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

Case 1:02-cv-01993-WYD-BNB

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Filed 09/09/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-1993-WYD-BNB JEFFREY SCOTT BEEBE, Plaintiff, v. PEGGY HEIL, SALLY CHAPMAN, MITCH MESTAS, and JOSEPH ORTIZ, Defendants. PLAINTIFF'S RULE 42(a) MOTION FOR CONSOLIDATION, AND BRIEF IN SUPPORT THEREOF

COMES NOW Plaintiff, by and through his attorneys, John B. Roesler and Kirsten L. Wander, and pursuant to Rule 42(a), F.R.C.P., and D.C.COLO.L.CIV.R. 42.1, hereby moves this Court to consolidate Civil Action No. 05-cv-1720-RPM-OES, Beebe v. Ortiz, filed in this U.S. District Court for the District of Colorado on September 2, 2005 ("Beebe No.2"- Civil Complaint attached hereto as Exhibit A) with the above-captioned case ("Beebe No.1") for decision on all matters at issue in both cases. As grounds therefore, Plaintiff states as follows: D.C.COLO.L.CIV.R. 7.1(A) CERTIFICATE 1. The undersigned attorney, John B. Roesler, contacted Joseph P. Sanchez, Assistant Attorney General, by telephone on September 8, 2005, to discuss agreement to this motion, and said counsel for Defendants opposes the motion.
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Case 1:02-cv-01993-WYD-BNB

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Filed 09/09/2005

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LEGAL STANDARD FOR CONSOLIDATION 2. Rule 42(a), F.R.C.P., provides for consolidation of "actions involving a common question of law or fact...pending before the court...." 3. The standard for obtaining consolidation "is an expansive one, allowing consolidation of the broad range of cases brought in federal court." 8 Moore's Federal Practice § 42.10[1][a], at 42-9 (3d ed. 1998). 4. The district courts have broad discretion to consolidate actions in the interests of justice. In re Air Crash Disaster at Stapleton Int'l Airport,720 F.Supp. 1505, 1513 (D. Colo. 1989). 5. "Courts have taken the view that considerations of judicial economy favor consolidation." Johnson v.Celotex Corp., 899 F.2d 1281, 1284-85 (2nd Cir.), cert. denied, 111 S.Ct. 297 (1990). 6. "[I]t is the court's decision whether the common questions of law and fact indicate that sufficient judicial economy would be achieved by consolidation when balanced against any inconvenience, delay, or expense caused the parties by attending trial of some issues not shared by all." Vaccaro v. Moore-McCormack Lines, Inc., 64 F.R.D. 395, 397 (S.D.N.Y. 1974). 7. "[N]umerous common issues of law and fact" and "numerous areas where the facts of the two cases overlap" weigh in favor of consolidation. Werner v. Satterlee, Stephens, Burke & Burke, 797 F. Supp. 1196, 1211 (S.D.N.Y 1992). 8. "The fact that there are different parties in...[the] action[s] does not mean...[the cases] should not be consolidated." Id. 9. Consolidation is appropriate even where "there will be some facts in the original case that do not apply to [a] defendant...[in the second case] and some facts...do not apply to...[all]

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Case 1:02-cv-01993-WYD-BNB

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parties...(two of whom, the plaintiffs..., are the same)...." Id. 10. "The fact that the cases may be in different stages does not bar consolidation." Werner, supra at 1212. 11. When no discovery is required on the newer case, or when additional discovery can be accomplished without undue delay, said factors weigh in favor of consolidation. Id. 12. When judicial economy is served without undue prejudice, consolidation is appropriate. Id. APPLICATION OF LAW TO CASE AT BAR 13. There is commonality of facts. See Beebe No.1 June 15, 2005, "Joint Motion to Stay Pretrial Proceedings and Trial Setting Pending Rulings on Defendants' and Plaintiff's Respective Motions for Summary Judgment, and Brief in Support Thereof" ("Joint Motion"), including Stipulations, the parties having "stipulated to all material facts" in Beebe No.1. Moreover, "It is the parties' position [in Beebe No.1] that there are no other material facts required for a decision of this case that would necessitate a trial." Joint Motion, ¶¶ 3, 4. Said facts are all that are necessary for decision in Beebe No. 2. 14. The actions also involve common questions of law. Each case involves interpretation of Colorado's "Standardized Treatment Program for Sex Offenders", §§16-11.7101, et.seq., C.R.S. and the "Colorado Sex Offender Lifetime Supervision Act of 1998", §§181.3-1001, et.seq., C.R.S, and the interrelationship of these Acts and the Colorado Department of Corrections Regulation No. 700-19, "Sex Offender Treatment and Monitoring Program". Each case involves application of the legal principles established in Beebe v.Heil, 333 F.Supp. 2d 1011 (D. Colo. 2004), and Leamer v. Fauver, 288 F.3d 532 (3rd Cir. 2002).

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15. There is commonality of parties in each case. The Plaintiff is the same in both causes, and the Defendant in Beebe No.2 is Defendant Ortiz in Beebe No.1. 16. Consolidation will produce significant judicial economy, savings of time and resources for the Court and the parties. Having such overlapping cases proceed in a parallel fashion before separate Courts would generate needless duplication of effort and inefficiency resulting in unnecessary costs and delay overall as between the two cases. This court is already familiar with the legal issues, and has rendered an interim reported decision in Beebe, supra. Beebe No.2 could be decided on pleadings with Beebe No.1 within a few months as opposed to possibly a year or more. 17. Not only would duplication of work and a longer time frame for decision in Beebe No.2 be avoided by consolidation, the risk of conflicting decisions as to interpretation of the subject statutes and administrative regulation would be avoided. And if one or both of the cases were to be appealed, consolidation at this time would further alleviate duplication and conflict in the future. 18. Consolidation will not cause the trial of one action to be delayed while discovery is completed in the other action. Again, the parties in Beebe No.1 have agreed that no trial is necessary in that case and that the decision should be based on the pleadings alone. The same is true of Beebe No.2.

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Case 1:02-cv-01993-WYD-BNB

Document 115

Filed 09/09/2005

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WHEREFORE, for the above-stated reasons, consolidation should be granted. Dated this 9th day of September, 2005. Respectfully submitted,

s/John B. Roesler ___________ John B. Roesler, Esq. 303 E. 17th Ave., Suite 200 Denver, CO 80203 and s/Kirsten L. Wander_________ Kirsten L. Wander, Esq. 656 Marion St., Suite 1 Denver, CO 80218 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE It is hereby certified that on September 9, 2005, a true and correct copy of the foregoing PLAINTIFF'S RULE 42(a) MOTION FOR CONSOLIDATION, AND BRIEF IN SUPPORT THEREOF was electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] and a true and correct copy of said pleading was mailed this 9th day of September, 2005, by First Class Mail, postage prepaid, to: Joseph P. Sanchez, Esq. Assistant Attorney General 1525 Sherman Street, 5th Floor Denver, Colorado 80203 s/John B. Roesler___________

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