United States District Court, D. Colorado
ECO-SITE LLC, a Delaware limited liability company, and T-MOBILE WEST LLC, a Delaware limited liability company, Plaintiffs,
COUNTY OF PUEBLO, COLORADO, a Colorado County, acting by and through its Board of County Commissioners, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO CONSOLIDATE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Board of County
Commissioners for the County of Pueblo, Colorado's
Unopposed Motion to Consolidate Cases. (Doc. # 19.) For the
reasons set forth below, Defendant's Motion to
Consolidate is granted, and Eco-Site, LLC, et al. v.
County of Pueblo, Colorado, No. 17-cv-02862-MJW
(“Eco-Site II”), is consolidated into
the present action (“Eco-Site I”).
case now before the Court, Eco-Site I, Plaintiffs
Eco-Site, LLC and T-Mobile West, LLC allege violations of the
Federal Telecommunications Act of 1996, 47 U.S.C. §
332(c)(7), et seq. (the “Act”), and
state law by Defendant. (Doc. # 1 at 1.) Plaintiffs assert
that Defendant unlawfully denied their request for approval
to place and construct a one hundred-foot tall “fully
stealthed wireless telecommunications tower” on real
property zoned for agriculture in Pueblo County.
(Id. at 2.) According to Plaintiffs, Defendant's
denial effectively prohibited the provision of personal
wireless services, was not supported by substantial evidence,
and unreasonably discriminated against providers of
functionally equivalent services. (Id. at 13-16.)
Plaintiffs filed their Complaint on October 23, 2017, see
generally (id.), and Defendant answered on
January 30, 2018 (Doc. # 20).
Eco-Site II, No. 17-cv-02862-MJW, Plaintiffs
challenge Defendant's denial of their permit application
to construct a two hundred-foot, lattice-type
telecommunications tower in western Pueblo and assert that
Defendant violated Section 332(c)(7) of the Act. Plaintiffs
filed the Eco-Site II Complaint November 29, 2017
and simultaneously filed a Notice of Case Association,
advising the Court that the action is related to Eco-Site
I. Defendant answered on January 30, 2018.
January 12, 2018, Defendant filed the instant Motion to
Consolidate. (Doc. # 19.) Defendant requests that
Eco-Site I and Eco-Site II be consolidated
for all purposes and represents that Plaintiffs do not oppose
consolidation. (Id. at 1 n.1.)
LAW AND ANALYSIS
determination whether to consolidate cases is governed by
Rule 42(a) of the Federal Rules of Civil Procedure, which
provides, in pertinent part:
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.
Civ. P. 42(a) (emphasis added).
rule allows the Court “to decide how cases on its
docket are to be tried so that the business of the court may
be dispatched with expedition and economy while providing
justice to the parties.” Breaux v. Am. Family Mut.
Ins. Co., 220 F.R.D. 366, 367 (D. Colo. 2004) (quoting 9
Charles Alan Wright, et al., Fed. Prac. & Proc.
§ 2381 at 427 (2d ed. 1995)). The decision of whether to
consolidate cases is committed to this Court's sound
discretion. Adams v. Veolia Transp., No.
11-cv-02491-PAB-KMT, 2012 WL 171470, at *1 (D. Colo. Jan. 20,
2012) (citing Shump v. Balka, 574 F.2d 1341, 1344
(10th Cir. 1978)). In exercising its discretion, the Court
considers “whether judicial efficiency is best served
by consolidation.” Otter Prod., LLC v. Treefrog
Dev., Inc., No. 11-CV-02180-WJM-KMT, 2013 WL 490964, at
*1 (D. Colo. Feb. 7, 2013) (quoting C.T. v. Liberal
School Dist., 562 F.Supp.2d 1324, 1346 (D. Kan. 2008).)
“The [C]ourt generally weighs the saving of time and
effort that consolidation would produce against any
inconvenience, delay, or expense that consolidation would
questions of law and fact predominate in Eco-Site I
and Eco-Site II such that consolidation is
appropriate. First, there are numerous common questions of
fact. The cases involve the same exact parties, represented
by the same counsel, and concern Defendant's denial of
Plaintiffs' permit application to construct a wireless
communications facility. Defendant and non-party the Pueblo
County Planning Commission conducted the same permit review
process for each application. As a result, discovery in both
cases will likely focus on the same individuals and records.
There is also a common question of law. Plaintiffs make
nearly identical claims regarding violations of Act in both
Eco-Site I and Eco-Site II. Accordingly,
whether Defendant violated the Act is a legal question common
to the cases. Given these significant commonalities,
consolidation is appropriate.
for pretrial matters will promote judicial economy and
efficiency. Because the cases are at the same early
procedural juncture and are stayed pending this Court's
decision on the instant Motion to Consolide, scheduling
consolidated proceedings will be an uncomplicated task. The
Court's time and the parties' time will be more
efficiently used if the cases are consolidated.
Court is also satisfied that consolidation will not prejudice
the parties. Plaintiffs do not oppose ...