Free Consolidation Order - LEAD CASE ONLY! - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Pending before the Court is Defendants' Motion for Summary Judgment (Doc. #75), 19 and Motion to Consolidate (Doc. #88). After careful review of the record, the Court has 20 determined that additional briefing is needed with regards to Defendants' Motion For 21 Summary Judgment. As explained below, the parties are ordered to address whether any 22 claims arising out of the Cortez incident survived the Court's dismissal order of July 17, 23 2003 (Doc. #15), and whether Plaintiffs were precluded from bringing the subsequent 24 action, Ramirez v. Glendale Union Highschool Dist. No. 205, No. 04-2909 (D. Ariz. filed 25 Dec. 17, 2004) ("Ramirez II"), in light of the Court's order of August 10, 2004 denying 26 Plaintiffs' Motion to Amend (Doc. #61). For the reasons set forth below, the Court will 27 grant Defendants' Motion to Consolidate. 28
Case 2:03-cv-00060-ROS Document 91 Filed 01/06/2006 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

JOE RAMIREZ and ANNA RAMIREZ,) Individually and as Parents and Legal) ) Guardians of JOSE RAMIREZ, ) ) Plaintiffs, ) ) vs. ) ) GLENDALE UNION HIGHSCHOOL) DISTRICT NO. 205; JOHN DOE AND) JANE DOE I-X; ABC CORPORATIONS) ) I-X; and XYZ PARTNERSHIP I-X, ) ) Defendant. )

CASE NO.: CIV03-0060 PHX-ROS ORDER

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I.

Background On August 30, 2002, Plaintiffs filed suit against Defendants in Maricopa County

Superior Court, alleging that Jose Ramirez, a special education student within the Defendant District, was physically and sexually assaulted while attending two different schools. Plaintiffs allege that the first incident occurred on or about September or October 2000 at Cortez High School ("Cortez incident"), and the second occurred on or about October 2001 while attending Apollo High School ("Apollo incident"). [See Complaint pp. 9-12.] As a result of these incidents, Plaintiffs brought suit against Defendants for (1) negligent hiring, supervision and retention; (2) negligence/negligent supervision; (3) violating Title IX of the Educational Amendments of 1992, 20 U.S.C. § 1681(a) ("Title IX claim"); and (4) state created danger in violation of 42 U.S.C. § 1983 ("1983 claim"). [Id.] This case was removed from Maricopa County Superior Court on January 10, 2003 (Doc. #1). Upon Defendants' Motion to Dismiss, the Court dismissed Counts I (negligent hiring, supervision, and retention) and II (general negligence) of Plaintiffs' complaint as they relate to the Cortez incident as being time barred under the one-year statute of limitations under A.R.S. § 12-821 (Doc. #15). With regards to Count IV (§ 1983 claim), the Court denied Defendants' motion entirely.1 [Id.] In a notice to the Court regarding discovery and settlement on January 26, 2004, Plaintiffs noted the following: [Plaintiff Jose] informed its expert that he had not been assaulted at Apollo High School, but instead had become agitated when, at a student assembly, he saw that one of the perpetrators had also been transferred to Apollo. Plaintiffs counsel informed Defense counsel of this, [and] was going to verify if any of the perpetrators had in fact been transferred there. Determination of these facts may resolve one claim. [Plaintiffs Notice To The Court Regarding Discovery and Settlement p. 2 fn. 1, Doc. #23]. Plaintiffs stipulated to the dismissal of Count III (Title IX claim) on February 17, 2004

In its Order Granting Defendants' Motion To Dismiss, In Part, the Court noted that a question remains whether or not the parents' claim for loss of filial consortium under a negligence cause of action has been timely filed under Arizona law. See Dismissal Order p. 7. -2Case 2:03-cv-00060-ROS Document 91 Filed 01/06/2006 Page 2 of 7

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[Doc. #27]. On May 24, 2004, Plaintiffs filed a Motion To Amend Complaint (Doc. #39), and filed supplemental evidence in support of this motion on August 2, 2004 (Doc. #59). Plaintiffs' motion sought to add as defendants two teachers, Tanya Soto and an unnamed P.E. teacher identified as John Doe I, Vice-Principal Annie Preston and Principal Tom Hernandez, all of Cortez High School and whom allegedly learned of the physical and sexual assault on Plaintiff Jose Ramirez the day the Cortez incident occurred, failed to report the assault or inform Jose's parents, and failed to disclose the assault for almost six months. The Court denied this motion on August 10, 2004 (Doc. #61). On December 12, 2004, Plaintiffs filed suit in this district against Glendale Union High School District No. 205, Teacher Tanya Soto and her spouse, Physical Education Teacher Clay Klavitter and his spouse, and Vice-Principal Annie Preston and her spouse [See Ramirez II (CV04-2908) Complaint, Doc. #1.] The complaint alleges that Plaintiff Jose Ramirez was physically assaulted at Cortez High School on or about October 20012 while under Defendants care, that Defendants were aware of the assault and failed to take any action, and that as a result of these acts and omissions, Plaintiffs suffered serious emotional distress and grief. [Id. pp. 1-26.] Plaintiffs seek recovery pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Ramirez II is presently pending before Magistrate Judge Mathis. On March 16, 2005, Defendants moved for summary judgment in Ramirez I on all of Plaintiffs' claims (Doc. #75). Plaintiffs responded on April 25, 2005 (Doc. #80), and Defendants Replied on May 17, 2005 (Doc. #84). On September 29, 2005, Defendants moved to have Ramirez I and Ramirez II consolidated (Doc. #88). Plaintiffs responded on November 4, 2005 (Doc. #90), and Defendants Replied on October 25, 2005 (Doc. #89). The Court assumes that Plaintiffs intended to allege that the incident occurred on or about October of 2000, as Plaintiffs later contend that Jose did not disclose the assault to his parents until March 5, 2001. See Complaint pp. 26. -3Case 2:03-cv-00060-ROS Document 91 Filed 01/06/2006 Page 3 of 7
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II.

Motion For Summary Judgment After a thorough review of the record, the Court has determined that additional

briefing is needed before any decision can be made regarding Defendants' Motion for Summary Judgment. As of February 17, 2004, the date of the stipulation, (Doc. #27), the only claims surviving were the negligence claims with respect to the Apollo incident only and the § 1983 claim (with respect to both incidents). However, pleadings for both parties related to the instant motion contain facts and analysis solely related to the Cortez incident. Furthermore, Defendants failed to include a procedural history in its pleading. As a result, the Court is uncertain whether the parties failed to notice that these negligence claims were dismissed, or whether the Court needs clarification of the status of Plaintiffs' claims. Consequently, the parties are ordered to submit a status report by January 18, 2006, to the Court regarding the surviving claims consistent with the Court's Order of December 10, 2004 denying Plaintiffs' Motion To Amend. III. Motion To Consolidate A. Legal Standard

The Court will grant this motion. Consolidation may occur when there is a common question of law or fact. Rule 42 of the Federal Rules of Civil Procedure provides: 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. The trial court has broad discretion to determine whether consolidation is proper. See Investors Research Co. v. United States Dist. Court for Cent. Dist. of California, 877 F.2d 777, 777 (9th Cir. 1989). Moreover, federal courts have generally taken a favorable view of consolidation where it will result in avoidance of unnecessary duplication of time and effort. See Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933) ("Consolidation is permitted as a matter of convenience and economy in administration . . . ."); United States v. Miller, 331 F.2d 414 (9th Cir. 1964) (consolidating two suits that were pending in -4Case 2:03-cv-00060-ROS Document 91 Filed 01/06/2006 Page 4 of 7

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same district court); BD ex rel. Jean Doe v. Debuono, 193 F.R.D. 117, 141-42 (S.D.N.Y. 2000) (consolidating § 1983 claims where legal theories were identical and it would not result in delay); Devore v. Edgefield County School Dist., 68 FRD 423, 424 (D.S.C. 1975) (consolidating, inter alia, § 1983 and § 1985 claims for convenience and judicial economy). B. Analysis

There are three claims remaining in Ramirez I - the two negligence claims involving the Apollo incident only and the 1983 claim. [Doc. #15 & #27.]3 Ramirez II involves the same 1983 claim filed in Ramirez I, as well as a claim that Defendants conspired to violate the Plaintiffs' rights under 42 U.S.C. § 1985 ("1985 claim"). [See Ramirez II Complaint, Doc. #1.] The 1983 claim and 1985 claim involve similar questions of law, since both statutes provide recovery of damages when privileges or immunities are deprived. All of the claims arise out of the same nucleus of operative facts and relate to the alleged abuse that occurred while the Plaintiff was a student at Apollo and Cortez schools. The only difference between the claims alleged in Ramirez II is that they focus solely on the Cortez incident. The two prevailing questions of fact that exist in both cases are whether Jose Ramirez was assaulted at Cortez, and if so, whether the school district had a policy of constant supervision over the group of students. In addition, it is clear from the description in the Ramirez II Complaint that the additional defendants are the same parties the Plaintiff sought to add in its Motion To Amend in Ramirez I, although at the time they were only identified as John and Jane Does. Plaintiff later identified and named these individuals as Defendants, along with their spouses and Defendant District, in Ramirez II. Thus, both actions involve nearly all of the same parties.

As noted previously, it appears that only three claims remain. The parties will be ordered to submit a status report on January 18, 2006, to this Court indicating whether any additional claims survived this Court's July 17, 2003 Order. Even if the Court finds that additional claims survived, the factors in favor of consolidation remain. -5Case 2:03-cv-00060-ROS Document 91 Filed 01/06/2006 Page 5 of 7

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Plaintiffs fail to establish how the cases are different, and only argue that consolidation would delay the trial of Ramirez II, as the litigation and discovery are much more advanced than Ramirez I. [See Plaintiffs' Response To Defendant's Motion To Consolidate]. This is unsupported by the record and immaterial, as the Court could later decide, in furtherance of judicial economy, to bifurcate the trials pursuant to Rule 42(b), which provides: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conductive to expedition and economy, may order a separate trial of any claim . . . . or issue . . . . always preserving inviolate the right of trial by jury . . . . Because the cases involve common questions of fact and law, the Court finds that it is in

10 the best interest of judicial economy to consolidate the actions. In accordance with Local 11 Rule 42.1 and the practice of the Arizona District Court, the cases will be consolidated 12 into the case bearing the lowest case number before this Court, which in this instance is 13 Ramirez I. The issue of whether the cases should be tried together or separately pursuant 14 to Fed. R. Civ. P. 42(b) will be addressed at the pretrial conference. 15 The parties will be further ordered to submit supplemental briefing on whether 16 Plaintiffs were precluded by law from filing Ramirez II based on the Court's Order of 17 August 10, 2004, and if so, whether Plaintiffs' conduct warrants sanctions pursuant to 28 18 19 20 21 22 23 24 25 26 27 28 28 U.S.C. § 1927 provides that "[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." -6Case 2:03-cv-00060-ROS Document 91 Filed 01/06/2006 Page 6 of 7
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U.S.C. § 1927.4 See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991); Salstrom v. Citicorp Credit Servs., 74 F.3d 183, 185 (9th Cir. 1996); Fink v. Gomez, 239 F.3d 989, 992-93 (9th Cir. 2001).

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Accordingly, IT IS ORDERED that the Clerk of Court shall consolidate Ramirez v. Glendale Union High School Dist. No. 205, et al., CV 04-2908 ("Ramirez II"), into Ramirez v. Glendale Union High School Dist. No. 205, et al., CV 03-0060 ("Ramirez I"). IT IS FURTHER ORDERED that both parties shall file a status report on the aforementioned issues, including a procedural history, and if necessary, Defendant's shall simultaneously file a supplemental Motion for Summary Judgment by January 18, 2006. No reply is necessary unless ordered by this Court. IT IS FURTHER ORDERED that both parties provide supplemental briefing by January 18, 2006, on whether the claims alleged in Ramirez II are barred by the Court's order of August 10, 2004 denying Plaintiffs' Motion To Amend, and if so, whether sanctions shall be imposed.

DATED this 5th day of January, 2006.

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