As I wrote yesterday, it was curious if not telling that Safe Streets filed two separate lawsuits in U.S. District Court in Denver. Today, Safe Streets filed a motion to consolidate the two cases. The two cases clearly overlap on several issues, and they are certainly driving at the same fundamental goal and question–the use of civil RICO claims to shut down marijuana businesses in Colorado. While the factual issues of standing and damages are plaintiff-specific, should any or all of the plaintiffs survive motions to dismiss on those specific points, the ultimate issues in this case have a great deal of commonality.
The first case [1:15-cv-00349-REB-CBS] involves the Safe Streets Alliance and co-plaintiffs Phillis Reilly and Michael Reilly (landowners in Rye, Colorado). The second case [1:15-cv-00350-MSK] involves co-plaintiff New Vision Hotels Two, LLC (owner of the Holiday Inn in Firsco, Colorado). Safe Streets Alliance is a party to both cases. The local rules for the U.S. District Court in Denver require the disclosure of associated litigation, and in each case Safes Streets has done that relative to the other.
A copy of the Safe Streets Motion to Consolidate is available here. Safe Streets articulates the common questions involved in the two cases in its motion as follows:
Specifically, both cases concern whether those who commercially cultivate and sell recreational marijuana as authorized by Colorado law may be held liable under 18 U.S.C. § 1964 for treble damages, costs, attorneys’ fees, and appropriate injunctive relief in a suit brought by injured businesses and property owners.
Ultimately I believe there are threshold issues of law that are common enough to warrant consolidation, and the defendants in each of the cases could move for consolidation at this point as well, at least as to the common questions of law. For example, both cases appear to involve yet-to-open marijuana businesses, both cases appear to allege damages that are arguably speculative or not at this point ripe, and both cases will need to demonstrate a requite element of interstate commerce (the legal question–what is that requisite level?). These are blended factual and legal questions involving each plaintiff, but at this point Safe Streets has obviously reconsidered its strategy and believes the better course is a single case. The defendants in both cases are equally served to consider their joint strategies as well. The realities are that both cases would be assigned to the same judge, and legal inconsistencies between the court’s rulings less likely. Issues at the trial stage if the cases were to proceed would be vastly different and plaintiff-specific. If consolidation is granted now, bifurcation would be explored later.