Escobar v. Brewer et al

Filing 20

First MOTION to Consolidate Cases by Martin H Escobar. (Attachments: # 1 Text of Proposed Order)(Martinez, Richard)

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

RICHARD M. MARTINEZ, SBA No. 7763 307 South Convent Avenue Tucson, Arizona 85701 [phone] phone [phone] fax [e-mail] Stephen Montoya, SBA No. 11791 Augustine B. Jimenez III, SBA No. 12208 Montoya Jimenez, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 [phone] [phone] (fax) [e-mail] [e-mail] Counsel for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA

MARTIN H. ESCOBAR

) ) Plaintiff, ) ) v. ) ) JAN BREWER, Governor of ) the State of Arizona, in her ) Official and Individual ) Capacity, the City of Tucson, ) a municipal corporation, and ) Barbara LaWall, County ) Attorney, Pima County, ) ) Defendants. ) ) ) DAVID SALGADO and ) Chicanos Por la Causa, Inc., ) ) Plaintiffs, ) ) v. ) ) JAN BREWER, individually ) and in her capacity as ) Governor of Arizona, and ) Capacity, the City of Phoenix, ) an Arizona municipal ) corporation, ) ) Defendants. ) )

No. CIV 10-249 TUC DCB REQUEST FOR TRANSFER AND CONSOLIDATION

No. CIV 10-951 PHX ROS

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

Plaintiff, through his undersigned counsel, hereby requests transfer of this matter to the Phoenix Division to be consolidated with the Salgado, et. al. v. Brewer, et al., CIV 10-951 PHX ROS.1, which is currently awaiting a final briefing schedule for plaintiffs motion for a preliminary injunction.2 See CD No. 6 & 11 in CIV 10-951 PHX ROS.3 Both cases, Escobar and Salgado, challenge the constitutionality of SB 1070 (the "Support Our Law Enforcement and Safe Neighborhoods Act," Senate Bill 1070, as amended by House Bill 2162 (the "Act"), which was recently signed into law by Governor Brewer.4 This request is made pursuant to Rule 42, F.R.C.P. and LRCiv. 42.1 for reasons of judicial economy and efficiency, and with the consent of the Salgado plaintiffs and the City of Tucson which filed an answer and cross claim on May 26, 2010 in the instant action.5 See CD No. 9. The factors relevant to plaintiff's request include (1) whether substantive matters have been considered in a case; (2) which Judge has the most familiarity with issues involved in the cases; (3) whether a case is reasonably viewed as the lead or principal case; (4) any other factor serving the interest of judicial economy. All four factors are applicable in this instance. Transfer and consolidation to Salgado is appropriate as it represents the lead case with the District of Arizona challenging SB 1070. In Salgado service has been

Defendant Brewer filed a request for transfer to Judge Bolton on Friday, May 28, 2010. CD No. 12-1 in CIV 10-926 PHX SRB.
1

In Salgado, all defendants have been served and plaintiffs filed a motion for a preliminary injunction, briefing schedule and hearing date on May 17, 2010. CD No. 6. On May 26, 2010, Judge Silver issued an order requiring a response from all defendants to plaintiffs motion by June 2, 2010. CD No. 11. A briefing schedule and hearing date on the preliminary injunction is expected shortly from Judge Silver.
2 3 4 5

Plaintiffs have also requested leave to commence discovery. See CD No. 10 The Act takes effect July 29, 2010.

Defendant Barbara LaWall, the Pima County Attorney has not stated a position on transfer or consolidation. Governor Brewer has requested transfer to the Phoenix Division and has not stated a position concerning consolidation.
-2-

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

completed on all defendants, a motion filed for preliminary injunction, briefing schedule and evidentiary hearing date. Plaintiffs' memorandum of points and authorities with exhibits has been filed.6 Judge Silver ordered the defendants to submit their response to the briefing schedule by June 2, 2010. See CD No. 11 in CIV 10-1061 PHX ROS.7 Additionally, leave to commence discovery has been requested in Salgado. See CD No. 10. The Salgado and Escobar filings were initiated by two police officers, who as stated in their complaints, believe that SB1070 is preempted by federal law, denies equal protection and violates the 4th,5th,and 14th Amendments to the United States Constitution. Both officers know from their combined 35 years of experience in patrol that in the urban setting, there are no race neutral factors that identify a person as undocumented. In contrast, the SB 1070 cases currently before Judge Bolton have yet to be served, responded to and no motion for a preliminary injunction has been filed or briefed, no briefing schedule has been requested nor has any hearing date been set. Additionally, the efforts to transfer to Judge Bolton are premised on the Frisancho filing which is subject to immediate dismissal as the plaintiff lacks standing to bring suit in Arizona challenging SB 1070. (Mr. Frisancho lives in Washington DC, has never been to Arizona and plans to visit Arizona in September to research the "Chandler Roundup" which occurred in July of 1997. CIV 10-926 PHX SRB, CD No. 1, ¶5) The National Coalition of Latino Clergy & Christian Leaders v. State of Arizona, CIV 10-943 PHX SRB case shows no evidence of service and the Friendly House, et. al. v. Whiting, et. al,, CIV 10-1061 PHX MEA case seeks class certification, does not name Governor Brewer as a defendant, has yet to include a motion seeking a preliminary
6 7

In Escobar, the motion and brief for a preliminary injunction was submitted yesterday.

The City of Phoenix consented to the proposed briefing schedule. Governor Brewer seeks to delay consideration of the pending motion for preliminary injunction and failed to offer any viable schedule in an attempt to avoid consideration of an order enjoining implementation of SB 1070 .
-3-

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

injunction, names 30 defendants and includes 24 plaintiff parties. This will result in the court having to make a significant number of distinct decisions concerning standing. In contrast, the Salgado and Escobar cases arise from the same event, the passage of SB 1070, name Governor Brewer as a common defendant and include the two named cities that are plaintiff Escobar's and Salgado's employer.8 Chicanos Por La Causa, Inc., ("CPLC"), operates statewide, including Tucson and Pima County.9 Additionally, both cases seek a determination on the same issue of law, the constitutionality of SB1070. Proceeding as a consolidated matter will avoid substantial duplication of judicial resources, promote efficiency and avoid the possibility of inconsistent results. For the reasons noted, it is respectfully request that CIV 10-249 TUC DCB be transferred to the Phoenix Division of the Federal District Court for the District of Arizona and that it be consolidated with CIV 10-951 PHX ROS. Respectfully submitted this 4th day of June 2010. s/Richard M. Martinez, Esq. Richard M. Martinez, Esq. Stephen Montoya, SBA No. 11791 Augustine B. Jimenez III, SBA No. 12208 Montoya Jimenez, P.A. Counsel for Plaintiff // // Copy th electronically transmitted this 4 day of June 2010 All defendants in Escobar have been served. The City of Tucson filed an answer and cross claim to plaintiff's first amended complaint on May 26, 2010. CD. No. 9. Therein, the City clearly and unequivocally states the belief that SB 1070 in unconstitutional and an impossible unfunded mandate. The City also seeks a temporary restraining order and consented to the briefing schedule proposed in Salgado. CD No.
8

CPLC Tucson operations include three charter schools that serve Hispanic students.
9

-4-

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

via the USDC Clerk of Court using the CM/ECF System for filing and transmittal to: Michael Rankin, City Attorney City of tucson Michael W.L. McCory Principal Assistant City Attorney P.O. Box 2710 Tucson, Arizona 85726-7210 Attorneys for the City of Tucson John J. Bouma Robert A. Henry Joseph G. Adams SNELL & WILLMER, LLC One Arizona Center 400 East Van Buren Phoenix, Arizona 85004-2202 Joseph A. Kanfield Office of Governor Janice tK. Brewer 1700 West Washington, 9 h Floor Phoenix, Arizona 85007 Attorneys for Defendant Governor Janice K. Brewer Mary R. O'Grady, Solicitor General Christopher A. Munns, Assistant Attorney General 1275 West Washington Street Phoenix, Arizona 85007-2997 Attorneys for the State of Arizona COPY of the foregoing e-mailed this 4th day of June 2010 to: Barbara LaWall County Attorney-Pima County c/o Regina Nassen & Amelia Cramer 32 North Stone, Suite 1400 Tucson, Arizona 85701 Defendant s/Richard M. Martinez, Esq.

-5-