Marlow et al v. Hotchkiss et al

Filing 29

ORDER GRANTING MOTION TO CONSOLIDATE. Defendants Motion to Consolidate ECF No. 22 is GRANTED. The cases Marlow v. Hotchkiss et al. 2:15-CV-0131-TOR and Marlow v. Snyder et al. 2:15-CV-0188-TOR are CONSOLIDATED as 2:15-CV-0131-TOR. No further fili ngs shall be made in 2:15-CV-0188-TOR which file shall be administratively closed. All pleadings therein maintain their legal relevance. Any further pleadings received by the Clerk of Court for case number 2:15-CV-0188-TOR shall be filed in this consolidated case, case number 2:15-CV-0131-TOR. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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MARK MARLOW and NANCY
MARLOW, husband and wife,

NO: 2:15-CV-0131-TOR

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Plaintiffs,
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ORDER GRANTING MOTION TO
CONSOLIDATE

v.
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JOHN HOTCHKISS, in his individual
capacity; STEVEN M. CLEM, in his
individual capacity; ANDREW L.
KOTTKAMP, in his individual
capacity; KAREN M. URELIUS, in
her individual capacity; GLEN A. DE
VREIS, in his individual capacity;
JERRY J. GREGORY, in his
individual capacity; RAMON PEREZ,
in his individual capacity; ANTHONY
O. WRIGHT, in his individual
capacity; ERIC PENTICO, in his
individual capacity; GARY GRAFF, in
his individual capacity; BRUCE A.
ESTOK, in his individual capacity; F.
DALE BAMBRICK, in his individual
capacity; MARK D. KULASS, in his
individual capacity; DALE L.
SNYDER, in his individual capacity;
KEN STANTON, in his individual
capacity; STEVEN JENKINS, in his
ORDER GRANTING MOTION TO CONSOLIDATE ~ 1

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individual capacity; and DOES 1
through 10, inclusively in their
individual capacity.
Defendants.

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No. 2:15-CV-0188-TOR

---AND--v.

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DALE L. SNYDER, Douglas County
Commissioner; KEN STANTON,
Douglas County Commissioner;
STEVEN JENKINS, Douglas County
Commissioner; MARK D. KULAAS,
Director Land Management Services
Douglas County; STEVEN M. CLEM,
Attorney for Douglas County; and
DOUGLAS COUNTY, a Political
subdivision of the State of Washington,

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Defendants.
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BEFORE THE COURT is Defendants’ Motion to Consolidate (2:15-CV-

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0131-TOR, ECF No. 22). This matter was submitted without oral argument. The

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Court has reviewed the record and files herein, and is fully informed.

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BACKGROUND

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On May 14, 2015, Plaintiffs filed a complaint in case number 2:15-CV-

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0131-TOR alleging a number of causes of action against the Defendants relating to

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real property in Douglas County, Washington. 2:15-CV-0131-TOR, ECF Nos. 1;

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1-2 at 5–8. On July 21, 2015, a notice of removal was filed in case number 2:15-

ORDER GRANTING MOTION TO CONSOLIDATE ~ 2

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CV-0188 invoking this Court’s federal question jurisdiction over claims filed by

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Plaintiffs in Grant County Superior Court relating to the same real property. 2:15-

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CV-0188, ECF Nos. 1; 1-2 at 7–12.

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On August 4, 2015, Defendants Hotchkiss, Clem, Kottkamp, De Vreis,

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Perez, Kulaas, Snyder, Stanton, and Jenkins moved the Court to consolidate the

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cases. 2:15-CV-0131-TOR, ECF No. 22. Defendants Pentico and Graff do not

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object to consolidation. 2:15-CV-0131-TOR, ECF No. 23. No other Defendants

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have responded to the motion to consolidate. Plaintiffs have opposed the motion.

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ECF No. 26.

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DISCUSSION
Under Federal Rule of Civil Procedure 42(a), which governs consolidation,

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“[i]f actions before the court involve a common question of law or fact, the court

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may: (1) join for hearing or trial any or all matters at issue in the actions; (2)

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

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delay.” Fed. R. Civ. P. 42(a). “The district court has broad discretion under this

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rule to consolidate cases pending in the same district.” Investors Research Co. v.

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U.S. Dist. Court for Cent. Dist. of California, 877 F.2d 777, 777 (9th Cir. 1989).

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In determining whether to consolidate cases, the court should “weigh the interest of

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judicial convenience against the potential for delay, confusion and prejudice.” Zhu

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ORDER GRANTING MOTION TO CONSOLIDATE ~ 3

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v. UCBH Holdings, Inc., 682 F. Supp. 2d 1049, 1052 (N.D. Cal. 2010); see also

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Huene v. United States, 743 F.2d 703, 704 on reh’g, 753 F.2d 1081 (9th Cir. 1984).

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The Court determines that consolidation of the cases is appropriate. First,

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the cases involve the same questions of law and fact. In 2:15-CV-0131-TOR, the

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Plaintiffs raise issues relating to the enforcement of land-use restrictions on their

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property and assert that the Defendants in that case have violated the Plaintiffs’

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constitutional rights as well as rights granted under a United States Land Patent.

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See ECF No. 1; 1-2. In 2:15-CV-0188-TOR, the Defendants to that action have

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removed to this Court Plaintiffs’ state case in which they also raise issues relating

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to land-use restrictions and allege equal protection violations under both the federal

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and Washington State constitutions as well as a claim of promissory estoppel. See

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ECF No. 1-2 at 13–19. The factual allegations in each complaint are founded upon

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the same county zoning and enforcement matters. Compare 2:15-CV-0131-TOR,

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ECF No. 1-2 at 5–8, with 2:15-CV-188-TOR, ECF No. 1-2 at 8–11.

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Plaintiffs object to consolidation on the grounds that Plaintiffs sued the

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Defendants in 2:15-CV-0131-TOR in their individual capacity whereas the

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Defendants in 2:15-CV-188-TOR were sued in their official capacity. 2:15-CV-

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0131-TOR, ECF No. 26 at 2. The Court has previously addressed this contention,

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concluding that “[b]ecause Plaintiffs’ allegations arise out of a dispute involving

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the performance of governmental functions, the state and federal employee

ORDER GRANTING MOTION TO CONSOLIDATE ~ 4

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Defendants may be entitled to representation by the Washington State Attorney

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General and the United States Attorney, respectively.” 2:15-CV-0131-TOR, ECF

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No. 24 at 7.

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The Plaintiffs also object to consolidation based upon their contention that

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2:15-CV-0131-TOR involves a claimed “jurisdictional challenge,” while 2:15-CV-

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0188-TOR involves a claim for breach of an oral contract. 2:15-CV-0131-TOR,

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ECF No. 26 at 2. However, the claims need not be identical for consolidation to be

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appropriate. Rather, the Court must look to each matter’s underlying factual

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allegations and assertions of legal rights and, in light the facts and rights asserted,

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weigh the increased convenience of consolidation against the potential for delay,

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confusion, and prejudice to the parties. See Huene, 743 F.2d at 704.

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In this matter, the Court finds that consolidation will reduce delay and

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confusion without prejudicing the parties. Consolidation of the cases will allow

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the Court to hear all dispositive motions in conjunction, expediting their resolution.

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Consolidation will also reduce confusion, particularly by allowing Plaintiffs, who

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act pro se, to focus all of their arguments and factual allegations into a single case

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instead of attempting to split them between two related cases. Finally,

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consolidation will not prejudice the parties as both matters are in similar

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procedural postures, involve the same factual allegations, present no conflicts of

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ORDER GRANTING MOTION TO CONSOLIDATE ~ 5

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interest, and because resolution of the cases together will ensure consistency in the

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findings and conclusions of the Court.

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ACCORDINGLY, IT IS HEREBY ORDERED

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1. Defendants’ Motion to Consolidate (2:15-CV-0131-TOR, ECF No. 22) is
GRANTED.
2. The cases Marlow v. Hotchkiss et al., 2:15-CV-0131-TOR, and Marlow

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v. Snyder et al., 2:15-CV-0188-TOR, are CONSOLIDATED as 2:15-

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CV-0131-TOR. No further filings shall be made in 2:15-CV-0188-TOR,

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which file shall be administratively closed. All pleadings therein

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maintain their legal relevance. Any further pleadings received by the

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Clerk of Court for case number 2:15-CV-0188-TOR shall be filed in this

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consolidated case, case number 2:15-CV-0131-TOR.

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The District Court Executive is hereby directed to enter this Order, provide
copies to counsel, and administratively CLOSE 2:15-CV-0188-TOR.
DATED September 9, 2015.

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THOMAS O. RICE
United States District Judge

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ORDER GRANTING MOTION TO CONSOLIDATE ~ 6