Escobar v. Brewer et al

Filing 30

Reply re 20 First MOTION to Consolidate Cases (in Support of) by Defendant Tucson, City of, Cross Claimant Tucson, City of. (McCrory, Michael)

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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 MICHAEL G. RANKIN City Attorney Michael W.L. McCrory Principal Assistant City Attorney P.O. Box 27210 Tucson, AZ 85726-7210 Telephone: (520) 791-4221 State Bar 3899 PCC No. 37268 Attorneys for City of Tucson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MARTIN H. ESCOBAR, Plaintiff, vs. JAN BREWER, Governor of the State of Arizona, in her Official and Individual Capacity; and THE CITY OF TUCSON, a municipal corporation, Defendants. ______________________________ THE CITY OF TUCSON, a municipal corporation, Cross-plaintiff, vs. THE STATE OF ARIZONA, a body politic; and JAN BREWER, in her capacity as Governor of the State of Arizona, Cross-defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-249 TUC DCB DEFENDANT/CROSS-CLAIMANT CITY OF TUCSON'S REPLY IN SUPPORT OF PLAINTIFF'S REQUEST FOR TRANSFER AND CONSOLIDATION No. CV 10-249 TUC DCB No. CIV 10-951 PHX ROS Defendant/Cross-claimant, City of Tucson (hereafter the "City"), submits the following reply in support of Plaintiff's Request for Transfer and Consolidation. {A0028764.DOC/} 1 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 Defendant Brewer's Response to the Plaintiff's Request does not dispute that it is appropriate for this case to be consolidated with the case of Salgado, et. al. v. Brewer, et al., CIV 10-951 PHX ROS. Instead, Defendant Brewer argues that no decision should be made by this Court until there is a decision in one of the other cases filed with the Phoenix courts. The City submits that it is a false dichotomy to require a decision by one or the other of the courts. This case will almost inevitably be transferred to Phoenix where the four other cases are located and which is the seat of government for the State. That is, however, a separate and distinct issue from the consolidation of this case with the Salgado case. This case and Salgado have the same attorneys for the plaintiffs and virtually identical complaints with identical legal issues. Both cases have a plaintiff who is a city police officer and cities as defendants. Flagstaff, Arizona, and several other towns have voted to intervene. Tucson expects that motion to be filed in the Salgado case which is the appropriate venue for those other cities. These are parallels that do not exist with the other cases and by granting the consolidation there will be a single case that includes all the Arizona cities and towns that are directly involved in the litigation. These are also parallels that make consolidation as opposed to transfer appropriate. Local Rule 42 recognizes that these are different requests and here consolidation is not as appropriate with the other three {A0028764.DOC/} 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 Phoenix cases as it is with the Salgado case. That will remain the case regardless of which judge ultimately handles all of the cases. The consolidation also has real and immediate practical value. A reduction of cases from five to four is still a reduction of cases and reduction in duplication of pleadings and filings. There is also an order for a briefing schedule in Salgado on the Plaintiff's brief, which was filed the about the same time as the Plaintiff's brief in this case. Defendant City's and Defendant Brewer's response to that brief essentially be the same as it will be for this case. There is no reason either to duplicate that brief with a different plaintiff's name or delay the filing of the duplicate briefs. There is a short period of time until SB 1070 is scheduled to take effect on July 29, 2010. Providing a briefing schedule for even part of the five cases at least establishes some order in the process of reaching a determination on the validity of the law before that date. As noted above, Defendant Brewer does not dispute that the consolidation of this case and Salgado is appropriate based upon the common attorneys, facts and defendants. The City submits that granting the consolidation of this case with the Salgado case will simplify the proceedings in all the cases without prejudging ... ... {A0028764.DOC/} 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 how the cases ultimately should be heard by a single judge. The request for consolidation should therefore be granted. Respectfully submitted this 10th day of June, 2010. MICHAEL G. RANKIN City Attorney By: /s/ Michael W.L. McCrory Michael W.L. McCrory Principal Assistant City Attorney Copies of the foregoing mailed on this 10th day of June, 2010, to: Richard M. Martinez 307 South Convent Avenue Tucson, Arizona 85701 Stephen Montoya Augustine B. Jimenez Montoya Jimenez, PA 3200 N Central Avenue, #2550 Phoenix, AZ 85012 Co-counsel for Plaintiff John J. Bouma Robert A. Henry Joseph G. Adams Snell & Wilmer, LLP One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Joseph A. Kanefield General Counsel Office of the Governor 1700 W. Washington Phoenix, AZ 85007 {A0028764.DOC/} 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 Co-counsel for Defendant/CrossDefendant Jan Brewer Mary R. O'Grady Solicitor General Christopher A. Munns Assistant Attorney General 1275 W. Washington Phoenix, AZ 85007-2997 Counsel for Cross-defendant State of Arizona /s/ Michelle Gensman {A0028764.DOC/} 5

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