Clover et al v. Camp Pendleton & Quantico Housing LLC et al

Filing 35

ORDER Proposing to Treat Government's Notice as Motion for Leave to Intervene; and ORDER Vacating Hearing. The hearing on 26 the motion to dismiss, currently on calendar for Monday, 11/23/2020, at 11:15 a.m. is vacated. (Dkt. No. 26 .) Signed by Chief Judge Larry Alan Burns on 11/16/2020. (jdt)

Case 3:20-cv-00567-LAB-WVG Document 35 Filed 11/16/20 PageID.2430 Page 1 of 2

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JASON CLOVER, et al.

Case No.: 20cv567-LAB (WVG)
Plaintiffs,

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v.

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CAMP PENDLETON &
QUANTICO HOUSING LLC, et al.

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Defendants.

ORDER PROPOSING TO TREAT
GOVERNMENT’S NOTICE AS
MOTION FOR LEAVE TO
INTERVENE; AND
ORDER VACATING HEARING

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Defendants filed a motion to dismiss, claiming derivative immunity under

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Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18 (1940), and its progeny. After

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Plaintiffs filed their opposition, the United States filed a notice of statement of

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interest, citing 28 U.S.C. § 517. The notice does not merely give the government’s

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view of the law generally, but urges the Court to deny the motion based on the

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facts of the case. These include the terms of the operating agreement and the

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ground lease, to which Defendants and the government are parties. The notice

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does not say whether the Attorney General authorized the filing, or whether the

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decision to file the brief was that of the local U.S. Attorney’s office alone. See § 517

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(providing that “any officer of the Department of Justice may be sent by the
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20cv567-LAB (WVG)

Case 3:20-cv-00567-LAB-WVG Document 35 Filed 11/16/20 PageID.2431 Page 2 of 2

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Attorney General” to attend to the interests of the United States in a case pending

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in federal court).

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The Court proposes to treat the motion, in part, as a motion for leave to

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intervene as to the issue raised, which it would be inclined to grant. See County of

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Ocean v. Grewal, __ F. Supp. 3d ___, 2020 WL 4345317, at *19 (D.N.J. July 29,

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2020) (questioning the government’s standing as a non-party to raise certain

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issues or claims in a notice of interest). If the government objects to this, it must

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promptly either file an amended notice explaining that the Attorney General has

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authorized the filing of the notice, or withdraw the notice.

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The hearing on the motion to dismiss, currently on calendar for Monday,

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November 23, 2020, at 11:15 a.m. is VACATED, but may be reset if appropriate.

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Defendants may separately address the government’s arguments in their reply

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memorandum. The page limit for their reply is extended to 15 pages, and the reply

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brief should be filed by November 30, 2020. If Defendants have already filed a

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reply brief by the time this order is docketed, they may file an amended brief subject

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to the terms of this order.

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IT IS SO ORDERED.
Dated: November 16, 2020

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Honorable Larry Alan Burns
Chief United States District Judge

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20cv567-LAB (WVG)