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Cooper v. City of Tucson

United States District Court, D. Arizona

March 30, 2015

John Thomas Cooper, Jr., and Jonathan McLane, Plaintiffs,
City of Tucson, et al., Defendants.


DAVID C. BURY, District Judge.

The Court denies Plaintiffs' Motion to Consolidate Related Cases (Doc. 113).

Cases should be transferred and consolidated before a single district judge, whenever two or more cases are pending before different district judges which arise from substantially the same transaction or event; involve substantially the same parties or property;... call for determination of substantially the same questions of law; or for any other reason would entail substantial duplication of labor if heard by different district judges. Rules of Practice for the United States District Court, District of Arizona, Local Rule (LRCiv.) 1.2(g)(1).

Federal Rule of Civil Procedure 42(a) provides that courts may consolidate actions when such actions involve a common question of law or fact, or when consolidation may tend to avoid unnecessary costs or delay.

Both motions to transfer and consolidate are heard by the Judge with the lowest case number. LRCiv. 1.2(g). This Court, therefore, decides whether to transfer and consolidate a case filed by Plaintiffs Cooper and McLane, pro se, and assigned to the Honorable James A. Soto, CV 15-13 TUC JAS, with the already consolidated cases: CV 12-208 TUC DCB (lead) and CV 12-781 TUC DCB (consolidated), referred herein to as CV 12-208 TUC DCB.

In the cases pending before this Court, Plaintiffs challenge City park closure ordinances as precluding them, members of the Occupy Homelessness branch of Operation Occupy Public Land, from exercising their First Amendment rights in a city park, overnight. As alleged in the recently filed Third Amended Complaint (TAC), the Plaintiffs' First Amendment activities moved from the park to the sidewalk bordering the Veinte de Agosto (VDA) Park, with the City allegedly violating Plaintiffs' First Amendment rights to protest on the city sidewalks and harassing Plaintiffs in their use of the sidewalks to exercise First Amendment rights.

On December 22, 2014, the Court granted the Plaintiffs leave to file the TAC to add claims that Plaintiffs were being harassed when exercising their First Amendment rights on the sidewalk by being arrested and having their personal property seized, or being threatened with both. The Court allowed Plaintiffs to add specific instances when these alleged constitutional violations to the Fourth, Fifth, and Fourteenth Amendments occurred, which included arrests or threats of arrest on April 26 and June 21, 2012, September 17, October 1 and 2, 2013, and 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 1048, 1052 (9th Cir. 2003). The Court allowed the amendment because in large part the Plaintiffs alleged supplemental claims occurring since they had filed the Second Amended Complaint on July 11, 2012. (Order (Doc. 90) at 4-5 (relying on Fed.R.Civ.P. R.15(d)).

The Court reasoned that Plaintiffs did not unduly delay seeking the amendment because Plaintiffs were appointed counsel to represent them pro bono in March, 2014, and the Motion for Leave to File the TAC was filed on May 16, 2014. Id. at 2. The Court limited the prejudice to Defendants by allowing only a limited extension of discovery in respect to the TAC, with discovery to end by March 16, 2015, dispositive motions due April 16, 2015, and the Proposed Pretrial Order due on May 15, 2015.

At the time of the amendment, discovery had ended and the parties had filed cross motions for summary judgment on the question of Tucson's park permit fee provision. The City had filed a motion for summary judgment challenging the Plaintiffs' standing to bring a claim against its sidewalk enforcement policy because the SAC failed to allege facts reflecting that Cooper or McLane were arrested. Subsequent to the TAC, the parties stipulated to the City's withdrawal of the Motion for Summary Judgment challenging Plaintiffs' standing.

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 Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir.1982)).

The interlocutory appeal is limited to the merits of the 3-B policy and does not reach the 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' activities are speech and is proposed by the City to be a reasonable time, manner and place restriction on free speech. The Court does not believe the Motion to Consolidate involves aspects of the case on appeal, but does agree that granting consolidation would materially alter the status of the case: CV 12-208 TUC DCB. With consolidation, Plaintiffs appearing, pro se, in CV 15-13 TUC JAS will make an end-run around Rule 15 of the Federal Rules of Civil Procedure to add further allegations of specific instances of alleged harassment without filing a Fourth Amended Complaint in CV 12-208 TUC DCB. More importantly, consolidation will expand the case to include general allegations of discrimination against the homeless in violation of the Equal Protection Clause under the Fourteenth Amendment to the Constitution, whereas the TAC in CV 12-208 TUC DCB is solely a First Amendment case.

To the extent CV 15-13 TUC JAS is duplicative to CV 12-208 TUC DCB, it is subject to dismissal. "As a general rule, a federal suit may be dismissed for reasons of wise judicial administration... whenever it is duplicative of a parallel action already pending in another 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, ...

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