Case 1:17-cv SS Document 17 Filed 05/24/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

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1 Case 1:17-cv SS Document 17 Filed 05/24/17 Page 1 of 3 TEXAS, v. Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas; CITY OF AUSTIN, TEXAS; ORA HOUSTON, DELIA GARZA, SABINO RENTERIA, GREGORIO CASAR, ANN KITCHEN, JIMMY FLANNIGAN, LESLIE POOL, ELLEN TROXCLAIR, KATHIE TOVO, and ALISON ALTER, all in their official capacities as City Council Members of the City of Austin, Texas; STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas; the MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, Civ. Action No. 1:17-cv-425-SS PLAINTIFF S OPPOSED MOTION TO CONSOLIDATE Defendants. Texas, by and through its Attorney General, and pursuant to Federal Rule of Civil Procedure 42, moves this Court to consolidate this case with an identical matter pending in this Court s San Antonio Division, City of El Cenizo, et al. v. Texas, et al., No. 5:17-cv-404-OG. In support of this Motion, Texas relies on the following contemporaneously filed documents: 1. Memorandum of Law in Support of Texas s Motion to Consolidate; 1

2 Case 1:17-cv SS Document 17 Filed 05/24/17 Page 2 of 3 2. Texas s Motion and Memorandum of Law in Support of Motion to Dismiss or Transfer filed in No. 5:17-cv-404-OG, attached hereto as Exhibit 1; and 3. [Proposed] Order Granting Texas s Motion to Consolidate. For the reasons stated in this Motion and accompanying documents, Texas respectfully requests that the Court grant this motion, and consolidate Case No. 5:17- cv-404-og with this matter in this division. Respectfully submitted this the 24th day of May, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas (512) (512) Fax ATTORNEYS FOR TEXAS 2

3 Case 1:17-cv SS Document 17 Filed 05/24/17 Page 3 of 3 CERTIFICATE OF CONFERENCE Counsel for Plaintiff sought conference via on May 23 and 24, 2017 with counsel for Defendants. Counsel for each Defendant responded that they oppose the motion. /s/darren McCarty DARREN MCCARTY CERTIFICATE OF SERVICE I, Darren McCarty, hereby certify that on this the 24th day of May, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record. /s/darren McCarty DARREN MCCARTY 3

4 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 1 of 10 TEXAS, v. Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas; CITY OF AUSTIN, TEXAS; ORA HOUSTON, DELIA GARZA, SABINO RENTERIA, GREGORIO CASAR, ANN KITCHEN, JIMMY FLANNIGAN, LESLIE POOL, ELLEN TROXCLAIR, KATHIE TOVO, and ALISON ALTER, all in their official capacities as City Council Members of the City of Austin, Texas; STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas; the MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, Civ. Action No. 1:17-cv-425-SS MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S MOTION TO CONSOLIDATE Defendants.

5 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 2 of 10 INTRODUCTION In the wake of Texas enacting a new sanctuary cities law ( SB 4 ), many municipalities declared an intent to challenge its constitutionality. In anticipation of these lawsuits, Texas filed this declaratory judgment action the same day the Governor signed SB 4. See Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 388 (5th Cir. 2003) (allowing for declaratory judgment action in anticipation of other threatened lawsuits); St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 591 (5th Cir. 1994) (same); Travelers Ins. Co. v. La. Farm Bureau Fed n, Inc., 996 F.2d 774, (5th Cir. 1993) (same). Since then, at least one group of plaintiffs filed a pre-enforcement challenge to SB 4 in the San Antonio Division, see City of El Cenizo, et al. v. Texas, et al., No. 5:17- cv og ( El Cenizo ), 1 and other cities and counties intend to sue as well. 2 This case and El Cenizo involve the same legal questions whether SB 4 is constitutional under various amendments to the United States Constitution and whether federal immigration law preempts SB 4. It is a waste of judicial resources for both courts to decide the same case at the same time. Accordingly, Texas asked the San Antonio Division to dismiss or transfer the El Cenizo case pursuant to Rule 12(b)(3) and 28 U.S.C and In the interim, Texas now asks the Court to consolidate the cases in the Austin Division under the first-to-file rule. 1 On May 22, 2017, El Paso County, the El Paso County Sheriff, and the Texas Organizing Project Education Fund filed a lawsuit in the San Antonio Division of the Court concerning the constitutionality of SB 4. See El Paso Cty., et al. v. Texas, et al., No. 5:17-cv-459, ECF No. 1. Like Texas s lawsuit in the Austin Division, El Paso asserts violations of the Fourth and Fourteenth Amendments and federal preemption. It also asserts claims under the First Amendment and the Texas Constitution. Notably, El Paso suggests on the civil cover sheet that its case is related to the underlying matter, but fails to note the relatedness of Texas s first-filed case in the Austin Division. El Paso, Civil Cover Sheet, ECF No Texas intends to move to dismiss or transfer and consolidate El Paso in the Austin Division. 2 Philip Jankowski, Austin to sue state over SB 4 ban on sanctuary cities, Austin American- Statesman, May 19, 2017; Philip Jankowski, City Council authorizes suit over sanctuary cities ban, Austin American-Statesman, May 18, 2017 (describing the intent of the City and County of El Paso and the City of Dallas to file lawsuits challenging SB 4). 1

6 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 3 of 10 ARGUMENT Federal Rule of Civil Procedure 42(a)(2) permits the Court to consolidate actions that involve a common question of law or fact. Trial judges are urged to make good use of Rule 42(a), Dupont v. S. Pac. Co., 366 F.2d 193, 195 (5th Cir. 1966), to expedite trial and eliminate unnecessary repetition and confusion, Miller v. U.S. Postal Serv., 729 F.2d 1033, 1036 (5th Cir. 1984) (citing In re Air Crash Disaster, 549 F.2d 1006, 1013 (5th Cir. 1977)). Actions that involve the same parties are apt candidates for consolidation. Hanson v. District of Columbia, 257 F.R.D. 19, 21 (D.D.C. 2009) (citing Charles Alan Wright, et al., 9A Fed. Prac. & Proc Civ (3d ed. 2017)). But [i]dentity of the parties is not a prerequisite. To the contrary, cases may be consolidated even where certain defendants are named in only one of the Complaints or where... the plaintiffs are different but are asserting identical questions of law. Nat l Ass n of Mortg. Brokers v. Bd. of Governors of Fed. Reserve Sys., 770 F. Supp. 2d 283, 286 (D.D.C. 2011); see also Utah v. U.S. Dep t of Interior, 45 F. Supp. 2d 1279, 1281 (D. Utah 1999) (ordering consolidation of cases brought by different plaintiffs against the same defendant because they presented the same issues of law and fact). Consolidation does not so completely merge the two cases as to deprive a party of any substantial rights that he may have had if the actions had proceeded separately, for the two suits retain their separate identities and each requires the entry of a separate judgment. Miller, 729 F.2d at The El Cenizo case should be consolidated with the underlying first-filed matter because the legal issues substantially overlap and consolidation will avoid duplicative litigation. I. The First-to-File Rule Requires Consolidation of the El Cenizo Lawsuit with this Case. The first-to-file rule is a principle of comity that requires federal district courts courts of coordinate jurisdiction and equal rank to exercise care to avoid 2

7 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 4 of 10 interference with each other s affairs. W. Gulf Mar. Ass n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985). This principle fosters the goal of federal district courts avoiding duplicative litigation. Id. at Doing so avoids waste, rulings which may trench upon the authority of sister courts, and piecemeal resolution of issues that call for a uniform result. Id. at 729 (citing cases); accord Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 604 (5th Cir. 1999). This is particularly true in cases seeking a declaratory judgment or injunctive relief when the same issue is pending in litigation elsewhere. Abbott Lab. v. Gardner, 387 U.S. 136, 155 (1967). Like Rule 42 s consolidation standards, two cases need not be identical for the first-to-file rule to apply. Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997); Ahmad v. ZT Grp. Int l, Inc., No. A 14 CA 11O1 SS, 2015 WL , at *2 (W.D. Tex. Jan. 23, 2015). Nor must the parties be the same. Nat l Ass n of Mortg. Brokers, 770 F. Supp. 2d at 286. They must only involve closely related questions, common subject matter, or core issues that substantially overlap. Texas Instruments Inc. v. Micron Semiconductor, Inc., 815 F. Supp. 994, 997 (E.D. Tex. 1993). A substantial relationship exists when the issues, though not identical, are similar enough that the cases would be consolidated if filed in the same court. Save Power, 121 F.3d at 950; Integra Tech. Int l, Inc. v. Durst Image Tech. US LLC, No. A- 09-CA-143-SS, 2009 WL , at *1 (W.D. Tex. Aug. 20, 2009) (Sparks, J.). [T]he first to file rule not only determines which court may decide the merits of substantially similar issues, but also establishes which court may decide whether the second suit filed must be dismissed, stayed or transferred and consolidated. Cadle, 174 F.3d at 606 (quoting Sutter Corp. v. P&P Indus., Inc., 125 F.3d 914, 920 (5th Cir. 1997)). As noted above, [t]he Fifth Circuit adheres to the general rule, that the court in which an action is first filed is the appropriate court to determine whether 3

8 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 5 of 10 subsequently filed cases involving substantially similar issues should proceed. 3 Save Power, 121 F.3d at 948. The second court should defer to the court with the first case. Id. In Yeti Coolers, LLC v. Beavertail Products, LLC, No CV 415 RP, 2015 WL , at *1 (W.D. Tex. Aug. 12, 2015) (Pitman, J.), the Court applied the firstto-file rule in a similar procedural scenario. There, Yeti claimed Beavertail had infringed the design patents for its coolers. Id. Yeti sued, but, in anticipation of a lawsuit, Beavertail had already sued in the District of Minnesota. Id. at *2. Yeti argued that Beavertail filed its case to prevent Yeti from litigating in its preferred forum, but the Court rejected that notion and concluded, the filing of a declaratory judgment action in a court with jurisdiction to hear the dispute is not in itself improper anticipatory litigation. Id. (quoting Sherwin Williams, 343 F.3d at 391). Moreover, the Minnesota action did not involve identical parties. Yeti s lawsuit included Beavertail, Innovative Outdoor Solutions, Rhino, Inc., Otter Outdoors, and Wave Armor as defendants. Id. at *1 3. In the District of Minnesota, Yeti was the sole defendant, with Beavertail, its parent company IOS, and Rhino as plaintiffs. Id. Nor did the cases involve identical causes of action. In the District of Minnesota case, Yeti did not assert counterclaims against Wave Armor or Otter, and it did not include claims for trade dress dilution under Texas law, common law misappropriation, or unjust enrichment. Id. at *3. But the different parties and different causes of action did not preclude application of the first-to-file rule because the issues were substantially similar in both cases. Id. Thus, the Court transferred Yeti s lawsuit to the District of Minnesota. Id. at *4. 3 Also, [u]nder the first-to-file rule, when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the issues raised by the cases substantially overlap. Cadle, 174 F.3d at

9 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 6 of 10 Similarly, in Long v. Transwood, Inc., Nos. 5:16-CV-192-DAE, 5:15-CV-753- DAE, 2016 WL , at *1 (W.D. Tex. Mar. 29, 2016) (Ezra, J.), the Court applied the first-to-file rule to similar cases and consolidated them for litigation. Santos filed a lawsuit in the Western District of Texas against Transwood, alleging violations of the Fair Labor Standards Act ( FLSA ). Id. Long filed a lawsuit in the Northern District of Texas, also alleging violations of FLSA by Transwood. Id. The Northern District of Texas transferred Long s case to the Western District of Texas, which assigned the case to Judge Ezra under the first-to-file rule because he was handling the Santos matter. Id. Judge Ezra consolidated the cases because both lawsuits alleged violations of FLSA. Id. at *2. Here, this Court should apply the first-to-file rule to find that this case should be consolidated with El Cenizo for the same reasons articulated in Yeti and Long. First, Texas was first-to-file on May 7. Plaintiffs in El Cenizo filed on May 8. Although both suits were quickly filed in anticipation of litigation, the first-to-file rule clearly favors Texas s lawsuit. See Twin City Ins. Co. v. Key Energy Servs., Inc., No., 2009 WL , at *5 (S.D. Tex. June 2, 2009) (applying first-to-file rule when parties filed on same day and one lawsuit was filed in anticipation of the other); Eastman Med. Prods., Inc. v. E.R. Squibb & Sons, Inc., 199 F. Supp. 2d 590, 595 (N.D. Tex. 2002) (rejecting defendant s argument that the first-to-file rule should not be adhered to because the two parallel federal court actions were filed almost simultaneously). Second, like Yeti and Long, the issues in both cases substantially overlap because they concern the facial constitutionality of SB 4, which, among other things, prohibits localities from having policies restricting cooperation with federal immigration officials. While Texas s case asserts claims under the Fourth and Fourteenth Amendments and federal preemption, Texas Compl , El Cenizo s complaint asserts claims under the First, Fourth, Ninth, and Tenth Amendments and federal preemption, El Cenizo Compl These legal 5

10 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 7 of 10 questions require no analysis of as-applied facts because SB 4 is not operative until September 1, Instead, both cases seek pre-enforcement review of the law and ask whether SB 4 is facially valid under the United States Constitution, particularly the First, Fourth, Tenth, and Fourteenth Amendments, and whether SB 4 is preempted by federal law. Justice v. Hoseman, 771 F.3d 285, 291, 295 (5th Cir. 2014) (discussing the difference between a pre-enforcement facial challenge to a law s constitutionality and an as-applied challenge). When related cases are pending before two federal courts and both present precisely the same, purely legal dispute, transfer of venue to the first-filed case and consolidation is warranted. See In re Spillman Dev. Grp., Ltd., 710 F.3d 299, 307 (5th Cir. 2013) (affirming transfer of similar case involving pure legal issues from Eastern District of Louisiana to Western District of Texas). Third, like Yeti and Long, the differences between the named parties does not diminish the support for justification. In Yeti, a declaratory judgment action like this one, some parties in the case before the court were not parties in the District of Minnesota, and vice versa. Similarly, some of the parties in El Cenizo are different from this case. But Texas is a party to both cases a plaintiff in this case and a defendant in El Cenizo. While the plaintiffs in El Cenizo also sued the Governor and Attorney General, they only did so because Texas is immune from suit under the Eleventh Amendment. Ex Parte Young, 209 U.S. 123, (1908) (noting state is immune from suit but permitting suit against state official in his official capacity); Hirtz v. Texas, 974 F.2d 663, 666 (5th Cir. 1992) (same). Defendants in this case are different than the plaintiffs in the San Antonio case, but that makes no substantive difference, because all of them are municipalities, local officials, and public interest organizations who contend SB 4 is unconstitutional. See Needbasedapps, LLC v. Robbins, 926 F. Supp. 2d 919, 934 (W.D. Tex. 2013) (holding two cases were not 6

11 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 8 of 10 identical, but substantially overlapped, justifying application of the first-to-file rule and transfer of the second-filed case to California). Since the issues in this case and El Cenizo substantially overlap and the differences between the named parties are immaterial, the Court should apply the first-to-file rule and consolidate the cases in this division. II. The San Antonio Division Is an Improper Venue for the El Cenizo Case. The proper venue for the El Cenizo case lies in Austin. None of the El Cenizo plaintiffs have any connection to San Antonio and they sued the Governor and Attorney General in their official capacities. Suits against government officials in their official capacities must be brought in the division from where those officials primarily perform their duties. See Butterworth v. Hill, 114 U.S. 128, 132 (1885) (holding proper venue for suit against commissioner of patents was not Vermont, but Washington, D.C.); Fla. Nursing Home Ass n v. Page, 616 F.2d 1355, 1360 (5th Cir.1980), rev d on other grounds, Fla. Dep t of Health & Rehab. Servs. v. Fla. Nursing Home Ass n, 450 U.S. 147 (1981) ( The general rule in suits against public officials is that a defendant s residence for venue purpose[s] is the district where he performs his official duties. ). Moreover, Austin is a more convenient forum. Accordingly, Texas filed a motion to dismiss or transfer the City of El Cenizo case to Austin pursuant to Rule 12(b)(3) and 28 U.S.C and A copy of that filing is attached to this motion as Exhibit 1. CONCLUSION The El Cenizo case (in the San Antonio Division) and this case ask the courts to decide the same legal issues because they are essentially the same case. Since this case was first-filed, the interests of justice and judicial economy warrant consolidating these cases in Austin. Thus, Texas respectfully requests that the Court 7

12 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 9 of 10 apply the first-to-file rule and consolidate City of El Cenizo, et al. v. Texas, et al., No. 5:17-cv-404-OG, with this matter, No. 1:17-cv-425-SS. Respectfully submitted this the 24th day of May, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas (512) (512) Fax ATTORNEYS FOR TEXAS 8

13 Case 1:17-cv SS Document 17-1 Filed 05/24/17 Page 10 of 10 CERTIFICATE OF SERVICE I, Darren McCarty, hereby certify that on this the 24th day of May, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record. /s/darren McCarty Darren McCarty 9

14 Case 1:17-cv SS Document 17-2 Filed 05/24/17 Page 1 of 18 EXHIBIT 1

15 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 21 of of IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CITY OF EL CENIZO, TEXAS, MAYOR RAUL L. REYES of City of El Cenizo; MAVERICK COUNTY; Maverick County Sheriff TOM SCHMERBER, Maverick County Constable Pct. 3-1 MARIO HERNANDEZ; and LEAGUE OF UNITED LATIN AMERICAN CITIZENS, v. Plaintiffs, No. 5:17-cv-404-OG MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT S MOTION TO DISMISS OR TRANSFER TEXAS; GREG ABBOTT, in his official capacity as Governor of Texas; and KEN PAXTON, in his official capacity as Texas Attorney General, Defendants.

16 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 32 of of TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... 1 ARGUMENT... 2 I. 28 U.S.C Mandates Dismissal or Transfer of this Case to the Austin Division II. The First-to-File Rule Mandates Dismissal or Transfer of this Case to the Austin Division III. Alternatively, the Court Should Transfer the Case Pursuant to 28 U.S.C for Consolidation with Texas s Previously Filed Action A. The private factors favor transfer B. The public factors favor transfer CONCLUSION CERTIFICATE OF SERVICE i

17 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 43 of of TABLE OF AUTHORITIES Cases Page(s) Abbott Lab. v. Gardner, 387 U.S. 136 (1967)... 5 Action Indus., Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337 (5th Cir. 2004)... 8 Ahmad v. ZT Grp. Int l, Inc., No. A 14 CA 11O1 SS, 2015 WL (W.D. Tex. Jan. 23, 2015)... 5 Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct. for W. Dist. of Texas, 134 S. Ct. 568 (2013)... 2 Banks v. F.D.I.C., No. CIV.A.308-CV-1076-G, 2009 WL (N.D. Tex. Feb. 2, 2009)... 3 Butterworth v. Hill, 114 U.S. 128 (1885) Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599 (5th Cir. 1999)... 4, 5 Candela Corp. v. Palomar Med. Techs., Inc., No. 9:06-CV-277, 2007 WL (E.D. Tex. Feb. 22, 2007)... 4 Chapman v. Dell, Inc., No. EP-09-CV-7-KC, 2009 WL (W.D. Tex. Apr. 15, 2009)... 9, 10 Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) El Paso Cty., et al. v. Texas, et al., No. 5:17-cv-459, ECF No Fla. Nursing Home Ass n v. Page, 616 F.2d 1355 (5th Cir.1980), rev d on other grounds, Fla. Dep t of Health & Rehab. Servs. v. Fla. Nursing Home Ass n, 450 U.S. 147 (1981)... 3 Hirtz v. Texas, 974 F.2d 663 (5th Cir. 1992)... 6 Humble Oil & Refining Co. v. Bell Marine Serv., Inc., 321 F.2d 53 (5th Cir. 1963)... 7 ii

18 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 54 of of Jam Strait, Inc. v. Am. Prods. Co., Inc., No , 2002 WL (E.D. La. Oct. 4, 2002)... 9 Justice v. Hoseman, 771 F.3d 285 (5th Cir. 2014)... 6 Langton v. Cbeyond Commc n, L.L.C., 282 F. Supp. 2d 504 (E.D. Tex. 2003)... 2 Needbasedapps, LLC v. Robbins, 926 F. Supp. 2d 919 (W.D. Tex. 2013)... 7 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947 (5th Cir. 1997)... 5 Schreiber v. Kohn, 434 F. Supp. 2d 1 (D.D.C. 2006)... 9, 10 Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383 (5th Cir. 2003)... 1 Spiegelberg v. Collegiate Licensing Co., 402 F. Supp. 2d 786 (S.D. Tex. 2005)... 8 In re Spillman Dev. Grp., Ltd., 710 F.3d 299 (5th Cir. 2013)... 6 St. Paul Ins. Co. v. Trejo, 39 F.3d 585 (5th Cir. 1994)... 1 Sutter Corp. v. P&P Indus., Inc., 125 F.3d 914 (5th Cir. 1997)... 5 Texas Instruments, Inc. v. Micron Semiconductor, Inc., 815 F. Supp. 994 (E.D. Tex. 1993)... 5 Texas v. Travis Cty., Texas, et al., No. 1:17-cv-425-SS... 1, 6 Travelers Ins. Co. v. La. Farm Bureau Fed n, Inc., 996 F.2d 774 (5th Cir. 1993)... 1 In re Volkswagen AG, 371 F.3d 201 (5th Cir. 2004)... 8 iii

19 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 65 of of In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008) (en banc)... 7, 8 W. Gulf Mar. Ass n v. ILA Deep Sea Local 24, 751 F.2d 721 (5th Cir. 1985)... 4, 5, 7 Yeti Coolers, LLC v. Beavertail Products, LLC, No CV 415 RP, 2015 WL (W.D. Tex. Aug. 12, 2015)... 5, 6 Ex Parte Young, 209 U.S. 123 (1908)... 6 Constitutions Tex. Const. art. 3, , 8 Tex. Const. art. 4, Statutes 28 U.S.C U.S.C , 3, 4, 8 28 U.S.C , 7, 8, U.S.C Other Authorities League of United Latin Am. Citizens, Contact Us, contact_us_listing/... 4 Philip Jankowski, City Council authorizes suit over sanctuary cities ban, Austin American-Statesman, May 18, Rule 12(b)(3)... 2 Rule , 7 iv

20 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 76 of of INTRODUCTION The San Antonio Division is not the proper venue for this facial challenge to the constitutionality of SB 4, Texas s sanctuary cities law. None of the plaintiffs reside in the San Antonio Division and none of their claims arose there. By contrast, Plaintiffs claims against SB 4 arose in Austin, and the two state officials they sued, the Governor and the Attorney General, both work in Austin and must be sued there. Thus, the Austin Division is the appropriate venue for this litigation. In fact, Texas first-filed a nearly identical declaratory judgment action in the Austin Division, asking the Court to rule on the constitutionality of SB 4. And with more facial challenges to SB 4 expected from the City of Austin, the City of El Paso, and the City of Dallas 1 the appropriate division for the litigation is Austin. 2 On May 7, 2017, the Governor signed SB 4 into law. That same day, in anticipation of the law s opponents challenging its constitutionality in federal court, Texas filed a declaratory judgment action in the Austin Division of the Court. Texas v. Travis Cty., Texas, et al., No. 1:17-cv-425-SS; see also Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 388 (5th Cir. 2003) (allowing for declaratory judgment action in anticipation of other threatened lawsuits); St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 591 (5th Cir. 1994) (same); Travelers Ins. Co. v. La. Farm Bureau Fed n, Inc., 996 F.2d 774, (5th Cir. 1993) (same). 3 1 Philip Jankowski, City Council authorizes suit over sanctuary cities ban, Austin American- Statesman, May 18, On May 22, 2017, El Paso County and other plaintiffs filed a lawsuit in the San Antonio Division concerning the constitutionality of SB 4. El Paso Cty., et al. v. Texas, et al., No. 5:17-cv-459, ECF No. 1. Similar to Texas s lawsuit in the Austin Division, El Paso asserts violations of the First, Fourth, and Fourteenth Amendments, federal preemption, and the Texas Constitution. Notably, El Paso s civil cover sheet failed to note the relatedness of Texas s first-filed case in the Austin Division. El Paso, Civil Cover Sheet, ECF No Texas intends to move to dismiss or transfer the El Paso case to the Austin Division. 3 Defendant City of Austin in Case No. 1:17-cv-425-SS moved to dismiss, ECF No. 16, even though the City intends to sue Texas over SB 4. See supra note 1. 1

21 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 87 of of Because the San Antonio Division is an improper venue, and because Texas s first-filed case in the Austin Division raises the same legal issues, the Court should dismiss or transfer this case pursuant to Rule 12(b)(3) and 28 U.S.C. 1406; transfer the case under the Fifth Circuit s first-to-file rule, or transfer the case pursuant to 28 U.S.C for consolidation with the matter already pending in the Austin Division. 4 ARGUMENT I. 28 U.S.C Mandates Dismissal or Transfer of this Case to the Austin Division. Plaintiffs improperly filed this action in the San Antonio Division. Rule 12(b)(3) and 28 U.S.C. 1406(a) allow dismissal when venue is wrong or improper. Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct. for W. Dist. of Texas, 134 S. Ct. 568, 577 (2013). Venue lies where any defendant resides, or a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. 1391(b)(1 2). But under section 1406, the district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. 28 U.S.C. 1406(a) (emphasis added). Once a defendant raises a 12(b)(3) motion to dismiss for improper venue, the burden of sustaining venue lies with the plaintiff. Langton v. Cbeyond Commc n, L.L.C., 282 F. Supp. 2d 504, 508 (E.D. Tex. 2003). Plaintiffs cannot meet that burden. Deference to plaintiffs choice of forum under section 1391 yields when plaintiffs sue state officials, because proper venue lies in the district and division where those officials perform their official duties. See Butterworth v. Hill, 114 U.S. 128, 132 (1885) (holding proper venue for suit against commissioner of patents was the cases. 4 In the identical matter before Judge Sparks, Texas is filing a Rule 42 motion to consolidate 2

22 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 98 of of not Vermont, but Washington, D.C.). The general rule in suits against public officials is that a defendant s residence for venue purpose[s] is the district where he performs his official duties. Fla. Nursing Home Ass n v. Page, 616 F.2d 1355 (5th Cir.1980), rev d on other grounds, Fla. Dep t of Health & Rehab. Servs. v. Fla. Nursing Home Ass n, 450 U.S. 147 (1981); Banks v. F.D.I.C., No. CIV.A.308-CV-1076-G, 2009 WL , at *2 (N.D. Tex. Feb. 2, 2009). Governor Abbott and Attorney General Paxton both maintain their principle offices in Austin. See Tex. Const. art. 4, 13 (providing that during the session of the Legislature, the Governor shall reside where its sessions are held, and at all other times at the seat of Government); id. art. 3, 58 ( The Legislature shall hold its session at the City of Austin, which is hereby declared to be the seat of government. ). Since Plaintiffs chose to sue these officials, they must do so in the Austin Division. Moreover, venue is proper in the Austin Division because all the actions giving rise to the passage and implementation of SB 4 occurred and will continue to occur in Austin. The Texas Legislature wrote, debated, and passed SB 4 in Austin; Governor Abbott signed it in Austin; and Attorney General Paxton will enforce it from Austin. All of the allegedly unlawful activities that Plaintiffs currently complain about, not just a substantial part of the events, occurred in Austin. 28 U.S.C. 1391(b)(2). By contrast, the San Antonio Division has no connection to the underlying dispute between these parties. The City of El Cenizo and Mayor Reyes are located in Webb County, First Am. Compl. 12, ECF No. 4, which lies in the Laredo Division of the Southern District of Texas. 28 U.S.C. 124(b)(3). Maverick County and the Maverick County Sheriff and Constable are located in the Del Rio Division of the Court. 28 U.S.C. 124(d)(5). The weight given to a plaintiff s choice of forum is diminished when the plaintiff does not reside in his chosen forum and no operative facts occurred within the forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235,

23 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page 109 of (1981); Candela Corp. v. Palomar Med. Techs., Inc., No. 9:06-CV-277, 2007 WL , at *3 (E.D. Tex. Feb. 22, 2007). Venue is improper in San Antonio for Plaintiff League of United Latin American Citizens ( LULAC ) as well. For all venue purposes... an entity with the capacity to sue and be sued in its common name... shall be deemed to reside... if a plaintiff, only in the judicial district in which it maintains its principal place of business. 28 U.S.C. 1391(c)(2). LULAC is a national nonprofit with headquarters in Washington, D.C. and a membership office in El Paso. 5 Given the Plaintiffs lack of connection to San Antonio, the rule that preference must be given to the division where the public officials primarily carry out their official duties, and the fact that none of the allegedly unlawful acts occurred anywhere but Austin, the case should be dismissed for improper venue or transferred immediately to the Austin Division for consolidation with Texas s previously filed matter. II. The First-to-File Rule Mandates Dismissal or Transfer of this Case to the Austin Division. Under the first-to-file rule, when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the issues raised by the cases substantially overlap. Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir. 1999). The first-to-file rule is a principle of comity that requires federal district courts courts of coordinate jurisdiction and equal rank to exercise care to avoid interference with each other s affairs. W. Gulf Mar. Ass n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985). As between federal district courts... the general principle is to avoid duplicative litigation. Id. at (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, League of United Latin Am. Citizens, Contact Us, (last visited May 16, 2017). 4

24 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page of of (1976)). Doing so avoids waste, rulings which may trench upon the authority of sister courts, and piecemeal resolution of issues that call for a uniform result. Id. at 729 (citing cases); accord Cadle, 174 F.3d at 604. This is particularly true in cases seeking a declaratory judgment or injunctive relief when the same issue is pending in litigation elsewhere. Abbott Lab. v. Gardner, 387 U.S. 136, 155 (1967). Two cases need not be identical for the first-to-file rule to apply. Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997); Ahmad v. ZT Grp. Int l, Inc., No. A 14 CA 11O1 SS, 2015 WL , at *2 (W.D. Tex. Jan. 23, 2015). They must only involve closely related questions, common subject matter, or core issues that substantially overlap. Texas Instruments, Inc. v. Micron Semiconductor, Inc., 815 F. Supp. 994, 997 (E.D. Tex. 1993). A substantial relationship exists when the issues, though not identical, are similar enough that the cases would be consolidated if filed in the same court. Save Power, 121 F.3d at 950. [T]he first to file rule not only determines which court may decide the merits of substantially similar issues, but also establishes which court may decide whether the second suit filed must be dismissed, stayed or transferred and consolidated. Cadle, 174 F.3d at 606 (quoting Sutter Corp. v. P&P Indus., Inc., 125 F.3d 914, 920 (5th Cir. 1997)). As noted above, [t]he Fifth Circuit adheres to the general rule, that the court in which an action is first filed is the appropriate court to determine whether subsequently filed cases involving substantially similar issues should proceed. Save Power, 121 F.3d at 948. The second court should defer to the court with the first case. Id. In Yeti Coolers, LLC v. Beavertail Products, LLC, No CV 415 RP, 2015 WL , at *1 (W.D. Tex. Aug. 12, 2015), the Court applied the first-to-file rule in a similar scenario involving mostly the same parties and claims. Yeti sued Beavertail for patent infringement, but, in anticipation of a lawsuit, Beavertail had already filed a declaratory judgment action in the District of Minnesota. Id. at *2. 5

25 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page of of Although the Minnesota action did not involve identical parties or claims, they substantially overlapped enough that the Court applied the first-to-file rule to transfer Yeti s case to the District of Minnesota. Id. at *4. Like Yeti, the claims here substantially overlap with those pending before Judge Sparks in the Austin Division. Texas v. Travis Cty., Texas, et al., No. 1:17-cv- 425-SS. The issues in both cases concern the facial constitutionality of SB 4, which, among other things, prohibits localities from having policies restricting various forms of cooperation with federal immigration officials. These cases present pure legal issues and require no analysis of as-applied facts because SB 4 is not operative until September 1, Instead, both cases seek pre-enforcement review of the law and ask whether SB 4 is facially valid under the United States Constitution, particularly the First, Fourth, Tenth, and Fourteenth Amendments, and whether SB 4 is preempted by federal law. Justice v. Hoseman, 771 F.3d 285, 291, 295 (5th Cir. 2014) (discussing the difference between a pre-enforcement facial challenge to a law s constitutionality and an as-applied challenge). When related cases are pending before two federal courts and both present the same, purely legal dispute, transfer of venue to the first-filed court is warranted. See In re Spillman Dev. Grp., Ltd., 710 F.3d 299, 307 (5th Cir. 2013) (affirming transfer of similar case involving pure legal issues from Eastern District of Louisiana to Western District of Texas). The only difference between the cases is the party names, and even half of those are the same. Texas is a party to both cases a defendant in this case and the plaintiff in the case in Austin. While Plaintiffs here also sued the Governor and Attorney General, they only did so because Texas is immune from suit under the Eleventh Amendment. Ex Parte Young, 209 U.S. 123, (1908) (noting state is immune from suit but permitting suit against state official in his official capacity); Hirtz v. Texas, 974 F.2d 663, 666 (5th Cir. 1992) (same). Plaintiffs in this case are different than the defendants in the Austin case, but that makes no substantive 6

26 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page of of difference. Both Plaintiffs here and defendants in the other case are local governments, local officials, and public interest groups who assert that SB 4 is unconstitutional. See W. Gulf Mar. Ass n, 751 F.2d at 731 n.5 (noting that incomplete identity of the parties does not require the simultaneous litigation of two essentially identical actions where the parties could obtain complete relief in one forum and any missing parties could probably be joined in that action); Needbasedapps, LLC v. Robbins, 926 F. Supp. 2d 919, 934 (W.D. Tex. 2013) ( The rule does not require that the claims or even the parties be identical. ). Since the issues here and Texas v. Travis County substantially overlap, the first-to-file rule requires that the Court defer to the first case already pending before Judge Sparks in the Austin Division. Thus, the Court should transfer the case to the Austin Division so that Judge Sparks may determine which case should, in the interests of sound judicial administration and judicial economy, proceed. 6 III. Alternatively, the Court Should Transfer the Case Pursuant to 28 U.S.C for Consolidation with Texas s Previously Filed Action. For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. 1404(a). To justify transfer, Texas need only show good cause, In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc) (quoting Humble Oil & Refining Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963)), which it can show by demonstrat[ing] that the transferee venue is clearly more convenient, id. The preliminary question under 1404(a) is whether a civil action might have been brought in the destination venue. Id. at 312 (citation omitted). Ultimately, the question of whether to transfer a case involves a balance of Sparks. 6 As previously noted, Texas is filing a Rule 42 motion to consolidate these cases before Judge 7

27 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page of of the plaintiff s choice of forum under 28 U.S.C. 1391, with the defendant s demonstration that a more convenient forum exists under The Fifth Circuit uses private and public interest factors to determine whether venue transfer under section 1404 is for the convenience of the parties and witnesses and in the interest of justice. In re Volkswagen, 545 F.3d at 315. The private interest factors are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. Id. (quoting In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)). The public interest factors are: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law. Id. (quoting In re Volkswagen, 371 F.3d at 203). None of these factors are of dispositive weight. Action Indus., Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004). A. The private factors favor transfer. Given that this is a pre-enforcement, facial challenge to SB 4, the private factors should bear little on the outcome of this motion. To the extent they weigh into the Court s analysis, they favor the Austin Division. Any sources of proof as to Plaintiffs claim that SB 4 is unconstitutional and discriminatory are located in Austin, the seat of Texas government. Tex. Const. art. 3, 58; see In re Volkswagen, 371 F.3d at 206 (favoring the venue in which auto accident giving rise to the litigation occurred and where the entirety of witnesses could be located); Spiegelberg v. Collegiate Licensing Co., 402 F. Supp. 2d 786, 792 (S.D. Tex. 2005) (favoring venue where events giving rise to claim occurred). Plaintiffs assert no particular facts about 8

28 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page of of the operation of SB 4 in their municipalities, nor could they because SB 4 is not operative until September. Moreover, even if the Plaintiffs asserted particular local facts relevant to this matter, none of the sources of proof are located in San Antonio. Maverick County lies in the Del Rio Division. The City of El Cenizo and Mayor Reyes are located in the Laredo Division of the Southern District of Texas. Plaintiffs chose not to file in those locations. Thus, it would make little practical difference to the municipality, county, and related officials who are plaintiffs here whether this case is in Austin or San Antonio. 7 See Chapman v. Dell, Inc., No. EP-09-CV-7-KC, 2009 WL , at *4 (W.D. Tex. Apr. 15, 2009) (concluding that the normal deference Plaintiffs choice of forum would receive is tempered in this case because Plaintiffs do not live in the El Paso Division, and the operative facts of the dispute occurred outside the plaintiff s chosen forum ); Jam Strait, Inc. v. Am. Prods. Co., Inc., No , 2002 WL (E.D. La. Oct. 4, 2002) (when plaintiff has not brought suit on its home turf... the quantum of inconvenience to defendant needed to tip the balance in favor of transfer is concomitantly reduced ). This is especially true since a nearly identical case is currently pending in Austin and will require the same effort and expense as this case. Thus, transferring the case to Austin will actually reduce the overall costs of the two cases for all the parties involved. B. The public factors favor transfer. The Austin Division is also the proper venue because all the actions giving rise to the passage and implementation of SB 4 occurred and will continue to occur in Austin. In Schreiber v. Kohn, 434 F. Supp. 2d 1, 2 (D.D.C. 2006), the District of 7 Even if Bexar County or the City of San Antonio decided to join this case as plaintiffs, the San Antonio Division would still be improper because the City of Austin, the City of El Paso, and the City of Dallas are all considering lawsuits as well. Since each of those plaintiffs would have to sue the Governor and Attorney General, and since those officials work in Austin, the Austin Division is the only proper venue for litigation concerning SB 4. 9

29 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page of of Columbia District Court restated the general rule that a public official resides in the judicial district where he performs his official duties; hence the defendant, director of the Department of Justice s Commercial Litigation Branch, could be sued in the District of Columbia. But the court transferred the case to Austin under 28 U.S.C. 1404, because this district was the source of the allegedly unlawful acts and the District of Columbia had no connection whatsoever to the facts. Id. at 2 3. Here, like Schreiber, the case is appropriate in the Austin Division because the Governor and Attorney General both maintain their primary offices for the performance of their public duties in Austin. All of the allegedly unlawful activities that Plaintiffs complain about also occurred in Austin. The Court held, in a similar context involving defendants located in Austin, that it should transfer a case from the El Paso Division to the Austin Division since the defendant was located there and none of the parties or facts have any connection to the El Paso Division. See Chapman, 2009 WL , at *5. All the factors weigh in favor of transfer to the Austin Division, and, as discussed above, the San Antonio Division is an improper venue. CONCLUSION San Antonio has nothing to do with the parties to this case, but Austin does. All of the public officials who are sued work in Austin. SB 4 was passed and signed into law in Austin. And a previously filed, nearly identical case already exists in Austin. San Antonio is not a proper venue. Thus, this case should be dismissed, or, at minimum, transferred to the Austin Division for consolidation with Texas v. Travis County. 10

30 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page of of Respectfully submitted this the 24th day of May, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas (512) (512) Fax ATTORNEYS FOR TEXAS 11

31 Case 5:17-cv OLG 1:17-cv SS Document Filed 05/24/17 Page of of CERTIFICATE OF SERVICE I, Darren McCarty, hereby certify that on this the 24th day of May, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record. /s/darren McCarty Darren McCarty 12

32 Case 1:17-cv SS Document 17-3 Filed 05/24/17 Page 1 of 1 TEXAS, IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Plaintiff, v. TRAVIS COUNTY, TEXAS, et al., Defendants. Civ. Action No. 1:17-cv-425-SS [PROPOSED] ORDER GRANTING PLAINTIFF S MOTION TO CONSOLIDATE Before the Court is Plaintiff s Motion to Consolidate. The motion is meritorious and should be GRANTED. It is therefore ORDERED that this case is consolidated with City of El Cenizo, et al. v. Texas, et al., No. 5:17-cv-404-OG before the Honorable Sam Sparks in the Austin Division of this Court. SO ORDERED this the day of, HON. SAM SPARKS UNITED STATES DISTRICT JUDGE