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)

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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: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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STATE OF ARIZONA, et al.,
Plaintiffs,

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vs.

RESPONSE TO MOTION TO
INTERVENE

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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.

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Halladay, through undersigned counsel, hereby file this Response to Arizona

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Dispensary Solutions, LLC’s (“ADS”) Motion to Intervene (“Motion”) filed June 6,

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2011. ADS has not addressed the necessary elements to establish a right to intervene in

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this case under Rule 24 Fed. R. Civ. P.

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I.

ADS failed to establish their right to intervene under Rule 24 of the
Federal Rules of Civil Procedure.

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A. ADS has failed to address the elements for an intervention of right.

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The prerequisites for intervention under Rule 24(a), Fed. R. Civ. P. mandate an

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applicant seeking an intervention of right to show: (1) that it has a significant

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protectable interest that is the subject of action; (2) that disposition of action may

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impair or impede its ability to protect its interest; (3) timely application; and (4) that

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existing parties inadequately represent applicant’s interest. Fed. R. Civ. P. 24(a); See

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also Donaldson v. United States, 400 U.S. 517, 531 (1971); Perry v. Schwarzenegger,

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630 F.3d 898, 903-06 (9th Cir. 2011); Green v. U.S., 996 F.2d 973, 976-78 (9th Cir.

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1993). To satisfy these requirements, the applicant bears the burden of showing that

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each element exists. S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002)

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(internal quotation marks omitted). Failure to establish any of the four elements is fatal

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to the application. Freedom From Religion Found., Inc. v. Geithner, 2011 WL

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1746137 at *1, 2 (9th Cir. 2011); Perry v. Prop. 8 Official Proponents, 587 F.3d 947,

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950 (9th Cir. 2009).

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To determine if the requirements for intervention of right are met, a court

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normally follows practical and equitable considerations and construes the governing

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rule broadly in favor of the proposed intervenor. See Wilderness Soc. v. U.S. Forest

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Service, 630 F.3d 1173, 1179 (9th Cir. 2011); U.S. v. City of Los Angeles, 288 F.3d

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391, 397 (9th. Cir. 2002). Here, ADS has not established the four elements necessary

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for an intervention of right. The motion briefly describes ADS’s interests in this case

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and its interest in the Arizona Medical Marijuana Act. ADS, however, fails to

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sufficiently establish the elements required for intervention under Rule 24 (a), Fed. R.

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Civ. P. Thus, absent further proof of all four elements, the motion to intervene should

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be dismissed.

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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

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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

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s/ Kevin D. Ray
Kevin D. Ray
Lori S. Davis
Aubrey Joy Corcoran
Assistant Attorneys General

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Attorneys for Plaintiffs
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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:

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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:

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Arizona Dispensary Solutions
1517 N. Wilmont, Suite 252
Tucson, AZ 85712
s/ Phil Londen
#2021190

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