The opinion of the court was delivered by: Kiyo A. Matsumoto United States District Judge
MATSUMOTO, United States District Judge
Pending before the court is the plaintiff Gristede's Foods, Inc.'s ("Gristede's" or "plaintiff") motion to consolidate the above-captioned action (the "Gristede's action") with The City of New York v. Golden Feather, et al., No. 08-cv-3966, pending before Judge Carol B. Amon ("Golden Feather"). In the Gristede's action, the defendants, Shinnecock Indian Nation, Gordell Wright, Federick C. Bess, and Lance A. Gumbs, as sued in his individual capacity, and the Shinnecock Trading Post, Ltd. (together the "Shinnecock defendants") oppose plaintiff's motion to consolidate. However, the defendants Unkechauge Nation, Harry Wallace, Poospatuck Smoke and Trading Post, Golden Feather Cigarette Express, Koko Smoke, Monique's Smoke Shop, Red Dot & Feather Smoke Shop, Smoke Signal Smoke Shop, Smoke Warehouse, Ken Dimoneico, Raymond Hart, Jennifer Davis, Denise Paschall, Tomisina Mack and Shawn Morrison (together, "Unkechauge defendants") support the motion to consolidate for discovery purposes, in the interest of judicial economy. The City of New York, the plaintiff in the action pending before Judge Amon, has indicated that it opposes consolidation other than for discovery purposes.
On March 20, 2006, plaintiff commenced this action against the Unkechauge Nation, a/k/a Unkechauge Poospatuck Tribe (the "Unkechauge" or "tribe") and the Shinnecock defendants; individual defendants Harry Wallace ("Wallace"), Randall King, James W. Eleazer, Jr., and Lance A. Gumbs; and the Poospatuck Smoke Shop and Trading Post (the "Poospatuck Smoke Shop" or "Smoke Shop"); and Shinnecock, Ltd. Plaintiff, the owner of several supermarkets in the New York City metropolitan area and on Long Island, New York, alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68, and the Lanham Act, 15 U.S.C. § 1125(a), and state law claims for unjust enrichment, unfair competition, deceptive trade practices, and false advertising arising from defendants' tax-free cigarette sales and advertising. The case was originally assigned to Judge Amon and the undersigned in her previous capacity as Magistrate Judge. On August 8, 2008, this case was transferred to the undersigned in her new capacity as District Judge and Magistrate Judge Azrack was assigned as the Magistrate Judge. On June 30, 2009, Magistrate Judge Carter was reassigned to this case, relieving Magistrate Judge Azrack.
In July 2006, the defendants who were parties to the action at the time filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure asserting that they are immune from suit by virtue of their sovereign immunity as Indian tribes. In an order dated December 22, 2006, the court deferred ruling on the defendants' Fed. R. Civ. P. 12(b)(1) motion pending further briefing and an evidentiary hearing on the tribal status of the Shinnecock and Unkechauge defendants. After filing a motion for reconsideration, the defendants were granted leave to file new Rule 12 motions and the motions to dismiss pursuant to Rule 12(b)(1) and for reconsideration were subsequently withdrawn without prejudice to the reinstatement of the Rule 12(b)(1) motion if the new Rule 12 motions were denied.
On November 5, 2007, the court denied in part the defendants' motion to dismiss pursuant to Rule 12(b)(6) and the parties renewed their motion to dismiss pursuant to Rule 12(b)(1). On December 21, 2007, following the dismissal of certain of plaintiff's claims, plaintiff filed an Amended Complaint to include those claims sustained by the court - the false advertising claim under the Lanham Act and the state consumer fraud claims - and to properly name Lance A. Gumbs in his individual capacity for his ownership and operation of the Shinnecock Trading Post, previously identified as Shinnecock, Ltd.
The Unkechuage defendants pursued their Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, which required discovery and an evidentiary hearing on that issue.*fn1
The Shinnecock defendants chose not to pursue a Rule 12(b)(1) motion and the court ordered merits discovery to proceed as to the Shinnecock defendants on January 8, 2008. On August 18, 2008, plaintiff filed a Second Amended Complaint, naming the above-captioned defendants and adding a cause of action under the Cigarette Marketing Standards Act ("CMSA").
On September 29, 2008, the City of New York commenced Golden Feather, alleging claims of trafficking of contraband cigarettes without charging and remitting New York City taxes under the Contraband Cigarette Trafficking Act ("CCTA"), 18 U.S.C. § 2341(2), a claim for aiding and abetting violations of the CCTA, and a claim for selling cigarettes without charging and remitting New York City taxes under the CMSA. The City's claims are solely against the following Unkechauge individuals and businesses: Golden Feather Smoke Shop, Inc., Monique's Smoke Shop, Jessey Watkins, Rodney Morrison, Sr., Red Dot & Feathers Smoke Shop, Inc., Raymond Hart, Smoking Arrow Smoke Shop, Denise Paschall, TDM Discount Cigarettes, Thomasina Mack, Peace Pipe Smoke Shop, and Shawn Morrison, in addition to Charlotte Morrison, Wayne Harris, Ernestine Watkins, Tony D. Phillips, Kiana Morrison, Kimo Smoke Shop, Inc. and Smoke and Rolls, Inc. (together the "Golden Feather defendants"). The City sought an injunction enjoining certain defendants from selling untaxed cigarettes to non-members of the Unkechauge Indian Nation. The case was assigned to Judge Amon and Magistrate Judge Azrack.
On October 28, 2008, the City filed a motion for a preliminary injunction in Golden Feather. (G.F. Doc. No. 30.)*fn2
On December 8, 2008, the Golden Feather defendants filed a motion to dismiss for lack of subject matter jurisdiction. (G.F. Doc. No. 51.) On March 3, 2009, Judge Amon held oral argument on the City's motion for a preliminary injunction and Golden Feather's motion to dismiss. (G.F. Minute Entry 3/3/09.) On March 16, 2009, Judge Amon denied the Golden Feather defendants' motion to dismiss and deferred ruling on the City's motion for a preliminary injunction pending an evidentiary hearing. (G.F. Doc. No. 88.) Discovery proceeded before Judge Azrack. (See G.F. Doc. Nos. 89, 119, 123; Minute Entry 5/4/09, 5/5/09). Judge Amon held an evidentiary hearing on the City's motion for a preliminary injunction on May 15, 18-20, 2009 and post-hearing briefing was submitted and oral argument held thereafter. (See G.F. Order 6/9/09.) On July 15, 2009, the Golden Feather defendants filed a motion for reconsideration of the court's denial of their motion to dismiss. (G.F. Doc. Nos. 157-158.) In Findings of Fact and Conclusions of Law ...