Escobar v. Brewer et al

Filing 83

RESPONSE to Motion re 79 Second MOTION to Consolidate Cases GOVERNOR BREWER'S RESPONSE TO PLAINTIFF'S MOTION TO CONSOLIDATE filed by Jan Brewer. (Bouma, John)

1 John J. Bouma (#001358)

Robert A. Henr (#015104)
2 Joseph G. Adams (#018210)

SNELL & WILMER L.L.P.
3 One Arizona Center

400 E. Van Buren
4 Phoenix, AZ 85004-2202

Phone: [phone]
5 Fax: [phone]

jbouma~swlaw.com
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7 Office of

Joseph A. Kanefield (#015838) Governor Janice K. Brewer 1700 W.Washington, 9th Floor
Telephone: [phone]

8 Phoenix, AZ 85007
9 Fax: [phone]

jkanefield~az.gov
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Attorneys for Defendant Janice K. Brewer,
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Governor of the State of Arizona

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IN THE UNITED STATES DISTRICT COURT

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Martin H. Escobar,

FOR THE DISTRICT OF ARIZONA
Case No. CV -10-00249- TUC-SRB

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Plaintiff,
v.

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the State of Arizona, in her Official and Individual Capacity; the City of Tucson, a municipal corporation,
Jan Brewer, Governor of

GOVERNOR BREWER'S RESPONSE TO PLAINTIFF'S MOTION TO CONSOLIDATE

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Defendants.
The City of Tucson,

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Cross-plaintiff,
v.

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The State of Arizona, a body politic; and Jan Brewer, in her capacity as Governor of the State of Arizona,
Cross-defendants.

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The United States of America,
Plaintiff,

Case No. CV-1O-1413-PHX-SRB

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v.

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The State of Arizona; and Janice K. the State of Arizona, in her Official Capacity,
Brewer, Governor of

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Defendants.
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Defendant Janice K. Brewer ("Governor Brewer") hereby responds to plaintiffs
Motion to Consolidate Escobar v. Brewer, et al., Case No. CV-I0-00249-TUC-SRB (the
"Escobar Case") with United States v. Arizona, et al., No. CV-I0-1413-PHX-SRB (the
"Federal Case") (doc. 79).

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Plaintiff s motion should be denied. First, consolidation is premature because

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Governor Brewer's motion to dismiss the case based (in part) on plaintiffs lack of
standing remains pending. Second, consolidation is inappropriate in light of the different

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legal arguments presented by the paries in the two actions and the differing procedural
postures of

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the cases. i

17 I.

PROCEDURAL BACKGROUND

18 The Escobar Case and the Federal Case are two of seven pending cases that
19 challenge the validity of Senate Bil 1070, as amended by House Bil

2162 ("SB 1070").

20 -On June 2-3~2-orO~Uovernor Brewer movecno ôismisstne FirsnUlrerrde-d--------21 Complaint in the Escobar Case on the grounds that plaintiff lacks standing to pursue these
22 claims and that he failed to state a claim upon which relief can be granted (doc. 55).

23 Escobar also filed a motion for preliminar injunction that sought to enjoin the
24 enforcement of SB 1070 before its effective date of July 29,2010 (doc. 17). In addition,
25 on May 26, 2010, the City of Tucson answered the plaintiff s complaint and asserted a
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i It is also unclear from plaintiff s motion whether he is abandoning his first motion to consolidate fied on June 4, 2010 (doc. 20) in which he asked the Court to consolidate this action with Salgado v. Brewer, et al., Case No. CV-I0-00951-PHX-SRB.
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cross-claim against the State of Arizona and Governor Brewer (doc. 9). On June 23,
2010, the State of Arizona moved to dismiss the cross-claim against the State of Arizona because the action is barred by the Eleventh Amendment of the United States Constitution

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pleadings regarding the City of

(doc. 54). On July 2, 2010, Governor Brewer fied a motion for judgment on the these motions
Tucson's cross-claim (doc. 68).2 All of

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remain pending before the Court.

On July 28, 2010, the Court entered an order in the Federal Case granting in part and denying in part the motion for preliminary injunction in the Federal Case, and

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enjoining the enforcement of certain provisions of SB 1070. On July 29,2010, Governor
Brewer appealed the preliminary injunction order in the Federal Case to the U.S. Court of
Appeals for the Ninth Circuit.

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II. LEGAL STANDARD
Rule 42 of

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the Federal Rules of Civil Procedure permits consolidation of cases
(b).

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involving a common question oflaw or fact. See Fed. R. Civ. P. 42(a); LRCiv 42.1

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The district court has broad discretion to determine whether consolidation is appropriate,

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and in making this determination, should "balance the interest in judicial convenience
against the potential for delay, confusion and prejudice that may result from such

consolidation." Sapiro v. Sunstone Hotel Investors, L.L.c., No. CV03-1555-PHX-SRB,
Bank of Montreal

19 2006 U.S. Dist. LEXIS 21234, *3 (D. Ariz. Apr. 4, 2006) (quoting

v.

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showing that consolidation wil not lead to inefficiency, inconvenience, or unfair
prejudice. See Lewis v. City of

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Fresno, No. CV-F-08-1062 OWW/GSA, 2009 U.S. Dist.

LEXIS 57083, at *4 (E.D. CaL. July 6, 2009).

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III. ARGUMENT
Plaintiff presents little explanation in support of his motion to consolidate these

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cases other than to say that the two cases "assert the same central claim" and seek the
2 In addition, the City of

Tucson fied its own motion for preliminary injunction (doc. 72)

to enjoin the enforcement ofSB 1070. By stipulation dated August 5, 2010, the City of Tucson withdrew its motion without prejudice.
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1 same relief (doc. 79). In truth, there are important differences between the two cases.
2 Governor Brewer submits that consolidation is inappropriate and that plaintiff s motion
3 should be denied.
4 First, the plaintiff in the Escobar Case has not yet demonstrated that he has suffered
5 cognizable injuries that would grant him standing to pursue his claims. Governor Brewer

6 has moved to dismiss plaintiffs First Amended Complaint in the Escobar Case on this
7 ground (doc.55). Plaintiff

has not fied a response and this motion remains pending.

8 Governor Brewer submits that it would not serve the interests of judicial economy to take
9 action to consolidate cases before it is clear whether the action wil proceed. See Y.P.

10 Corp. v. Sitrick and Co., No. CV-05-0769-PHX-SRB, 2005 U.S. Dist. LEXIS 32513, at

11 * 19 (D. Ariz. Dec. 8, 2005) (motion to consolidate is moot when one suit is dismissed).

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On the other hand, no such challenge has been made in the Federal Case. Until the issue
of standing is resolved, the motion to consolidate is premature.

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Second, there are notable differences in the legal and factual issues raised in the
two cases. As noted in the opposition brief of

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the United States filed in the Federal Case

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17 States in the Federal Case. Further, although both cases (like all seven of

(doc. 91), the plaintiff challenged a more limited portion of SB 1070 than the United the cases

18 challenging SB 1070) raise preemption issues, the United States raises preemption issues

19 that are unique to the claimed interest of the federal government. Escobar has not
20 -explaine3 wliy tliese two cases slioul(fBe consoliûãteô-;ourtne remaining-ftve-c-asesthat- 21 also challenge SB 1070 should not.
22 Finally, consolidation may delay the resolution of

the Federal Case and complicate

23 mattèrs on appeal because the cases are proceeding on different schedules. As the Court
24 is aware, on July 29,2010, Governor Brewer appealed the Court's preliminary injunction

25 order to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit has already set

26 a briefing schedule and placed the case on its calendar. On the other hand, there are
27 numerous pending motions in the Escobar Case, such as Governor Brewer's motion to

28 dismiss, plaintiffs motion for preliminary injunction, and the motion for judgment on the
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1 pleadings regarding the City of

Tucson's cross-claims. Consolidating a case that is

2 already on appeal with a 'case that has unresolved motions at the district court level is
3 likely to lead to delay and unneeded complexity. See Sapiro, 2006 U.S. Dist. LEXIS

4 21234, at *4 ("Factors such as differing trial dates or stages of discovery usually weigh
5 against consolidation.") (citing Charles Alan Wright & Arhur R. Miler, Federal Practice

6 and Procedure § 2383 (1995)). Contrary to plaintiffs argument, consolidating cases with
7 such different procedural postures is likely to lead to additional time and effort on the part
8 of all counsel, and higher fees and costs for all parties involved.

9 iv. CONCLUSION
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For these reasons, Governor Brewer requests that the motion to consolidate be
denied.

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RESPECTFULLY SUBMITTED this 9th day of August, 2010.
SNELL & WILMER L.L.P.

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By s/John J. Bouma John J. Bouma Robert A. Henr Joseph G. Adams One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202

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----By-o/~~:;lì~~K~:~fi~~d-with-pe~mission--- - - -- - -- - --

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Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007
Office of

Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona

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1 CERTIFICATE OF SERVICE
2 I hereby certify that on August 9,2010, I electronically transmitted the attached

3 document to the Clerk's Office using the CMlCF System for fiing and transmittal of a
4 Notice of

Electronic Filng to the CMlCF registrants on record.

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By s/J ohn J. Bouma

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11813351

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