Perez v. Grey

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 DANIEL JAY PEREZ, CASE NO. 2:21-cv-00095-LK 11 Plaintiff, ORDER DENYING JOINT 12 v. MOTION TO CONSOLIDATE CASES 13 KATHRYN GRAY et al., 14 Defendants. 15

16 This matter comes before the Court on the parties’ joint motion to consolidate cases. Dkt. 17 No. 113. The parties seek to consolidate this case with Perez v. Strange, 3:23-CV-05008-JHC- 18 SKV (W.D. Wash.). Id. at 1. For the reasons stated below, the Court denies the parties’ motion. 19 I. BACKGROUND 20 Plaintiff Daniel Jay Perez initiated this civil rights lawsuit pro se and in forma pauperis 21 (“IFP”) in early 2021, challenging Defendants’ allegedly retaliatory conduct during his ongoing 22 incarceration at the Monroe Correctional Complex (“MCC”), culminating in his transfer out of E- 23 Unit. See Dkt. Nos. 1, 5, 42. On March 30, 2023, the Court adopted in part the Report and 24 Recommendation of United States Magistrate Judge David W. Christel regarding Defendants’ 1 motion for summary judgment, allowing some of Mr. Perez’s First Amendment retaliation claims 2 to proceed against Defendant Kathryn Grey. See generally Dkt. No. 109. The Court also directed 3 the parties to meet and confer and to file a joint status report proposing a trial date and pretrial 4 deadlines. Id. at 38. Following the Court’s Order on summary judgment, Mr. Perez retained

5 counsel in this case. Dkt. No. 111. 6 Separately, in early 2023, Mr. Perez filed another lawsuit pro se and IFP, claiming that 7 Department of Corrections and MCC staff violated his constitutional rights under the Eighth 8 Amendment by acting with deliberate indifference toward his medical and mental health needs. 9 See Perez v. Strange, Dkt. No. 7. Defendants filed an answer in that case on April 10, 2023, and 10 the Court entered a pretrial scheduling order on May 2, 2023. See id., Dkt. Nos. 30, 35. 11 II. DISCUSSION 12 A. Legal Standard 13 Federal Rule of Civil Procedure 42(a) provides that courts may consolidate cases if they 14 involve common questions of law or fact. Rule 42(a) affords courts broad discretion in making

15 such determinations. In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987). When 16 evaluating the appropriateness of consolidation, the Court considers several factors, “including 17 judicial economy, whether consolidation would expedite resolution of the case, whether separate 18 cases may yield inconsistent results, and the potential prejudice to a party opposing consolidation.” 19 First Mercury Ins. Co. v. SQI, Inc., No. C13-2110-JLR, 2014 WL 496685, at *2 (W.D. Wash. Feb. 20 6, 2014). Importantly, “Rule 42 does not mandate consolidation simply because two cases happen 21 to involve common questions of law and fact.” Micklesen v. Watkins & Shepard Leasing, LLC, 22 No. 4:13-CV-00518-REB, 2015 WL 6456552, at *1 (D. Idaho Oct. 26, 2015). For instance, 23 “[c]onsolidation may be inappropriate where two cases have been proceeding on two vastly

24 1 different schedules to trial.” Ultimate Timing, L.L.C. v. Simms, No. 2:08-CV-01632-MJP, 2010 2 WL 1881868, at *2 (W.D. Wash. May 10, 2010). 3 B. Consolidation is Inappropriate in Light of the Differences in Mr. Perez’s Substantive Claims and the Procedural Posture 4 The parties contend that joining this action with Perez v. Strange is appropriate because 5 “the cases share common questions of law and fact” and consolidation would “benefit the parties.” 6 Dkt. No. 113 at 1. 7 With respect to the questions of law and fact raised in the respective cases, the Court agrees 8 that Mr. Perez’s more recent lawsuit contains overlapping factual allegations with this action. See, 9 e.g., Dkt. No. 42 at 43–47 (describing the allegedly retaliatory motivations behind Mr. Perez’s 10 MCC unit transfer in 2021); Perez v. Strange, Dkt. No. 7 at 12–21 (describing the circumstances 11 surrounding the same transfer). However, the thrust of Mr. Perez’s new complaint appears to be 12 based on the inadequacy of his medical and mental health treatment following his transfer. Perez 13 v. Strange, Dkt. No. 7 at 21–31. And whereas Mr. Perez advances a First Amendment retaliation 14 claim in this case, as noted above, he alleges an Eighth Amendment deliberate indifference claim 15 in Perez v. Strange. Id. at 30–31. Moreover, Mr. Perez’s remaining claims in this case are against 16 Kathryn Grey, who is not a named Defendant in Perez v. Strange. 17 Further, the parties’ arguments as to the benefit of consolidation are unavailing. They 18 maintain that if the cases were consolidated, (1) Mr. Perez would have “access to counsel as to all 19 claims,” (2) the parties would be able “to conduct more rigorous discovery than has previously 20 occurred in this case,” including depositions, and (3) the Court would avoid addressing Mr. Perez’s 21 claims “piecemeal, without an understanding of the ‘big picture[.]’” Dkt. No. 113 at 2. None of 22 these reasons are persuasive. First, Mr. Perez’s newly retained counsel is free to enter an 23 appearance in Perez v. Strange if so desired by Mr. Perez and counsel. Second, the discovery 24 1 deadline in this case expired approximately 20 months ago, Dkt. No. 36, and the Court has already 2 resolved Defendants’ motion for summary judgment, Dkt. No. 109. Despite this, and the fact that 3 trial is on the horizon, id. at 38, the parties make no attempt to satisfy the standard for reopening 4 the case schedule by demonstrating that their failure to complete discovery within the time allotted

5 was due to excusable neglect, Fed. R. Civ. P. 6(b)(1)(B). See also Dkt. No. 75 (denying Mr. Perez’s 6 November 2021 motion for extension of time to complete discovery); Hartman v. United Bank 7 Card, Inc., 291 F.R.D. 591, 595 (W.D. Wash. 2013) (deciding “based on twenty-twenty hindsight” 8 that decision to delay or forgo individual’s deposition was error, or that more discovery should 9 have been conducted at earlier time, was not excusable neglect); Excel Fortress Ltd. v. Wilhelm, 10 No. CV-17-04297-PHX-DWL, 2018 WL 6067255, at *7 (D. Ariz. Nov. 20, 2018) (denying motion 11 to consolidate and noting that consolidation would provide the plaintiffs “a second bite at the 12 discovery apple”). Finally, these two cases are in “significantly different procedural posture[s],” 13 which weighs against consolidation. Reed v. Kariko, No. 3:20-CV-05580-BHS-DWC, 2020 WL 14 6781475, at *2 (W.D. Wash. Nov. 18, 2020); see also Rubio v. King Cnty., No. C16-1269-JCC-

15 JPD, 2017 WL 2172014, at *2 (W.D. Wash. May 17, 2017); Ultimate Timing, 2010 WL 1881868, 16 at *2. If the Court were to reopen discovery—long after the September 2021 discovery completion 17 deadline and the December 2021 dispositive motions deadline—it would substantially disrupt the 18 orderly disposition of this case. 19 Accordingly, the Court finds that any factual commonalities between the two cases are 20 outweighed by the differences in Mr. Perez’s substantive claims and considerations of judicial 21 economy and expediency. To the extent that the parties are interested in pursuing a global 22 resolution as to both cases through mediation or a settlement conference before a Magistrate Judge, 23 they may indicate such preference in their joint status report due June 1, 2023. Dkt. 109 at 38.

24 1 III. CONCLUSION 2 For the reasons discussed herein, the parties’ motion to consolidate, Dkt. No. 113, is 3 DENIED. 4 Dated this 19th day of May, 2023.

5 A 6 Lauren King United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23