Thomas v. Zachry et al

Filing 35

ORDER denying ECF No. #29 Defendants' Motion to Consolidate the Preliminary Injunction Hearing with a Trial on the Merits. Signed by Judge Larry R. Hicks on 05/17/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LORI L. THOMAS;

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Plaintiff,
Case No. 3:17-cv-0219-LRH-WGC

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v.
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ORDER
THOMAS ZACHRY; MARNA ZACHRY;
JOHN HARPER; and STOREY COUNTY
and its BOARD OF COMISSIONERS,
Defendants.

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Before the court is defendants Thomas Zachry, Marna Zachry, and John Harper’s

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(collectively “homeowner defendants”) motion to consolidate hearing on preliminary injunction

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with a trial on the merits. ECF No. 29. Plaintiff Lori L. Thomas (“Thomas”) filed an opposition

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to the motion. ECF No. 30.

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I.

Facts and Procedural Background

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This is a declaratory relief action involving a determination of whether a certain parcel of

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real property in Storey County, Nevada, owned by Thomas contains a private or public roadway.

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On or about October 2016, Thomas purchased the underlying real property. Subsequently, in

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December 2016, the District Attorney for Storey County sent Thomas a letter demanding that

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Thomas allow public access to the roadway on the property. In response, Thomas placed certain

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barriers on the roadway contending that the road is a private road located on private property.

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On April 4, 2017, the Storey County Board of Commissioners approved a plan for the

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Storey County Public Works Department to commence proceedings to remove any and all

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obstructions on the underlying property. On April 7, 2017, Thomas filed a complaint against

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defendants alleging four causes of action: (1) petition for writ of mandamus; (2) Due Process

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violation; (3) injunctive relief; and (4) declaratory relief. ECF No. 1. On April 10, 2017, with

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impending work on her property, Thomas filed an ex parte application for a temporary

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restraining order (ECF No. 3) which was denied by the court (ECF No. 12). Instead, the court set

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a shortened briefing schedule on Thomas’s request for a preliminary injunction and set a hearing

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on the motion for Wednesday May 31, 2017, at 1:30 p.m.
On May 11, 2017, homeowner defendants - individual homeowners who allegedly use

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the roadway over Thomas’s property to reach their own properties - filed a motion for summary

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judgment. ECF No. 27. At the same time, homeowner defendants filed the present motion to

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consolidate the hearing on Thomas’s motion for a preliminary injunction with a trial on the

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merits. ECF No. 29.

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II.

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Discussion
Under Rule 65 of the Federal Rules of Civil Procedure, a court may, in its discretion,

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advance a trial on the merits and consolidate it with a hearing on a motion for a preliminary

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injunction. FED. R. CIV. P. 65(a)(2). Consolidation is generally appropriate when it would

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(1) result in an expedited resolution of the case, University of Tex. v. Camenish, 451 U.S. 390,

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395 (1981); (2) conserve judicial resources and avoid duplicative proceedings, NOW v.

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Operation Rescue, 747 F. Supp. 760, 768 (D. D.C. 1990); (3) involves only legal issues based on

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uncontested evidence and public records, Kickapoo Traditional Tribe of Tex. v. Chacon, 46 F.

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Supp. 2d 644, 648-49; and (4) would not be prejudicial to any of the parties.

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Here, the court has reviewed the homeowner defendants’ motion and finds that it does

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not meet the criteria for consolidation. First, although the determination of whether Sutro Springs

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Road is a public or private roadway is a legal question, that determination is based on disputed

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facts involving whether certain maps were available to the general public thereby giving Thomas

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constructive notice of the public nature of the roadway or whether individuals at the Storey
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County Commissioners’ office represented to Thomas prior to purchasing the property that the

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roadway was private. These disputed facts go to the heart of Thomas’s claims, and thus the

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underlying complaint is not one that can readily be decided on undisputed public records.

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Second, the court finds that consolidation of a trial on the merits with the upcoming preliminary

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injunction hearing would prejudice Thomas as the preliminary injunction hearing is less than two

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weeks away and discovery has not yet been undertaken. In fact, the entire posture of this

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litigation has been based solely on the allegations in Thomas’s complaint and the very limited

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declarations and documents attached in the few pleadings and motions before the court. As such,

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consolidation would deprive Thomas the opportunity to depose witnesses and obtain the

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necessary documents to support her claims on the merits. Therefore, the court shall deny the

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homeowner defendants’ motion to consolidate.

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IT IS THEREFORE ORDERED that defendants’ motion to consolidate the preliminary
injunction hearing with a trial on the merits (ECF No. 29) is DENIED.

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IT IS SO ORDERED.

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DATED this 17th day of May, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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