United States District Court, D. Arizona
Ashraf Elgamal, individually and as guardian ad litem for A.E, a minor; Amanda Elgamal, an adult, ) (lead case) Plaintiffs,
Jeh Johnson, Secretary of the Department of Homeland Security; Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services; John Ramirez, Field Office Director; Rebecca Bernacke, in her individual capacity; Cynthia Harper, in her individual capacity, Defendants. Ashraf Elgamal, individually and as guardian ad litem for A.E, a minor; Amanda Elgamal, an adult, Plaintiffs,
United States of America, Defendant.
LAWRENCE O. ANDERSON, Magistrate Judge.
There are several motions pending in these two related actions. On January 21, 2014, Defendants lodged a Motion to Seal and Motion for Consolidation and Transfer, requesting consolidation of these nearly identical cases presently assigned to two different judges in the District Court of Arizona: Elgamal v. Johnson , CV-13-867-PHX-GMS (LOA) (" Elgamal I ") and Elgamal v. United States of America , CV-14-040-PHX-LOA (" Elgamal II "). (Sealed docs. 73-74) Defendants represent that Plaintiffs' counsel in both cases "[i]s not opposed to the transfer and consolidation." ( Id. at 2) Defendants indicate both cases arise from the same facts and circumstances surrounding the withdrawal of an I-140 petition filed on behalf of Plaintiff Ashraf Elgamal. ( Id. ) The named Plaintiffs are the same in both cases, but the defendants are different in each case. The only Defendant in Elgamal II is the United States of America ("USA"). Also pending for rulings in Elgamal I are Plaintiffs' Motion for Leave to File Second Amended Complaint, doc. 65, and Defendants' Motion for Stay of Case Proceedings and Motion to Keep Case Filings Under Seal Pending Resolution of Discovery Dispute, doc. 69.
Generally, the pro se Complaint in Elgamal I, filed on April 29, 2013, asserts Bivens  claims against several federal employees involved in the investigation of Mr. Elgamal's application for adjustment of his immigration status and his subsequent complaint to the Department of Homeland Security's ("DHS") Office for Civil Rights and Civil Liberties ("CRCL"). Elgamal II alleges causes of action for negligence and negligent supervision against Defendant USA, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2670-80, arising out of the Government's processing of Mr. Elgamal's application for adjustment of status and subsequent complaint to CRCL. The facts alleged by Plaintiffs in both cases are virtually identical. The Complaint in Elgamal II was lodged under seal on January 9, 2014, pending the Court's ruling on whether it should be filed under seal, and indicates that, inter alia , on or about July 5, 2013, Plaintiffs filed administrative claims with U.S. Citizenship and Immigration Services ("USCIS") as required by the FTCA. (Sealed doc. 2, ¶ 7 at 2) Elgamal I was referred to the undersigned Magistrate Judge for all appropriate pretrial matters pursuant to Rule 72(a), Federal Rules of Civil Procedure, and LRCiv 72.1(a). (Doc. 47) Elgamal II was randomly assigned to this Magistrate Judge pursuant to LRCiv 3.7(a)(1).
Plaintiffs' counsel first appeared in Elgamal I on June 5, 2013, and, shortly thereafter, filed the First Amended Complaint, which is presently sealed pending resolution of the parties' discovery dispute discussed later herein. (Docs. 8-9) Defendants' counsel appeared in Elgamal I on July 12, 2013, not long after service and review of the First Amended Complaint. (Doc. 18) Defendant USA appeared in Elgamal II when it lodged and requested sealing of its Motion for Consolidation and Transfer on January 21, 2014. To date, no defendant has answered or otherwise responded to the complaint in either case.
Since mid-July 2013, counsel in Elgamal I have been embroiled in a discovery dispute regarding the return of an alleged privileged document, known as the "Lilly Memorandum, " inadvertently disclosed to Plaintiffs during discovery in a related case, Marcella Mata and Ashraf Elgamal v. Janet Napolitano, etc.; et al. , CV-12-289-PHX-ROS (" Mata "). The Mata case was dismissed without prejudice by a different Arizona District Judge on July 15, 2013. (Doc. 18 in CV-12-289-PHX-ROS) On July 19, 2013, the assigned District Judge in Elgamal I granted Defendants an extension to answer until after the resolution of the parties' Lilly Memorandum dispute, referred the discovery dispute to the undersigned Magistrate Judge for resolution, and ordered all documents disclosing the details of the Lilly Memorandum sealed until further order of the Court. (Doc. 23 at 3)
Relying on Federal Rule of Evidence 502(b) and Federal Rule of Civil Procedure 26(b)(5)(B), and (c), the Elgamal I Defendants requested a protective order, directing Plaintiffs to gather and return to defense counsel all copies of the disputed Lilly Memorandum until the Court decides the issues regarding its use, asserting the Lilly Memorandum is protected from discovery by the deliberative-process and attorney-client privileges. (Sealed doc. 20 at 1-2) On December 23, 2013, and following express Ninth Circuit authority that a district court lacks the power to issue a valid protective order to compel the return of documents obtained through discovery in a separate action, this Magistrate Judge denied without prejudice Defendants' request that a protective order issue in Elgamal I for discovery inadvertently disclosed in the Mata case. (Sealed doc. 63) (citing Kirshner v. Uniden Corp. of America , 842 F.2d 1074 (9th Cir. 1988); Whittaker Corp. v. Execuair Corp. , 736 F.2d 1341, 1347 (9th Cir. 1984)). The docket for the Mata case reflects that, on January 10, 2014, Defendants filed, inter alia , a Motion to Reopen and Motion for Protective Order. (Docs. 55; sealed doc. 56, CV-12-289-PHX-ROS) The time for briefing has not expired.
On January 9, 2014, Plaintiffs moved for leave to file a Second Amended Complaint in Elgamal I. Plaintiffs represent "[t]he primary purposes [for amendment is] adding Jeffrey S. Blumberg and Margo Schlanger as individual defendants, streamlining the Bivens causes of action, adding allegations concerning the statute of limitations, and updating information that has been discovered since the filing of the First Amended Complaint." (Sealed doc. 66) Defendants have not filed any opposition to Plaintiffs' requested amendment, but have filed a Motion for Stay of Case Proceedings and Motion to Keep Case Filings Under Seal Pending Resolution of Discovery Dispute. (Doc. 69)
For the reasons discussed below, the Court will grant the consolidation motion, conditionally grant Plaintiffs' amendment request, and deny Defendants' motion to stay these proceedings pending the parties' dispute regarding the Lilly Memorandum in the Mata case.
"Under Rule 42(a) of the Federal Rules of Civil Procedure, consolidation is appropriate [i]f actions before the court involve a common question of law or fact.'" Hall v. Medicis Pharmaceutical Corp. , 2009 WL 648626, at *1 (D. Ariz. March 11, 2009). In determining whether consolidation is appropriate, a district court "must balance the interest of judicial convenience against the potential for delay, confusion and prejudice that may result from such consolidation." Sapiro v. Sunstone Hotel Investors, L.L.C. , 2006 WL 898155, at *1 (D. Ariz. April 4, 2006); see also In re Adams Apple, Inc. , 829 F.2d 1484, 1487 (9th Cir. 1987); Monolithic Power Systems, Inc. v. O2 Micro Intern. Ltd , 2006 WL 2329466, at *1 (N.D. Cal. 2006) (granting consolidation where common questions of law and fact exist and judicial economy would be served). "Factors such as differing trial dates or stages of discovery usually weigh against consolidation." Sapiro , 2006 WL 898155, *1 (citing Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2383 (1995). "[T]he risk of inconsistent adjudications of common factual and legal issues" generally weighs in favor of consolidation." Id. (citing Malcolm v. Nat'l Gypsum Co. , 995 F.2d 346, 350 (2d Cir. 1993)) (citations omitted). A district court has broad discretion to determine whether consolidation is appropriate. Investors Research Co. v. U.S. Dist. Court for Cent. Dist. Of Cal. , 877 F.2d 777, 777 (9th Cir. 1989).
Under LRCiv 42.1(a), the consolidation or transfer of cases to a single judge is permissible whenever two or more cases are pending before different judges on the grounds that such cases: "(1) arise from substantially the same transaction or event; (2) involve substantially the same parties or property; (3) involve the same patent, trademark, or copyright; (4) call for determination of substantially the same questions of law; or (5) for any other reason would entail substantial duplication of labor if heard by different Judges." "Because the standard for transfer under LRCiv 42.1 is similar to the standard for consolidation under Fed.R.Civ.P. 42(a), the Court has broad discretion in deciding a motion to transfer under LRCiv 42.1(a)." Addington v. U.S. Airline Pilots Ass'n , 2010 WL 4117216, at *1 (D. Ariz. Oct. 19, 2010) (citations omitted).
Based upon these standards, consolidation of Elgamal I and II is appropriate. These actions undisputedly involve common questions of law and fact. Consolidating these actions into one will enhance the efficiency of their resolution rather than litigating them separately. Consolidation would conserve the time and effort of counsel and the district court, avoid unnecessary expenses in resolving two ...