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

Filing 65

RESPONSE in Opposition re 60 MOTION for Hearing on Motion re 38 MOTION to Dismiss for Lack of Jurisdiction, 31 MOTION to Intervene as Co-Plaintiffs by: A. Maricopa County; and B. Joy Rich in her official capacity as Assistant County Manager and Director of Maricopa, MOTION for Leave to File Brief in Opposition to Defendants' Motion to Dismiss filed by Arizona Association of Dispensary Professionals Incorporated, Arizona Medical Marijuana Association, Jane Christensen, Nicholas Flores, Holistic Health Management Incorporated, Joshua Levine, Paula Pennypacker, Paula Pollock, Serenity Arizona Incorporated, Jeff Silva. (Edwards, Ezekiel)

Ezekiel R. Edwards (admitted pro hac
vice)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad St., 17th Fl.
New York, NY 10004
[phone]
[e-mail]
Daniel J. Pochoda (SBA No. 021979)
ACLU FOUNDATION OF ARIZONA
77 E. Columbus St. Ste. 205; Phoenix, AZ
85012
[phone]
[e-mail]
Lisa T. Hauser (SBA No. 006985)
Cameron C. Artigue (SBA No. 011376)
GAMMAGE & BURNHAM
Two North Central, 15th Fl.; Phoenix, AZ
85004
[phone]
[e-mail]
Counsel for Defendant Arizona
Medical Marijuana Association
Thomas W. Dean (SBA No. 015700)
Post Office Box J; Flagstaff, AZ 86002
[phone]
[e-mail]

Ken Frakes (SBA No. 021776)
ROSE LAW GROUP, PC
6613 N. Scottsdale Rd., Ste. 200
Scottsdale, AZ 85250
[phone]
[e-mail]
Counsel for Defendants
Serenity Arizona, Holistic
Health Management, Levine,
Pennypacker, Flores,
Christensen, Pollock, and
Silva

Counsel for Defendant Arizona
Association of Dispensary
Professionals
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
STATE OF ARIZONA; JANICE K.
BREWER; WILL HUMBLE; ROBERT C.
HALLIDAY,
Plaintiffs,
v.
UNITED STATES; U.S. DEP’T OF
JUSTICE; ERIC H. HOLDER; DENNIS K.
BURKE; ARIZ. ASS’N OF DISPENSARY

No. CV-11-01072-PHX-SRB
Hon. Susan R. Bolton
DEFENDANTS’
OPPOSITION TO
PROSPECTIVE
INTERVENORS’ MOTION

PROFESSIONALS, INC.; JOSHUA
LEVINE; PAULA PENNYPACKER;
NICHOLAS FLORES; JANE
CHRISTENSEN; PAULA POLLOCK;
SERENITY ARIZONA, INC.; HOLISTIC
HEALTH MGMT, INC.; JEFF SILVA;
ARIZ. MEDICAL MARIJUANA ASS’N;
DOES I-XX,
Defendants.

FOR ORAL ARGUMENT ON
MOTION TO INTERVENE
AND LEAVE TO FILE A
BRIEF IN OPPOSITION TO
DEFENDANTS’ MOTION TO
DISMISS

Defendants Arizona Medical Marijuana Association, Arizona
Association of Dispensary Professionals, Serenity Arizona, Holistic Health
Management, Joshua Levine, Paula Pennypacker, Nicholas Flores, Jane
Christensen, Paula Pollock, and Jeff Silva file this response in opposition to
the December 14, 2011 motion by Maricopa County and Joy Rich (collectively
the “Proposed Intervenors”) for oral argument on their motion to intervene
and for permission to file a brief in opposition to defendants’ motion to
dismiss. For the reasons stated below, the Court should deny both requests.
Proposed Intervenors’ requests come too late. According to this
district’s Local Rules of Civil Procedure, “a party desiring oral argument shall
request it by placing ‘Oral Argument Requested’ immediately below the title
of such motion or the response to such motion.” LRCiv 7.2(f). Proposed
Intervenors did not comply with LRCiv 7.2(f) when they filed their motion to
intervene on July 14, 2011. Instead, they waited six months to request oral
argument. Proposed Intervenors similarly disregarded the fourteen-day
deadline applied in this district for oppositions to a motion to dismiss. See
LRCiv 7.2(c). Under LRCiv 7.2(c), oppositions to defendants’ July 7, 2011

2

motion to dismiss were due no later than July 21, 2011. Proposed
Intervenors’ request to oppose comes nearly five months after that date.
Therefore, the motion should be dismissed as untimely.
Proposed Intervenors ask the Court to overlook their tardiness. In
deciding whether to permit a late filing, “[g]enerally, the court will consider
several factors, including ‘the danger of prejudice to the other party, the
length of the delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good faith.’” Kastl v.
Maricopa County Community College Dist., No. CV-02-1531-PHX-SRB, 2006
WL 2460636, at *2 (D. Ariz. Aug. 22, 2006) (Bolton, J.) (quoting Comm. For
Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 (9th Cir. 1996)) (brackets
omitted). Proposed Intervenors have offered no excuse for waiting so long to
make their requests. They do not claim that the delay was caused by factors
beyond their control. Furthermore, granting the December 14 motion would
considerably delay these proceedings to the prejudice of the other parties. By
the time Proposed Intervenors filed their December 14, 2011 motion, all
parties to the action had already convened for oral argument on defendants’
motion to dismiss, and the Court had taken all pending motions under
advisement. Proposed Intervenors may regret their decision not to request
oral argument or to oppose defendants’ motion to dismiss, but they cannot

3

now recover the opportunity to do so by sacrificing the other parties’ and the
Court’s interest in the efficient disposition of the pending motions.
Finally, the relief Proposed Intervenors seek would be futile. As
defendants have argued in their motion to dismiss, plaintiffs’ agnosticism as
to the validity of the AMMA is fatal to this action. Any arguments advanced
by Proposed Intervenors cannot cure plaintiffs’ failure to take a position in
their complaint. Therefore, dismissal of the complaint for lack of subjectmatter jurisdiction will be appropriate regardless of Proposed Intervenors’
position. Furthermore, proposed Intervenors’ December 14 motion fails to
address the other jurisdictional flaws in plaintiffs’ complaint, including the
bar against states and their officials using the federal courts to validate or
attack state laws, and the failure to establish ripeness.1 For these reasons,
the underlying complaint must be dismissed, and Proposed Intervenors’
motion to intervene should in turn be dismissed as moot, as “there [will be]
nothing left in this Court in which [to] intervene.” Zaragoza v. BennettHaron, --- F.Supp.2d ---, No. 2:11-CV-01091-PMP-GWF, 2011 WL 6097754, at
*13 (D. Nev. Dec. 5, 2011); see also In re Mortgage Electronic Registration
Systems (MERS) Litigation, MDL No. 09-2119-JAT, 2011 WL 4550189, at *
15 (D. Ariz. Oct. 3, 2011). Accordingly, oral argument of the motion to
intervene will serve no purpose.

The proposed complaint in intervention filed by the Proposed Intervenors on July 14,
2011 suffers equally from the jurisdictional flaws identified by defendants in plaintiffs’
complaint. (See Mot. Intervene Ex. 1, July 14, 2011, ECF No. 31-1.) The arguments
advanced in Proposed Intervenors’ December 14 motion do not address these defects.
1

4

For the reasons stated above, Proposed Intervenors’ December 14,
2011 motion for oral argument and for leave to file an opposition to
defendants’ motion to dismiss should be denied.

Dated: December 19, 2011 Respectfully Submitted,
/s/ Ezekiel Edwards
Ezekiel R. Edwards (admitted pro hac vice)
[e-mail]
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
[phone]
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz. org
ACLU FOUNDATION OF ARIZONA
77 E. Columbus Street, Suite 205
Phoenix, AZ 85012
[phone]
Lisa T. Hauser (SBA No. 006985)
[e-mail]
Cameron C. Artigue (SBA No. 011376)
[e-mail]
GAMMAGE & BURNHAM
Two North Central, 15th Floor
Phoenix, AZ 85004
[phone]
Counsel
for
Defendant
Marijuana Association

Arizona

/s/ Thomas W. Dean
Thomas W. Dean (SBA No. 015700)
[e-mail]
Post Office Box J
Flagstaff, AZ 86002
[phone]

5

Medical

Counsel for Defendant Arizona Association of
Dispensary Professionals, Inc.
/s/ Ken Frakes
Ken Frakes (SBA No. 021776)
[e-mail]
ROSE LAW GROUP, PC
6613 N. Scottsdale Road, Suite 200
Scottsdale, AZ 85250
[phone]
Counsel for Defendants Serenity Arizona, Holistic
Health Management, Levine, Pennypacker,

Flores, Christensen, Pollock, and Silva

6