Zimmerman v. Home Depot U.S.A., Inc.

Filing 16

ORDER Denying Defendant-Intervenor's 12 Motion to Consolidate Cases. Signed by Magistrate Judge George Foley, Jr on 11/13/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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KEVIN ZIMMERMAN,
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Plaintiff,
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vs.
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HOME DEPOT U.S.A., INC.,
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Defendant.
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STATE OF NEVADA, ex rel.
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ADAM PAUL LAXALT, Attorney General,
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Defendant-Intervenor,
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__________________________________________)
KEVIN ZIMMERMAN,
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Plaintiff,
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vs.
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HOME DEPOT U.S.A., INC.,
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dba THE HOME DEPOT #3316,
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Defendant.
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STATE OF NEVADA, ex rel.
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ADAM PAUL LAXALT, Attorney General,
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Defendant-Intervenor,
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__________________________________________)

Case No. 2:17-cv-00529-JCM-GWF

ORDER

Case No. 2:17-cv-01454-JCM-GWF

ORDER

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This matter is before the Court on Defendant-Intervenor State of Nevada’s (“Intervenor”)

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Motion to Consolidate Cases (ECF No. 40) in Case No. 2:17-cv-00529-JCM-GWF, filed on

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October 17, 2017. Plaintiff did not file an opposition in this case but Intervenor filed a Reply (ECF

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No. 43) on November 6, 2017.1 Also before the Court is Intervenor’s Motion to Consolidate Cases

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(ECF No. 12) in Case No. 2:17-cv-01454-JCM-GWF, filed on October 17, 2017. Plaintiff did not

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file an opposition in this case but Intervenor filed a Reply (ECF No. 15) on November 6, 2017.

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BACKGROUND

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These cases are two of several cases brought by Plaintiff alleging that Nevada businesses

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have violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et. seq. (“ADA”). At the

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outset of Plaintiff’s filings and in the interest of judicial economy, the Court determined that all of

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Plaintiff’s cases should be transferred to Chief Judge Gloria Navarro and to the undersigned. See

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Omnibus Transfer Order (ECF No. 3). The cases, however, were not consolidated. Chief Judge

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Navarro recused herself from the instant cases due to a financial conflict. ECF No. 4; See Case No.

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2:17-cv-01454-JCM-GWF, ECF No. 6. These cases were then randomly assigned to District Judge

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James Mahan. ECF No. 5; See Case No. 2:17-cv-01454-JCM-GWF, ECF No. 7.

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Chief Judge Navarro will decide Intervenor’s motion to consolidate the cases before her.

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Judge Mahan has referred Intervenor’s motion to consolidate to the undersigned in the two cases

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assigned to him. Therefore, this order is applicable only to Case Nos. 2:17-cv-00529-JCM-GWF

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and 2:17-cv-01454-JCM-GWF.

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DISCUSSION

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Federal Rule of Civil Procedure 42(a) provides that “[i]f actions before the court involve

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common questions of law or fact, the court may (1) join for hearing or trial any or all matters at

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issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary

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cost or delay.” The Court has broad discretion in determining whether to consolidate actions

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involving common questions of law or fact. Krause v. Nevada Mut. Ins. Co., Case No. 2:12-cv-

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00342-JCM-GWF, 2013 WL 6524657 at *3 (D. Nev. 2012). “Consolidation requires only a

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common question of law or fact; perfect identity between all claims in any two cases is not

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required.” Firefighters, Local 1908 v. County of Clark, 2012 WL 1986590 at *2 (D. Nev. 2012).

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Plaintiff filed an opposition to Intervenor’s Motion to Consolidate in his first filed case, which is Case No. 2:17-cv00304-GMN-GWF, see ECF No. 39. It appears that Plaintiff believed this opposition applies to every case and did not file
the opposition in each individual case.

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The Court must weigh “the interest of judicial convenience against the potential for delay, confusion

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and prejudice caused by consolidation.” Firefighters, 2012 WL 1986590 at *2 (quoting Sw. Marine,

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Inc. v. Triple A Mach. Shop, Inc., 720 F.Supp. 805, 807 (N.D.Cal. 1989)).

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Local Rule 42-1 states as follows:

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An action may be considered to be related to another action when:

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(1) Both actions involve the same parties and are based on the same or similar
claim;
(2) Both actions involved the same property, transaction, or event;
(3) Both actions involve similar questions of fact and the same question of
law, and their assignment to the same district judge or magistrate judge is
likely to effect a substantial savings of judicial effort;
(4) Both actions involve the same patent, trademark, or copyright, and one of
the factors identified in (1), (2), or (3) above is present; or
(5) For any other reason, it would entail substantial duplication of labor if the
actions were heard by different district judges or magistrate judges.

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In granting Intervenor’s motion to intervene, the Court primarily did so with regard to the

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standing issue regarding Plaintiff’s ability to prove his intent to return to each establishment that he

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has sued, in light of the numerous ADA enforcement actions he filed in such a short time period.

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See Order (ECF No. 35) in Case No. 2:17-cv-00304-GMN-GWF. Because this issue implicates all

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of the lawsuits filed by Plaintiff, consolidation may be appropriate with respect to that issue.

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Intervenor also seeks to consolidate all of Plaintiff’s actions to contest in one motion whether he has

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alleged sufficient facts to state a claim for relief and/or in regard to common pleading deficiencies in

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each of his complaints. Depending on the circumstances, this could also be an appropriate issue for

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limited consolidation. With respect to the two cases before Judge Mahan, however, the Intervenor

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can simply bring simultaneous motions to dismiss on standing grounds or based on pleading

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deficiencies in each action. There is no need to consolidate these cases for interests of judicial

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economy or to avoid prejudice.

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Intervenor also requests consolidation so that it can move for sanctions or other remedial

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relief against Plaintiff where appropriate. Motion (ECF No. 40), pgs 11-12. Intervenor suggests

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that sanctions should be imposed on Plaintiff for false statements he allegedly made in his

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applications to proceed in forma pauperis (“IFP”). The Court conducted a hearing with Plaintiff

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and his counsel on March 3, 2017 regarding his IFP applications. Both prior to and during that
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hearing, Plaintiff informed the Court that he was withdrawing all of his IFP applications and would

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pay the filing fees in each case. It is the Court’s understanding that he has done so. Whether

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Plaintiff made any misrepresentations in his IFP filings is debatable. As to these two cases,

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however, consolidation on this issue is not appropriate. Plaintiff filed an application to proceed in

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forma pauperis in Case No. 2:17-cv-00529-JCM-GWF on February 22, 2017.

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Motion/Application (ECF No. 1). He subsequently paid the filing fee on March 23, 2017. Receipt

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of Payment (ECF No. 7). Plaintiff did not file an application to proceed in forma pauperis in Case

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No. 2:17-cv-01454-JCM-GWF. Thus, there is no basis to impose such sanctions on Plaintiff and no

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reason to consolidate these two cases with respect to that issue. Accordingly,

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IT IS HEREBY ORDERED that Defendant-Intervenor’s Motion to Consolidate Cases
(ECF No. 40) in Case No. 2:17-cv-00529-JCM-GWF is denied.
IT IS FURTHER ORDERED that Defendant-Intervenor’s Motion to Consolidate Cases
(ECF No. 12) in Case No. 2:17-cv-01454-JCM-GWF is denied.
DATED this 13th day of November, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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