REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Fred Biery:
This Report and Recommendation and Order concerns pro se Plaintiff Carlos Antonio Raymond's Notice and Motion to Correct and Replace Civil Cover Sheet [#11], Defendant Ivest Properties' Motion to Dismiss for Lack of Jurisdiction and For Failure to State a Claim [#12], Plaintiff's Motion to Proceed In Forma Pauperis [#16], Plaintiff's Motion to be Excused From the Court [#17], and Plaintiff's Response to the Report and Recommendation and Motion for Extension of Time [#23]. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#19]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and this order pursuant to 28 U.S.C. § 636(b)(1)(A).
In considering the motions before the Court, the undersigned also considered Plaintiff's other pending civil matter, which is also referred to the undersigned: Case No. SA-5:20-CV-1371-DAE ("the 1371 Lawsuit"). For the reasons set forth below, the undersigned recommends that the 1371 Lawsuit be consolidated into the instant case and that a refund be issued to Plaintiff for the $402.00 filing fee he submitted in the 1371 Lawsuit. The Court will GRANT Plaintiff's Motion for Extension of Time [#23] and order Plaintiff to file an amended complaint by March 12, 2021. Further, the Court will DISMISS Defendant's Motion to Dismiss [#12] without prejudice to refiling after Plaintiff files an amended complaint. Finally, the Court will DISMISS AS MOOT Plaintiff's Notice and Motion to Correct and Replace Civil Cover Sheet [#11], Plaintiff's Motion to Proceed In Forma Pauperis [#16], and Plaintiff's Motion to be Excused from the Court [#17].
I. Procedural History
Plaintiff, proceeding pro se, filed the instant lawsuit against Defendant Ivest Properties, LLC and filed his first Motion to Proceed In Forma Pauperis ("IFP") on August 17, 2020 [#1]. The motion was referred to the undersigned, who issued a Report and Recommendation to deny the IFP motion [#8]. After this Recommendation was entered but before it was accepted by the District Court, Plaintiff filed a Motion to Correct and Replace Civil Cover Sheet [#11]. By this motion, Plaintiff requests to add two more state law claims to his complaint. Plaintiff also filed a second Motion to Proceed IFP [#16] and a Motion to Be Excused From the Court [#17], by which he requests to "reserve time to amend his complaint" until after he recovers from medical issues. Defendant also filed a Motion to Dismiss [#12]. After those motions were filed, the District Court accepted the undersigned's Recommendation to deny Plaintiff's first Motion to Proceed IFP [#19].
Shortly thereafter, Plaintiff filed a new lawsuit, the 1371 Lawsuit, and paid the filing fee in that case.[#1]. Plaintiff initially did not file a complaint in the 1371 Lawsuit, so Judge Ezra ordered Plaintiff to show cause for why the case should not be dismissed [#5]. In response, Plaintiff filed an "Amended Complaint" against Defendants Ivest Properties, LLC, Ivest's employee Abdelhakim Rafati, and Bexar County Court employee Lydia O'Connell [#6]. Plaintiff subsequently filed an Advisory in the 1371 Lawsuit in which he states that the 1371 Lawsuit was his "fresh" and "second" lawsuit against Ivest Properties, LLC and should be the "real one" or "live pleading" on the docket [#7].
Meanwhile, still pending in the instant case was Plaintiff's second Motion to Proceed IFP [#16]. After Plaintiff filed his advisory in the 1371 Lawsuit indicating that the two cases were separate, the undersigned entered a Report and Recommendation [#20] in the instant case to deny Plaintiff's second IFP motion. Then, Plaintiff submitted a filing fee [#22] and filed a "Response to the Report and Recommendation and Motion for Extension of Time" [#23] in the instant case, and filed an identical "Response to the Report and Recommendation and Motion for Extension of Time" [#12] in the 1371 Lawsuit. In these identical responses, Plaintiff indicates that he did not intend to file a new lawsuit; rather, he was attempting to file an amended complaint in the instant case. ([#23] at 2.) Plaintiff also states that he inadvertently has "two Complaints and lawsuits for the same defendants and the same issues." (Id. at 3). Embedded in Plaintiff's response is also a motion for additional time to amend his pleadings. (Id.)
The undersigned recommends that the 1371 Lawsuit be consolidated into the instant case and that Plaintiff be refunded the $402.00 filing fee that he submitted in the 1371 Lawsuit. Further, the Court will grant Plaintiff's motion for leave to amend his complaint and direct Plaintiff to file an amended pleading that encompasses all claims against Defendants. The Court will also dismiss as moot Plaintiff's remaining motions in the instant case. The Court will also dismiss Defendant Ivest Properties, LLC's motion to dismiss without prejudice to refiling once Plaintiff has filed an amended pleading in the consolidated case.
A. The two cases should be consolidated.
Sua sponte consolidation of the instant case and the 1371 Lawsuit is appropriate under Rule 42(a) of the Federal Rules of Civil Procedure. Rule 42(a) provides:
If actions before the court involve a common question of law or fact, the court may:Fed. R. Civ. P. 42(a). The Fifth Circuit has urged district judges "to make good use of Rule 42(a) in order to expedite . . . trial and eliminate unnecessary repetition and confusion," even when opposed by the parties. In re Air Crash Disaster at Fla. Everglades on Dec. 29, 1972, 549 F.2d 1006, 1013 (5th Cir. 1977) (quoting Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973)). Broad discretion is vested in the district court in deciding whether two actions should be consolidated and to what extent. Mills v. Beech Aircraft Corp., 886 F.2d 758, 761-62 (5th Cir. 1989).
(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.
Consolidation is permitted "as a matter of convenience and economy in administration." Shafer v. Army & Air Force Exch. Serv., 376 F.3d 386, 394 (5th Cir. 2004), op. clarified, 2004 WL 2107672 (5th Cir. 2004) (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496 (1933)). But it is not permitted "if it would prejudice the rights of the parties." St. Bernard Gen. Hosp., Inc. v. Hosp. Serv. Ass'n of New Orleans, Inc., 712 F.2d 978, 989 (5th Cir. 1983). There are five factors a court considers in determining whether consolidation is appropriate: (1) whether the actions are pending in the same court; (2) whether there are common parties; (3) whether there are common questions of law or fact; (4) whether there is risk of prejudice or confusion versus a risk of inconsistent adjudications if the cases are tried separately; and (5) whether consolidation will promote judicial economy. Frazier v. Garrison I.S.D., 980 F.2d 1514, 1531 (5th Cir. 1993); Parker v. Hyperdynamics Corp., 126 F. Supp. 3d 830, 835 (S.D. Tex. 2015). All five factors favor consolidation here, and importantly, Plaintiff, who is proceeding pro se, has clarified that he did not intend to initiate a new lawsuit.
Here, both cases concern common legal claims and the same central Defendant: Ivest Properties, LLC. In the instant case, Plaintiff brings claims against Ivest Properties, LLC for fraud, for violations of the Fifth and Fourteenth Amendments, for conspiracy pursuant to 42 U.S.C. § 1983, and for relief under the Coronavirus Aid, Relief, and Economic Security ("CARES") Act. In the 1371 Lawsuit, Plaintiff likewise brings claims against Ivest Properties, LLC, as well as claims against its employee Abdelhakim Rafati and Bexar County Court employee Lydia O'Connell. The 1371 Lawsuit alleges the same causes of action as the first, as well as claims for intentional infliction of emotional distress and "false pretence." The gravamen of Plaintiffs grievances in both cases concern his eviction and eviction proceedings. The variations in the pleadings in the two cases are consistent with Plaintiff's statement that his "Amended Complaint" in the 1371 Lawsuit was meant to be an amended complaint in the instant case.
As both cases involve common issues and parties, and because Plaintiff has indicated that he did not intend to file a new lawsuit, consolidating the 1371 Lawsuit into the instant case would mitigate confusion, eliminate any risk of inconsistent adjudication, and promote judicial economy. Further, Plaintiff has submitted a filing fee in both cases. If the District Court orders consolidation, Plaintiff should be refunded the filing fee submitted in the 1371 Lawsuit. B. Plaintiff's motion for leave to amend is granted, and the remaining motions are dismissed.
The Court will grant Plaintiff's motion for leave to amend his complaint. Rule 15(a) states that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. Pr. 15(a); see also Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997) ("Rule 15 expresses a strong presumption in favor of liberal pleading"); Dussuoy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597-98 (5th Cir. 1981) ("[Rule 15] evinces a bias in favor of granting leave to amend."). A motion to amend, therefore, should not be denied unless there is "substantial reason" to do so, such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies, undue prejudice to the opposing party, or futility of a proposed amendment." United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010). Plaintiff's motion for leave to amend his complaint is granted.
Because the Court has granted Plaintiff leave to amend, the Court will dismiss as moot and without prejudice Defendant's Motion to Dismiss. Any renewed motion filed after Plaintiff files his amended pleading will place this case in the best procedural posture for resolving the issues raised in Defendant's motion.
Because Plaintiff has paid the filing fee in the instant case and has been granted leave to amend his complaint, his remaining three motions—to replace his civil cover sheet, to proceed IFP, and "to be excused from the court"— will be dismissed as moot.
IV. Conclusion and Recommendation
Having reviewed Plaintiff and Defendant's motions, the undersigned RECOMMENDS that Civil Action SA-5:21-CV-1371-DAE be CONSOLIDATED into this case, Civil Action No. SA-5:20-CV-965-FB, and a refund be issued to Plaintiff for $402.00 for the filing fee in SA-5:20-CV-1371-DAE.
IT IS HEREBY ORDERED that Plaintiff's Motion for Extension of Time [#23] is GRANTED, and Plaintiff is ordered to file an amended complaint by March 12, 2021.
IT IS FURTHER ORDERED that Defendant's Motion to Dismiss [#12] is DIMISSED without prejudice to refiling after Plaintiff's amended complaint is filed.
IT IS FINALLY ORDERED that Plaintiff's Notice and Motion to Correct and Replace Civil Cover Sheet [#11], Plaintiff's (second) Motion to Proceed IFP [#16], and Plaintiff's Motion to be Excused from the Court [#17] are DIMISSED AS MOOT.
V. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 17th day of February, 2021.
ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE