Debarr v. Carpentar et al

Filing 26

ORDER DENYING 19 Motion for consolidation. Signed by Magistrate Judge William G. Cobb on 1/15/2013. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9
10
11
12
13

BRIAN J. DEBARR,

)
)
Plaintiff,
)
)
vs.
)
)
TARA CARPENTER, et al.,
)
)
Defendants
)
_____________________________ _____)

3:12-cv-00039-LRH-WGC

ORDER

14
15

Before the Court is Plaintiff’s Motion for Consolidation of Cases. (Doc. # 19.) Defendants

16

have opposed. (Doc. # 23.) No reply memorandum was filed by Plaintiff.

17

I. BACKGROUND

18

Plaintiff, a pro se inmate housed by the Nevada Department of Corrections (NDOC) at

19

Lovelock Correctional Center (LCC), seeks to consolidate the instant matter (Debarr Action) with an

20

action brought by two other LCC inmates, Chioke Gadsden and Nathan Peterson, Gadsden v.

21

Carpenter, 3:12-cv-00098-RCJ-VPC (Gadsden Action).

22

Before the Gadsden Action was removed to the U. S. District Court (Gadsden Action, Doc.

23

# 1), the plaintiffs filed a motion to consolidate in the state court where the action was commenced

24

(see Gadsden Action Doc. # 7). The defendants in the Gadsden Action apparently have not filed a

25

response to the motion, stating that they would not do so until after the court issues a screening order.

26

(See Doc. # 6 at 1-2.) When the Screening Order was issued in the Gadsden Action, it did not

27

reference the consolidation motion.

28

Gadsden Action defendants later indicated that they intend to file their own motion to consolidate the

In apparent contradiction to their original position, the

1

Gadsden Action with the Debarr Action. To date, however, the Gadsden defendants have not opposed

2

the plaintiffs’ motion; nor did they file their own motion.

3

Interestingly, in their Opposition to the instant motion, the Debarr Action defendants take the

4

position that because the motion to consolidate in the Gadsden Action was pending in state court when

5

the action was removed, and because the plaintiffs to the Gadsden Action have not re-filed the motion

6

in federal court, that the motion essentially does not exist. The court disagrees. Generally, motions

7

filed in state court prior to removal are considered viable when the case activates in federal court. See

8

Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996) (“[a]fter removal,

9

the federal court ‘takes the case up where the state court left it off[.]’” (citation omitted).

10
11

Notwithstanding the foregoing, the court will move forward on the instant motion.
II. ANALYSIS

12

Plaintiff provides scant justification for the motion to consolidate the Debarr Action with the

13

Gadsden Action. Plaintiff merely makes reference to the pendency of the Gadsden Action and

14

indicates that a motion for consolidation was also filed in that matter. (DeBarr Action Doc. # 19 at 2.)

15

Plaintiff cites the language of Federal Rule of Civil Procedure 42(a), which authorizes a court to

16

consolidate actions if they involve common questions of law or fact. Plaintiff, however, provides no

17

explanation of the common questions of law or fact which supposedly exist in the two matters making

18

consolidation appropriate.

19

The defendants in the DeBarr Action, all of whom (with the exception of Don Helling) are also

20

defendants in the Gadsden Action, have opposed the motion for consolidation. (DeBarr Action Doc.

21

# 19.) Defendants note that although Rule 42(a) cloaks the district court with broad discretion to

22

consolidate cases, the party seeking consolidation bears the burden of establishing that consolidation

23

is desirable. (Id. at 2-3.) Defendants contend that the complaints in these two actions assert unique

24

claims, and as such, do not share common issues of law or fact.

25

While both of these actions reference the destruction of pagan religious grounds, the claims

26

for relief asserted in the two actions differ markedly. In this action, Plaintiff alleges that his religious

27

rights were violated through retaliatory disciplinary actions, and involves claims of retaliation, the First

28
2

1

Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42

2

U.S.C. § 2000cc, et. seq. (Debarr Action Doc. # 7 at 4-5.) In contrast, the Gadsden Action is

3

comprised of First Amendment claims for the alleged destruction of pagan religious grounds, a First

4

Amendment retaliation claims against a defendant for filing inmate grievances, and a due process

5

claim related to the disciplinary process. (Gadsden Action Doc. # 4 at 5-9.)

6

To be subject to consolidation, cases do not have to be identical; however, Rule 42 requires

7

that the cases have common issues of law and fact. Fed. R. Civ. P. 42. The court has broad discretion

8

in balancing the any savings to the judicial system against the possible inconvenience, delay or

9

prejudice to the parties. See Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984). In the instant

10

matter, in the exercise of its discretion over requests for consolidation, the court finds that the two

11

cases do not have sufficient common questions of both law and fact to authorize their consolidation.

12

Plaintiff’s motion for consolidation (Doc. # 19) is therefore DENIED.

13

IT IS SO ORDERED.

14

Dated: January 15, 2013.

15
_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
3