United States District Court, D. Arizona
ORDER
HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE.
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).
DISCUSSION
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)
...