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Best Payphones, Inc. v. City of New York

March 29, 2006

BEST PAYPHONES, INC., PLAINTIFF,
v.
CITY OF NEW YORK ., ET AL DEFENDANTS.
BEST PAYPHONES, INC., PLAINTIFF,
v.
ALLAN DOBRIN, FORMER DEPARTMENT OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS (DOITT) COMMISSIONER ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge.

OPINION & ORDER

Plaintiff, Best Payphones, Inc., moves to consolidate the above-captioned actions, 01-cv-3934, 01-cv-8506, 03-cv-0192 and 04-cv-3541, and amend the complaints in the first two actions to conform to the amended complaint filed on August 16, 2004 (Doc. No. 21) in 03-cv-0192. (See Doc. No. 55, Notice of Motion to Consolidate and Amend Complaints, at 1-2.)*fn1 As discussed below, defendants do not oppose consolidation.

The parties dispute which set of allegations -- which complaint or amended complaint -- should govern for purposes of the consolidated actions. Plaintiff contends that the amended complaint in 03-cv-0192 was properly filed, as of right, on August 16, 2004 and should control because it embodies the most complete set of allegations against the defendants. Defendants counter that the consolidation should encompass "the original 01-cv-3934 [complaint], the original content of [the] 01-cv-8506 [complaint], the original 03-cv-0192 [complaint], and that whether the additional content sought [to be added] would be decided by the Court pursuant to the standards for leave [to amend]." (Transcript of telephone conference before the undersigned on March 17, 2006 ("March 2006 Tr."), at 13.) Defendants further contend that the amended complaint filed in 03-cv-192 on August 16, 2004 is "a nullity" because it was filed without leave of court. (Id. at 5-6.) In addition, defendants contend that the filing of a new complaint in 04-cv-3541, which is identical to the amended complaint in 03-cv-192, is a "'back-door' effort to evade the amendment requirement and hence, . . . should be equally invalid." (Id. at 11.)

For the reasons set forth below, the above-referenced cases are hereby consolidated under the docket number 03-cv-192. The amended complaint in 03-cv-192, filed on August 16, 2004, will serve as the governing complaint for purposes of the consolidated action. The motion to amend in 01-cv-3934 and 01-cv-8506 is granted to the extent that the complaints in those actions shall conform to the amended complaint filed in 03-cv-192 on August 16, 2004. A motion to amend the 03-cv-192 complaint is not necessary because the amended complaint in that case was filed as of right and plaintiff does not seek further amendments of that complaint. Similarly, a motion to amend the complaint in 04-cv-3541 is not necessary because the complaint in that case is, according to the parties, identical to the amended complaint in 03-cv-192. (See Doc. No. 57, Declaration of Michael Chaite in Support of Motion to Consolidate and Amend Complaints ("Chaite Decl."), ¶ 10; March 2006 Tr. at 13.) Plaintiff, therefore, is strongly encouraged to voluntarily dismiss its complaint in 04-cv-3541. If plaintiff does not voluntarily dismiss the complaint in 04-cv-3541, defendant may move against that complaint in the manner provided by Judge Gleeson's motion practices and the Federal Rules of Civil Procedure.

I. DISCUSSION

A. Consolidation

Federal Rule of Civil Procedure 42(a), which governs motions to consolidate, states:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

See also Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir. 1990).

Consolidation serves to avoid unnecessary costs and confusion that would result if related actions were tried separately. See Katz v. Realty Equities Corp., 521 F.2d 1354, 1359 (2d Cir. 1975). The Court, however, must balance efficiency concerns against the potential for confusion or prejudice. See Olsen v. New York Cmty. Bancorp, Inc., 233 F.R.D. 101, 105 (E.D.N.Y. 2005); Kelly v. Kelly, 911 F. Supp. 66, 69 (N.D.N.Y. 1996).

As previously mentioned, defendants do not oppose plaintiff's motion to consolidate. (Doc. No. 62, Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Consolidate and Amend Complaints ("Defs.' Opp'n MOL"), at 1 ("Defendants have for years been striving to . . . effect consolidation . . . ."); March 2006 Tr. at 17 ("[W]e wholly consent to consolidation.").) Notwithstanding defendants' consent, the Court finds that consolidation is appropriate.

Common factual and legal questions arise in all the related actions. The gravamen of the complaints in each of the related Best Payphones actions is the assertion that the City of New York has discriminated against Best Payphones in its regulation of public pay telephones. As recognized by Judge Gleeson, "[o]ver the past five years, plaintiff has filed multiple lawsuits with overlapping claims and a shifting roster of defendants, including the City of New York, the DoITT . . . and various individuals, including individual lawyers who have been involved in litigating plaintiff's claims on behalf of the DoITT." New Phone Co., Inc. and Best Payphones, Inc. v. City of New York, Nos. 00-CV-2007, 03-CV-3978, 01-CV-3934, 01-cv-8506, 03-CV-192, 04-cv-3541, 05-cv-1702, 2005 WL 1902119, at *1 (E.D.N.Y. Aug. 5, 2005). Moreover, consolidation would not prejudice the defendants, who consent to the motions for consolidation. See Olsen, 233 F.R.D. at 105 ("it is apparent that no party will suffer prejudice from consolidation, a fact confirmed by the complete absence of any opposition thereto.") For these reasons, the interests of judicial economy and the desirability of obtaining a fair resolution of all related claims in a single action weigh in favor of the requested consolidation. The motion to consolidate is therefore granted.

B. Amendment

Defendants contend that plaintiff's amended complaint, filed on August 16, 2004 in 03-cv-192, is a nullity because plaintiff failed to obtain leave to amend its original complaint, notwithstanding that a responsive pleading to the original complaint was never filed. (See March 2006 Tr. at 5-6, 17, 20.) Defendants' position contravenes the clear language of Fed. R. Civ. P. 15(a), which provides in relevant part: "a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . ." Defendants do not dispute that although they requested and were granted an extension of time, until July 22, 2003, to "answer or move with respect to the complaint" in 03-cv-192, (see Doc. No. 5, Endorsed Order on Letter dated May 22, 2003 from Michael Adler, Esq. to Judge Trager ("May 2003 Ltr. to Judge Trager"))*fn2 , defendants had not filed an answer or moved against the initial complaint as of August 16, 2004, when plaintiff filed its amended complaint.

As discussed in detail below, defendants contend that plaintiff was precluded from filing an amended complaint as of right because (i) on March 12, 2004, plaintiff conceded that a motion was necessary when it requested a pre-motion conference before Judge Gleeson prior to making its motion to amend and consolidate, (ii) on March 15, 2004, Judge Gleeson referred plaintiff's "proposed motions" to the assigned magistrate judge, impliedly ruling that such motions were necessary, (iii) on October 14, 2004, the undersigned determined that leave of court was necessary to file "further amendments to the complaints and amended complaints" and (iv) the amended complaint in 03-cv-192 violates the doctrine against claim-splitting. (See Doc. No. 25, Minute Entry for Status Conference before ...


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