Free Memorandum in Opposition - District Court of California - California

Case 3:07-cv-04718-CRB

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Filed 12/13/2007

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MICHAEL J. O'TOOLE (SBN 97779) City Attorney RANDOLPH S. HOM (SBN 152833) Assistant City Attorney CITY OF HAYWARD 777 "B" Street Hayward, California 94541 Telephone: (510) 583-4450 Facsimile: (510) 583-3660 Attorneys for Defendants City of Hayward, Lloyd Lowe, and Jason Corsolini UNITED STATES DISTRICT COURT

8 NORTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 Defendants. 20 21 DEFENDANTS' OPPOSITION 22 Plaintiff, Maria Joya, asserts that the within action should be related to Saleh Ali v. City 23 of Hayward, et al., United States District Court Case No. C 07-04718 (CRB) [formerly assigned 24 to Magistrate Judge Edward M. Chen], and that the actions should be consolidated with the Ali 25 26 27 / -vsCITY OF HAYWARD, a municipal corporation; LLOYD LOWE, in his capacity as Chief of Police for the CITY OF HAYWARD; JASON CORSOLINI, individually and in his capacity as an officer of the HAYWARD POLICE, MARIA JOYA, individually, and as Administrator of the Estate of NASIR SOLIS, Plaintiffs, Case No:. C 07 04739 (SI) DEFENDANTS' OPPOSITION TO ADMINISTRATIVE MOTION TO DETERMINE WHETHER CASES SHOULD BE RELATED; REQUEST FOR JUDICIAL NOTICE; DECLARATION OF RANDOLPH S. HOM; (PROPOSED) ORDER DATE: TIME: CRTRM: N/A N/A N/A

Joya v. City of Hayward, et al. Case No. C-07-04718 (SI)

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Defendants' Opposition to Administrative Motion to Determine W hether Cases Should Be Related

Case 3:07-cv-04718-CRB

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matter serving as the lead case.1 Interestingly, Joya is the surviving mother of the decedent, Nasir Solis, and Ali is his surviving father. Significantly, Civil L.R. 3-12 provides that the within motion must be filed in the earliest-filed case (but does not deem that the earliest-filed case shall serve as the lead case). Conveniently, Joya fails to apprise the court of the following salient facts. On September 12, 2007, Ali hand-filed his complaint and the case was initially assigned to Magistrate Judge Edward M. Chen.2 On September 13, 2007, Joya e-filed her complaint, which is a verbatim

It should be noted that Joya fails to attach a proposed order to her motion; see also Joya and Ali's respective positions on the issue of relatedness and consolidation in the Joint Case Management Conference Statements filed in each case. Plaintiff Ali asserts in pertinent part that, "Both parties agree that this case and the related case, Joya v. City of Hayward et al., US Dis. Court Case No. C 07-04739 (SI) (the "Related Action") should be consolidated. Plaintiff believes that the Related Action should be consolidated with this action with Honorable Judge Breyer presiding over the two cases since this action was filed earlier than the Related Action. Nonetheless, Defendants argue that this case should be related to the Related Action with Honorable Judge Illston presiding over the two cases. On December 10, 2007, Maria Joya, plaintiff in the Related Action (C 07-04739), filed Notice and Administrative Motion to Determine Whether Cases Should be Related indicating that the Related Action should be related to this case. The present action was filed before the Related Action, thus it is the "earliestfiled case" within the meaning of Northern District's Local Rule §3.12 and should, therefore, become the leading case in a situation of two related actions as presented here. Further, the present action was served on Defendants by personal service on September 25, 2007 while the Related Action was served on Defendants on September 28, 2007. Thus, the fact that Defendants filed an Answer to this action only after an Answer was filed to the Related Action, does not indicate any "priority" but merely the failure of the Defendants to timely respond to this action. Further, this case was assigned to Honorable Judge Breyer only after the Defendants declined to proceed with the case before Honorable Magistrate-Judge Chen on October 31, 2007. The Defendants took a calculated risk when declining to proceed before Magistrate Judge Chen and it appears that they are unsatisfied with the result and are making a second attempt to shop for a "better" forum. Plaintiff's counsel offered Defendants counsel to stipulate for a consolidation as early as November 8, 2007. On November 28, 2007, counsel for Defendants advised Plaintiff's Counsel that they insist on consolidation with Judge Illston presiding over the two cases. On the same day, November 28, 2007, Plaintiff's counsel asked Defendants to reconsider their position in light of the timing of the filing of the two cases vis-àvis Rule §3.12, but this offer was also rejected by Defendants' counsel. The Plaintiff will seek a ruling on this issue on the Case Management Conference set for December 21, 2007. ..." (See Joint Case Management Conference Statement in Ali, 6:9-7:16) Civil L. R. 73-1(a)(1) provides in pertinent part: "Parties must either file written consent to the jurisdiction of the magistrate judge, or request reassignment to a district judge, by the deadline for filing the initial case management conference statement." In this regard, Magistrate Judge Chen set a deadline of December 12, 2007 for the filing of the initial case
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Defendants' Opposition to Administrative Motion to Determine W hether Cases Should Be Related

Case 3:07-cv-04718-CRB

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duplicate of the Ali complaint, including each and every allegation and each cause of action, with the case assigned to the Honorable Susan Illston. On September 28, 2007, Joya personally served her complaint on defendants. On October 16, 2007, defendants answered the complaint. On October 19, 2007, Ali served his complaint via United States mail on defendants. It should be noted that plaintiff filed a proof of service indicating personal service of the complaint on a "Jane Doe" on the fourth floor of Hayward City Hall on September 25, 2007. Defendants' counsel never received the complaint that was purportedly personally served. In the spirit of facilitating the adjudication of the matter, and since defendants already had answered the duplicative complaint in Joya, defendants answered the mail served complaint in the Ali action on October 31, 2007, rather than formally contest service of process. On October 31, 2007, defendants counsel forwarded plaintiff's counsel in Joya and Ali a stipulation to mediate the dispute and forwarded a draft joint case management conference statement. Again in the spirit of facilitating the adjudication of the matter, rather than waiting until the December 12th deadline, on October 31, 2007, defendants declined to proceed before Magistrate Judge Edward M. Chen. On November 2, 2007, the case was reassigned to the Honorable Charles R. Breyer. On November 7, 2007, at the Court's request, Ali filed an electronic version of his complaint. After normal business hours, on November 8, 2007 at 5:27 p.m., Ali's counsel proposed via electronic mail that the within matter be consolidated with Joya v. City of Hayward, with the Ali matter serving as the lead case. Defendants' counsel was on vacation from November 9 through November 25, 2007. On November 28, 2007, defendants' counsel advised Ali's counsel that he is amenable to consolidating the matters with Joya serving as the lead case, with the Honorable Susan Illston presiding. Since defendants did not accept plaintiff's proposal, Ali's counsel characterized defendants' decision to not proceed before a Magistrate as improper "forum shopping". To the contrary, plaintiff appears to be engaged in impermissible "judge shopping".

management conference statement.

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Defendants' Opposition to Administrative Motion to Determine W hether Cases Should Be Related

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See Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998) [Court has the inherent power sua sponte to impose sanctions upon plaintiffs for improper "judge shopping", including dismissal of the action in the exercise of its discretion]. In this regard, the Court may consider the five factor test set forth in Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) before resorting to dismissal. Here, plaintiffs Ali and Joya voluntarily chose to file separate duplicative complaints on successive days in the same San Francisco Division, resulting in delays, and a waste of Court and City of Hayward resources. Certainly, this action runs counter to the public's interest in expeditious litigation. Thus, the first factor favors dismissal. Second, the Court's ability to manage its docket was impaired by the plaintiffs' filing of two identical complaints under different names. Defendants defer to the Court's judgment as to how much of the Court's valuable time or whether or not serious disruptions were created by plaintiffs' conduct. Even if large amounts of the Court's time were not wasted, and serious disruptions to the Court's schedule did not occur, the second factor would at least "(weigh) in favor of the sanction but not heavily." Hernandez, 138 F.3d at 399 quoting United States ex rel. Wiltec Guam, Inc. v. Kahaluu Const. Co., Inc. ,857 F.2d 600, 603 (9th Cir. 1988) As to the third factor, at this early juncture it is difficult to assess what prejudice defendants may have suffered by plaintiffs' "judge-shopping". Nevertheless, defendants reserve the right to address this factor in the future in the event that the issue becomes more clearly framed. In regards to the fourth factor, public policy favors disposition of cases on their merits, especially in regards to civil rights matters. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). Fifth, the availability of less drastic alternatives most likely counsels against dismissal of both actions. Rather, other cases involving "judge-shopping" suggest alternative sanctions such as dismissal of the second action only [see Telesco v. Telesco Fuel & Mason's Materials, Inc., 765 F.2d 356, 360 (2d Cir. 1985)] or a stay of the second action pending resolution of the first action. [see Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1204 (2d Cir. 1970)] In any event, neither plaintiff should be able to benefit from their gamesmanship by obtaining their preferred judge of choice. Accordingly, defendants respectfully request that the Court sanction plaintiffs

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Defendants' Opposition to Administrative Motion to Determine W hether Cases Should Be Related

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appropriately for their "judge-shopping" and that if any portion of the action(s) should remain that it is adjudicated by a judge that is not plaintiffs' preferred judge of choice. DATED: December 12, 2007 By: MICHAEL J. O'TOOLE, City Attorney __________/s/_______________________ RANDOLPH S. HOM, Assistant City Attorney Attorneys for Defendants

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Defendants' Opposition to Administrative Motion to Determine W hether Cases Should Be Related