Alec Otto v. Nano f/k/a Raiblocks f/k/a Hieusys LLC

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA JAMES FABIAN, CASE NO. 4:19-cv-00054-YGR 5 Plaintiff, ORDER: (1) RELATING 6 vs. ACTION; (2) DENYING MOTION TO CONSOLIDATE; AND (3) DISMISSING COLIN LEMAHIEU, ET. AL., WITHOUT PREJUDICE ACTION 8 Defendants.

Re: Dkt. Nos. 143 11 Pending before this court is plaintiff James Fabian’s motion to consolidate cases, namely Craig Clemens, et al v. Nano, et al, 4:20-cv-05351 KAW (“Clemens action”) to the instant action.

13 (Dkt. No. 143.) Defendants Hieusys, LLC, Colin LeMahieu, Troy Retzer, Mica Busch, and Zack Shapiro (the “Nano Defendants”) oppose the motion. (Dkt. No. 147.) For the reasons set forth herein, the Court: (1) sua sponte relates the Clemens action to the instant action; (2) DENIES the motion to consolidate; and (3) DISMISSES WITHOUT PREJUDICE the Clemens action.

17 First, Fabian’s counsel failed to comply Local Rule 3-12 with respect to relating cases, hence, the need for the Court to issue a sua sponte order relating the cases. See generally N.D. Cal. L.R. 3-12.

20 Second, the attempt to file a “new” action, then relate and consolidate it appears, on its face, procedurally improper. Given the nature of the allegations, the proper motion was for leave to amend under Rule 15, and the analysis of the same should be considered in that context.

23 Fabian’s asserted reliance on the Appointment Order does not persuade. That Order reads: 24 8. When a case that arises out of the subject matter of this Action is hereinafter filed in this Court or transferred from another Court, the 25 Clerk of this Court shall: a. file a copy of this Order in the separate file for such action; 26 b. deliver a copy of this Order to the attorneys for the plaintiff(s) in the newly filed or transferred case and to any 27 new defendant(s) in the newly filed or transferred case; and (Dkt. 38, ] 8; emphasis supplied.) That provision relates to cases brought by other lawyers, not || the ones litigating the instant case. Fabian cannot use that provision as an end-run around Rule 15 and the scheduling order that this Court issued.

4 Third, in light of this apparent end-run around Rule 15 and the Court’s prior orders with || the filing of the duplicative Clemens action, the Court agrees with the Nano Defendants that || dismissal is appropriate. See Ellison vy. Autozone Inc., No. 06-CV-7522, 2007 WL 1795699, at *1 (June 20, 2007) (citing Oliney v. Gardner, 771 F.2d 856, 859 (Sth Cir. 1985)); Barapind v. Reno, || 72 F. Supp. 2d 1133, 1145 (E.D. Cal. 1999) (A litigant has no right to maintain a second action duplicative of another.” (citing The Haytian Republic, 154 U.S. 118, 124 (1894)). See also 10 Ellison, 2007 WL 1795699, at *1 (“The filing of a successive, identical class action qualifies as 11 abusive regardless of whether class certification was granted or denied in an earlier case; both 12 scenarios entail unnecessary duplication.” (quoting In re Cypress Semiconductor Litig., 864 F.

13 Supp. 957, 959 (N.D. Cal. 1994))); id., at *1-3 (treating successive class action complaint with || different plaintiff as duplicative.).

15 Accordingly, for the foregoing reasons, the Court HEREBY ORDERS as follows: A 16 e The Court sua sponte relates the Clemens action to the instant action; 17 e The motion to consolidate is DENIED; and Z 18 e The Clemens action is DISMISSED WITHOUT PREJUDICE.

19 This Order Terminates Docket 143.

20 IT Is SO ORDERED.

21 Dated: September 2, 2020 Lovee Keagctffties— 9 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE