Free Motion to Consolidate Cases - District Court of Colorado - Colorado

Case 1:04-cv-00375-EWN-BNB

Document 182

Filed 12/18/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00375-EWN-BNB ANTHONY RAY MARTINEZ, Plaintiff, v. RICK BARRY, ESTHER SMITH, STEPHANIE REED, and C.P.O. SUSAN KELLER, Defendants. MOTION TO CONSOLIDATE BY DEFENDANT SUSAN KELLER Defendant Susan Keller by and through her attorney, the Colorado Attorney General's Office, submits this motion pursuant to FED.R.CIV.P. 42 and requests the Court to consolidate Case Numbers 04-cv-00375-EWN-BNB and 05-cv-1659-EWN-BNB. 1. Undersigned counsel conferred with counsel for Defendant Ester Smith who objects

to this motion. Undersigned counsel attempted to confer with Plaintiff via correspondence. Plaintiff did not respond. 2. Fed.R.Civ.P. 42(a) states: Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. 3. Defendant Susan Keller is a Colorado Department of Corrections (CDOC) employee

as are the Defendants in Case Number 05-cv-001659-EWN-BNB. In both cases,

Case 1:04-cv-00375-EWN-BNB

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undersigned counsel represents Defendants, and both cases are assigned to United States District Court Magistrate Judge Boland and United States District Court Judge Nottingham. 4. In Case Number 05-cv-01659-EWN-BNB, Plaintiff alleges retaliation based upon his

filing a complaint in 04-cv-00375-EWN-BNB. Therefore, there is a factual relation between Defendant Keller and Defendants in 05-cv-1659-EWN-BNB. 5. The consolidation of these cases would benefit Plaintiff, CDOC Defendants and the

Court. As Plaintiff previously indicated at the scheduling conference, he is required to pay for postage and photocopying and to pursue both cases causes him to deplete his paper supply. If Plaintiff only were required to submit one filing, he would be saving money and time. CDOC Defendants also benefit from consolidation as undersigned counsel could save time spent on discovery and the drafting of pleadings. Furthermore, the settlement negotiations in Case Number 04-cv-00375-EWN-BNB directly affect Case Number 05-cv01659. The Court benefits because streamlining the cases would require less pleadings and appearances, thereby, saving the Court unnecessary delay. 6. Although Defendant Smith is not a defendant in Case Number 05-cv-01659-EWN-

BNB, she should not be prejudiced in this consolidation as the claims in 05-cv-01659-EWNBNB do not affect her discovery or defenses in Case Number 04-cv-00375-EWN-BNB. "[C]onsolidation 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." U.S. v. Tippett, 975 F.2d 713, 716 (10th Cir. 1992) citing Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97. For these reasons, Defendant Keller requests Case Number 04-cv-00375-EWN-BNB and 05-cv-01659-EWN-BNB be consolidated.
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Case 1:04-cv-00375-EWN-BNB

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Respectfully submitted this 18th day of December 2006.

JOHN SUTHERS Attorney General

s/Alisha M. Burris ALISHA M. BURRIS, 31257* Assistant Attorney General Corrections Unit Litigation Section Attorneys for Defendant Keller 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: 303-866-4472 FAX: 303-866-5443 *Counsel of Record

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Case 1:04-cv-00375-EWN-BNB

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Filed 12/18/2006

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CERTIFICATE OF SERVICE This is to certify that I have duly served the within Motion to Consolidate by Defendant Keller upon all parties herein by depositing copies of same in the United States mail, postage prepaid, at Denver, Colorado, this 18th day of December 2006 addressed as follows: Anthony Ray Martinez, 114709 P.O. Box 3 Pueblo, CO 81002 Patrick F. Carrigan Laura A. Hutchings Faegre & Benson, LLP 1900 Fifteenth St. Boulder, CO 80302-5414 Attorney for Defendant Smith

Courtesy Copy To: Cathie Holst, DOC s/Mariah Nanio-Cruz

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