Escobar v. Brewer et al

Filing 31

Notice re Filing Escobar Response to Defendant Brewer's Motion for Transfer in Frisancho v. Brewer, et. al. by Martin H Escobar (Attachments: # 1 Exhibit Copy of Escobar Response to Defendant Brewer's Motion for Transfer)(Martinez, Richard)

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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 DISTRICT OF ARIZONA Roberto Javier Frisancho, Plaintiff, pro se, vs. Jan Brewer, in her capacity as Governor of the State of Arizona, and Terry Goddard, in his official capacity as Attorney General of the State of Arizona, Defendants. Martin H. Esobar, through his undersigned counsel, hereby responds to

No. CIV 10-926 PHX SRB PLAINTIFF MARTIN H. ESCOBAR'S RESPONSE TO DEFENDANT BREWER'S MOTION TO TRANSFER RELATED CASES TO THIS COURT No. CIV 10-249 TUC DCB

22 Defendant Brewer's motion to transfer Escobar v. Brewer, et. al., CIV 10-249 TUC DCB
1 23 to this Court. Transfer to the Phoenix Division is not opposed; request is respectfully

24 made that in accordance with the provisions of Rule 42, F.R.C.P. and LRCiv. 42.1 that 25 the five identified SB 1070 cases be transferred to the Hon. Roslyn O. Silver. This 26 27 Plaintiff filed a request for transfer and consolidation to the Salgado, et al. v. Brewer, et al., CIV 10-951 PHX ROS on Friday, June 4, 2010 with Judge Bury. CD No. 28 20 in CIV 10-249 TUC DCB.
1

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1 request is consistent with the criteria set forth in Rule 42(d).2 2 Plaintiff agrees that the five cases challenging the legality of the "Support Our 3 Law Enforcement and Safe Neighborhoods Act," Senate Bill 1070, as amended by HB 4 2162 (the "Act"), involve common legal questions and should be heard by the same 5 judge. This will avoid duplication of effort and potentially conflicting rulings. 6 The case with the lowest number, Frisancho v. Brewer, et al., No. CIV 10-926 7 PHX SRB, was filed by an out of state resident who has never lived or visited Arizona. 8 In his Complaint, he states that he "plans on visiting Arizona in September 2010 and 9 [to] return over the next few years to research the `Chandler Roundup'. . . ." Frisancho 10 v. Brewer, CD No. 1, Complaint, p. 2, ¶ 5. The Frisancho complaint raises significant 11 issues of standing from defendants Brewer and Goddard that are not applicable to 12 Officer Escobar who is a long-term resident of Arizona. 13 The National Coalition of Latino Clergy & Christian Leaders v. State of Arizona, 14 et al., No. CIV 10-943 PHX SRB, filed on April 29, 2010 after Escobar, and on the same 15 day that Salgado was filed, appears to be currently dormant. The Clerk's Docket does 16 not contain any evidence that the 13 plaintiffs in National Coalition have been served 17 or any filings to further prosecution of the case. 18 The Friendly House, et. al. v. Whiting, et. al., CIV 10-1061 PHX MEA, was filed 19 May 17, 2010. Friendly House has 24 plaintiffs and 30 defendants, and has no 20 defendant common to the Escobar case.3 Friendly House is factually complex, seeks 21 class certification and contains distinct legal issues regarding Article III standing. The 22 Clerk's Docket reflects that the plaintiffs in Friendly House have yet to file proof of 23 service for the 30 defendants. 24 25 26 27 Defendant/cross claimant City of Tucson has no objection to transfer or assignment to Judge Silver.
3 2

LRCiv. 42.1(a)(4), provides that assignment requires consideration of the

Plaintiff filed a Rule 41 dismissal of Pima County Attorney Barbara LaWall from 28 his case on June 7, 2010. CD No. 24. -2-

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1 following factors: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 A. B. C. D. Whether substantive matters have been considered in the case; Which judge has the most familiarity with the issues involved in the case; Whether a case is reasonably viewed as the lead or principal case; or Other factors serving the interest of judicial economy.

The mere fact that a case may have the lowest number (Frisancho) does not factor into the determination of to whom the related cases should be transferred for further proceedings. Plaintiff offers that the Salgado case is the lead case of the five pending cases challenging the Act; the plaintiffs in Salgado have: · · · · · filed and served their Amended Complaint; filed and served a Motion for a Preliminary Injunction and a Memorandum of Points and Authorities in support of that Motion; filed and served a Motion for Leave to Engage in Expedited Discovery; filed and served a Motion for a Status Conference; and filed and served a Motion for a Scheduling Order and Hearing Date regarding their Motion for Preliminary Injunction.

19 In Salgado, Defendant City of Phoenix has already answered Plaintiffs' Amended 20 Complaint and Governor Brewer is scheduled to answer/respond to Plaintiffs' Amended 21 Complaint today. Additionally, Judge Silver issued an order setting a briefing schedule 22 for the pending request for a preliminary injunction yesterday, June 10, 2010. CD No. 23 34 in CIV 10-951 PHX ROS. 24 26 Salgado is procedurally and substantively further along than the other actions Escobar has developed in a manner that mirrors Salgado in many respects. 25 challenging the legality of the Act. 27 Service has occurred, the City of Tucson has filed an answer and asserted a cross28 claim and two motions for preliminary injunction have been submitted. Additionally, -3-

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1 after motions for transfer were filed in Friendly House and then by Governor Brewer, 2 plaintiff requested transfer to the Phoenix Division and consolidation with Salgado. The 3 City of Tucson has joined in this request. 4 Should this Court decide to adjudicate all five cases, Plaintiff respectfully requests 5 that this Court designate the Escobar/Salgado case(s) as the lead case so as to allow 6 timely consideration of their pending motions for a Preliminary Injunction. 7 8 9 10 11 12 13 14 15 Copy electronically transmitted this 11th day of June 2010 16 via the USDC Clerk of Court using the CM/ECF System for 17 filing and transmittal to: 18 Michael Rankin, City Attorney City of tucson 19 Michael W.L. McCory Principal Assistant City Attorney 20 P.O. Box 2710 Tucson, Arizona 85726-7210 21 Attorneys for the City of Tucson 22 John J. Bouma Robert A. Henry 23 Joseph G. Adams SNELL & WILLMER, LLC 24 One Arizona Center 400 East Van Buren 25 Phoenix, Arizona 85004-2202 26 Joseph A. Kanfield Office of Governor Janice K. Brewer 27 1700 West Washington, 9th Floor Phoenix, Arizona 85007 28 Attorneys for Defendant Governor Janice K. Brewer -4Respectfully submitted this 11th 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

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1 Mary R. O'Grady, Solicitor General 2 Christopher A. Munns, Assistant Attorney General 3 1275 West Washington Street Phoenix, Arizona 85007-2997 4 Attorneys for the State of Arizona 5 Gary Verburg Elaine K. Cardwell 6 Office of the City Attorney City of Phoenix 7 200 West Washington Phoenix, Arizona 85003 8 Attorneys for Defendant City of Phoenix 9 COPY tof the foregoing e-mailed this 11 h day of June 2010 to: 10 Barbara LaWall 11 County Attorney-Pima County c/o Regina Nassen & Amelia Cramer 12 32 North Stone, Suite 1400 Tucson, Arizona 85701 13 Defendant 14 COPY tof the foregoing mailed this 11 h day of June 2010 to: 15 Roberto Javier Frisancho, 16 1311 Delaware Avenue, S.W., Apt. S 337 Washington, D.C. 20024 17 plaintiff pro se 18 s/Richard M. Martinez, Esq. 19 20 21 22 23 24 25 26 27 28 -5-