Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fressadi v. Glover

United States District Court, D. Arizona

June 19, 2019

Arek Fressadi, Plaintiff,
Kathryn Ann Glover, et al., Defendants.



         Pending before the Court are several motions challenging the Court's subject matter jurisdiction filed by pro se[1] Plaintiff Arek Fressadi (“Plaintiff”) (Docs. 285, 286 & 315). These filings contend Defendants' removal of this case to federal court was improper and seek to have the consolidated actions remanded.[2] Defendants Kathryn Glover (“Glover”) and Rod Robertson Enterprises Inc. (“RRE”) (collectively “Defendants”) have responded to Plaintiff's motions (Docs. 295, 297, 298, 319 & 323) and Plaintiff has filed supporting reply briefs (Docs. 299, 301 & 325). The Court recently granted Plaintiff's multiple requests to stay these proceedings (see Docs. 287, 288, 291 & 315[3]) pending a ruling on his requests to remand. (Doc. 337). This Order being that ruling, the stay is now lifted. Also pending before the Court is RRE's Sealed Motion for Summary Judgment (Doc. 239) and Plaintiff's Motion for Leave to Amend his Complaint (Doc. 308), the latter to which Glover has responded (Doc. 316) and Plaintiff has replied (Doc. 320).[4] Before reaching the merits of RRE's Motion for Summary Judgment or Plaintiff's Motion for Leave to Amend, however, the Court will assess the threshold jurisdictional issues raised by Plaintiff.

         BACKGROUND [5]

         The events giving rise to Plaintiff's complaints occurred on or about August 26, 2014, in Pima County. While riding a 1993 Suzuki motorcycle, Plaintiff was allegedly hit from behind by Glover and airlifted from the crash site to the hospital. (Doc. 4-7 at 6). Plaintiff claims that, before being evacuated, he told Glover and the responding Pima County Sheriff's deputies to use his free towing coverage from Liberty Mutual Insurance (“Liberty”) to have the motorcycle towed to his garage. (Id. at 6-8). This did not occur, and the motorcycle was instead towed to RRE's storage yard. (Id. at 8).

         Throughout the next three months, Plaintiff underwent various surgeries to treat injuries from the accident. (Id.) He was often sedated due to the pain of his injuries and subsequent surgeries. (Id.) During this time, Pima County Sheriff's Department (“PCSD”) sent him a letter dated August 27, 2014, stating that, if his motorcycle was not released from RRE's storage yard within 10 days, a claim could be filed to transfer ownership of the motorcycle. (Id. at 7). In order to release the vehicle, Plaintiff had to present PCSD with proof of ownership and pay for all related towing and storage fees. (Id.)

         Plaintiff claims he first learned his motorcycle had been taken to RRE's storage yard in late September 2014. (Id. at 9). He called RRE, who told him that he needed to get clearance from PCSD to release his motorcycle. (Id.) He then contacted PCSD, who informed him that he would need to present his driver's license in person, proof of insurance, and a fee in person to get clearance to release the motorcycle. (Id.) Plaintiff claims he was unable to physically present these documents due to his injuries. (Id.)

         After receiving RRE's notification that no one had claimed the motorcycle, Arizona's Motor Vehicle Department (“MVD”) sent multiple letters to Plaintiff's home advising him that the motorcycle would be processed as an abandoned vehicle if he did not recover it. (Id.) To avoid the fees associated with an abandoned vehicle fine, Plaintiff sent the notarized title to RRE in early October. (Id. at 10). Plaintiff claims that RRE then filed a “false writing with the State's Motor Vehicle Department (“MVD”) on October 20, 2014, indicating that no one had contacted RRE claiming ownership or right of possession of the motorcycle during RRE's period of possession.” (Id.) The MVD accepted RRE's “false writing.” (Id.)

         Plaintiff sent letters in January 2015 disputing MVD's authority to transfer title of the motorcycle. (Id.) He also contacted PCSD, who informed him that he would have to pay $3, 021.50 in storage fees to retrieve his motorcycle. (Id.) Plaintiff did not pay the storage fees or retrieve the vehicle. On May 19, 2015, RRE sold the motorcycle. (Id.)

         1. Case 1 and Defendant RRE

         On August 27, 2015, Plaintiff sued Glover, RRE, Pima County, and the State of Arizona in Pima County Superior Court in Case Number CV-2015-3965 (“Case 1”).[6] (Doc. 1-1). In that action, Plaintiff alleged various state law claims arising out of the August 26, 2014 accident. (Id.) Plaintiff specifically asserted a cause of action against RRE for conversion resulting from its storage and sale of the motorcycle. (Id. at 10). RRE filed a Notice of Settlement in Case 1 on December 23, 2015. (Doc. 1-7 at 19). On January 7, 2016, RRE and Plaintiff entered into a Settlement Agreement in which Plaintiff, in exchange for $3, 000, agreed to “release and forever discharge the Defendant . . . from any and all claims, demands, actions and causes of action, and any liability whatsoever, on account of or in any manner arising or to arise out of the conversion of a 1993 Suzuki motorcycle.” (Doc. 239, Ex. B). RRE delivered a check for $3, 000 to Plaintiff the following day, and Plaintiff deposited the funds. (See Doc. 2-5 at 50).

         On January 15, 2016, Plaintiff filed a Notice of Non-Settlement and Application for Entry of Default. (Doc. 1-7 at 32). In this filing, Plaintiff stated that he wished to revoke the Settlement Agreement due to newly-discovered evidence, and he raised “additional claims of due process, equal protection, and takings issues per 42 U.S.C. § 1983…that [required] Plaintiff to amend his complaint to include the new information and Section 1983 claims.” (Id. at 33). Plaintiff argued that new evidence revealed a conspiracy existed between the Arizona Department of Transportation (“ADOT”), PCSO, and RRE in which PCSO forces vehicles to be towed to RRE, the MVD transfers title upon request, and then RRE and PCSO share in the profits upon RRE's auction of the abandoned vehicles. Plaintiff therefore claimed that the Settlement Agreement was void because RRE's attorneys fraudulently concealed his potential RICO and § 1983 claims resulting from this conspiracy. (Id.) RRE thereafter filed a Motion to Enforce the Settlement Agreement. (Doc. 2-2 at 12).

         The state court judge held a hearing on RRE's Motion to Enforce the Settlement Agreement and Plaintiff's objections on March 7, 2016. (Doc. 2-4 at 33; Doc. 2-5 at 41-42).[7] After hearing arguments and considering the briefing, the court evaluated and rejected Plaintiff's objections to the Settlement Agreement. (Doc. 2-5 at 48-51). The court found that a valid settlement agreement existed between the parties. (Id. at 51). The court expressly held that a legal opinion could not form the basis of a fraud claim, and Plaintiff's evidence of alleged fraud was precluded by the parole evidence rule. (Id. at 50, 51). The court therefore granted RRE's Motion to Enforce the Settlement Agreement, dismissed all claims against RRE with prejudice, and granted RRE's request for attorney's fees and costs. (Id. at 51 (“[A]ll claims against Defendant RRE are DISMISSED WITH PREJUDICE.”)). Plaintiff thereafter moved for reconsideration of the ruling on the enforceability of the Settlement Agreement, arguing he was fraudulently induced to enter the Settlement Agreement and had suffered intentional infliction of emotional distress regarding the original conversion claim. (Doc. 3-2 at 2-15). On March 23, 2016, the Superior Court denied Plaintiff's Motion for Reconsideration because “Plaintiff [had] not set forth any new arguments or facts that would justify reconsideration. . . .” (Doc. 3-2 at 23). On April 13, Plaintiff also moved for reconsideration of the state court's award of attorneys' fees to RRE on the grounds that “RRE…concealed that their criminal conduct was part of a joint Venture agreement with the Pima County Sheriff's Department (“PCSD”) where the State acted in concert and or was complicit with RRE's and PCSD's criminal / unlawful conduct.” (Doc. 3-9 at 25-26). On April 19, 2019, the state court denied this motion. (Id. at 29). On April 19, 2016, the court issued a final judgment in favor of RRE. (Id. at 30 (“Pursuant to Rule 54(b), the Court has expressly determined that there is no just reason for delay and expressly directs entry of this final Judgment in favor of Rod Robertson and dismissal with prejudice of Rod Robertson in the above-captioned matter)). Plaintiff did not timely appeal the judgment.

         2. Case 1 - Change of Venue Issue

         Following the Court's dismissal of RRE, on March 25, 2016, Plaintiff moved for a change of venue in Case 1. (Doc. 3-2 at 24). He specifically requested that his case be transferred from Pima County to Graham County due to the corruption he perceived in Pima, Maricopa, Yuma, Cochise, and Santa Cruz counties. (Id. at 25 (“In keeping with Yarbrough and Plaintiff's research on corruption in adjoining counties (Arpaio's Maricopa County being the worst)…Graham County has the lowest case load with the least corruption; its only corruption issue required the removal of Judge Bolt due to misconduct. Imagine that.”). While this motion was pending, on March 30, 2016, the Pima County court granted the State of Arizona's pending motion to dismiss it from the action. (Doc. 3-2 at 42-43). Plaintiff moved for reconsideration of that order (“Motion to Reconsider March 30 Order”) (Doc. 3-3 at 2). In that Motion, he argued that the court had “no jurisdiction to rule on anything in this case after March 25, 2016, ” or after Plaintiff filed his Motion for Change of Venue pursuant to A.R.S. § 12-408. (Id.) Accordingly, he argued that the ruling in the State's favor amounted to “a violation of Plaintiff's State constitutional rights, and his U.S. Constitutional rights to due process and equal protection as protected under the Fourteenth Amendment via 42 U.S.C. § 1983” and raises “claims of a Judicial Takings.” (Id. at 4).

         On April 4, 2016, the court issued an order acknowledging that changes of venue where the county is a party under A.R.S. § 12-408 are not discretionary. (Doc. 3-8 at 35). The court explained, however, that “opposing parties are still entitled to be heard on the issue of to which county the action should be transferred, and to whether there is any reason why the action should not be transferred. A.R.S § 12-411(a)…. For these reasons, on March 25, the Court was holding Plaintiff's motion for change of venue for objection, and was not ready to rule on that issue.” (Id.) The court nonetheless noted that, due to the non-discretionary nature of requests to change venue, “it is possible that the Court was divested of jurisdiction to decide the State's motion to dismiss when Plaintiff filed his motion on March 25.” (Id.) The court therefore asked the parties to brief the issue in their response and reply to Plaintiff's Motion to Reconsider March 30 Order.[8] (Id.) Defendant State of Arizona timely filed its response to Plaintiff's Motion to Reconsider March 30 Order, explaining the difference between venue and jurisdiction and arguing that, “[e]ven if Plaintiff proves venue should be changed, the jurisdiction of the Superior Court to hear his case is not affected. As a result, the Superior Court had jurisdiction at the time it entered its order on the final part of the State's Motion to Dismiss.” (Doc. 3-9 at 4). Plaintiff filed his reply brief on April 9, 2016, in which he again argued that “once a party has filed a timely motion for change of venue, the Court's jurisdiction is limited to determining the most convenient county and ‘transfer venue of the action to that county.'” (Doc. 3-9 at 8). On April 19, 2016, before ruling on the Motion to Reconsider March 30 Order, the court entered judgment for attorneys' fees and interest in favor of RRE and dismissed RRE from the action with prejudice. (Doc. 4 at 26-28). On April 21, 2016, after having “received and considered plaintiff's motion for reconsideration of the Court's 3/30/2016 ruling, defendant State of Arizona's response, and plaintiff's reply, ” the court denied Plaintiff's Motion to Reconsider March 30 Order that argued the Pima County court was without jurisdiction to enter orders following Plaintiff's request for a change of venue. (Doc. 3-9 at 33). Pursuant to Arizona Rule of Civil Procedure (“Arizona Rule”) 54(b), the Court then entered judgment in favor of Arizona and dismissed it from the action with prejudice the same day. (Doc. 3-9 at 35).

         On April 22, 2016, the court granted Plaintiff's motion for change of venue. (Doc. 3-9 at 39). The court held that there was no basis to support Plaintiff's allegations of corruption in the adjoining counties and although Plaintiff may have been “entitled to a change of venue, he is not entitled to forum shop.” (Id.) Finding the Pinal County seat more convenient for the parties, attorneys, and witnesses than Graham County, the court transferred Case 1 to Pinal County. (Id.) Plaintiff subsequently filed several Notices of Appeal with the Pinal County Court. (See Doc. 4-1 at 31 (arguing “that Pima County Superior Court lacked authority to enter any order or ruling on anything other than Change of Venue per A.R.S. § 12-408 after Plaintiff filed for a Change of Venue on March 25, 2016”); Doc. 4-4 at 52 (amending his notice of appeal to include all of the Pima County Court's rulings)). On September 8, 2016, the Arizona Court of Appeals dismissed Plaintiff's appeal as to the State of Arizona as untimely. (Doc. 4-6 at 11). However, it granted Plaintiff's Motion to Suspend Appeal and reinvested jurisdiction in the trial court for thirty days to allow the court to rule on any pending motions. (Id.) On October 19, 2016, the appeals court dismissed Plaintiff's appeal against RRE. (Doc. 29-1 at 2). Plaintiff did not seek any further review of these decisions.

         3. Case 2 - Consolidation and Removal

         On August 24, 2016, while Case 1 was still pending against Glover and Pima County, Plaintiff filed another action related to the motorcycle accident in Pinal County Superior Court (“Case 2”).[9] Therein, he named 25 different public entities and individuals, including RRE, Pima County, and the State of Arizona, and asserted state and federal claims against them.

         In his first claim for relief, Plaintiff sought a declaratory judgment “as to whether Pima County Superior Court had authority to issue any rulings other than to transfer [Case 1] after [Plaintiff] filed for change of venue pursuant to A.R.S § 12-408.” (Doc. 4-7 ¶¶ 94-97). His § 1983 claims were broad and far-reaching, but in part alleged that “Plaintiff was denied due process and a post-deprivation remedy by Pima when Pima County Superior Court continued to issue rulings after Plaintiff made a request for a venue change, to affect a Takings or a Judicial Takings.” (Id. at ¶ 159). Plaintiff's claims against RRE in Case 2 stemmed from the issues litigated and ruled upon by the Superior Court in Case 1, therein he claimed: (1) the Settlement Agreement was void as against public policy because it provided financial incentive to PCSD to have RRE tow vehicles; (2) RRE's attorneys had negligently misrepresented Plaintiff's potential claims against RRE; (3) RRE had fraudulently concealed information related to the shared storage fees and profits between RRE and PCSD; (4) RRE had committed constitutional violations under 42 U.S.C. § 1983 with regard to the taking of motorcycle; (5) RRE had engaged in racketeering scheme with the other defendants related to the taking of his motorcycle; and (6) RRE had committed fraud upon the court when it failed to disclose the RRE and PCSD's alleged “kick-back” scheme related to the storage of the motorcycle. (Id.)

         On August 29, 2016, prior to the Case 2 Defendants being served with the Case 2 Complaint, Plaintiff moved under Arizona Rule 42(a) to consolidate Case 2 with Case 1. (Doc. 4-5 at 35). Therein, Plaintiff argued that Case 1 “addresses claims arising from the incident and Plaintiff's injuries” and Case 2 “addresses claims arising from the Defendants' misconduct after the incident and in the adjudication of [Case 1]….” (Doc. 4-5 at 36). The two remaining Defendants from Case 1 - Glover and Pima County (hereinafter “Case 1 Defendants”) - filed a response to the motion to consolidate, in which they agreed that consolidation would promote judicial efficiency given the common questions of law and fact. (Doc. 4-5 at 41). On September 22, 2016, the state court granted Plaintiff's motion and consolidated the actions. (Doc. 4-7 at 32). The Order granting consolidation stated: “A MOTION TO CONSOLIDATE having been filed by Plaintiff, and upon the Court's review of the same; IT IS HEREBY ORDERED that above entitled matter shall be consolidated into the Pinal County Superior Court Cause Number CV201600937, and that all further filings for CV201601438 shall be filed into CV201600937.” (Id.)

         Believing that the consolidation order merged the actions into one, Case 1 Defendants filed a Notice of Removal to this Court on September 26, 2016. (Doc. 1). In their Notice of Removal, Case 1 Defendants stated that the cases had been recently consolidated, and although the Case 1 complaint “had alleged only state tort claims and was not independently removable, ” the Case 2 complaint “included claims under 42 U.S.C. § 1983 for alleged violations of the United States Constitution” and the action was therefore “removable to this Court under 28 U.S.C. § 1441.” (Id. at ¶¶ 2, 4, 5 & 8).


         Since removal to this Court, Plaintiff has frequently and repeatedly objected to the Court's jurisdiction over this case. (See generally Docs. 11, 94, 268, 285, 286 & 315). In doing so, Plaintiff has advanced arguments that the Defendants were improperly forum shopping when they removed the case; that the case should be transferred to a different judge because the undersigned holds personal bias against Plaintiff; that the action should be transferred to a federal district court in Tucson[10] for Plaintiff's convenience; and that Plaintiff's notice of appeal of the state court's order dismissing RRE and the State of Arizona in Case 1 divested the court of jurisdiction over that case. These arguments have been addressed and rejected by the Court. (See Docs. 164 & 279). Plaintiff now argues that removal was improper because the state court's consolidation of the two cases prior to their removal did not merge them into one action over which the Court could exercise federal question jurisdiction. Plaintiff also argues that the Court should abstain from hearing Case 2. Defendants have not directly addressed these arguments, but generally respond by pointing to the Court's various orders on Plaintiff's other objections to the Court's jurisdiction. Because the Court has not directly assessed either the impact of the state court's consolidation of Case 1 and Case 2 on its own jurisdiction or Plaintiff's abstention arguments, however, it will do so now.

         I. Plaintiff's Objections to Removal and Requests to Remand (Docs. 285 & 286)

         Under 28 U.S.C. § 1441(a), a defendant in a state court action may remove the action to a federal forum if “the district courts of the United States have original jurisdiction” over the action. 28 U.S.C. § 1441(a) (2003). The burden of demonstrating the existence of federal jurisdiction rests with the removing defendants. Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006) (“It is to be presumed that a cause lies outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction.”) (internal quotation marks and citation omitted)). A defendant's right to remove is determined according to the plaintiff's pleading at the time of the petition for removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939). “Because lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts should be resolved in favor of remand.” Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

         A. Impact of Consolidation

         Plaintiff first contends that this action should be remanded to state court because the consolidation of Case 2, which contained federal claims at the time of removal, with Case 1, which Removing Defendants concede in their Notice of Removal was “not independently removable”, did not give this Court jurisdiction over the state-consolidated actions. Accordingly, the Court must assess the impact consolidation had on Defendants' ability to remove the actions to federal court.

         At Plaintiff's request, the Arizona state court consolidated Case 1 and Case 2 under Arizona Rule 42(a). Arizona Rule 42(a) states “[i]f actions before the court involve a common question of law or fact, the court may (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.” Ariz. R. Civ. P. 42(a). The statute does not define the term “consolidate” and the order granting Plaintiff's request to consolidate the matters did not limit or expound on the intended scope of the consolidation.[11] In arguing that the two cases remained separate for purposes of removal, Plaintiff first cites to cases interpreting Federal Rule of Civil Procedure (“Federal Rule”) 42(a). (See Doc. 285 at 2). These cases stand for the general principle that consolidation done under Fed.R.Civ.P. 42 does not combine two actions into one for purposes of removal to federal court. See Hall v. Hall, 138 S.Ct. 1118 (2018); Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933). While the Court agrees that Hall and Johnson stand for this proposition, these cases are inapposite because they address the effect of federal consolidation rather than consolidation of cases under state procedural rules. As noted above, the cases here were consolidated under Arizona law, not federal law.

         Whether a state court consolidation order intended to merge two actions into one depends on the substantive state law from which the cases were removed. In Bridewell-Sledge, for example, the Ninth Circuit held that where a California state court had consolidated two class actions “for all purposes” prior to removal to federal court, California law dictated that the two actions were “merged into a single proceeding with only one verdict or set of findings and one judgment, and the actions [were to be] treated as if only one complaint had originally been filed.” Bridgewell-Sledge v. Blue Cross of California, 798 F.3d 923, 929 (9th Cir. 2015) (citing Hamilton v. Asbestos Corp., 998 P.2d 403, 415 (Cal. 2000) and McClure v. Donovan, 205 P.2d 17, 20 (Cal. 1989)). The district court accordingly concluded that “when examining whether we have federal jurisdiction over [the consolidated actions], it is necessary to view [them] as a single consolidated class action that was united originally, rather than as two separate class actions filed at different times.” Id. at 930 (ultimately holding that when viewed as one action, the California “local controversy exception” required remand of the consolidated actions to state court) (emphasis added). See also e.g., Cottman Transmission Systems, LLC v. Bence, 2004 WL 98594, at *2 (E.D. Penn. Jan. 15, 2004) (denying plaintiff's motion to remand where under Pennsylvania law the state consolidation order made “clear that the combined actions [were] to be treated as if they ‘had been originally commence as a single action'” resulting in an aggregated amount that met the requisite amount in controversy for diversity jurisdiction) (quoting Keefer v. Keefer, 741 A.2d 808, 811 (Pa. Super. Ct. 1999)).

         Plaintiff contends Arizona case law supports the proposition that the state order consolidating these two actions did not merge them into one. He specifically cites Torosian v. Paulos, 313 P.2d 382 (Ariz. 1957) and Yavapai Cty v. Superior Court, 476 P.2d 889 (Ariz. App. Ct. 1970). Neither of these cases resolve the issue here. In Torosian, the issue was whether the trial court had properly disposed of five actions that had been consolidated “for purposes of determining the issues only contained in the garnishment matters in each separate case….” 313 P.2d at 385. After holding a trial on those issues, the state court judge referred four of the cases back to their original divisions for entry of judgment. Id. at 389-90. On appeal, it was argued that referring the actions back to their original divisions for entry of judgment was improper and defeated the whole purpose of consolidating the actions. Id. at 390. The court rejected this argument, pointing out that Arizona Rule 42(a) grants trial courts “the power to order consolidation of actions for limited purposes or for the trial of certain issues only, and that such an order of consolidation does not thereby effect a merger of the cases consolidated.” Id. (emphasis added) (referencing federal case law in accordance). In so finding, the court in Torosian was addressing the effect of a limited order of consolidation, i.e., an order that had expressly consolidated actions for the limited purpose of “determining the issues only contained in the garnishment matters.” Id. The court did not, in other words, render a holding on the effect of an “all-purpose” or general consolidation order.

         Yavapai County also addressed the effect of a limited-scope consolidation order. There, the issue was whether a party in a case that had been consolidated with another case “for purposes of trial” had waived its right to request a change of venue by failing to object to the consolidation. 476 P.2d at 890. The court found that such a right was indeed waived, because to conclude otherwise “would result in a De [sic] facto severance of the litigation, and render an order of consolidation ‘for trial' meaningless.” Id. at 891. “Since a retained right to change venue of a constituent cause of action is incompatible with the single-trial concept of consolidation, a waiver of the right to change venue is inherent in a failure to assert such right prior to consolidation.” Id. In reaching this conclusion, the court cited Johnson, and noted, “[i]t seems clear, too, that a consolidation of cases ‘for trial', as here, does not merge the suits into a single cause, or change the rights of the parties.” Id.

         Although both Torosian and Yavapai County cite Johnson (and other, similar federal law on the effect of consolidation), the Arizona cases do not resolve the present issue because these cases only address the effect of consolidation in the context of a limited-purpose consolidation order. In other words, Yavapai County and Torosian do not stand for the proposition that an otherwise general consolidation order cannot merge two actions into a single cause; instead, they support the principle that a limited-purpose consolidation order in Arizona does not merge two cases into one-a proposition that is in accordance with federal law. Here, however, the state judge's Consolidation Order does not contain limiting language like the orders in Yavapai County and Torosian, but simply states that Case 2 “shall be consolidated into” Case 1 and that all future filings in Case 2 shall be filed “into” Case 1. Arizona law does not offer guidance as to how such a general consolidation order should be interpreted by a federal court assessing removal jurisdiction. In the absence of Arizona law that directly addresses the effect of this type of general consolidation order, the Court must determine how the Arizona Supreme Court would decide the issue. See Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980) (holding that in the absence of a “clear state court exposition of a controlling principle, ” district courts must use their “best judgment” in predicting how a state's highest court would decide the issue). In doing so, a district court may utilize “not only intermediate appellate court decisions but also ‘decisions from other jurisdictions, statutes, treatises, and restatements as guidance.'” Walker v. Ford Motor Comp., 2019 WL 1531621, at *2 (9th Cir. April 9, 2019) (quoting In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990).

         The Court first notes that Arizona Rule 42(a) is nearly identical to Federal Rule 42(a).[12] “Because Arizona has substantially adopted the Federal Rules of Civil Procedure, [Arizona courts] give great weight to the federal interpretations of the rules.” Edwards v. Young, 486 P.2d 181, 182 (Ariz. 1971). See also Anserv. Ins. Serv. Inc. v. Albrecht In and for Cnty. of Maricopa, 960 P.2d 1159, 1160 (Ariz. 1998) (citing Edwards and applying federal case law to interpret the “short and plain” requirement under Arizona Rule 8(a)(2)).

         As noted above, federal law is fairly uniform in holding that orders consolidating actions under Federal Rule 42(a), whether limited or general, do not merge two actions into one. See Johnson, 289 U.S. at 496-97 (“consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another”); Hall, 138 S.Ct. at 1118 (engaging in an in-depth historical review of the meaning of consolidation in the federal context); Chaara v. Intel Corp., 410 F.Supp.2d 1080, 1094 (D. N.M. 2005) (noting that because consolidation is done for the administrative convenience of the parties and the courts, an order consolidating two actions “fails to erase the fact that, underneath consolidation's facade, lies two individual cases”). But see Hall, 138 S.Ct. at 1131 (noting that given the “substantial discretion [given to district courts] in deciding whether and to what extent to consolidate cases, ” nothing in the traditional understanding of consolidation “means that district courts may not consolidate cases for ‘all purposes' in appropriate circumstances”). Moreover, at least one court in this district has predicted that Arizona would likely follow federal law regarding the effect of a state's general consolidation order. Monroe v. Gagan, 2008 WL 4418155, *3 (D. Ariz. Sept. 29, 2008). In Monroe, the district court held that the actions that had been consoliDated: the state level “retain[ed] their separate identities” for purposes of assessing subject matter jurisdiction upon removal. Id. The court found “[t]he fact that these two actions were consolidated in state court, prior to removal, does not change the result.” Id. n.2. The court noted that the similarities between the Federal Rule 42(a) and Arizona Rule 42(a) “‘strengthen[ed] the Court's conclusion that [Arizona] courts would not reach a different conclusion under the [Arizona] Rules.'” Id. (quoting Chaara, 410 F.Supp.2d at 1095)).

         The court in Chaara, a case out of the District of New Mexico, came to a similar conclusion. There, the court found that nothing in New Mexico's laws suggested that the state consolidation order at issue merged the cases into a single action, even though the state order explicitly stated the cases were to be consolidated “‘for any and all purposes.'” Id. at 1095. The district court predicted that in the absence of New Mexico case law on the issue, New Mexico would follow federal law to hold that each of the cases retained their individual nature notwithstanding their consolidation in state court. Id. at 1094 (stating “[c]onsolidation is not like a marriage, producing an indissoluble union from two distinct cases. Instead, consolidation is an artificial link forged by a court for the administrative convenience of the parties…”). Accordingly, the court held that “each [removed] case must satisfy jurisdiction on its own.” Id. at 1095 (remanding one action for lack of subject matter jurisdiction and retaining jurisdiction over the other action because diversity jurisdiction existed at the time of removal).

         Given these authorities, the Court finds that Arizona would likely follow federal law as to the effect of a general consolidation order like the one at issue here. Thus, in this case, the Court finds that the state-consolidation of Case 1 and Case 2 did not merge them into one action, and that each retained its separate identity. The factual history of the case supports this conclusion as well. Case 1 was litigated in state court for nearly a year before Case 2 was filed, and though there is factual overlap between the cases, Case 2 seeks different claims against entities and individuals that are not in Case 1.

         Because the Court concludes that each case retained its own nature despite the state judge's consolidation of the actions, for removal of Case 1 and Case 2 to this Court to have been proper, there must have existed an independent jurisdictional basis for each case at the time of removal. Id. Indeed, federal law is clear that “any case lacking a separate jurisdictional basis must be remanded.” Id.; see also James v. CSX Transportation, Inc., 2007 WL 1100503, at *3 (S.D. Ga. April 9, 2007) ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.