Red Eyed Jacks Sports Bar Inc. v. City of San Diego
United States District Court, S.D. California
July 29, 2016
RED EYED JACKS SPORTS BAR INC. dab CHEETAH'S NIGHTCLUB, Plaintiff,
v.
CITY OF SAN DIEGO AND SHELLEY ZIMMERMAN, in her official capacity as Chief of Police, Defendants. JANE DOE, Plaintiff,
v.
CITY OF SAN DIEGO, SHELLY ZIMMERMAN, and DOES 1-100, inclusive, Defendants. TANYA A., STEPHANIE B., ANGELA C., MINDY C., DIANA D., KATELYNN D., HEATHER D., VALERIA E., TIANA E., BERENIZ F., SARA G., MARITZA G., CRYSTAL H., CLARRISE J., EMILIA J. ANDREA L., RENEE L., CHLOE L., KRISTINIA M., MALLORY M., BRITTANY M., ZINNIA P., CHELSEA S., LINDSAY T., MARIYA W., LINDA E., BRIANNA H., ROWSANNA M., JENNIFER S. and ANGELA T., Plaintiffs,
v.
CITY OF SAN DIEGO, SHELLY ZIMMERMAN and DOES 1-100, inclusive, Defendants. SUZANNE COE Plaintiff,
v.
CITY OF SAN DIEGO; SHELLY ZIMMERMAN, as an individual and in her official capacity as Chief of Police; KEVIN MOYNA; PERRY McCIVER; DAN PLEIN; CHUCK KAYE; and DOES 1 to 50 Defendants,
ORDER GRANTING IN PART AND DENYING IN PART JOINT
MOTION TO CONSOLIDATE
Hon M.
James Lorenz United States District Judge.
Pending
before the Court are four cases arising from police raids in
July 2013 and March 2014 on two adult entertainment
establishments in San Diego, Cheetah's and Expose, based
on the authority conferred by San Diego Municipal Code
§33.0103. The cases were related under Civil Local Rule
40.1. In each of them, the parties simultaneously filed a
Joint Motion to Consolidate Related Matters and/or Coordinate
Discovery; for an Order Vacating Schedule in the Red Eyed
Jacks Case; and Related Orders ("Joint Motion").
They request to consolidate all four cases. The Coe
Defendants oppose consolidation for all purposes, but agree
to coordinate discovery and other pretrial proceedings. For
the reasons which follow, the Joint Motion is granted in part
and denied in part.
In
Red Eye Jacks Sports Bar, Inc. dba Cheetah's
Nightclub v. City of San Diego, et al., case no. 14cv823
(Cheetah's"), Cheetah's alleges two
causes of action, claiming that §33.0103 is
unconstitutional under the First, Fourth and Fourteenth
Amendments, and that the allegedly unconstitutional conduct
during the two raids was ratified by the Chief of Police.
Cheetah's seeks declaratory and injunctive relief against
the City, Chief of Police and unidentified police officers
responsible for the acts alleged in the complaint.
In
Doe v. City of San Diego, et al., case no. 14cv1941
("Doe"), one of the entertainers at
Cheetah's who was working at the time of the July 2013
raid claims §33.0103 is unconstitutional under the
First, Fourth, and Fourteenth Amendments on its face and as
applied, that she was subject to unlawful search and seizure,
and that the constitutional violations she suffered during
the raid were caused by the City's unlawful policy,
practice, or custom and unlawful ratification; and by the
City's and the Police Chief's failure to properly
train police officers. She further alleges violation of
California Civil Code §52.1 ("Bane Act") for
intentional interference with enjoyment of federal and
California constitutional rights; and false imprisonment
under California law. Doe alleges eleven causes of action
seeking damages, declaratory and injunctive relief against
the City, Chief of Police, and unidentified police officers.
In
Tanya A., et al. v. City of San Diego, et al., case
no. 14cv1942 ("Tanya A."), approximately
thirty Expose and Cheetah's entertainers claim
§33.0103 is unconstitutional under the First, Fourth,
and Fourteenth Amendments on its face and as applied, that
they were subject to unlawful searches and seizures, and that
the constitutional violations were caused by the City's
unlawful policy, practice, or custom and unlawful
ratification; as well as by the City's and the Police
Chief's failure to properly train police officers. Like
Doe, they also allege a Bane Act violation and false
imprisonment. They assert eight causes of action for damages,
declaratory, and injunctive relief against the City, Chief of
Police, and unidentified police officers. Although at first
Tanya A. may seem indistinguishable from
Doe, the factual allegations and legal arguments
differ in subtle but significant respects.
In
Coe v. City of San Diego et al., case no. 16cv1447
("Coe"), the owner of Cheetah's
alleges the City and the Chief of Police retaliated against
Coe by revoking Cheetah's adult entertainment permit
because Cheetah's entertainers and management complained
to the media about the police raids and filed lawsuits
against the City and the Chief of Police. She asserts four
causes of action for retaliation in violation of the First
and Fourteenth Amendments, violation of the Equal Protection
Clause of the Fourteenth Amendment, and for supervisor
liability and unlawful ratification of the permit revocation.
Coe seeks declaratory and injunctive relief against the City,
Chief of Police, four named police officers involved in the
decision to revoke the permit, and several unidentified
officers involved in the alleged wrongdoing.
Federal
Rule of Civil Procedure 42(a) provides in pertinent part:
Consolidation. If actions before the court involve a common
question of law or fact, the court may:
(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.
In
considering whether to consolidate, the Court "weighs
the saving of time and effort consolidation would produce
against any inconvenience, delay, or expense that it would
cause." Huene v. United States, 743 F.2d 703,
704 (9th Cir. 1984).
Although
the Joint Motion overstates the similarity of the related
cases, it is apparent on the face of the pleadings that there
is significant overlap of factual and legal issues raised in
Cheetah's, Doe and Tanya A.
cases, and to a lesser extent with respect to Coe.
On the other hand, each case names multiple unidentified
police officers as Defendants. It is unclear whether they
would oppose consolidation if any when they are identified
and served. It is also unknown to what extent the
unidentified officers differ among the cases. The potential
difference in the named party defendants and their respective
positions, and the differences in some of the factual
allegations and legal theories raised in each case counsel
against consolidation for all purposes at this time. ...