Case 4:19-cv-00481-JCH Document 93 Filed 06/22/22 Page 1 of 8
`
`
`
`David B. Rosenbaum, 009819
`Travis C. Hunt, 035491
`BriAnne N. Illich Meeds, 036094
`OSBORN MALEDON, P.A.
`2929 North Central Avenue, 21st Floor
`Phoenix, Arizona 85012-2793
`(602) 640-9000
`drosenbaum@omlaw.com
`thunt@omlaw.com
`billichmeeds@omlaw.com
`Counsel for C.M. Plaintiffs
`(Additional Counsel Listed on the Signature Page)
`
`Keith Beauchamp (012434)
`D. Andrew Gaona (028414)
`COPPERSMITH BROCKELMAN PLC
`2800 N. Central Avenue, Suite 1900
`Telephone: (602) 381-5493
`Phoenix, AZ 85004
`kbeauchamp@cblawyers.com
`agaona@cblawyers.com
`Counsel for A.P.F. Plaintiffs
`(Additional Counsel Listed on Signature Page)
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ARIZONA
`
`C.M., on her own behalf and on behalf of her
`minor child, B.M.; L.G., on her own behalf and
`on behalf of her minor child, B.G.; M.R., on her
`own behalf and on behalf of her minor child,
`J.R.; O.A., on her own behalf and on behalf of
`her minor child, L.A.; and V.C., on her own
`behalf and on behalf of her minor child, G.A.,
`Plaintiffs,
`
`No. 2:19-cv-05217-SRB
`
`
`
`PLAINTIFFS’ OPPOSITION
`TO AMENDED MOTION TO
`CONSOLIDATE CASES FOR
`COMMON POLICY-BASED
`DISCOVERY ONLY
`
`
`
`
`
`v.
`United States of America,
`Defendant.
`
`
`
`
`
`1
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 4:19-cv-00481-JCH Document 93 Filed 06/22/22 Page 2 of 8
`
`
`
`No. 2:20-cv-00065-SRB
`
`A.P.F. on his own behalf and on behalf of his
`minor child, O.B.; J.V.S. on his own behalf and
`on behalf of his minor child, H.Y.; J.D.G. on his
`own behalf and on behalf of his minor child,
`M.G.; H.P.M. on his own behalf and on behalf
`of his minor child, A.D.; M.C.L. on his own
`behalf and on behalf of his minor child, A.J.;
`and R.Z.G. on his own behalf and on behalf of
`his minor child, B.P.,
`Plaintiffs,
`
`v.
`United States of America,
`Defendant.
`
`Two years into discovery in these cases, and one month before the close of fact
`discovery, Defendant now moves this Court for an order consolidating this action with
`F.R. v. United States, No. CV-21-00339-PHX-DLR, “for the sole purpose of
`coordinating policy-based discovery common to each case,” but without offering any
`proposal for how such consolidation would work in practice.1 ECF 215 at 1. Because
`consolidation would cause delay, inconvenience, and prejudice to C.M. and A.P.F.
`Plaintiffs, Defendant’s motion should be denied.
`District courts have “broad discretion whether or not to consolidate actions”
`under Fed. R. Civ. P. 42(a).” Allen v. Hylands, Inc., 2012 WL 1656750, at *2 (C.D.
`Cal. May 2, 2012) (citing Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir.
`2008)). In determining whether to consolidate actions, “a court weighs the interest in
`judicial convenience against the potential for delay, confusion, and prejudice caused by
`consolidation.” Paxonet Commc’ns, Inc. v. TranSwitch Corp., 303 F. Supp. 2d 1027,
`
`
`1 Defendant broadly defines “policy-based discovery” as encompassing “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.” Motion at 2.
`
`
`
`
`2
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 4:19-cv-00481-JCH Document 93 Filed 06/22/22 Page 3 of 8
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`1028 (N.D. Cal. 2003); see also Allen, 2012 WL 1656750, at *2 (“In determining
`whether consolidation is appropriate, courts weigh ‘the saving of time and effort
`consolidation would produce against any inconvenience, delay, or expense that it would
`cause.’”) (citation omitted). In weighing the benefits of consolidation against any
`prejudice, “[t]he court may consider factors such as disparate trial dates or different
`stages of discovery as weighing against consolidation of the cases.” Single Chip Sys.
`Corp. v. Intermec IP Corp., 495 F. Supp. 2d 1052, 1057 (S.D. Cal. 2007); see also
`Parapluie v. Mills, 2012 WL 13009100, at *6 (C.D. Cal. Jan. 26, 2012) (“Even if some
`common questions of law or fact are presented, ‘this does not justify consolidation, . . .
`where . . . parties would be prejudiced by [the fact that] the cases are in different phases
`of pre-trial procedures.’”) (citation omitted). Further, where the plaintiffs in one action
`oppose consolidation with another action, “[c]onsolidation is . . . likely to waste just as
`much time as it saves because counsel for the two sets of plaintiffs will need to reach
`consensus on litigation decisions.” Allen, 2012 WL 1656750, at *6.
`As the party seeking consolidation under Fed. R. Civ. P. 42(a), Defendant bears
`the burden to establish that the requirements for consolidation have been met. Single
`Chip Sys. Corp., 495 F. Supp. 2d at 1057. Defendant has failed to meet that burden
`here.
`
`Consolidation at this late stage will only serve to delay and complicate discovery
`in these cases. In C.M. and A.P.F., Defendant has produced over 78,000 policy-related
`documents;2 each Plaintiff has served all or nearly all of its allotted interrogatories,
`requests for production, and requests for admission; and Plaintiffs have conducted six
`policy depositions, with several additional policy depositions already scheduled, and
`the deadline for completing fact discovery is July 15, 2022. In F.R., by contrast, the
`initial Rule 16 Scheduling Conference was held just last month, and the deadline for
`
`
`2 This total does not reflect the total number of unique documents produced given the
`substantial number of duplicates.
`
`
`
`
`3
`
`

`

`Case 4:19-cv-00481-JCH Document 93 Filed 06/22/22 Page 4 of 8
`
`
`
`completing fact discovery is March 5, 2023. See F.R. v. United States, No. CV-21-
`00339-PHX-DLR, ECF 50 at 1-2.3 Even if Defendant produced to the F.R. plaintiffs
`every document produced in C.M. and A.P.F. tomorrow, it would take the F.R. plaintiffs
`months—at a minimum—to get up to speed to enable them to meaningfully participate
`in the remaining depositions in these cases. Given the different procedural postures of
`the cases, consolidation would prejudice C.M. and A.P.F. Plaintiffs by significantly
`delaying this action. At the most recent conference, on June 2, 2022, the Court stated
`that it did not want to extend any discovery deadlines. Hr’g Tr. at 16:16-17:4 (June 2,
`2022). Consolidation is thus inappropriate. See, e.g., Glass v. Intel Corp., 2007 WL
`2265663, at *5 (D. Ariz. Aug. 6, 2007) (denying consolidation because it “may likely
`lead to unreasonable delay in this action” given the different procedural postures of the
`cases); U.S. Rubber Recycling, Inc. v. Encore Int’l, Inc., 2011 WL 311014, at *13 (C.D.
`Cal. Jan. 7, 2011) (denying motion to consolidate where “consolidating the two cases
`would unduly delay the case at hand” and consolidation might “unnecessarily
`compromise[ ]” the schedule); accord Spurgeon v. Olympic Panel Prods. LLC, 2008
`WL 1805726 (W.D. Wash. Apr. 21, 2008).
`As a practical matter, consolidation would hinder expeditious and efficient
`resolution of Plaintiffs’ claims by requiring C.M. and A.P.F. Plaintiffs to reach
`consensus with the F.R. Plaintiffs as to litigation strategy and division of labor. C.M.
`and A.P.F. Plaintiffs already must coordinate with each other to select which policy-
`level government officials to depose, what topics and documents to cover, and to split
`time questioning such officials. Requiring Plaintiffs to coordinate with counsel for
`other Plaintiffs—particularly where, as discussed below, there may be differences in
`focus or strategy—would be unduly burdensome and result in further delay. See Allen,
`
`
`3 Further, oral argument on Defendant’s motion to dismiss has not yet been held. See
`No. CV-21-00339-PHX-DLR, ECF 52 (scheduling argument for June 24, 2022).
`
`
`
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 4:19-cv-00481-JCH Document 93 Filed 06/22/22 Page 5 of 8
`
`
`
`2012 WL 1656750, at *2. Contrary to Defendant’s contention, consolidation would not
`in any way “benefit” C.M. and A.P.F. Plaintiffs. See Motion at 4.
`The absence of any concrete proposal for consolidation in Defendant’s Motion
`only increases Plaintiffs’ concerns that consolidation is a delay tactic. The contours of
`Defendant’s consolidation proposal are entirely unclear. Defendant’s Motion does not
`explain what consolidation would look like where C.M. and A.P.F. are two years ahead
`of F.R. in discovery and many policy-level depositions have already taken place. When
`Plaintiffs asked Defendant to explain how the proposed consolidation would affect
`Plaintiffs in C.M. and A.P.F., given the rapidly approaching deadline for fact discovery
`in those cases, counsel for Defendant stated Defendant’s belief that it was “premature”
`to discuss such details.
`Finally, as Defendant acknowledges, there are factual differences among the
`cases. See Motion at 1 (acknowledging that “the specific factual issues concerning the
`Plaintiffs in [F.R.] differ from those in C.M. and A.P.F.”); id. at 3 (discussing “the
`noticeable, fact-based differences between the Plaintiffs in [F.R.] and those in C.M. and
`A.P.F.”). For instance, the F.R. plaintiffs were separated during a different time period
`than all C.M. and most A.P.F. Plaintiffs, before Attorney General Sessions issued the
`Zero Tolerance memorandum. See F.R. Compl. ⁋ 27. Moreover, according to
`Defendant, the adult F.R. plaintiff was prosecuted, was transferred to U.S. Marshal
`Service custody, and served a sentence of five days—in contrast to the C.M. and A.P.F.
`Plaintiffs who were never prosecuted or held in criminal custody. See F.R., No. CV-
`21-00339-PHX-DLR, ECF 30 at 7; see Hr’g Tr. at 11:10-12:6 (June 2, 2022) (noting
`that the C.M. and A.P.F. adult plaintiffs were never in criminal custody). Defendant’s
`assertion that “plaintiffs from each case will necessarily need to depose the same policy-
`level federal officials and obtain the same non-individualized documentary evidence,”
`
`
`
`
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 4:19-cv-00481-JCH Document 93 Filed 06/22/22 Page 6 of 8
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Motion at 4, is therefore inaccurate.4 Even for common depositions, the factual
`differences likely would result in Plaintiffs in the various cases pursuing differing
`strategies or lines of questioning during policy-level depositions. C.M. and A.P.F.
`Plaintiffs should not be forced to carve out time for other Plaintiffs to question policy-
`level witnesses at this stage in the case. And, as a practical matter, trying to schedule
`depositions based on the availability of counsel in multiple cases is likely to cause
`delay.
`
`Accordingly, Plaintiffs respectfully request that the Court deny Defendant’s
`Motion.
`RESPECTFULLY SUBMITTED this 22nd day of June, 2022.
`
`Katherine Melloy Goettel*
`Emma Winger*
`Gianna Borroto*
`American Immigration Council
`1331 G Street NW, Suite 200
`Washington, DC 20005
`202-507-7512
`kgoettel@immcouncil.org
`ewinger@immcouncil.org
`gborroto@immcouncil.org
`
`Jonathan H. Feinberg*
`Kairys, Rudovsky, Messing, Feinberg
`& Lin LLP
`The Cast Iron Building
`718 Arch Street, Suite 501 South
`Philadelphia, PA 19106
`215-925-4400
`jfeinberg@krlawphila.com
`
`
`
`
`Diana E. Reiter*
`Erik Walsh*
`Lucy McMillan*
`Harry K. Fidler*
`Mark Osmond*
`Kaitlyn Schaeffer*
`Arnold & Porter Kaye Scholer LLP
`250 West 55th Street
`New York, New York 10019-9710
`212-836-8000
`diana.reiter@arnoldporter.com
`erik.walsh@arnoldporter.com
`lucy.mcmillan@arnoldporter.com
`harry.fidler.arnoldporter.com
`mark.osmond@arnoldporter.com
`kaitlyn.schaeffer@arnoldporter.com
`
`
`
`
`
`
`
`
`4 To the extent there is overlap in documents and testimony needed, there are less
`prejudicial ways to accomplish the efficiency Defendant seeks. For example,
`Defendant could offer the policy-related documents and deposition transcripts from
`the C.M. and A.P.F. cases to the F.R. plaintiffs.
`
`
`
`
`6
`
`

`

`Case 4:19-cv-00481-JCH Document 93 Filed 06/22/22 Page 7 of 8
`
`Trina Realmuto*
`
`Mary Kenney*
`National Immigration Litigation Alliance
`10 Griggs Terrace
`Brookline, MA 02446
`617-819-4447
`trina@immigrationlitigation.org
`mary@immigrationlitigation.org
`
`
`Attorneys for C.M. Plaintiffs
`*Admitted Pro Hac Vice
`
`Emily Reeder-Ricchetti*
`R. Stanton Jones*
`Arnold & Porter Kaye Scholer LLP
`601 Massachusetts Avenue, NW
`Washington, DC 20001
`202-942-5000
`emily.reeder-ricchetti@arnoldporter.com
`stanton.jones@arnoldporter.com
`
`Mark Fleming*
`Mark Feldman*
`National Immigrant Justice Center
`224 S. Michigan Ave., Suite 600
`Chicago, IL 60604
`312-660-1370
`mfleming@heartlandalliance.org
`mfeldman@heartlandalliance.org
`
`
`
`
`
`/s/ Keith Beauchamp
`Keith Beauchamp (012434)
`D. Andrew Gaona (028414)
`COPPERSMITH BROCKELMAN PLC
`2800 N. Central Avenue, Suite 1900
`Telephone: (602) 381-5493
`Phoenix, AZ 85004
`kbeauchamp@cblawyers.com
`agaona@cblawyers.com
`
`Norma Ventura*
`James Knoepp*
`Sharada Jambulpati*
`SOUTHERN POVERTY LAW CENTER
`P.O. Box 1287
`Decatur, GA 30031
`Telephone: (404) 521-6700
`norma.ventura@splcenter.org
`jim.knoepp@splcenter.org
`sharada.jambulpati@splcenter.org
`
`
`
`
`Matthew J. Schlesinger*
`Jason A. Carey*
`Jennifer Saulino*
`Terra White Fulham*
`Teresa S. Park*
`Kristin M. Cobb*
`Shadman Zaman*
`COVINGTON & BURLING LLP
`One City Center, 850 Tenth Street, NW
`Washington, DC 20001-4956
`Telephone: (202) 662-5581
`mschlesinger@cov.com
`jcarey@cov.com
`jsaulino@cov.com
`tfulham@cov.com
`tpark@cov.com
`kcobb@cov.com
`szaman@cov.com
`
`
`7
`
`
`
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 4:19-cv-00481-JCH Document 93 Filed 06/22/22 Page 8 of 8
`
`
`Paul R. Chavez*
`SOUTHERN POVERTY LAW CENTER
`P.O. Box 370037
`Miami, FL 33137
`Telephone: (786) 347-2056
`paul.chavez@splcenter.org
`
`
`Attorneys for A.P.F. Plaintiffs
`* Admitted pro hac vice
`
`8
`
`
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`