Marco Crespo-Torres v. Timothy S. Robins et al

Filing 10

ORDER TO SHOW CAUSE by Magistrate Judge Robert N. Block. Petitioner is ordered to show cause, on or before August 13, 2012, why this action should not be dismissed without prejudice. (See Order for further details) (ig)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

10
11

MARCO CRESPO-TORRES,

12

Petitioner,

13

vs.

14

TIMOTHY S. ROBBINS, et al.,

15
16
17

Respondents.

) Case No. SACV 12-0664-JVS (RNB)
)
)
) ORDER TO SHOW CAUSE
)
)
)
)
)
)

In respondents’ Notice of Related Case filed on June 7, 2012, respondents

18 asserted that the instant habeas action is closely related to Alejandro Rodriguez, et al.
19 v. Timothy Robbins, et al., Case No. CV 07-3239-TJH (RNB) (C.D. Cal.) because:
20 (1) the petitioner in this action is a member of the class certified in Rodriguez, as he
21 is a non-citizen detained for more than six months in the Central District of California
22 under one of four general detention statutes challenged in Rodriguez; (2) the due
23 process claims asserted in this action are the same as the claims asserted in
24 Rodriguez; and (3) the relief petitioner seeks in this action – a bond hearing before
25 an immigration judge – is encompassed by the relief sought by the class in Rodriguez.
26
Petitioner did not file a counter-statement disputing that this action qualified
27 for a related case transfer, as respondents’ Notice advised him Local Rule 83-1.3.2
28 permitted him to do. Accordingly, on July 3, 2012, the action was transferred from
1

1 the calendar of the previously assigned Magistrate Judge to this Court’s calendar.
2

The Court notes that the class in Rodriguez was certified pursuant to Fed. R.

3 Civ. P. 23(b)(2), which does not require notice or permit members to opt out,
4 although a court in its discretion may provide for an opt-out or notice. See Crawford
5 v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994); Tosti v. City of Los Angeles, 754 F.2d
6 1485, 1489 n.3 (9th Cir. 1985). Here, the District Judge’s order granting class
7 certification made no such provision.
8

In respondents’ Notice of Related Case, respondents also cited authority for the

9 proposition that a plaintiff who is a member of a class action may not maintain a
10 separate, individual suit for relief that is also sought by the class. See Crawford v.
11 Bell, 599 F.2d 890, 892-93 (9th Cir. 1979) (affirming dismissal of individual
12 plaintiff’s action where plaintiff was a member of a pending class action raising the
13 same claims and seeking the same equitable relief). The rule of Crawford v. Bell also
14 has been applied to habeas petitioners who are members of a class action for equitable
15 relief and who have brought individual petitions seeking equitable relief concerning
16 the same subject matter. See, e.g., Campbell v. Ochoa, 2011 WL 5436233, at *4-*7
17 (C.D. Cal. Oct. 3, 2011), Report and Recommendation adopted by 2011 WL 5515486
18 (C.D. Cal. Nov. 9, 2011); Lathan v. Swarthout, 2011 WL 4345826, at*3-*4 (E.D. Cal.
19 Sept. 15, 2011); Curtis v. Dickinson, 2011 WL 2883253, at *4-*5 (C.D. Cal. June 9,
20 2011), Report and Recommendation adopted by 2011 WL 2883153 (C.D. Cal. July
21 19, 2011).
22

In light of the foregoing authority, petitioner is ordered to show cause, on or

23 before August 13, 2012, why this action should not be dismissed without prejudice.
24

The clerk is directed to serve a copy of this Order to Show Cause on petitioner

25 at his address of record and to also serve a courtesy copy of it on class counsel in
26 Rodriguez.
27
28 DATED: July 11, 2012

ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE
2