Arizona, State of et al v. United States of America et al

Filing 25

RESPONSE to Motion re 7 MOTION to Intervene filed by Arizona, State of, Janice K Brewer, Robert C Halliday, William Humble. (Ray, Kevin)

Download PDF
1 2 3 4 5 6 7 8 THOMAS C. HORNE Attorney General Firm Bar No. 14000 Kevin D. Ray, No. 007485 Lori S. Davis, No. 027875 Aubrey Joy Corcoran, No. 025423 Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007-2926 Telephone: (602) 542-8309 Facsimile: (602) 542-8308 Email: 9 10 Attorneys for Plaintiffs 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE DISTRICT OF ARIZONA 13 14 STATE OF ARIZONA, et al., Plaintiffs, 15 16 vs. RESPONSE TO MOTION TO INTERVENE 17 18 19 20 Case No. 11-CV-01072-PHX-SRB UNITED STATES OF AMERICA, et al., Defendants. Plaintiffs State of Arizona, Janice K. Brewer, Will Humble, and Robert C. 21 Halladay, through undersigned counsel, hereby file this Response to Arizona 22 Dispensary Solutions, LLC’s (“ADS”) Motion to Intervene (“Motion”) filed June 6, 23 2011. ADS has not addressed the necessary elements to establish a right to intervene in 24 this case under Rule 24 Fed. R. Civ. P. 25 26 27 1 2 I. ADS failed to establish their right to intervene under Rule 24 of the Federal Rules of Civil Procedure. 3 A. ADS has failed to address the elements for an intervention of right. 4 The prerequisites for intervention under Rule 24(a), Fed. R. Civ. P. mandate an 5 applicant seeking an intervention of right to show: (1) that it has a significant 6 protectable interest that is the subject of action; (2) that disposition of action may 7 impair or impede its ability to protect its interest; (3) timely application; and (4) that 8 existing parties inadequately represent applicant’s interest. Fed. R. Civ. P. 24(a); See 9 also Donaldson v. United States, 400 U.S. 517, 531 (1971); Perry v. Schwarzenegger, 10 630 F.3d 898, 903-06 (9th Cir. 2011); Green v. U.S., 996 F.2d 973, 976-78 (9th Cir. 11 1993). To satisfy these requirements, the applicant bears the burden of showing that 12 each element exists. S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) 13 (internal quotation marks omitted). Failure to establish any of the four elements is fatal 14 to the application. Freedom From Religion Found., Inc. v. Geithner, 2011 WL 15 1746137 at *1, 2 (9th Cir. 2011); Perry v. Prop. 8 Official Proponents, 587 F.3d 947, 16 950 (9th Cir. 2009). 17 To determine if the requirements for intervention of right are met, a court 18 normally follows practical and equitable considerations and construes the governing 19 rule broadly in favor of the proposed intervenor. See Wilderness Soc. v. U.S. Forest 20 Service, 630 F.3d 1173, 1179 (9th Cir. 2011); U.S. v. City of Los Angeles, 288 F.3d 21 391, 397 (9th. Cir. 2002). Here, ADS has not established the four elements necessary 22 for an intervention of right. The motion briefly describes ADS’s interests in this case 23 and its interest in the Arizona Medical Marijuana Act. ADS, however, fails to 24 sufficiently establish the elements required for intervention under Rule 24 (a), Fed. R. 25 Civ. P. Thus, absent further proof of all four elements, the motion to intervene should 26 be dismissed. 27 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 B. ADS has not articulated an interest sufficient to allow permissive intervention. A court may grant permissive intervention if: (1) the movant shows independent ground for jurisdiction, (2) the motion is timely, and (3) the applicant’s claim or defense with the main action shares a common question of law or fact. Fed. R. Civ. P. 24(b); See also Greene v. U.S., 996 F.2d 973, 978 (9th Cir. 1993). District Courts have broad discretion when making the determination on a motion for permissive intervention. See Perry, 630 F.3d at 905-906. As such, even if an applicant satisfies threshold requirements, permissive intervention may be denied. S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (quoting Donnelly v. Glickman, 159 F.3d 405, 409 (9th. Cir. 1998)). In this case, ADS must meet its burden and establish its interest to be considered for permissive intervention. The motion is brief and fails to establish why ADS’s interest is sufficient to allow intervention through Rule 24 (b) Fed. R. Civ. P. Thus, absent further justification for intervention, the motion to intervene should be dismissed. CONCLUSION 17 18 19 20 21 ADS has failed to adequately address the requirements for intervention under Rule 24 Fed. R. Civ. P. Dated this 17th day of June, 2011. THOMAS C. HORNE Attorney General 22 23 24 25 s/ Kevin D. Ray Kevin D. Ray Lori S. Davis Aubrey Joy Corcoran Assistant Attorneys General 26 Attorneys for Plaintiffs 27 3 1 2 3 4 5 6 7 COPY of the foregoing filed via ECF this 17th day of June, 2011 to all ECF registrants in the instant matter. I certify that I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following, if CM/ECF registrants, and mailed a copy of same to any non-registrants, this this 17th day of June, 2011 to: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Scott Risner U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Brian Bergin Rose Law Group 6613 N. Scottsdale Road, Suite 200 Scottsdale, AZ 85250 Lisa T. Hauser Gammage & Burnham Two North Central, 15th Floor Phoenix, AZ 85004 Thomas W. Dean Thomas W. Dean Esq. PLC 323 N Leroux Street, Suite 101 Flagstaff, AZ 86001 COPY of the foregoing mailed on June 20, 2011: 22 23 24 25 26 Arizona Dispensary Solutions 1517 N. Wilmont, Suite 252 Tucson, AZ 85712 s/ Phil Londen #2021190 27 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?