Lackey v. Stewart

Filing 12

ORDER (1) SUA SPONTE RELATING CASES and (2) DIRECTING THE CLERK OF THE COURT TO REASSIGN ALL THREE CASES TO A DISTRICT COURT JUDGE. Lackey v. Stewart, No. C12-03242, and Lackey v. Huerta, No. C12-03244, are RELATED to Lackey v. Conte, No. C12-03241. Pursuant to this district's Civil Local Rule 3-12(g), the August 2, 2012 hearings on Mr. Conte's motion to consolidate and Mr. Conte's, Mr. Stewart's, and Mr. Huerta's motions to dismiss are VACATED. Mr. Conte, Mr. Stewart , and Mr. Huerta shall contact the chambers of the newly-assigned district court judge to determine how to proceed with their motions. Signed by Magistrate Judge Laurel Beeler on 7/18/2012. (lblc2, COURT STAFF) (Filed on 7/19/2012) (Additional attachment(s) added on 7/19/2012: # 1 Certificate/Proof of Service) (ls, COURT STAFF).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division ALLEN WAYNE LACKEY, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Plaintiff, 13 v. 14 RICHARD J. CONTE, 15 16 17 No. C 12-03241 LB [Related Case Nos.: C 12-03242 LB and C 12-03244 LB] ORDER (1) SUA SPONTE RELATING CASES AND (2) DIRECTING THE CLERK OF THE COURT TO REASSIGN ALL THREE CASES TO A DISTRICT COURT JUDGE Defendant. _____________________________________/ Plaintiff Allen Wayne Lackey filed this action against Defendant Richard J. Conte in Napa 18 County Superior Court, Small Claims Court on May 23, 2012. Lackey v. Conte, No. C12-03241 LB 19 (“Lackey I”), Notice of Removal, ECF No. 1.1 Mr. Lackey also filed two other actions on the same 20 date and in the same court: one against Defendant Brook Stewart and one against Defendant Michael 21 Huerta. See Lackey v. Stewart, No. C12-0342 LB (“Lackey II”), Notice of Removal, ECF No. 1; 22 Lackey v. Huerta, No. C 12-03244 LB (“Lackey III”), Notice of Removal, ECF No. 1. All three 23 cases were removed to federal court on June 22, 2012. Lackey I, Notice of Removal, ECF No. 1; 24 Lackey II, Notice of Removal, ECF No. 1; Lackey III, Notice of Removal, ECF No. 1. 25 In these three cases, Mr. Lackey claims that Mr. Conte, Mr. Stewart, and Mr. Huerta, all of 26 27 1 28 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document, not the pages at the bottom. C 12-03241 LB ORDER 1 whom are employees of the Federal Aviation Administration (“FAA”), engaged in abuse of power, 2 malfeasance of office, conspiracy, and fraud discrimination. Lackey I, Notice of Removal, ECF No. 3 1; Lackey II, Notice of Removal, ECF No. 1; Lackey III, Notice of Removal, ECF No. 1. Mr. 4 Lackey also claims that Mr. Conte and Mr. Stewart engaged in breach of contract. Lackey I, Notice 5 of Removal, ECF No. 1; Lackey II, Notice of Removal, ECF No. 1. Mr. Lackey is suing all three 6 defendants for damages in the amount of $10,000. Lackey I, Notice of Removal, ECF No. 1; Lackey 7 II, Notice of Removal, ECF No. 1; Lackey III, Notice of Removal, ECF No. 1. 8 9 On June 27, 2012, Mr. Conte filed a motion to consolidate the three cases. Lackey I, Motion to Consolidate Cases, ECF No. 8. He believes that, upon review of the three largely identical Emergency Order of Revocation that revoked Mr. Lackey’s private pilot certificate. Id. at 2; see 12 For the Northern District of California complaints, that all three actions are related to the FAA’s decision to issue, on May 31, 2012, an 11 UNITED STATES DISTRICT COURT 10 Toscano Declaration, ECF No. 7 at 2, ¶ 7. Mr. Lackey has not filed an opposition to the motion 13 within the time allowed. See N.D. Cal. Civ. L.R. 7-3; see also Fed. R. Civ. P. 6(a)(1)(c), (d).2 14 According to Federal Rule of Civil Procedure 42(a), “[w]hen actions involving a common 15 question of law or fact are pending before the court, . . . it may order all the actions consolidated.” 16 In making the decision whether to consolidate actions, the court must weigh “the saving of time and 17 effort consolidation would produce against any inconvenience, delay, or expense that it would 18 cause.” Heune v. United States, 743 F.2d 703, 704 (9th Cir. 1984). 19 Here, the court finds that these three cases are sufficiently similar to each other to justify 20 consolidation. They all arise out of the same factual background, contain similar claims, involve the 21 same harm, and seek the same amount of damages. In such an instance, it would present an 22 inconvenience to both the parties and the court to hold three separate cases when the actions are so 23 similar. 24 25 26 27 28 2 Nor have Mr. Stewart or Mr. Huerta, defendants in Lackey II and Lackey III, respectively, filed oppositions. Presumably, this is because Mr. Conte, Mr. Stewart, and Mr. Huerta are all represented by the same counsel (Assistant United States Attorney Annie Redding) and all three have moved to substitute the United States as the proper defendant. See Lackey I, Motion to Dismiss, ECF No. 5; Lackey II, Motion to Dismiss, ECF No. 5; Lackey III, Motion to Dismiss, ECF No. 5. C 12-03241 LB ORDER 2 1 The court, however, will not consolidate the actions at this time. On June 27, 2012, Mr. Conte, 2 Mr. Stewart, and Mr. Huerta each filed motions to dismiss the complaints in their respective actions. 3 See Lackey I, Motion to Dismiss, ECF No. 5; Lackey II, Motion to Dismiss, ECF No. 5; Lackey III, 4 Motion to Dismiss, ECF No. 5. In light of these dispositive motions being filed, on June 28, 2012, 5 the Clerk of the Court issued notices requesting each party to either consent to or decline the court’s 6 jurisdiction by July 9, 2012. Lackey I, 6/28/2012 Clerk’s Notice, ECF No. 10; Lackey II, 6/28/2012 7 Clerk’s Notice, ECF No. 10; Lackey III, Clerk’s Notice, ECF No. 11; see N.D. Cal. Civ. L.R. 73- 8 1(a)(2) (“If a motion that cannot be heard by the magistrate judge without the consent of the parties, 9 pursuant to 28 U.S.C. § 636(c), is filed prior to the initial case management conference, the parties a district judge, no later than 7 days after the motion is filed.”). Mr. Conte, Mr. Stewart, and Mr. 12 For the Northern District of California must either file written consent to the jurisdiction of the magistrate judge, or request reassignment to 11 UNITED STATES DISTRICT COURT 10 Huerta consented to the court’s jurisdiction, Lackey I, Consent (Conte), ECF No. 11; Lackey II, 13 Consent (Stewart), ECF No. 11; Lackey III, Consent (Huerta), ECF No. 12, but to date Mr. Lackey 14 has filed neither a consent nor a declination form in any of his three cases. 15 In this situation—where the undersigned believes that the three cases should be consolidated but 16 where all parties have not consented to the undersigned’s jurisdiction—the undersigned believes that 17 the most appropriate course of action is relate the cases and order the Clerk of the Court to reassign 18 all three of them to a district court judge.3 This way, the cases are not reassigned to different district 19 court judges, and the district court judge to whom all three cases are reassigned retains control over 20 their management (e.g., the newly-assigned district court judge can decide whether to consolidate 21 the case, and if they are, also can decide whether to order Mr. Lackey to file a single, amended 22 complaint in Lackey I and whether to allow the defendants to file a single motion to dismiss in 23 Lackey I). 24 Accordingly, the court RELATES Lackey I, Lackey II, and Lackey III and DIRECTS the Clerk 25 3 26 27 28 Under this district’s Civil Local Rule 3-12(a), “[a]n action is related to another when: (1) [t]he actions concern substantially the same parties, property, transaction or event[;] (2) [i]t appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges.” The undersigned finds Lackey I, Lackey II, and Lackey III to be related for the same reasons that it believes their consolidation is appropriate. C 12-03241 LB ORDER 3 1 of the Court reassign all three of them to a district court judge. Pursuant to this district’s Civil Local 2 Rule 3-12(g), the August 2, 2012 hearings on Mr. Conte’s motion to consolidate and Mr. Conte’s, 3 Mr. Stewart’s, and Mr. Huerta’s motions to dismiss are VACATED. Mr. Conte, Mr. Stewart, and 4 Mr. Huerta shall contact the chambers of the newly-assigned district court judge to determine how to 5 proceed with their motions. 6 IT IS SO ORDERED. 7 Dated: July 18, 2012. _______________________________ LAUREL BEELER United States Magistrate Judge 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 12-03241 LB ORDER 4

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