Strahan v. Massachusetts Executive Office of Energy and Environmental Affairs et al

Filing 312

Judge Indira Talwani: ORDER Granting in Part Massachusetts Lobstermen's Survival Fund's Motion to Intervene #269 . Please see attached. (Kelly, Danielle)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RICHARD MAX STRAHAN,

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Plaintiff,
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v.
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SECRETARY, MASSACHUSETTS
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EXECUTIVE OFFICE OF ENERGY AND *
AND ENVIRONMENTAL AFFAIRS,
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et al.,
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Defendants.
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Civil Action No. 19-cv-10639-IT

ORDER GRANTING IN PART
MASSACHUSETTS LOBSTERMEN’S SURVIVAL FUND’S
MOTION TO INTERVENE
February 17, 2021
TALWANI, D.J.
Before the court is non-party Massachusetts Lobstermen’s Survival Fund’s Motion to
Intervene [#269]. The Massachusetts Lobstermen’s Survival Fund (“the Fund”) seeks leave to
intervene pursuant to Federal Rule of Civil Procedure 24. The Secretary of the Massachusetts
Executive Office of Energy and Environmental Affairs and the Director of the Massachusetts
Division of Marine Fisheries (collectively, “the Commonwealth Defendants”) take no position
on the Fund’s motion. Plaintiff, Richard Strahan, opposes the motion, contending that the
motion is untimely, that the Fund lacks standing to participate in this case because it is not “a
juridical person,” and that the interests it seeks to represent are adequately protected by counsel
for the Commonwealth and through participation as amicus. Plaintiff argues further that if
intervention is permitted, it should be conditioned on terms that ensure that the intervention
minimizes disruption. For the reasons set forth below, the court will impose discovery
requirements and limitations to ensure that the intervention minimizes disruption, and with

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those limitations in place, GRANTS the Fund’s Motion to Intervene [#269] pursuant to Rule
24(b).
I.

Relevant Procedural Background
Plaintiff filed the instant action on April 4, 2019, see Complaint [#1], and an Amended

Complaint [#68] on June 16, 2019, against the Commonwealth Defendants, the Center for
Coastal Studies, John Haviland, Arthur Sawyer, and the Massachusetts Lobstermen Association
(“MLA”).1 Following a July 1, 2019 scheduling conference, the court issued a scheduling
order, setting, inter alia, an October 31, 2019 deadline for filing, without good cause shown,
motions seeking leave to add new parties or to amend the pleadings to assert new claims or
defenses. Scheduling Order [#94].
The Commonwealth Defendants, the Center for Coastal Studies, John Haviland, Arthur
Sawyer, and the MLA moved to dismiss Plaintiff’s claims. See Motions to Dismiss [#107],
[#111], [#113], [#117]. While those motions were pending, Plaintiff filed a Motion for
Preliminary Injunction [#144], requesting, inter alia, that the court enjoin the Commonwealth
Defendants from licensing Vertical Buoy Ropes (“VBRs”) in Massachusetts waters.
On February 3, 2020, the court dismissed all claims against the non-Commonwealth
Defendants for failure to state a claim. See Memorandum and Order [#150]. On February 7,
2020, the court allowed Plaintiff’s Endangered Species Act claim against the Commonwealth
Defendants to proceed. See Memorandum and Order [#160].
On March 2, 2020, Plaintiff filed a motion seeking leave to file a second amended

1

Plaintiff also named, but did not timely serve, Vineyard Wind LLC and Baystate Wind LLC.
The court granted these companies’ Motions to Dismiss [#227], [#229], as unopposed. See
Order [#241].
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complaint asserting, inter alia, claims against the dismissed Defendants. See Pl.’s Mot. [#175].
The court denied relief both on the merits and as untimely. See Elec. Order [#210].
On April 30, 2020, the court issued a Memorandum and Order [#206] granting in part
and denying in part Plaintiff’s requested preliminary injunctive relief. Namely, the court
concluded that Plaintiff was likely to prevail on the merits of his Endangered Species Act claim
and ordered the Commonwealth Defendants to immediately apply for an Incidental Take
Permit under Section 10 of the Endangered Species Act. Id. at 21. The court allowed Plaintiff
to renew his motion for a preliminary injunction after 90 days if the Commonwealth
Defendants had not obtained an Incidental Take Permit by that time. Id. at 31. As reported in
periodic status reports, the Commonwealth Defendants have begun the process for applying for
the Incidental Take Permit. See Reports [#249], [#263], [#276], [#295].
On September 16, 2020, Plaintiff filed his renewed Motion for Preliminary Injunction
[#235]. At an October 8, 2020 status conference, the court determined that, in light of the
important questions of fact underlying resolution of liability and remedies, it would be
inefficient to delay discovery and resolution on the merits in order to hold an evidentiary
hearing on the motion for preliminary injunction. See Tr. Oct. 8, 2020 Conf. 10–12 [#253]. The
court denied the pending motion, again without prejudice to renew, and directed the parties to
submit a proposed pretrial schedule. Id. On October 19, 2020, the court issued an Amended
Scheduling Order and Pretrial Order [#251], setting this matter for a bench trial to commence
on June 7, 2021.
On December 7, 2020, the Fund filed its Motion to Intervene [#269]. Since that date,
there have been minor changes in the scheduling order, but the trial remains set for June 2021.

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II.

Legal Standard
Under Rule 24(a)(2),
[o]n a timely motion, the court must permit anyone to intervene who . . . claims
an interest relating to the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a practical matter impair or
impede the movant’s ability to protect its interest, unless existing parties
adequately represent that interest.

Fed. R. Civ. P. 24(a)(2) (emphasis added). The First Circuit has set out that the rule requires:
“(1) a timely application for intervention; (2) a demonstrated interest relating to the property or
transaction that forms the basis of the ongoing action; (3) a satisfactory showing that the
disposition of the action threatens to create a practical impairment or impediment to its ability
to protect that interest; and (4) a satisfactory showing that existing parties inadequately
represent its interest.” See Conservation Law Found. v. Mosbacher, 966 F.2d 39, 41 (1st
Cir.1992) (citing Pub. Serv. Co. of New Hampshire v. Patch, 136 F.3d 197, 204 (1st Cir.
1998)). The analysis is not a balancing test but instead requires all four prerequisites to be met.
Id. (citing Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st Cir.1989)).
Under Rule 24(b), on a timely motion, the court may permit anyone to intervene who
has “a claim or defense that shares with the main action a common question of law or fact.”
Fed. R. Civ. P. 24(b)(1)(B). Rule 24(b) provides further that “[i]n exercising its discretion, the
court must consider whether the intervention will unduly delay or prejudice the adjudication of
the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
III.

Discussion
Plaintiff does not dispute that the individual lobstermen that comprise the Fund’s

members will be directly impacted if Plaintiff obtains the relief he seeks in this action, see Fed.
R. Civ. P. 24(a)(2), nor that the Fund’s proposed intervention raises common questions of fact
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or law with Plaintiff’s action, see Fed. R. Civ. P. 24(b)(1)(B). Instead, Plaintiff contends that
the Fund, an unincorporated association, is not a proper party to this action under the Federal
Rules and Massachusetts law, and that, in any event, intervention is untimely. Finally, Plaintiff
argues that if the court were to grant the Fund’s motion to intervene, the court should place
conditions on the Fund’s intervention. The court addresses these issues below.
1. Whether the Fund is a Proper Party
Plaintiff argues that the Fund’s motion to intervene must be denied since the Fund is not
a proper party under the Federal Rules of Civil Procedure and Massachusetts law as the Fund is
an unincorporated association. Pl.’s Opp’n 9 [#287].2 Plaintiff puts forth two distinct arguments
for why the Fund is not a proper party. First, Plaintiff contends that the Fund is not a “real party
in interest” as required by Rule 17(a). Pl.’s Opp’n 9 [#287]. As a result, Plaintiff argues, the
members of the Fund, not the Fund itself, must be the named intervenors. Id. Second, Plaintiff
contends that the Fund does not have “the capacity to be sued” under Rule 17(b). That Rule
provides that the “capacity to sue or be sued” is, in the case of unincorporated associations, set
by the law of the state where the court is located. Fed. R. Civ. P. 17(b)(3). Because
Massachusetts law does not allow unincorporated associations to sue or be sued, Plaintiff
contends that the Fund also cannot appear as a party under Rule 17(b). The court addresses the
two arguments in turn.
Rule 17(a) requires that “[a]n action must be prosecuted in the name of the real party in
interest.” (Emphasis added). The rule thus only imposes a restriction on who may prosecute a

2

As set forth in the declaration of Craig Hillier, the Fund consists of approximately 40
members, all Massachusetts commercial lobstermen. See Hillier Decl., Exhibit 2 [#270-2].
Craig Hillier is the president of the Fund. Id.
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claim. While this does not necessarily limit the application of Rule 17(a) to plaintiffs, as claims
may be prosecuted by defendants, crossclaimants, and intervenors, it does “appl[y] only to
those who are asserting a claim.” 6A Wright and Miller, Federal Practice and Procedure § 1543
(3d ed.).3 Here, the Fund asserts no claims, see Proposed Answer [#270-3], and thus the
restriction does not apply.
Rule 17(b)(3) provides, in relevant part, that, for unincorporated associations, the
“capacity to sue or be sued” is set “by the law of the state where the court is located” except
where certain exceptions apply. Plaintiff correctly asserts that “under Massachusetts law, ‘it is a
well established principle that an unincorporated association cannot be a party to litigation.’”
Id. at 13–14 (quoting Save the Bay, Inc. v. Dep’t of Pub. Utilities, 366 Mass. 667, 675 (1975)).
However, there is an important exception to Rule 17(b)(3), which provides that “a partnership
or other unincorporated association with no such capacity under that state’s law may sue or be
sued in its common name to enforce a substantive right existing under the United States
Constitution or laws.” Fed. R. Civ. P. 17(b)(3)(A). Plaintiff dismisses this exception, arguing
that neither the Fund nor its members have a substantive right under the Endangered Species
Act, but instead “seek to avoid the enforcement” of the Act. Pl.’s Opp’n 9 n.35 [#287]. But
Plaintiff’s dismissal of this exception cites no precedent for the proposition that where a party
is defending against enforcement of a federal law, the Rule 17(b)(3)(A) exception does not
apply, and this argument is contrary to case law and treatises on point. As explained by Wright

This is consistent with the Rule’s function, which is “simply to protect the defendant against a
subsequent action by the party actually entitled to recover, and to ensure generally that the
judgment will have its proper effect as res judicata.” Id. (citing Key Constructors, Inc. v.
Harnett County, 315 F.R.D. 179 (E.D.N.C. 2016)).
3

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and Miller, the exception arose out of, and expanded upon, the Supreme Court’s holding in
United Mine Workers of Am. v. Coronado Coal Co., where the Court held that an
unincorporated labor union could be sued under federal law in federal court even though that
same unincorporated entity was not subject to suit in state court. 6A Wright and Miller, Federal
Practice and Procedure § 1564 (3d ed.) (citing Coronado, 259 U.S. 344, 391 (1922)); see also
id. (“Rule 17(b)(3)(A) amplifies the Coronado decision to include all partnerships and other
unincorporated associations and applies both to their capacity to sue and their capacity to be
sued”) (emphasis added). Thus, the question is not whether the Fund is asserting a substantive
federal right but, instead, whether the action is enforcing a federal right. See Univ. of Texas at
Austin v. Vratil, 96 F.3d 1337, 1339 (10th Cir. 1996) (“The Federal Rules, however, allow
[unincorporated] associations such as NCAA to be sued in their own name in federal court for
purpose of enforcing a federal right”). Because Plaintiff’s action is brought under the citizensuit provision of the federal Endangered Species Act and seeks to enforce federal law, the Rule
17(b)(3)(A) exception applies and the Fund, as an unincorporated Association, has the capacity
to be sued.
2.

Whether Plaintiff’s Motion to Intervene is Timely

Plaintiff argues that the motion to intervene should be rejected as untimely. In
considering whether a motion to intervene is timely, the First Circuit has directed district courts
to take four factors into consideration: “(1) the length of time the applicant knew or reasonably
should have known that its interest was imperilled before it moved to intervene; (2) the
foreseeable prejudice to existing parties if intervention is granted; (3) the foreseeable prejudice
to the applicant if intervention is denied; and (4) [idiosyncratic] circumstances which, fairly
viewed, militate for or against intervention.” Banco Popular de Puerto Rico v. Greenblatt, 964
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F.2d 1227, 1231 (1st Cir. 1992) (citations omitted). The question of timeliness “is inherently
fact-sensitive and depends on the totality of the circumstances” and “the status of the litigation
at the time of the request for intervention is ‘highly relevant.’” R & G Mortg. Corp. v. Fed.
Home Loan Mortg. Corp., 584 F.3d 1, 7 (1st Cir. 2009) (quoting Banco Popular, 964 F.2d at
1231).
Starting with the length of time that the Fund knew or reasonably should have known its
interests were imperiled, Plaintiff contends that the Fund (or at least its members) knew about
this action starting when it was filed nearly two years ago since the initial suit named the
Massachusetts Lobstermen’s Association as a defendant. Pl.’s Opp’n 5 [#287]. The Fund
contends that it had no reason to know that its members interests were imperiled until the
Massachusetts Division of Marine Fisheries published a proposed rule in November 2020 to
close all commercial lobstering within state waters during the months of February through
April 2021. Fund Mem. 2 [#270].
The time for a potential intervenor to act begins “no later than the time ‘when the
intervenor became aware that its interest in the case would no longer be adequately protected
by the [existing] parties.’” Banco Popular, 964 F.2d at 1231 (citing Public Citizen, 858 F.2d at
785). Once that count starts, the applicant “must then act reasonably promptly.” Id. (emphasis
added) (citing United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977); United States v.
South Bend Community School Corp., 710 F.2d 394, 396 (7th Cir.1983)). Thus, the question is
not simply how long a case has been pending, but a contextual analysis based on all relevant
circumstances.
Here, the Fund’s members had little reason to anticipate when this action was filed that
it posed a real threat to their interests. As discussed in the court’s April 30, 2020 Memorandum
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and Order 5–13 [#206], Plaintiff has a decades-long track record of initiating pro se litigation in
federal district court only to voluntarily dismiss the action well-before resolution on the merits,
much less final judgment. The Fund’s members had no obligation to mechanically seek to
intervene at the outset of what could reasonably be perceived as a nuisance suit.
On April 30, 2020, however, the court issued its Memorandum and Order concluding
that the Massachusetts lobsterpot and gillnet fisheries were likely running afoul of the
Endangered Species Act, and entered a preliminary injunction ordering the Commonwealth
Defendants to immediately apply for an Incidental Take Permit under Section 10 of the
Endangered Species Act. Id. at 21. As of that date, lobstermen with knowledge of the action
would certainly have understood the stakes at issue in this action and Plaintiff has offered
evidence that the court’s February 7, 2020 and April 30, 2020 orders were publicized in
monthly newsletters shared with members of the Massachusetts Lobstermen’s Association. See
Downey Decl. ¶¶ 4–13 [#288].
The Fund rebuts that its President, Craig Hillier, had no knowledge of this case until
late November 2020. Hillier Supp. Decl. ¶ 4 [#292-3]. But while the court accepts as true Mr.
Hillier’s statement that he did not have personal knowledge of this litigation until November
2020, the motion to intervene is not brought by Mr. Hillier but by a group of commercial
lobstermen that, at least collectively, knew or should have known more than half a year earlier
that this litigation had taken a serious turn.
In considering when the Fund’s members knew that their interests may be imperiled, the
court takes into account the Fund’s assertion that the Commonwealth Defendants “do not and
perhaps institutionally cannot adequately represent the interests of the Fund’s members,” and
its reliance on First Circuit case law for the proposition that where, as here, regulators are the
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named defendants, they “could not be counted upon to adequately represent the interests of the
commercial fishing community . . . .” Fund Mem. 8 [#270] (citing Mosbacher, 966 F.2d at 44–
45). Accepting this concern, the court concludes that the time for the Fund (and its members)
to act began promptly following the court’s April 2020 decision.
The court considers next how the Fund’s delay may prejudice the existing parties by its
effect on the proceedings. See 7C Wright and Miller, Federal Practice and Procedure § 1916
(3d ed.) (“The timeliness requirement is not intended as a punishment for the dilatory and the
mere lapse of time by itself does not make an application untimely. The court must weigh the
lapse of time in the light of all the circumstances of the case”). Here, Plaintiff contends that
intervention “will significantly prejudice the plaintiff” because it will disrupt the parties’
expedited trial schedule. Pl.’s Opp’n 11 [#287]. This is a real concern given that in this case,
more than most, time is of the essence. In October 2020, the court denied Plaintiff’s motion for
a preliminary injunction, noting that the parties were in the midst of discovery, and that an early
bench trial following the completion of that discovery would be more efficient than an
evidentiary hearing on a motion for preliminary injunction. Following consideration of the
parties’ competing proposals, on October 19, 2020, the court amended the prior scheduling
order and set a final date for service of written discovery of November 16, 2020, deadlines for
completion of fact and expert discovery, and set a June 2021 trial date. Amended Scheduling
and Pretrial Order [#251]. On November 17, 2020, the court granted the parties’ joint motion to
extend by 5 days the deadline for serving written discovery. Electronic Order [#264]. The court
has subsequently made other minor changes to the schedule, but the June 2021 bench trial has
remained a firm date. The court has also recently denied Plaintiff’s renewed motion for a
Preliminary Injunction on the basis that important factual disputes precluded the court from
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ordering preliminary injunctive relief and concluding that, in light of the June 2021 trial date,
no preliminary relief was necessary before a trial may be held on the merits. See Memorandum
and Order [#309].
The Fund’s motion to intervene was not filed until two weeks after the date service of
written discovery was to be completed and was not filed on an emergency basis. While the
Fund asserts that “the parties have only begun the written discovery process,” it necessarily
concedes that it could not meet the court’s deadline to serve written discovery (which had
already passed) and offers no suggestion that it would forego serving written discovery
requests. Fund Mem. 3 [#270] (“With the exception of the deadline to serve written discovery
(expired on November 23, 2020), the Fund intends to comply with the existing discovery
schedule.”). On this record, the court finds that the Fund’s suggestion that it may join fully in
these proceedings without impairing the trial schedule is unrealistic and that a delay of the trial
would be prejudicial to the existing parties. If, however, the Fund’s intervention required no
delay in the trial schedule, prejudice to the existing parties would be avoided. 4

Plaintiff argues that intervention will lead to a “sideshow” regarding, inter alia, the economic
and commercial consequences of any ban on use of Vertical Buoy Ropes. Pl.’s Opp’n 11–12
[#287]. While the economic consequences of any injunction affecting the Commonwealth’s
licensing scheme may be irrelevant for determining liability under the Endangered Species Act,
considerations of the economic consequences may ultimately prove relevant if the court is
required to fashion equitable relief in the form of a permanent injunction. Indeed, the court
explicitly considered the relevant hardships and the public interest when it fashioned
preliminary injunctive relief. See Memorandum and Order 28–30 [#206]. The same factors are
relevant in the context of a permanent injunction. See eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388, 391 (2006) (“According to well-established principles of equity, a plaintiff seeking a
permanent injunction must satisfy a four-factor test before a court may grant such relief. A
plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate for that injury; (3)
that, considering the balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be disserved by a permanent
4

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Finally, the court must also consider the foreseeable prejudice to the applicant if
intervention is denied.5 The Fund points to no deficiencies in how the Commonwealth
Defendants have represented the Fund’s (or its members’) interests in this action so far, and the
court finds none. Nor does the court anticipate that the Fund will be able to show deficiencies
with regard to the Commonwealth’s fact discovery and development of the factual record
regarding the regulation of lobsterpot and gillnet fishing and incidental harms to endangered
species that may have resulted from the Commonwealth’s regulatory scheme.
Nonetheless, there is potential prejudice to the Fund’s members moving forward. As the
First Circuit wrote in Mosbacher, and is equally true here, the Commonwealth is not the real
target of Plaintiff’s efforts, but instead the targets are the entities that the Commonwealth
regulates. 966 F.2d at 43 (“The fishing groups seeking intervention are the real targets of the
suit and are the subjects of the regulatory plan. Changes in the rules will affect the proposed
intervenors’ business, both immediately and in the future.”). That potential prejudice may be
addressed, however, if the court permits the Fund to intervene permissively, with limits on the
discovery it may seek, so that the Fund can address potential future issues and participate at
trial while not burdening the existing parties with additional written discovery that would delay
these proceedings.
“[W]hen a putative intervenor seeks both intervention as of right and permissive
intervention, a finding of untimeliness with respect to the former normally applies to the latter.”

injunction”); see also Memorandum and Order 6–8 [#309] (setting forth that the court will
consider the balance of the hardships and the public interest before ordering any equitable
relief).
The court finds no “idiosyncratic” considerations present here that are not redundant with
other considerations.
5

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R & G Mortg. Corp., 584 F.3d at 11. Here, however, the court reaches different conclusions as
to intervention as of right and permissive intervention. Considering all the relevant factors—the
Fund’s delay in seeking intervention, the likely and burdensome disruption to the trial schedule
that would result if intervention were granted without curtailing the Fund’s rights to discovery,
and the absence of prejudice to the Fund if intervention were permitted with limitations on
discovery—the court concludes that intervention as of right (with full discovery rights) is
untimely.
Under Rule 24(b), however, the court has greater flexibility to limit the Fund’s
participation in this action, namely by limiting the Fund’s rights to discovery. By doing so, the
central prejudice that may result from intervention—delay of the June 2021 trial—may be
curtailed, shifting the balance of the timeliness analysis in favor of limited permissive
intervention.6 Accordingly, the court finds the motion for permissive intervention to be timely.
3. Whether the Fund is Entitled to Permissive Intervention
Permissive intervention is “wholly discretionary” and courts may consider “almost any
factor rationally relevant” in its analysis. Glass Dimensions, Inc. ex rel. Glass Dimensions, Inc.
Profit Sharing Plan & Tr. v. State St. Bank & Tr. Co., 290 F.R.D. 11, 14 (D. Mass. 2013);
Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 113 (1st Cir.

6

Arguably, where intervention is allowed as of right, a court may still fashion conditions that
strike a balance between the need to “get all interested parties to the table” while also
“‘preventing an expansion of scope’ capable of threatening the court’s ‘control’ over the
matter.” In re Fin. Oversight & Mgmt. Bd. for Puerto Rico for Puerto Rico, 872 F.3d 57, 64
(1st Cir. 2017) (quoting United States v. City of Detroit, 712 F.3d 925, 931–32 (6th Cir. 2013)).
But where, as here, the applicant-in-intervention should have acted months sooner, has not
committed to not seeking to reopen written discovery, and has requested permissive
intervention in the alternative, the court finds those conditions on discovery more appropriately
considered in connection with permissive intervention.
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1999). Having concluded that the Fund may properly be a party to this action under Fed. R.
Civ. P. 17, that the motion is timely and will not prejudice or delay the adjudication of the
dispute between the original parties so long as certain conditions are put in place, and that there
is no dispute that the Fund’s defense shares common questions of law and fact with the main
action, the court finds permissive intervention appropriate.
4. The Pretrial and Trial Schedule and Conditions on the Fund’s Intervention
First, the court does not anticipate continuing the June 9, 2021 trial date as a result of
the Fund’s intervention.
Second, the discovery and pretrial dates set in the court’s October 19, 2020 Amended
Scheduling and Pretrial Order [#251] and February 11, 2021 Amended Scheduling Order
[#304] remain in place, except as specifically modified by the court.
The Fund shall serve its Initial Disclosures under Fed. R. Civ. P. 26(a)(1)(A) no later
than February 26, 2021, and shall not only provide “a description by category and location . . .
of all documents, electronically stored information, and the tangible things that the disclosing
party has in its possession, custody, or control that it may use to support its claims or defenses,
unless the use would be solely for impeachment,” but shall also serve Plaintiff and the
Commonwealth Defendants copies of all such material by February 26, 2021.
The Fund is precluded from serving its own written discovery, but no later than
February 26, 2021, Plaintiff and the Commonwealth Defendants shall provide to the Fund
copies of the fact discovery they have exchanged thus far.
The parties shall then confer and file a joint report of any additional fact discovery that
the Commonwealth or Plaintiff contends is required by virtue of the Fund’s intervention. If the
parties are unable to reach an agreement as to the scope of any additional fact discovery, any
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motions for leave to reopen the fact discovery deadlines shall be filed no later than March 12,
2021. Any such motion shall put forth a schedule that does not require modifications to the
June 2021 trial date.
IV.

Conclusion
For the reasons set forth above, the Fund’s Motion to Intervene [#269] is GRANTED

IN PART. The Fund is granted leave to intervene in this action pursuant to Fed. R. Civ. P.
24(b) subject to the conditions set forth in this order.
IT IS SO ORDERED.
Date: February 17, 2021

/s/ Indira Talwani
United States District Judge

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