Sanders v. MAGEC Metro Tatical Team et al

Filing 10

ORDER VACATING Hearing of May 27, 2011, ORDER on Defendant's Motion to Dismiss, and ORDER on Defendant's Motion to CONSOLIDATE and STAY Action, signed by Chief Judge Anthony W. Ishii on 5/25/11. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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v.
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MAGEC METRO TACTICAL TEAM, )
et al.,
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Defendants.
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____________________________________)
PHILLIP SANDERS,
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1:11-CV-596 AWI MJS
ORDER VACATING
HEARING OF MAY 27, 2011,
ORDER ON DEFENDANT’S
MOTION TO DISMISS, AND
ORDER ON DEFENDANT’S
MOTION TO CONSOLIDATE
AND STAY ACTION
(Doc. Nos. 4, 6)

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This case was removed from the Fresno County Superior Court. See Court’s Docket

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Doc. No. 1. Plaintiff is pro se. Currently pending before the Court is Defendant County of

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Fresno’s motion to consolidate, request to stay, and motion to dismiss. Hearing on these matters

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is currently set for May 27, 2011. Plaintiff filed an untimely opposition to these motions in

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violation of the Local Rules. See Local Rule 230. As such, Plaintiff is not entitled to be heard in

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opposition to the motions. See id. Having reviewed the motions, the Court has determined that

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these matters are suitable for decision without oral argument. See id.

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With respect to the motion to consolidate, Defendant requests that the Court completely

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consolidate this matter with a case filed earlier by Plaintiff, case number 1:11-CV-184 LJO MJS.

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The Court believes that consolidation is appropriate. A review of the complaint in this case

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reveals common questions of law and fact as those in Case Number 1:11-CV-184 LJO MJS.

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Although the complaints are not identical, they are very similar and appear to involve the same

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transactions (Plaintiff's arrest, prosecution, and defense of the prosecution by a public defender)

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and the defendants in this case are also named as defendants in Case Number 1:11-CV-184 LJO

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MJS. Plaintiff has not articulated a reason why these cases should not be consolidated.1 Under

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the circumstances, consolidation of both of these cases is appropriate. See Fed. R. Civ. Pro.

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42.(a)(2).

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With respect to the stay, Magistrate Judge Seng stayed case number 1:11-CV-184 LJO

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MJS because a state criminal prosecution of the Plaintiff is on-going. See Court’s Docket Doc.

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No. 7 in Case No. 1:11-CV-184 LJO MJS. Because this matter will be consolidated, the Court

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will order that the stay in the previously filed matter will continue.

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Finally, with respect to the motion to dismiss, it is unknown how long the criminal

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proceedings against Plaintiff will continue. Therefore, it is unknown how long the stay will

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remain in force. Administratively, the Court cannot have pending motions lingering for

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unknown durations because of a stay. Since the Court will be consolidating this case, and the

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entire matter will be stayed, the Court will deny without prejudice the motion to dismiss. Once

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the stay is lifted, Defendant may refile the motion to dismiss if it so chooses.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The May 27, 2011, hearing date is VACATED;

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2.

Defendant’s motion to dismiss is DENIED without prejudice;

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3.

Defendant’s motion to consolidate is GRANTED;

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4.

The Clerk of the Court is DIRECTED to consolidate these cases, and insofar as case

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1:11-CV-184 LJO MJS was the first action petitioner filed with the Court, it will be

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considered the lead case;

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Plaintiff’s opposition is unclear and not always legible or intelligible. In part, Plaintiff appears to argue
that the motion to dismiss, which is separate from the motion to consolidate, some how makes the motion to
consolidate confusing. Plaintiff then argues that he is alleging state causes of action, which are not the same as
federal causes of action. However, Plaintiff nowhere states that the two cases do not involve common questions of
law and/or fact.

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that is case number 1:11-CV-184 LJO MJS;
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The parties SHALL IDENTIFY all future pleadings by the case number of the lead case,

Defendant’s request for a stay is GRANTED in that the stay issued on April 5, 2011, in
case number 1:11-CV-184 LJO MJS shall continue; and

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The Clerk of the Court IS DIRECTED to administratively close case 1:11-CV-596 AWI
MJS in light of the consolidation.

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IT IS SO ORDERED.

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Dated:
0m8i78

May 25, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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