Cooper et al v. Tucson, City of et al, No. 4:2012cv00208 - Document 119 (D. Ariz. 2015)

Court Description: ORDER denying (113) Motion to Consolidate Cases in case 4:12-cv-00208-DCB; denying [] Motion to Consolidate Cases in case 4:12-cv-00781-DCB; denying [] Motion to Consolidate Cases in case 4:15-cv-00013-JAS. Signed by Senior Judge David C Bury on 3/30/2015. (Associated Cases: 4:12-cv-00208-DCB, 4:12-cv-00781-DCB, 4:15-cv-00013-JAS) (BAR)
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Cooper et al v. Tucson, City of et al 1 Doc. 119 WO 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 9 10 11 12 13 DISTRICT OF ARIZONA John Thomas Cooper, Jr., and Jonathan McLane,) ) Plaintiffs, ) ) v. ) ) City of Tucson, et al., ) ) Defendants, ) _______________________________________) CV 12-208 TUC DCB (Lead Case) CV 12-781 TUC DCB (Consolidated) ORDER 14 The Court denies Plaintiffs’ Motion to Consolidate Related Cases (Doc. 113). 15 Cases should be transferred and consolidated before a single district judge, whenever two 16 or more cases are pending before different district judges which arise from substantially the 17 same transaction or event; involve substantially the same parties or property; . . . call for 18 determination of substantially the same questions of law; or for any other reason would entail 19 substantial duplication of labor if heard by different district judges. Rules of Practice for the 20 United States District Court, District of Arizona, Local Rule (LRCiv.) 1.2(g)(1). 21 Federal Rule of Civil Procedure 42(a) provides that courts may consolidate actions when 22 such actions involve a common question of law or fact, or when consolidation may tend to avoid 23 unnecessary costs or delay. 24 Both motions to transfer and consolidate are heard by the Judge with the lowest case 25 number. LRCiv. 1.2(g). This Court, therefore, decides whether to transfer and consolidate a 26 case filed by Plaintiffs Cooper and McLane, pro se, and assigned to the Honorable James A. 27 Soto, CV 15-13 TUC JAS, with the already consolidated cases: CV 12-208 TUC DCB (lead) 28 and CV 12-781 TUC DCB (consolidated), referred herein to as CV 12-208 TUC DCB. 1 In the cases pending before this Court, Plaintiffs challenge City park closure ordinances 2 as precluding them, members of the Occupy Homelessness branch of Operation Occupy Public 3 Land, from exercising their First Amendment rights in a city park, overnight. As alleged in the 4 recently filed Third Amended Complaint (TAC), the Plaintiffs’ First Amendment activities 5 moved from the park to the sidewalk bordering the Veinte de Agosto (VDA) Park, with the City 6 allegedly violating Plaintiffs’ First Amendment rights to protest on the city sidewalks and 7 harassing Plaintiffs in their use of the sidewalks to exercise First Amendment rights. 8 On December 22, 2014, the Court granted the Plaintiffs leave to file the TAC to add 9 claims that Plaintiffs were being harassed when exercising their First Amendment rights on the 10 sidewalk by being arrested and having their personal property seized, or being threatened with 11 both. The Court allowed Plaintiffs to add specific instances when these alleged constitutional 12 violations to the Fourth, Fifth, and Fourteenth Amendments occurred, which included arrests 13 or threats of arrest on April 26 and June 21, 2012, September 17, October 1 and 2, 2013, and 14 15 16 17 18 19 20 21 22 23 February 1, 2014, and threats or seizures of their personal property on January 24, 25, March 9, 12, and 16, 2014. The Court applied Rule 15 of the Federal Rules of Civil Procedure, which provides for the Court to freely grant leave to amend after considering the following four factors, with all inferences made in favor of the moving party: (1) undue delay, (2) prejudice to the opposing party, (3) futility, and (4) bad faith. Griggs v. Pace American Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999); see also Forman, 371 U.S. at 182 (listing “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment” as relevant factors). Prejudice to the opposing party carries the greatest weight in the analysis. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 24 1048, 1052 (9th Cir. 2003). The Court allowed the amendment because in large part the 25 Plaintiffs alleged supplemental claims occurring since they had filed the Second Amended 26 Complaint on July 11, 2012. (Order (Doc. 90) at 4-5 (relying on Fed. R. Civ. P. R.15(d)). 27 28 -2- 1 The Court reasoned that Plaintiffs did not unduly delay seeking the amendment because 2 Plaintiffs were appointed counsel to represent them pro bono in March, 2014, and the Motion 3 for Leave to File the TAC was filed on May 16, 2014. Id. at 2. The Court limited the prejudice 4 to Defendants by allowing only a limited extension of discovery in respect to the TAC, with 5 discovery to end by March 16, 2015, dispositive motions due April 16, 2015, and the Proposed 6 Pretrial Order due on May 15, 2015. 7 At the time of the amendment, discovery had ended and the parties had filed cross 8 motions for summary judgment on the question of Tucson’s park permit fee provision. The City 9 had filed a motion for summary judgment challenging the Plaintiffs’ standing to bring a claim 10 against its sidewalk enforcement policy because the SAC failed to allege facts reflecting that 11 Cooper or McLane were arrested. Subsequent to the TAC, the parties stipulated to the City’s 12 withdrawal of the Motion for Summary Judgment challenging Plaintiffs’ standing. 13 14 15 16 17 18 19 20 21 22 23 At the same time the Court granted Plaintiffs’ motion to file the TAC, it also granted a preliminary injunction against the City’s application of the 3-B policy to preclude Plaintiffs’ First Amendment activities while sitting or lying on the sidewalk at the VDA Park with more than a beverage, back pack, and blanket. On January 16, 2015, the City filed a Notice of Appeal. In response to the Plaintiffs’ motion to transfer and consolidate CV 15-13 TUC JAS, the City notes: “‘In general, filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.’” (Response (Doc. 117) at 2) (quoting Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)), see also Mayweathers v. Newland, 258 F. 3d 930, 935 (9th Cir. 2001). “The district court’s exercise of jurisdiction should not “‘materially alter the status of the case on appeal.’” Id. (quoting Mayweathers, 258 F. 3d at 935 (quoting McClatchy 24 Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir.1982)). 25 The interlocutory appeal is limited to the merits of the 3-B policy and does not reach the 26 27 substance of the case as it relates to park ordinances or the threshold question of whether the Plaintiffs are exercising any First Amendment rights. The 3-B policy assumes Plaintiffs’ 28 -3- 1 activities are speech and is proposed by the City to be a reasonable time, manner and place 2 restriction on free speech. The Court does not believe the Motion to Consolidate involves 3 aspects of the case on appeal, but does agree that granting consolidation would materially alter 4 the status of the case: CV 12-208 TUC DCB. With consolidation, Plaintiffs appearing, pro se, 5 in CV 15-13 TUC JAS will make an end-run around Rule 15 of the Federal Rules of Civil 6 Procedure to add further allegations of specific instances of alleged harassment without filing 7 a Fourth Amended Complaint in CV 12-208 TUC DCB. More importantly, consolidation will 8 expand the case to include general allegations of discrimination against the homeless in 9 violation of the Equal Protection Clause under the Fourteenth Amendment to the Constitution, 10 whereas the TAC in CV 12-208 TUC DCB is solely a First Amendment case. 11 To the extent CV 15-13 TUC JAS is duplicative to CV 12-208 TUC DCB, it is subject 12 to dismissal. “As a general rule, a federal suit may be dismissed ‘for reasons of wise judicial 13 administration ... whenever it is duplicative of a parallel action already pending in another 14 15 16 17 18 19 federal court.’” See Foster v. Arcata Associates, 772 F.2d 1453, 1458 (9th Cir.1985) (quoting Ridge Gold Standard Liquors v. Joseph E. Seagram, 572 F.Supp. 1210, 1213 (N.D.Ill.1983) (citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976)). “[G]enerally, a suit is duplicative if the “claims, parties, and available relief do not significantly differ between the two actions.” Id. (quoting Ridge Gold, 572 F.Supp. at 1213 (citations omitted)). A court may stay or dismiss a subsequent suit that duplicates a claim or claims already 20 21 22 23 pending before another court under the “prior pending action doctrine.” Curtis v. Citibank, 226 F.3d 133, 138 (2nd Cir. 2000). The rule against duplicative litigation, also referred to as “claim splitting,” is the “‘other action pending’ facet of the res judicata doctrine.1’” Davis v. Sun Oil Co., 148 F.3d 606, 613 (6th Cir.1998). Claim splitting precludes a plaintiff from prosecuting 24 a case piecemeal and requires a plaintiff to bring all claims arising out of a single wrong in one 25 action. Curtis, 226 F.3d at 138–39. So, a claim is precluded that was or could have been 26 27 28 1 Res judicata applies when a second suit is filed after a final adjudication of a first suit. -4- 1 asserted, id. (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)), but a 2 party is not barred from bringing claims in a subsequent action that could not have been 3 included in the prior pending action, even if the claims are related, or arise out of, the previously 4 filed claim, id. at 139 (citing SEC v. First Jersey Secs., Inc., 101 F.3d 1450, 1464 (2nd Cir. 1996) 5 (explaining the crucial date is when the complaint was filed)). 6 In Walton v. Eaton Corp., 563 F.2d 66 (3d Cir.1977), the United States Court of Appeals 7 for the Third Circuit held that a plaintiff has “no right to maintain two separate actions involving 8 the same subject matter at the same time in the same court against the same defendant.” The 9 Walton case is instructive because the appellate court considered the consolidation of two cases 10 to determine that plaintiffs were not entitled to a jury trial where the first case did not, but the 11 second suit did, contain a jury demand. 12 The first suit in Walton was brought as a putative class action in which the plaintiff 13 sought to represent a class of all black and female workers who had been subjected to race 14 15 16 17 18 19 20 21 22 23 and/or sex discrimination by her employer. The second suit was brought while the first was still pending and alleged the same causes of action as the first suit but differed from the first because it was not brought as a class action and it contained a jury demand. The district court consolidated the two cases and held a non-jury trial. On appeal, the United States Court of Appeals for the Third Circuit considered whether the plaintiff was entitled to a jury trial. It began its analysis by noting that the second action was duplicative and, therefore, the district court could have dismissed or stayed the second proceedings until judgment was entered in the first. Id. at 69-70. Either way, the plaintiff would have had no right to a jury trial. The court reasoned the district court was correct to impose the same outcome at trial even though the second suit had not been dismissed, because when the two suits were consolidated, the second complaint 24 became essentially an amendment of the first and a waiver of a right to a jury cannot be revived 25 by amending the original pleadings. Id. at 71. While approving the district court's discretion to 26 27 consolidate the two cases, the appellate court cautioned that consolidation might be the “most administratively efficient procedure” in some cases but a district court must “carefully insure[ 28 -5- 1 ] that the plaintiff does not use the tactic of filing two substantially identical complaints to 2 expand the procedural rights he would have otherwise enjoyed.” Id. “In particular, the court 3 must insure that the plaintiff does not use the incorrect procedure of filing duplicative 4 complaints for the purpose of circumventing the rules pertaining to the amendment of 5 complaints, Fed. R. Civ. Proc. 15, and demand for trial by jury, Fed.R.Civ.P. 38.” Id. at 2-3. 6 The Walton message is particularly meaningful, here, because the Plaintiffs are 7 represented in CV 12-208 TUC DCB by counsel, and may not therefore “appear or act in [their] 8 own behalf in the cause, or take any steps therein, unless an order of substitution shall first have 9 been made by the Court after notice to the attorney of each such party, and to the opposite 10 party.” LRCiv. 83.3(c)(2). “The attorney who has appeared of record for any party shall 11 represent such party in the cause and shall be recognized by the Court and by all the parties to 12 the cause as having control of the client’s case, in all proper ways, . . .. ” LRCiv. 83.3(b). Like 13 Walton, consolidation in this case is essentially an amendment of the TAC in CV 12-208 TUC 14 15 16 17 18 19 20 21 22 23 DCB, and allows Plaintiffs, acting pro se in CV 15-13 TUC JAS, to essentially act pro se and control CV 12-208 TUC DCB, while represented by counsel. In CV 15-13 TUC JAS, the allegations related to Plaintiffs’ First Amendment activities at the VDA Park involve a July 1, 2014, incident. The motion to file the TAC was filed May16, 2014. The Reply was filed on June 6, 2014. The motion remained pending, subject to being supplemented until December 22, 2014, when the Court granted it. The crucial date is when the TAC was filed, SEC, 101 F.3d at 1464, which was December 29, 2014. The Complaint in CV 12-208 TUC DCB raises policy, custom, and practice challenges. (CV 15-13 TUC JAS, Complaint (Doc. 1) at ¶¶ 97, 101, 108.) To the extent the Plaintiffs attempt to raise duplicative claims in CV 15-13 TUC JAS, they are subject to dismissal or may be stayed pending resolution of CV 12-208 TUC DCB. 24 For the most part, the Complaint in CV 15-13 TUC JAS reaches beyond the TAC filed 25 in CV 12-208 TUC DCB. Plaintiffs allege the Tucson City Court discriminates against 26 27 homeless citizens by charging fees for discovery in criminal cases, id. ¶¶ 48-54, and by imposing pretrial release conditions that restrict their freedom to travel back to the area of arrest, 28 -6- 1 id. ¶¶55-61. Plaintiffs allege the City has enacted anti-homeless laws and ordinances that 2 discriminate against the homeless, including laws that criminalize: performing basic human 3 functions in public, restrict their right to travel, panhandling, storing personal property on the 4 public sidewalks, or generally obstructing of the public sidewalks. Id. ¶¶ 62-75. Plaintiffs sue 5 private citizens, members of the North Fifth Avenue Merchants Association, for conspiring to 6 influence such policies. Id. ¶¶ 23, 71-73. 7 One test to determine whether a suit is duplicative of a prior filed suit is whether “the 8 same or connected transactions are at issue and the same proof is needed to support the claims 9 in both suits or, in other words, whether facts essential to the second suit were present in the 10 first suit.” Curtis, 226 F.3d at 139. 11 The threshold question in CV 12-208 TUC DCB is whether Plaintiffs’ conduct is 12 protected speech, and if it is, whether the City imposes an unreasonable restraint on First 13 Amendment speech. (Order (Doc. 103) at 12-13 (citing Spence v. Washington, 418 U.S. 405, 14 15 16 17 18 19 20 21 22 23 409-11 (1974)). If Plaintiffs survive Defendants’ threshold challenge, reasonable time, place, and manner restrictions are permissible, if they satisfy four criteria: “[1] that they are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication of the information.” Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293 (1984). In CV 13-15 TUC JAS, the Plaintiffs allege the City is preventing their equal access to the City courts, violating their right to be free to travel, and treating them differently from other citizens based on their homelessness. In CV 13-15 TUC JAS, Plaintiffs sue private citizens and City Court administrators in addition to the City administrators and police they named as Defendants in CV 12-208 TUC DCB. Neither the facts nor questions of law will be 24 substantially similar between these two cases; they do not involve the same nucleus of facts, 25 nor the same actors. The discovery which has been conducted and the limited discovery which 26 27 remains in CV 12-208 TUC DCB would have to be substantially broadened to accommodate the new claims raised in CV 15-13 TUC JAS. There would be little economy to the courts to 28 -7- 1 consolidate the two, and there would be tremendous delay in resolving CV 12-208 TUC DCB, 2 which has one pending ripe dispositive motion and another due shortly. 3 Except for duplicative claims which are subject to dismissal or a stay, the two cases do 4 not involve common questions of law or fact, and consolidation would not tend to avoid 5 unnecessary costs or delay. Fed. R. Civ. P. R. 42(a). The Court denies the Motion to 6 Consolidate Related Cases. 7 Accordingly, 8 IT IS ORDERED that Plaintiffs’ Motion to Consolidate Related Cases (Doc. 9 10 11 12 Defendants’ Motion to Transfer and Consolidate (document 113) is DENIED. IT IS FURTHER ORDERED that a copy of this Order shall be provided to the Honorable James A. Soto. DATED this 30th day of March, 2015. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-