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`Case 2:21-cv-00339-DLR Document 54 Filed 06/08/22 Page 1 of 6
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`GARY M. RESTAINO
`United States Attorney
`District of Arizona
`KATHERINE R. BRANCH
`Assistant U.S. Attorney
`Arizona State Bar No. 025128
`40 North Central Avenue, Suite 1800
`Phoenix, Arizona 85004-4449
`Telephone: (602) 514-7500
`Main Fax: (602) 514-7693
`Email: Katherine.Branch@usdoj.gov
`Attorneys for Defendant
`
`Plaintiffs,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`F.R., on his own behalf and on behalf of his
`No. CV-21-00339-PHX-DLR
`minor child A.A.,
`
`
`AMENDED MOTION TO
`CONSOLIDATE CASES FOR
`COMMON POLICY-BASED
`DISCOVERY ONLY
`
`v.
`
`United States of America,
`
`Defendant.
`
`Defendant, the United States of America, pursuant to Fed. R. Civ. P. 42(a), and LRCiv
`42.1(a), (b) moves this Court for an order consolidating this action with C.M. v. United
`States, No. 2:19-cv-05217, and A.P.F. v. United States, No. 2:20-cv-00065, for the sole
`purpose of coordinating policy-based discovery common to each case, to include the
`national-level policy-related discovery directed at high level government officials, as well as
`the implementation of such policies by officials and employees of Border Patrol Sectors,
`Immigration and Customs Enforcement (ICE) Field Offices, and U.S. Attorney’s Offices.
`As explained below, while the specific factual issues concerning the Plaintiffs in this case
`differ from those in C.M. and A.P.F., the common allegations concerning policy-related
`decisions by high-ranking officials within the U.S. Department of Homeland Security
`(DHS), U.S. Department of Health and Human Services (HHS), and U.S. Department of
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`Case 2:21-cv-00339-DLR Document 54 Filed 06/08/22 Page 2 of 6
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`Justice (DOJ), present the opportunity for consolidated, uniform discovery with respect to
`document discovery and depositions of high-ranking federal officials, as well as officials and
`employees at the Border Patrol Sectors, ICE Field Offices, and U.S. Attorney’s Offices, that
`would avoid unnecessary duplication of judicial resources, conflicting discovery rulings, and
`delay in completing litigation in all matters. The United States therefore requests that a single
`judicial officer preside over discovery issues common to all cases, with each suit remaining
`with its assigned district court judge for all other matters, including discovery pertaining to
`the individual plaintiff(s) in each case, dispositive motions, and trial. This motion is
`supported by the following Memorandum of Points and Authorities.
`MEMORANDUM OF POINTS AND AUTHORITIES
`This is an action against the United States under the Federal Tort Claims Act (FTCA),
`
`28 U.S.C. § 2671 et seq., seeking monetary damages for alleged injuries caused by
`Defendant’s implementation of policies to refer adult noncitizens for prosecution, and
`subsequent detention, for illegal entry at the United States-Mexico border, resulting in the
`separation of parents and children (the “Family Separation Cases”). This Court has noted:
`. . .there is overlap between [Family Separation Cases] and both C.M. and
`A.P.F. . . . The Court recognizes that [the] cases involve similar causes of
`action, share a common defendant, and at least generally arise from the same
`event—the Government’s promulgation and implementation of the Family
`Separation Policy at the United States’ southern border. However, there are
`also substantial differences between the cases, both factually and legally. For
`example, the specific facts surrounding the separations and alleged
`mistreatment that occurred in each case are unique.
`B.A.D.J. v. United States, No. 2:21-cv-00215-SMB, Doc. 48 (April 21, 2022). It is the
`common, and overlapping, discovery with respect to the national, policy-related decision-
`making of senior government officials, as well as the implementation of those policies by
`officials and employees with the Border Patrol Sectors, ICE Field Offices, and U.S.
`Attorney’s Offices, that the United States believes would be best handled by a single judicial
`officer in these cases.
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`Case 2:21-cv-00339-DLR Document 54 Filed 06/08/22 Page 3 of 6
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`I.
`
`Consolidation for the limited purpose of policy-based discovery common to the
`Family Separation Cases would avoid unnecessary costs, duplication of efforts,
`and inconsistent results.
`District courts have broad discretion under Fed. R. Civ. P. 42(a) to consolidate cases
`pending in the same district. Investors Research Co. v. U.S. Dist. Court for Cent. Dist. of
`Cal., 877 F.2d 777, 777 (9th Cir. 1989). Rule 42(a) provides:
`If 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.
`Fed. R. Civ. P. 42(a). Consolidation should be used to “eliminate unnecessary repetition and
`confusion.” Miller v. U.S. Postal Serv., 729 F.2d 1033, 1036 (5th Cir. 1984). Consolidation
`provides convenience for the court and saves time and expense to the parties. Hall v. Hall,
`138 S. Ct. 1118, 1126 (2018). Under this rule, “one or many or all of the phases of the several
`actions may be merged. But merger is never so complete in consolidation as to deprive any
`party of any substantial rights which he may have possessed had the actions proceeded
`separately.” Id. at 1130 (quoting 3 J. Moore & J. Friedman, Moore’s Federal Practice § 42.01,
`pp. 3050–3051 (1938)).
`Under Rule 42(a), district courts “may consolidate cases for purposes of discovery
`and pre-trial proceedings only.” Chelsea, LLC v. Regal Stone, Ltd., No. 07-5800 SC, 2009
`WL 250479, at *2 (N.D. Cal. Feb. 3, 2009); Disc. Bank & Tr. Co. v. Salomon Inc., 141
`F.R.D. 42, 43 (S.D.N.Y. 1992) (“Rule 42(a) empowers this Court to order consolidation of
`these actions for pretrial purposes.”) (citing MacAlister v. Guterma, 263 F.2d 65 (2d Cir.
`1958). “[C]onsolidation” for such purposes “is not precluded when cases are at different
`stages of discovery.” See Blasko v. Washington Metro. Area Transit Auth., 243 F.R.D. 13,
`16 (D.D.C. 2007).
`Despite the noticeable, fact-based differences between the Plaintiffs in this matter and
`those in C.M. and A.P.F., all plaintiffs challenge Defendant’s implementation of policies to
`refer adult noncitizens for prosecution, and subsequent detention, for illegal entry at the
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`Case 2:21-cv-00339-DLR Document 54 Filed 06/08/22 Page 4 of 6
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`United States-Mexico border, resulting in the separation of parents and children. These
`allegations do not concern the treatment of any specific plaintiff, but instead center on the
`common, policy-related decision-making of high-ranking federal officials, and the
`implementation of those policies by officials and employees with the Border Patrol Sectors,
`ICE Field Offices, and U.S. Attorney’s Offices, that were not particularized to individual
`migrants. For this common, policy-based discovery, plaintiffs from each case will
`necessarily need to depose the same policy-level federal officials and obtain the same non-
`individualized documentary evidence. The parties will benefit from uniform discovery
`rulings across all cases. Permitting a single judicial officer to oversee this common discovery
`would allow all parties to benefit from uniform implementation of a discovery plan;
`consistent rulings regarding privilege and other issues; and coordination of depositions and
`discovery regarding identical topics. For these reasons, “[c]onsolidation for discovery” will
`also “promote judicial efficiency and eliminate duplication of discovery and motion practice
`by the parties.” Blagg v. Line, No. 09CV0703, 2010 WL 3893981, at *1-2 (N.D. Okla. Sept.
`23, 2010); see also Erie Ins. Prop. & Cas. Co. & United Fin. Cas. Co., No. 1:16CV195,
`2017 WL 11297277, at *2 (N.D. W. Va. May 17, 2017) (consolidating actions “for discovery
`purposes only,” finding “consolidation will promote judicial economy,” avoid “duplicative
`efforts to uncover the same set of facts,” and “[e]stablishing all factual issues in one set of
`discovery and deposing witnesses one time . . . will avert the risk of inconsistent
`adjudications based on inconsistent facts”); Rishell v. Computer Scis. Corp., No. 1:13-CV-
`931, 2014 WL 11515835, at *1 (E.D. Va. Apr. 4, 2014) (consolidating cases for “the
`purposes of discovery and pre-trial practice,” finding cases “will likely involve deposing the
`same witnesses, involve the same defendant, and exploring the same defenses”); Beaulieu
`Grp. LLC v. Mohawk Carpet Distribution, Inc., No. 4:15-CV-0124-HLM, 2016 WL
`4607879, at *2 (N.D. Ga. Jan. 4, 2016) (consolidating cases for “discovery and pretrial
`purposes” where the “witnesses and custodians of documents will be similar in each case”
`and “consolidating the two cases could save the Court significant time as similar motions
`and disputes may arise in each case”); Fed. Ins. Co. v. Banyon 1030-32, LLC, No. 8:10-CV-
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`Case 2:21-cv-00339-DLR Document 54 Filed 06/08/22 Page 5 of 6
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`1422-T-33AEP, 2010 WL 3212119, at *1 (M.D. Fla. Aug. 12, 2010) (finding consolidation
`“for purposes of discovery . . . appropriate” where it “will lessen the burden on the parties,
`witnesses, . . . available judicial resources,” and “help eliminate unnecessary repetition and
`confusion”); Lemons v. Bd. of Cty. Comm'rs of Cty. of Brown, No. CIV. A. 00-2292-KHV,
`2001 WL 395395, at *1-2 (D. Kan. Mar. 30, 2001) (consolidating cases “for purposes of
`discovery” where cases “require[d] the same discovery,” subject to differences specific to
`each individual plaintiff, and absent consolidation witnesses would be subjected to multiple,
`duplicative depositions).
`Notably, the United States does not seek to burden a single judge with the entirety of
`these (and any forthcoming) cases arising from the separations of families at the United
`States-Mexico border. The United States instead proposes a mechanism to streamline issues
`common to all such cases while allowing the district court judges assigned to each case to
`retain control over all other matters, including discovery related to the individual plaintiffs
`as well as all dispositive issues in each action.
`II.
`Alternatively, the Court may consider appointing a special master to handle
`policy-based discovery common to the Family Separation Cases.
`
`Although the United States believes that consolidating this suit with C.M. and A.P.F.
`for policy-based discovery common to all Family Separations Cases would be the most
`efficient and least burdensome means of ensuring consistency across such cases, this Court
`also might consider appointment of a special master. LRCiv 53.1 permits this Court to
`appoint a Magistrate Judge to serve as a Special Master in any civil case in accordance with
`Rule 53 of the Federal Rules of Civil Procedure. See also 28 U.S.C. § 636(b)(2). The United
`States proposes use of LRCiv 53.1 in these matters as an alternative option as a means of
`accomplishing the same ends of consistency of common discovery, minimization of burden,
`and preservation of resources across Family Separations Cases.
`
`The United States further informs this Court that it intends to file a similar motion, at
`the appropriate time, in the following Family Separations Cases in this district in an effort to
`streamline common discovery issues. Fed. R. Civ. P. 1. B.A.D.J. v. United States, No. 2:21-
`cv-00215-SMB; E.S.M. v. United States, No. 4:21-cv-00029-JAS; and Fuentes-Ortega v.
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`Case 2:21-cv-00339-DLR Document 54 Filed 06/08/22 Page 6 of 6
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`United States, No. 2:22-cv-00449-DGC.
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`Opposing counsel has been contacted and does not oppose this filing.
`
`WHEREFORE, for the foregoing reasons, the United States respectfully requests that
`this Court issue an order consolidating this matter with C.M. v. United States, No. 2:19-cv-
`05217 and A.P.F. v. United States, No. 2:20-cv-00065 for the sole purpose of coordinating
`policy-based discovery common to each case.
`RESPECTFULLY SUBMITTED this 8th day of June, 2022.
`
`GARY M. RESTAINO
`United States Attorney
`District of Arizona
`
`s/Katherine R. Branch
`
`KATHERINE R. BRANCH
`Assistant United States Attorney
`Attorneys for Defendant
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