Opinion
No. CV-14-412-PHX-LOANo. CV-14-413-PHX-DKD
03-10-2014
Douglas L. Prestige, Plaintiff, v. United States of America, Defendant.
(lead case)
CONSOLIDATION ORDER
The Court has reviewed the pro se complaint in the above first action, filed on March 3, 2014, which attempts to allege causes of action for medical negligence, failure to warn, failure to provide medical care, fraudulent concealment, breach of contract, and, perhaps, the wrongful failure to pay Veteran Administration ("VA") disability compensation, in violation of, according to Plaintiff, the Federal Tort Claim Act ("FTCA") and the Tucker Act. (Doc. 1) It appears these claims arise out of Plaintiff's medical care and treatment at a VA medical facility for scoliosis. (Id.) Plaintiff paid the $400.00 filing fee in full. On that same day, and instead of filing an amended complaint for which leave of court was not required, Plaintiff filed a second complaint, assigned case number CV-14-413-PHX-DKD, and paid another $400.00 filing fee.
"[A]ll contract disputes against the United States over the amount of $10,000 are required to be brought in the Court of Federal Claims." Wolcott v. Meuller, 2013 WL 686678, at *1 (S.D. Cal. Feb. 25, 2013) (citing 28 U.S.C. § 1346(a)(2)). "The Contract Disputes Act, in conjunction with the Tucker Act, 28 U.S.C. § 1491(a)(1) and the Little Tucker Act, 28 U.S.C. § 1346(a)(2), grants the Court of Federal Claims jurisdiction to adjudicate the contract claims [a p]laintiff may have against the United States." Id.
In the first action, Plaintiff alleges "[d]amages have been incurred as a result of the injuries . . . that [his] spine has worsened . . . and/or been caused by VA US Government, Plaintiff is likely to die from damages caused by breach of contract, medical and nonmedical malpractice." (Id. at 3) The second action was assigned to the Hon. David K. Duncan, U.S. Magistrate Judge. While the second complaint adds a little more factual information, it appears to allege the same claims by the same plaintiff against the defendant as alleged in the first complaint. (Doc. 1, CV-14-413-PHX-DKD) Plaintiff demands exactly same relief in both actions, viz., a judgment in the amount of $30,000,000 for "damage, injury, and possible death" and a jury trial.
I. Consolidation
"Under Rule 42(a) of the Federal Rules of Civil Procedure, consolidation is appropriate '[i]f actions before the court involve a common question of law or fact.'" Hall v. Medicis Pharmaceutical Corp., 2009 WL 648626, at *1 (D. Ariz. March 11, 2009). In determining whether consolidation is appropriate, a district court "must balance the interest of judicial convenience against the potential for delay, confusion and prejudice that may result from such consolidation." Sapiro v. Sunstone Hotel Investors, L.L.C., 2006 WL 898155, at *1 (D. Ariz. April 4, 2006); see also In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987); Monolithic Power Systems, Inc. v. O2 Micro Intern. Ltd, 2006 WL 2329466, at *1 (N.D. Cal. 2006) (ordering consolidation where common questions of law and fact exist and judicial economy would be served). "Factors such as differing trial dates or stages of discovery usually weigh against consolidation." Sapiro, 2006 WL 898155, *1 (citing Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2383 (1995)). "[T]he risk of inconsistent adjudications of common factual and legal issues" generally weighs in favor of consolidation." Id. (citing Malcolm v. Nat'l Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993)) (citations omitted). A district court has broad discretion to determine whether consolidation is appropriate. Investors Research Co. v. U.S. Dist. Court for Cent. Dist. Of Cal., 877 F.2d 777, 777 (9th Cir. 1989).
Under the District Court of Arizona's Rules of Practice ("Local Rules" or "LRCiv"), LRCiv 42.1(a) authorizes consolidation of cases before a single judge whenever two or more cases are pending before different judges on the basis that such cases "(1) arise from substantially the same transaction or event; (2) involve substantially the same parties or property; (3) involve the same patent, trademark, or copyright; (4) call for determination of substantially the same questions of law; or (5) for any other reason would entail substantial duplication of labor if heard by different Judges."
District courts possess substantial inherent powers to control and manage their dockets. Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (citations omitted). Under its inherent powers, a district court may exercise supervision of its docket and the litigants before it, and may take a variety of actions in aid of this supervision, including consolidation. District courts are authorized to consolidate cases sua sponte, without a motion from the parties. See, e.g., In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987) ("Because consolidation is within the broad discretion of the district court, . . . trial courts may consolidate cases sua sponte[.]"); Devlin v. Transportation Communications Int'l Union, 175 F.3d 121, 130 (2nd Cir. 1999) ("A district court can consolidate related cases under Federal Rule of Civil Procedure 42(a) sua sponte."); Blasko v. Washington Metropolitan Area Transit Authority, 243 F.R.D. 13, 15 (D.D.C. 2007) ("By its plain language, Rule 42(a) permits sua sponte consolidation."); Disher v. Citigroup Global Markets, Inc., 487 F.Supp.2d 1009, 1013-14 (S.D. Ill. 2007) ("A court may order consolidation sua sponte and, if need be, over the objections of parties.") (citations omitted). Despite the lack of any Rule 42(a) motion from any party in either of the two cases, there is no impediment to consolidation if the relevant considerations warrant consolidation. II. Pro Se Litigants
As lawyers must, pro se litigants must become familiar, and comply, with the Rules of Civil Procedure, the Local Rules for the District Court, and comply with court orders. Carter v. Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986); King v. Atiyeh, 814 F.2d 56, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants.").
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me-accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations and emphasis omitted). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 125 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. After Twombly and Iqbal, Rule 8(a), Fed. R. Civ. P. requires a short and plain statement providing factual evidence that logically leads to a plausible claim for relief. A pro se complaint that . . . fails to plainly and concisely state the claims asserted . . . falls short of the liberal and minimal standards set out in Rule 8(a)." Ticktin v. C.I.A., 2009 WL 976517, at *4 (D. Ariz. April 9, 2009) (citation omitted) (citation omitted).
Leave to amend a complaint should be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). In the Ninth Circuit, a pro se litigant must be given leave to amend "unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Marinov v. Federal Nat'l Mortg. Ass'n, 2012 WL 136003, at *3 (D. Ariz. Jan. 18, 2012) (citation omitted). It is not "absolutely clear" at this time that the deficiencies in pro se Plaintiff's complaints can not be cured against the non-judicial defendants by amendment to allege sufficient factual allegations to support a plausible claim or claims. A district court may not, however, advise a pro se litigant, or any litigant for that matter, on how to cure pleading defects. This type of advice "would undermine [trial] judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez v. Smith, 203 F.3d 1122, 1131 n. 13 (9th Cir. 2000) (declining to decide whether court was required to inform litigant of deficiencies). Moreover, because no one has yet been served, answered, or otherwise appeared in this action, Plaintiff may amend his complaint once as a matter of right. See Fed.R.Civ.P. 15(a); CSK Investments, LLC v. Select Portfolio Servicing, Inc., 2011 WL 1158551, *2 (D. Ariz. March 29, 2011) (Rule 15(a)(2) "permits a plaintiff to amend its original complaint only one time in the course of a case. Otherwise, a plaintiff must obtain the written consent of opposing counsel or leave of the Court to file an additional amended complaint.").
But see Stephens v. Atlanta Independent School System, 2013 WL 6148099 (N.D. Ga. Nov. 22, 2013) (finding amended complaint not filed as a matter of right where 108 days after original complaint filed and 9 days after amended complaint filed, plaintiff served the amended complaint. "Here, none of these circumstances existed when the Amended Complaint was filed—the Original Complaint had not been served, an answer had not been served, and a Rule 12 motion had not been filed. The Amended Complaint therefore was not filed of right, and Plaintiff did not have Defendant's consent or the Court's permission to file it. As a result it was not an allowed pleading under Rule 15(a)(1).").
III. Discussion
The Court will sua sponte consolidate these actions into the lower case number per LRCiv 42.1(a) because the two actions involve the same causes of action, the same parties, and it is likely pro se Plaintiff was unaware he could have amended his complaint without leave of court pursuant to Rule 15(a) and filing another filing fee.
Simply stated, Plaintiff's complaints do not comply with several aspects of Rule 8, Fed.R.Civ.P. First and foremost, the Court is unable to determine from either complaint precisely what causes of action Plaintiff is alleging and, most certainly, they do not allege a plausible claim for relief as required by Twombly, Iqbal, and Rule 8(a)(2). Neither complaint alleges enough facts to "show[] that the pleader is entitled to relief." Rule 8(a)(2),Fed.R.Civ.P. Neither complaint contains a short and plain statement of the grounds for the District Court's subject matter jurisdiction, such as, 28 U.S.C. §§ 1331, 1346(b)(1). Even though a district court must construe pro se pleadings liberally, Haines, 404 U.S. at 520, the Court concludes the first and second complaints fail to comply with several subparts of Rule 8(a), Fed.R.Civ. P.
Consistent with Ninth Circuit precedent instructing district courts to grant leave to amend, sua sponte, especially when dealing with pro se litigants, the Court will allow Plaintiff an opportunity to file a timely second amended complaint in the lead case. See Schrock v. Federal Nat. Mortg. Ass'n, 2011 WL 3348227, at *9 (D. Ariz. Aug. 3, 2011) (quoting Lopez v. Smith, 203 F.3d at 1127 ("[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.") (citations and internal quotation marks omitted).
Based on the foregoing,
IT IS ORDERED that the Clerk of Court is kindly directed to consolidate the following two cases: Douglas L. Prestige v. United States, CV-14-412-PHX-LOA and Douglas L. Prestige v. United States, CV-14-413-PHX-DKD. These cases shall be consolidated into the lead case, Douglas L. Prestige v. United States, CV-14-412-PHX-LOA, and action shall proceed as a single one. Plaintiff is hereby directed to utilize only the lead case number and a single caption on all future filings until further order of the Court.
IT IS FURTHER ORDERED that Plaintiff must file a timely amended complaint on or before Monday, March 24, 2014, in full compliance with this Order or Plaintiff's action will be dismissed without prejudice and without further notice to Plaintiff for failure to state a claim upon which relief may be granted. See Rule 12(b)(6), Fed.R.Civ.P.
IT IS FURTHER ORDERED that, in the interests of justice, the Clerk of Court is kindly directed to refund to Plaintiff, 2490 E 24th St., Douglas, AZ 85607, the $400.00 filing fee he paid when filing CV-14-413-PHX-DKD, which would not have been paid if Plaintiff were represented by counsel or pro se Plaintiff knew he could have amended his original complaint in CV-14-412-PHX-LOA pursuant to Rule 15 without leave of court and without the payment of a second filing fee.
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Lawrence O. Anderson
United States Magistrate Judge