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)

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Case 3:20-cv-00567-LAB-WVG Document 35 Filed 11/16/20 PageID.2430 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JASON CLOVER, et al. Case No.: 20cv567-LAB (WVG) Plaintiffs, 12 13 v. 14 CAMP PENDLETON & QUANTICO HOUSING LLC, et al. 15 16 Defendants. ORDER PROPOSING TO TREAT GOVERNMENT’S NOTICE AS MOTION FOR LEAVE TO INTERVENE; AND ORDER VACATING HEARING 17 18 19 Defendants filed a motion to dismiss, claiming derivative immunity under 20 Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18 (1940), and its progeny. After 21 Plaintiffs filed their opposition, the United States filed a notice of statement of 22 interest, citing 28 U.S.C. § 517. The notice does not merely give the government’s 23 view of the law generally, but urges the Court to deny the motion based on the 24 facts of the case. These include the terms of the operating agreement and the 25 ground lease, to which Defendants and the government are parties. The notice 26 does not say whether the Attorney General authorized the filing, or whether the 27 decision to file the brief was that of the local U.S. Attorney’s office alone. See § 517 28 (providing that “any officer of the Department of Justice may be sent by the 1 20cv567-LAB (WVG) Case 3:20-cv-00567-LAB-WVG Document 35 Filed 11/16/20 PageID.2431 Page 2 of 2 1 Attorney General” to attend to the interests of the United States in a case pending 2 in federal court). 3 The Court proposes to treat the motion, in part, as a motion for leave to 4 intervene as to the issue raised, which it would be inclined to grant. See County of 5 Ocean v. Grewal, __ F. Supp. 3d ___, 2020 WL 4345317, at *19 (D.N.J. July 29, 6 2020) (questioning the government’s standing as a non-party to raise certain 7 issues or claims in a notice of interest). If the government objects to this, it must 8 promptly either file an amended notice explaining that the Attorney General has 9 authorized the filing of the notice, or withdraw the notice. 10 The hearing on the motion to dismiss, currently on calendar for Monday, 11 November 23, 2020, at 11:15 a.m. is VACATED, but may be reset if appropriate. 12 Defendants may separately address the government’s arguments in their reply 13 memorandum. The page limit for their reply is extended to 15 pages, and the reply 14 brief should be filed by November 30, 2020. If Defendants have already filed a 15 reply brief by the time this order is docketed, they may file an amended brief subject 16 to the terms of this order. 17 18 19 IT IS SO ORDERED. Dated: November 16, 2020 20 21 22 Honorable Larry Alan Burns Chief United States District Judge 23 24 25 26 27 28 2 20cv567-LAB (WVG)

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