Escobar v. Brewer et al

Filing 29

RESPONSE in Opposition re 20 First MOTION to Consolidate Cases filed by Jan Brewer. (Bouma, John)

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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] 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 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, Defendants. David Salgado and Chicanos Por La Causa, Inc. Plaintiffs, v. Jan Brewer, individually and in her capacity as Governor of Arizona, and the City of Phoenix, an Arizona municipal Corporation, Defendants. Case No. CV10-00951-PHX-ROS Case No. CV10-00249-TUC-DCB GOVERNOR BREWER'S RESPONSE TO PLAINTIFF'S REQUEST FOR TRANSFER AND CONSOLIDATION

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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]

Defendant Janice K. Brewer ("Governor Brewer") hereby responds to the request to transfer and consolidate filed by plaintiffs in this action. This case is one of the five actions now pending in the U.S. District Court for the District of Arizona that challenge the "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona Senate Bill 1070, as amended by House Bill 2162 ("SB 1070"). Of the five pending actions, this action is the second-filed case. Plaintiff now wishes to transfer and consolidate this case with the fourth-filed case pending in the Phoenix Division, which was also filed by the same plaintiffs' counsel. Governor Brewer respectfully submits that all five cases should be handled by a single judge rather than transferring and consolidating them on a piecemeal basis. I. Background of Related Cases. Five cases challenging the validity of SB 1070 have been filed in the U.S. District Court for the District of Arizona, in the following order: A. Roberto Javier Frisancho v. Brewer, et al., Case No. CV10-00926-PHX-

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SRB ("Frisancho"), filed on April 27, 2009. The case is assigned to the Hon. Susan R. Bolton. The complaint filed by this out-of-state, pro se plaintiff has not been updated since SB 1070 was amended on April 30, 2010. Governor Brewer's response is due to be filed by June 11, 2010. Governor Brewer anticipates filing a motion to dismiss based on plaintiff's lack of standing to challenge SB 1070. B. Martin H. Escobar v. Jan Brewer, et al., Case No. CV10-00249-TUC-

DCB ("Escobar"), filed on April 29, 2010 at 7:56 a.m. The case is assigned to the Hon. David C. Bury. Plaintiff has lodged a motion for preliminary injunction on June 3, 2010. The City of Tucson filed a motion for preliminary injunction on June 7, 2010. C. National Coalition of Latino Clergy and Christian Leaders v. State of

Arizona, et al., Case No. CV10-00943-PHX-SRB ("National Coalition"), filed on April 29, 2010 at 1:43 p.m. The case is assigned to the Hon. Susan R. Bolton. An amended complaint was filed on June 9, 2010 but has not yet been served.

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

D.

David Salgado v. Jan Brewer, et al., Case No. CV10-00951-PHX-ROS

("Salgado"), filed on April 29, 2010 at 3:54 p.m. The case is assigned to the Hon. Roslyn O. Silver. Plaintiffs' motion for preliminary injunction was deemed filed on June 9, 2010. Governor Brewer's response to the amended complaint is due to be filed by June 11, 2010. F. Friendly House v. Whiting, et al., Case No. CV10-01061-PHX-MEA

("Friendly House"), filed on May 17, 2010. The case is presently assigned to Magistrate Judge Mark E. Aspey. Plaintiffs lodged a motion for preliminary injunction on June 4, 2010. Plaintiffs have moved to transfer the case to Judge Bolton. II. All Five Cases Should be Transferred to a Single Judge. Governor Brewer submits that all five cases should be handled by a single judge. All five cases challenge the validity of SB 1070 on similar and overlapping grounds. Having a single judge handle all five cases would be more efficient than litigating the cases in separate courts, would permit a single judge to coordinate the multiple motions for preliminary injunction that have now been filed, and would avoid "the potential of inconsistent outcomes." See BAE Systems Mobility & Protection Systems, Inc. v. Armorworks Enterprises, LLC, No. CV08-1697-PHX-JAT, 2009 U.S. Dist. LEXIS 35920, at *4 (D. Ariz. Apr. 14, 2009) (applying LRCiv 42.1). However, plaintiffs in this action ask this Court to consolidate only the Escobar and Salgado cases and then transfer the consolidated case from this Court to Judge Silver, who is assigned to the Salgado case. Governor Brewer takes no position on which judge would be best suited to hear the cases. Governor Brewer stands ready to litigate the cases before any of the district court judges who are assigned to these cases.1 No matter which judge is assigned, Governor Brewer submits that it would strongly serve the public interest to have a single judge be assigned to all five cases on an expedited basis, There are three district court judges presently assigned to the related cases. Judge Bolton has two of the cases, including the first-filed action; Judge Silver is assigned to Salgado, the fourth-filed action; and this Court is assigned to Escobar, which was filed before Salgado.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

especially now that at least four motions for preliminary injunction challenging SB 1070 have been filed or lodged with the Court in various cases. A single judge would be able to coordinate briefing schedules on preliminary injunction motions, any hearings that the Court wishes to schedule, and other case management tasks. Governor Brewer further submits that any decision on consolidating the related cases should be made by the single judge assigned to handle all five cases. Governor Brewer agrees with plaintiff in this action that the Escobar and Salgado cases present common issues of law and fact. However, Governor Brewer submits that it would serve little purpose to transfer only two of the cases to a single judge. Plaintiffs characterize Salgado as the "lead case," but there is little support for such a distinction. In truth, this action was filed prior to Salgado. Plaintiffs' counsel in Escobar and Salgado filed their cases on the same day, April 29, 2010. Plaintiff's counsel filed the Escobar case at 7:56 a.m. in the Tucson Division, which was assigned to this Court. Plaintiff's counsel then filed a substantially similar case in Salgado at 3:54 p.m. in the Phoenix Division, which was assigned to Judge Silver.2 Governor Brewer was served with the Salgado case on May 17, 2010; the same lawyers waited until June 2, 2010 to serve Governor Brewer with the Escobar complaint. Further, plaintiffs in at least one other action (Friendly House) have also lodged a motion for preliminary injunction with the Court. In that case, the plaintiffs have moved to transfer the case to Judge Bolton. In light of the similarity between the five cases and the likelihood of plaintiffs seeking preliminary injunctive relief in other cases, Governor Brewer submits that all five cases (rather than only two cases) should be handled by a single judge. III. Conclusion. For these reasons, Governor Brewer respectfully requests that the request for transfer and consolidation be denied insofar as it is limited to two of the five related In their initial complaints, one set of plaintiffs' attorneys was counsel of record in the Escobar case and another law firm was counsel of record in Salgado. In their amended complaints, the two groups of plaintiffs' lawyers joined together and all of these lawyers are now counsel of record for both the Escobar and Salgado cases.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

cases. Governor Brewer instead submits that it would be far more efficient to have a single judge handle all five cases, and that any decisions on consolidating the related cases should be made by that single judge. Respectfully submitted this 10th day of June, 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 and 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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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 [phone]

CERTIFICATE OF SERVICE I hereby certify that on June 10, 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: s/John J. Bouma
11612234

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