors, L.L.C., 2006 WL

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898155, at *1 (D. Ariz. April 4, 2006); see also In re Adams Apple, Inc., 829 F.2d 1484,

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1487 (9th Cir. 1987); Monolithic Power Systems, Inc. v. O2 Micro Intern. Ltd, 2006 WL
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2329466, at *1 (N.D. Cal. 2006) (granting consolidation where common questions of law

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and fact exist and judicial economy would be served). “Factors such as differing trial dates

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or stages of discovery usually weigh against consolidation.” Sapiro, 2006 WL 898155, *1

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(citing Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2383

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(1995). “[T]he risk of inconsistent adjudications of common factual and legal issues”

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generally weighs in favor of consolidation.” Id. (citing Malcolm v. Nat'l Gypsum Co., 995

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F.2d 346, 350 (2d Cir. 1993)) (citations omitted). A district court has broad discretion to

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determine whether consolidation is appropriate. Investors Research Co. v. U.S. Dist. Court

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for Cent. Dist. Of Cal., 877 F.2d 777, 777 (9th Cir. 1989).

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Under LRCiv 42.1(a), the consolidation or transfer of cases to a single judge is

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permissible whenever two or more cases are pending before different judges on the grounds

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that such cases: “(1) arise from substantially the same transaction or event; (2) involve

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substantially the same parties or property; (3) involve the same patent, trademark, or

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copyright; (4) call for determination of substantially the same questions of law; or (5) for any

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other reason would entail substantial duplication of labor if heard by different Judges.”

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“Because the standard for transfer under LRCiv 42.1 is similar to the standard for

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consolidation under Fed.R.Civ.P. 42(a), the Court has broad discretion in deciding a motion

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to transfer under LRCiv 42.1(a).” Addington v. US Airline Pilots Ass’n, 2010 WL 4117216,

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at *1 (D. Ariz. Oct. 19, 2010) (citations omitted).

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Based upon these standards, consolidation of Elgamal I and II is appropriate. These

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actions undisputedly involve common questions of law and fact. Consolidating these actions

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into one will enhance the efficiency of their resolution rather than litigating them separately.

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Consolidation would conserve the time and effort of counsel and the district court, avoid

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unnecessary expenses in resolving two separate lawsuits, and avoid the potential of

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inconsistent outcomes. Elgamal I and II will be consolidated.

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III. Amendment

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Federal Rule of Civil Procedure 15(a)(2) provides, in relevant part, that “[t]he court

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should freely give leave when justice so requires.” “In deciding whether justice requires

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granting leave to amend, factors to be considered include the presence or absence of undue

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delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous

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amendments, undue prejudice to the opposing party and futility of the proposed amendment.”

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Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman

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v. Davis, 371 U.S. 178, 182 (1962)).

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Despite the passage of nine months that Elgamal I has been pending, the Defendants

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have still not answered or otherwise responded to the First Amended Complaint as the

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parties’ have spent an inordinate amount of time and effort on the claw back issue related

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to the Lilly Memorandum. Overall, both Elgamal I and Elgamal II are in their infancy. There

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has been no discovery between the parties in Elgamal I, the Rule 16 case management

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conference has not been scheduled, and, of course, a trial date has not been set. Granting

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Plaintiffs’ conditional leave to amend to file a Second Amended Complaint to add two new

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defendants and the FTCA claims alleged in Elgamal II, but without any mention of the Lilly

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Memorandum, as if it had not inadvertently been disclosed in the Mata case, will not cause

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undue delay of either consolidated case or undue prejudice to either Plaintiffs or Defendants.

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Moreover, there is no evidence of Plaintiffs’ bad faith or a dilatory motive by moving to

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amend at this time and, without a developed record, it is too early in the litigation to

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determine whether the claims to be alleged in the Second Amended Complaint are futile.

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Plaintiffs’ request for leave to file a Second Amended Complaint will be conditionally

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granted. Moreover, if the Second Amended Complaint does not mention the Lilly

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Memorandum, as if it had not inadvertently been disclosed in the Mata case, good cause will

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not exist for so many requests that pleadings and other filings be filed under seal, which

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unduly complicate the adjudication of the issues in these cases.

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IV. Motions to Stay

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Defendants request a stay of all case proceedings and deadlines in the lead case

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“[u]ntil the discovery dispute is resolved in Mata[]” and “that all documents filed in this case

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remain under seal.” (Doc. 69 at 1-2)

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A district court has discretion to stay civil proceedings in the interest of justice and
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in the light of the particular circumstances of the case. Grubbs v. Irey, 2008 WL 906246, at

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*1 n. 5 (E.D. Cal. March 31, 2008) (citing Sec. & Exch. Comm’n v. Dresser Indus., Inc., 628

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F.2d 1368, 1375 (D.C. Cir. 1980)). In determining whether a stay is appropriate, a district

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court should consider the particular circumstances and competing interests involved, such

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as:

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(1) the interest of the plaintiffs in proceeding expeditiously with this litigation
or any particular aspect of it, and the potential prejudice to plaintiffs of a
delay; (2) the burden which any particular aspect of the proceedings may
impose on defendants; (3) the convenience of the court in the management of
its cases, and the efficient use of judicial resources; (4) the interests of persons
not parties to the civil litigation; and (5) the interest of the public in the
pending civil and criminal litigation.

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Keating v. Office of Thrift Supervision, 45 F.3d 322, 325 (9th Cir. 1995). It is within the
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district court’s discretion, however, to grant or deny a stay after weighing these factors. Id.
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Here, there is no parallel criminal prosecution to warrant staying these civil cases to
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protect a defendant’s constitutional rights. Staying these consolidated cases is neither
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reasonable nor necessary. If the Second Amended Complaint were to make no reference to
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the Lilly Memorandum, as if it had not inadvertently been disclosed in the Mata case, there
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would be no risk of prejudice to Defendants by disclosing confidential information that is
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arguably privileged. Assuming Defendants obtain a claw back protective order in Mata,
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whether the Lilly Memorandum is properly discoverable thereafter or even admissible in
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evidence are issues that need not be resolved at this pleading stage nor must the purported
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privileged portions of the Lilly Memorandum be alleged in a complaint to state a claim for
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relief under Rule 12(b)(6), Fed.R.Civ.P. Further, granting the broad stay requested by
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Defendants is inconsistent with the Civil Justice Reform Act’s, 28 U.S.C. § 471 et seq.,
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attempt to facilitate a speedier adjudication of civil cases and Rule 1’s directive that “[t]hese

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rules . . . should be construed and administered to secure the just, speedy, and inexpensive

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determination of every action[.]” (emphasis added) Moreover, staying these consolidated

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cases denies the Plaintiffs the reasonably expeditious resolution of their claims; may
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exacerbate their damages, if liability exists; and delays the public’s interest in the exposure
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of the alleged governmental misconduct of USCIS immigration officers.

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Defendants’ request “that all documents filed in this case remain under seal” is overly

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broad and contrary to the public’s “general right to inspect and copy public records and

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documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435

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U.S. 589, 597 & n. 7 (1978); see also In Re Copley Press, Inc.,518 F.3d 1022, 1028 (9th Cir.

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2008) (The public’s qualified right to access can be overcome if “(1) closure serves a

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compelling interest; (2) there is a substantial probability that, in the absence of closure, this

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compelling interest would be harmed; and (3) there are no alternatives to closure that would

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adequately protect the compelling interest.”) (citation omitted). Moreover, because the

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public’s right is not absolute, it does not apply to “documents which have traditionally been

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kept secret for important policy reasons.” Id. (citing Times Mirror Co. v. United States, 873

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F.2d 1210, 1219 (9th Cir. 1989)).

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The Ninth Circuit has made clear that a party seeking to seal a judicial filing bears the

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burden of overcoming the strong presumption of openness by meeting the “compelling

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reasons” standard before a filing may be properly sealed. Kamakana v. City and County of

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Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). Admittedly, there is “an exception to the

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presumption of access to judicial records for a sealed discovery document attached to a

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non-dispositive motion, such that the usual presumption of the public’s right of access is

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rebutted.” Id. (internal quotation marks, brackets, emphases and citations omitted). The party

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seeking to seal a discovery document or a document attached to a non-dispositive motion is

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only required to meet the lower standard of “good cause” pursuant to Fed.R.Civ.P. 26(c).

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Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003).

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After considering all the Keating factors and in the exercise of its wide discretion, this

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Magistrate Judge will deny Defendants’ request to stay this action and that all documents

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filed in this case remain under seal.

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Good cause appearing,

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IT IS ORDERED that Plaintiffs’ Motion to Seal Complaint, doc. 1, in CV-14-040-

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PHX-LOA is GRANTED, nunc pro tunc, to January 9, 2014, and unsealing this action
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(Elgamal II), except the Complaint itself, doc. 2, shall remain SEALED.

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IT IS FURTHER ORDERED that Defendants’ Motion for Consolidation and

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Transfer, sealed doc. 74, is GRANTED. The Clerk of Court is kindly directed to consolidate

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the following two cases: Elgamal v. Johnson, CV-13-867-PHX-GMS (LOA) (Elgamal I)

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and Elgamal v. United States of America, CV-14-040-PHX-LOA (Elgamal II). These cases

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shall be consolidated into the lead case under Case No. CV-13-867-PHX-GMS (LOA). The

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parties are hereby directed to utilize only the lead case number and its caption with the

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addition of United States of America as a defendant on all future filings until further order

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of the Court.

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IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Second

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Amended Complaint, doc. 65, is conditionally GRANTED, provided Plaintiffs comply with

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this Order. The Second Amended Complaint, however, must not be the same one lodged

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under seal on January 9, 2014, doc. 66, but rather, it must include all causes of action

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Plaintiffs elect to allege in Elgamal I and II, without any mention of the Lilly Memorandum,

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as if it had not inadvertently been disclosed in the Mata case. The Second Amended

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Complaint must be initially lodged, not filed as a public document, within 10 days of the

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entry of this Order and promptly served on Defendants. Within 7 days of service,

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Defendants may file an objection under seal solely on the issue whether the Second

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Amended Complaint complies with this Order regarding the Lilly Memorandum. Absent a

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timely objection by Defendants, the Clerk of Court is kindly directed to file the Second

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Amended Complaint as a public document. Defendants’ time to answer or otherwise respond

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to the Second Amended Complaint is from the filing of the Second Amended Complaint.

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IT IS FURTHER ORDERED that Plaintiffs are conditionally granted leave to file

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a different amended complaint than the one lodged on January 9, 2014 in Elgamal I as

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explained herein.

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IT IS FURTHER ORDERED that Defendants’ Motion for Stay of Case

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Proceedings and Motion to Keep Case Filings Under Seal Pending Resolution of Discovery

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Dispute, doc. 69, are DENIED. All documents filed under seal before the date of this Order
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shall remain sealed until further order of the Court.

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The Clerk of Court shall provide copies of this Order to all counsel of record.

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Dated this 30th day of January, 2014.

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