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

Case 3:08-cv-01531-MHP

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COOLEY GODWARD LLP
ATTORNEYS AT LAW PALO ALTO

COOLEY GODWARD KRONISH LLP JOHN C. DWYER (No. 136533) ([email protected]) MAUREEN P. ALGER (No. 208522) ([email protected] MICHELLE S. RHYU (No. 212922) ([email protected]) REUBEN H. CHEN (No. 228725) ([email protected]) Five Palo Alto Square, 3000 El Camino Real Palo Alto, CA 94306-2155 Telephone: (650) 843-5000 Facsimile: (650) 857-0663 Attorneys for Plaintiffs Santillan, et al. THE LAW OFFICE OF JAVIER N. MALDONADO, PC JAVIER N. MALDONADO (Pro Hac Vice) ([email protected]) 601 Howard San Antonio, TX 78212 Telephone: (210) 277-1603 Facsimile: (210) 225-3958 Attorney for Plaintiffs Santillan, et al. and Padilla, et al. JOANN M. SWANSON (CSBN 88143) Acting United States Attorney EDWARD A. OLSEN (CSBN 214150) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102 Telephone: (415) 436-6915 Facsimile: (415) 436-7169 JEFFREY S. BUCHOLTZ United States Department of Justice Acting Assistant Attorney General, Civil Division MARK C. WALTERS, MSB Assistant Director Office of Immigration Litigation ELIZABETH J. STEVENS, (VSBN 47745) Senior Litigation Counsel STEPHEN J. FLYNN (VSBN 31879) Senior Litigation Counsel P.O. Box 878, Ben Franklin Station Washington D.C. 20044 Telephone: (202) 616-9752 Facsimile: (202) 305-7000 Attorneys for Defendants Mukasey, et al. and Ridge, et al.

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CASE NO. C-04-2686 MHP CASE NO. C-08-1531 MHP

Case 3:08-cv-01531-MHP

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MARIA SANTILLAN, et al., Plaintiffs, v. MICHAEL B. MUKASEY,1 Attorney General of the United States, et al., Defendants; and related case TERESA D. PADILLA, et al., Plaintiffs v. TOM RIDGE, Secretary of Homeland Security, et al., Defendants. Case No. C-04-2686 MHP Case No. C-08-1531 MHP JOINT MOTION TO CONSOLIDATE THE SANTILLAN AND PADILLA CASES AND TO RE-CERTIFY THE CLASS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 42(a)(2) AND 23 CLASS ACTION ADMINISTRATIVE PROCEDURE ACT CASE Hearing Date: June 16, 2008 Time: 2:00 p.m. Courtroom: 15

NOTICE IS HEREBY GIVEN that on June 16, 2008, at 2:00 p.m., or as soon thereafter as the matter may be heard by the above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, CA 94102, in Courtroom 15, Plaintiffs Maria Santillan, et al and Defendants Michael B. Mukasey, et al., and Plaintiffs Teresa D. Padilla, et al. and Defendants Tom Ridge, et al., will and hereby do move the Court for entry of an Order: 1. Consolidating Padilla, et al. v. Ridge, et al., No. C-08-1531 MHP ( the "Padilla case") with Santillan, et al. v. Mukasey, et al., No. C-04-2686 MHP (the "Santillan case"). 2. Decertify the previously certified classes in the Santillan and Padilla cases and

1

At the time this suit was originally filed, John Ashcroft was the Attorney General of the United States. On November 9, 2007, Michael B. Mukasey was sworn in as the Attorney General of the United States. Pursuant to Federal Rule of Civil Procedure 25(d), Michael B. Mukasey should be substituted as a party. See Fed. R. Civ. P. 25(d) (providing for automatic substitution of a public officer's successor "when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending."
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CASE NO. C-04-2686 MHP CASE NO. C-08-1531 MHP

Case 3:08-cv-01531-MHP

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certifying a single class consisting of: All persons who have been or will be granted lawful permanent resident status prior to termination of this Stipulation by the EOIR, through the Immigration Courts or the BIA, and to whom the USCIS has failed to issue evidence of registration as a lawful permanent resident, with the exception that the class excludes the 34 named plaintiffs in Lopez-Amor v. U.S. Attorney General, No 04-CV-21685 (S.D. Fla.). This motion is based on the memorandum of points and authorities, infra, and the Declaration of Reuben H. Chen filed herewith in support of this motion. This motion is jointly filed by the parties in Santillan, et al. v. Mukasey, et al., No. C-04-2686 MHP (the "Santillan case") and by the parties in Padilla, et al. v. Ridge, et al., No. C-08-1531 MHP ( the "Padilla case"). Contemporaneously herewith, the parties have filed a Joint Motion for Preliminary Approval of Settlement Agreement and Approval of Notice to Class Members of Proposed Settlement.

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CASE NO. C-04-2686 MHP CASE NO. C-08-1531 MHP

Case 3:08-cv-01531-MHP

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I.

INTRODUCTION AND BACKGROUND As explained in the parties' Joint Motion for Preliminary Approval of Settlement

Agreement and Approval of Notice to Class Members of Proposed Settlement, filed contemporaneously herewith, the parties have reached a mutually agreeable settlement, and seek this Court's preliminary approval of the proposed Settlement and this Court's approval of the Notice of Proposed Settlement pursuant to Federal Rule of Civil Procedure 23(e). Because the proposed Settlement combines the pre and post April 1, 2005 subclasses in the Santillan case and encompasses the plaintiff class in the Padilla case, the parties seek to consolidate the Santillan and Padilla cases and to re-certify the class as follows: All persons who have been or will be granted lawful permanent resident status prior to termination of this Stipulation by the EOIR, through the Immigration Courts or the BIA, and to whom the USCIS has failed to issue evidence of registration as a lawful permanent resident, with the exception that the class excludes the 34 named plaintiffs in Lopez-Amor v. U.S. Attorney General, No 04CV-21685 (S.D. Fla.). II. CONSOLIDATION OF THE SANTILLAN AND PADILLA CASES Federal Rule of Civil Procedure 42(a)(2) states: "If actions before the court involve a common question of law or fact, the court may . . consolidate the actions." Fed. R. Civ. P. 42(a)(2). This Court has already found that the Santillan and Padilla cases are related. (4/9/08 Related Case Order.) "Thereafter, whether to consolidate the cases is a matter within the

discretion of the assigned judge." Schwarzer, Tashima & Wagstaffe, CAL. PRAC. GUIDE: FED. CIV. PRO. BEFORE TRIAL § 16:144 (The Rutter Group 2008). As explained in the parties' Joint Motion for Preliminary Approval of Settlement Agreement and Approval of Notice to Class Members of Proposed Settlement, filed contemporaneously herewith, the proposed Settlement encompasses the plaintiff class in the Padilla case. Consolidation is therefore necessary to achieve the Settlement and the parties respectfully request that this Court consolidate the cases. III. RE-CERTIFICATION OF THE CLASS Pursuant to Civil Procedure 23, the parties alo respectfully request that this Court decertify the previously certified classes in the Santillan and Padilla cases and certifying a single
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class consisting of: All persons who have been or will be granted lawful permanent resident status prior to termination of this Stipulation by the EOIR, through the Immigration Courts or the BIA, and to whom the USCIS has failed to issue evidence of registration as a lawful permanent resident, with the exception that the class excludes the 34 named plaintiffs in Lopez-Amor v. U.S. Attorney General, No 04CV-21685 (S.D. Fla.). As explained in the parties' Joint Motion for Preliminary Approval of Settlement Agreement and Approval of Notice to Class Members of Proposed Settlement, filed contemporaneously herewith, the proposed Settlement covers all of the previously certified classes in the Santillan2 and Padilla3 cases. Further, the proposed Settlement preserves much of the procedures and accelerates the timing of issuance of LPR documentation to class members set forth in this Court's December 22, 2005 Permanent Injunction while offering additional advantages to the parties. Re-certification is necessary to achieve the Settlement and the parties respectfully request that this Court re-certify the class. IV. CONCLUSION Based on the foregoing, the parties respectfully request that this Court enter an order granting the parties' Joint Motion to Consolidate the Santillan and Padilla Cases and to Recertify the Class. A proposed Order is attached.

2

This Court previously certified a pre-April 1, 2005 subclass consisting of "all those person who were or will be granted lawful permanent resident status by the EOIR under regulations in effect prior to April 1, 2005 through the Immigration Courts or the Board of Immigration Appeals of the United [S]tates, and to whom USCIS has failed to issue evidence of registration as a lawful permanent resident, with the exception that the class excludes the 34 named plaintiffs in LopezAmor v. United States Attorney General, No. 04-CV-21685 (S.D. Fla.) and the plaintiff class in Padilla v. Ridge, No. M 03-126 (S.D. Tex.)" and a post-April 1, 2005 subclass "identical to the first subclass, with the sole difference that the persons in the second subclass were or will be granted lawful permanent resident status by the EOIR under regulations in effect on April 1, 2005 or thereafter." (8/24/05 Order (Docket # 137) at 10.) 3 As with the Santillan class members, the class certified in the Padilla case consists of persons who or will be granted lawful permanent resident ("LPR") status by the EOIR and to whom the USCIS has not issued evidence of registration as a lawful permanent resident, except that the Padilla class is limited in geographical scope to persons granted LPR status by the Immigration Courts in Harlingen, Houston, and San Antonio or by the Board of Immigration Appeals in cases on appeal from those Immigration Courts. (See Exhibit 1, 3/31/04 Order in Padilla v. Ridge, M 03-126 (S.D. Tex.).)
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Case 3:08-cv-01531-MHP

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Dated: April 14, 2008

Respectfully submitted, COOLEY GODWARD KRONISH LLP

/s/ Reuben H. Chen John C. Dwyer ([email protected]) Maureen P. Alger ([email protected]) Michelle S. Rhyu ([email protected]) Reuben H. Chen ([email protected])

Attorneys for Plaintiffs Santillan, et al. Dated: April 14, 2008 THE LAW OFFICE OF JAVIER N. MALDONADO, PC

/s/ Javier N. Maldonado (with permission) Javier N. Maldonado ([email protected]) Attorney for Plaintiffs Santillan, et al. and Padilla, et al. Dated: April 14, 2008 Respectfully submitted,

/s/ Elizabeth J. Stevens (with permission) JOANN M. SWANSON Acting United States Attorney EDWARD A. OLSEN Assistant United States Attorney JEFFREY S. BUCHOLTZ United States Department of Justice Acting Assistant Attorney General, Civil Division MARK C. WALTERS Assistant Director Office of Immigration Litigation ELIZABETH J. STEVENS Senior Litigation Counsel STEPHEN J. FLYNN Senior Litigation Counsel Attorneys for Defendants Mukasey, et al. and Ridge, et al.

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Case 3:08-cv-01531-MHP

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