Murphy et al v. Minnesota Department of Human Services et al

Filing 231

MEMORANDUM OPINION AND ORDER - ARRM's Motion to Intervene or, in the Alternative, for Leave to Serve as Amicus Curiae (Doc. No. [138)]) is GRANTED IN PART and DENIED IN PART as follows: a. ARRM's Motion to Intervene pursuant to Federa l Rule of Civil Procedure 24(a) or 24(b) is DENIED. b. ARRM's request to participate as amicus curiae is GRANTED. Should ARRM wish to participate in a particular capacity with respect to a pending motion or matter before the Court, ARRM shall notify the Court by filing a letter on the docket detailing its request.(Written Opinion) Signed by Judge Donovan W. Frank on 5/4/2018. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Tenner Murphy, by his guardians
Kay and Richard Murphy; Marrie
Bottelson; Dionne Swanson; and
on behalf of others similarly situated,
Plaintiffs,

Civil No. 16-2623 (DWF/BRT)

MEMORANDUM
OPINION AND ORDER

v.
Emily Johnson Piper in her Capacity
as Commissioner of the Minnesota
Department of Human Services,
Defendant.

Joseph W. Anthony, Esq., Peter McElligott, Esq., and Steven M. Pincus, Esq., Anthony
Ostlund Baer & Louwagie PA; Justin H. Perl, Esq., Mid-Minnesota Legal Aid; and
Christen Leigh Chapman, Esq., and Steven C. Schmidt, Esq., Mid-Minnesota Legal Aid,
Minnesota Disability Law Center, counsel for Plaintiffs.
Janine Wetzel Kimble, Scott H. Ikeda, and Aaron Winter, Assistant Attorneys General,
Minnesota Attorney General’s Office, counsel for Defendant.
Pari I. McGarraugh, Esq., and Samuel D. Orbovich, Esq., Fredrikson & Byron, P.A.,
counsel for Movant ARRM.

INTRODUCTION
This matter is before the Court upon ARRM’s motion to intervene pursuant to
Federal Rule of Civil Procedure 24(a) or 24(b) or, in the alternative, for leave to serve as
amicus curiae. (Doc. No. 138.) Defendant opposes intervention. (Doc. No. 156.)

Plaintiffs support intervention. (Doc. No. 157.) For the reasons set forth below, the
Court grants ARRM leave to serve as amicus curiae and denies intervention.
BACKGROUND
The background of this case is fully detailed in the Court’s May 18, 2017
Memorandum Opinion and Order, (Doc. No. 54), and the Court only briefly summarizes
the pertinent facts here. For a more complete summary of Plaintiffs’ Amended Class
Action Complaint and the law underlying Plaintiffs’ claims, the Court directs readers to
its prior order and otherwise incorporates the relevant background here. See Murphy
ex rel. Murphy v. Minn. Dep’t of Human Servs., 260 F. Supp. 3d 1084 (D. Minn. 2017).
I.

Plaintiffs’ Claims and Requested Relief
The Plaintiffs in this case are individuals with disabilities who reside in

Community Residential Setting (“CRS”) facilities—also known as group homes or
corporate adult foster care—and who receive Home and Community Based Disability
Waivers (“Disability Waivers”) through the State of Minnesota’s Medicaid program. The
Defendant, Emily Johnson Piper, Commissioner of the Minnesota Department of Human
Services (“DHS”) is responsible for overseeing Minnesota’s Disability Waiver services
system under a federally-approved Medicaid State Plan. Disability Waivers enable
individuals with disabilities to access a variety of services that permit them to reside in
the community in lieu of an institutional setting. This case centers on Plaintiffs’ desire to
access individualized housing services available under the Disability Waivers that would
allow them to reside in more integrated residential settings.

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Plaintiffs allege that Defendant operates the Disability Waiver services system in a
manner that fails to ensure the reasonably prompt provision of individualized housing
services. Plaintiffs also contend that Defendant fails to provide adequate notice about
available individualized housing services or the denial of such services. According to
Plaintiffs, Defendant’s overreliance on CRS facilities, mismanagement of the State’s
Disability Waivers, and improper delegation of discretion to local lead agencies has
resulted in Plaintiffs’ segregation from their communities in residential settings that are
not the most integrated settings appropriate to their needs. Based on this alleged conduct,
Plaintiffs assert claims against Defendant under the Medicaid Act, the Due Process
Clause, Title II of the Americans with Disabilities Act (“ADA”), and Section 504 of the
Rehabilitation Act (“RA”). (See generally Doc. No. 33 (“Am. Compl.”).)
Plaintiffs seek declaratory relief as well as preliminary and permanent injunctions
obligating Defendants to: (1) “[p]romptly ensure every Disability Waiver recipient living
in a CRS facility receives notice about eligibility for and access to individualized housing
services, including person-centered planning”; (2) “[s]pecifically provide access and take
prompt steps to make individualized housing services, including person-centered
planning, available to Plaintiffs in a reasonable amount of time . . .”; and (3) “[t]ake such
other steps as necessary to enable Plaintiffs to receive residential services in the most
integrated setting appropriate to their needs . . . .” (Id. at Prayer for Relief ¶ 4.)
Corresponding to items (2) and (3), Plaintiffs detail the relief they seek to modify
the state’s residential service system. (Id. ¶¶ 4(b)-4(c).) Under item (2), Plaintiffs seek:

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Access to person-centered planning services that ensure an individual
receives a comprehensive personal transition plan with enforceable
timelines, identifiable tasks, persons responsible for such tasks, descriptions
of the integrated housing options from which to choose, and any other
information necessary to facilitate a transition and subsequent life in the
most integrated setting.
(Id. ¶ 4(b)(i).) They also seek “[a]ccess to services that ensure creation of and facilitate
implementation of the comprehensive moving plan.” (Id. ¶ 4(b)(ii).) Under item (3),
Plaintiffs detail the relief they seek, “including, but not limited to” a list of multiple
proposed modifications to the state’s residential service system. (See id. at ¶ 4(c).)
II.

ARRM’s Complaint in Intervention
On November 16, 2017, ARRM filed a Motion to Intervene or, in the Alternative,

for Leave to Serve as Amicus Curiae (“Motion to Intervene”). (Doc. No. 138.) ARRM
also filed a Complaint in Intervention as an attachment to this motion. (Doc. No. 138-1
(“Compl. Int.”).) ARRM seeks to intervene in this litigation based on its role as “a
nonprofit association of more than 200 providers, businesses and interested stakeholders
. . . dedicated to leading the advancement of Minnesota’s home and community-based
service programs that support people living with disabilities in their pursuit of meaningful
lives.” (Id. ¶ 1.) ARRM members provide services to Disability Waiver recipients
throughout the state, both in CRS facilities and individualized housing settings. (See id.
¶¶ 2-4.) ARRM alleges that “[a]ny order or settlement in this action will impact both the
scope and site of services that ARRM members will be allowed to provide to members of
the Plaintiff Class.” (Id. ¶ 8.)

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ARRM alleges that its members have protectable rights in the licenses granted to
them by Defendant to provide Disability Waiver services, (see id. ¶ 12), protectable
property and contract rights in the CRS facilities they own and operate as well as leases
they have co-signed on behalf of individual Disability Waiver recipients residing in their
own homes, (see id. ¶¶ 18, 54, 147-48, 152), and contract rights resulting from their
employment relationships with the support professionals who provide direct services to
Disability Waiver recipients, (see id. ¶¶ 13, 54). According to ARRM, Defendant’s
administration of the Disability Waiver services system and delegation of uncoordinated
discretion to county lead agencies unlawfully infringes these rights. (See id. ¶¶ 36,
53-54, 152, 162, 180, 184-91, 193-96.) ARRM also contends that its “members have the
enforceable right to provide services to the Plaintiff Class in a manner and form that
complies with the ADA and Section 504” and alleges that Defendant’s conduct has
inhibited its members from doing so. (Doc. No. 140 at 15; see also Compl. Int. ¶¶
197-203.) ARRM seeks to assert three claims against Defendant: (1) Denial of Equal
Protection of Laws (Count I); (2) Violation of Due Process of Laws (Count II);
(3) Violation of Title II of the ADA and Section 504 of the RA (Count III). (Compl. Int.
¶¶ 85-203.) ARRM’s request for declaratory and injunctive relief includes specific
measures aimed at remedying Defendant’s alleged unlawful conduct with respect to the
administration of the state’s Disability Waiver services system. (See generally id. at
Prayer for Relief.)
Based on the Court’s decision to certify the Plaintiff Class, ARRM contends that
“[t]he statewide impact of this injunctive relief and declaratory judgment action is now
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assured to impact the license and property rights of ARRM members.” (Doc. No. 140 at
5.) Specifically, ARRM points to its allegations regarding Defendant’s claimed
authorization under Minn. Stat. § 245A.03 to reduce or eliminate the number of licensed
beds in a CRS facility after an individual Disability Waiver recipient moves out of the
home. (See id. at 6 (citing Compl. Int. ¶¶ 184, 190).) ARRM also suggests “that the
same arbitrary and capricious conduct by county lead agencies” alleged by Plaintiffs has
resulted in arbitrary and unlawful distinctions in the manner by which counties approve
and bill for Disability Waiver services provided by ARRM members. (See id. (citing
Compl. Int. ¶¶ 85-177).) In addition, ARRM describes “a serious and ongoing workforce
crisis” that amplifies their alleged harms. (See id. at 6-7 (citing Compl. Int. ¶¶ 80-84,
121, 136, 139).) ARRM seeks to intervene in this litigation “to eliminate specific
perverse incentives and inconsistent practices of county lead agencies, and instill greater
uniformity by enjoining excessive and unnecessary county interference in what is
supposed to be a statewide system.” (Id. at 7.) ARRM suggests that the Court can order
relief in this action to remedy both the service denials pled by the Plaintiff class and the
infringement of its members’ protectable rights.
III.

Relevant Procedural History
Plaintiffs initiated this lawsuit on August 3, 2016. (Doc. No. 1.) The original

Defendants, including Commissioner Johnson Piper and DHS, moved to dismiss
Plaintiffs’ complaint, and the parties submitted briefing on this motion. (Doc. Nos. 10,
12, 22, 24.) After the hearing on Defendants’ motion, the parties stipulated to the filing
of an amended complaint and agreed that Defendants’ original Motion to Dismiss would
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serve as the response to Plaintiffs’ amended pleading. (See Doc. Nos. 29, 31.) On
February 23, 2017, Plaintiffs filed their First Amended Class Action Complaint and
Request for Injunctive Declaratory Relief. (Doc. No. 33.) On May 18, 2017, the Court
granted Defendants’ Motion to Dismiss in part, dismissing DHS as a party and otherwise
denying the motion. (See Doc. No. 54.)
On September 29, 2017, the Court granted Plaintiffs’ Motion for Class
Certification, certifying the following class: “All individuals age 18 and older who are
eligible for and have received a Disability Waiver, live in a licensed Community
Residential Setting, and have not been given the choice and opportunity to reside in the
most integrated residential setting appropriate to their needs.” (Doc. No. 99 at 35.)
As noted above, ARRM filed the pending Motion to Intervene on November 16,
2017. (Doc. No. 138.) Defendant opposes intervention and does not take a position on
ARRM’s alternative request for leave to serve as amicus curiae. (See Doc. No. 156.)
Plaintiffs support intervention, emphasizing the similarity between ARRM and Plaintiffs’
claims. (See Doc. No. 157.) While acknowledging that their interests are not entirely the
same, Plaintiffs explain that they “support intervention in this case because ARRM’s
interests will not only be directly affected by the disposition of this case, but Plaintiffs
will also likely need ARRM’s members to help implement any ultimate rulings of the
Court or agreements reached by the parties.” (Id. at 2.) Plaintiffs contend that “[b]oth
Plaintiffs and ARRM seek changes that would require DHS to better centralize its
management of the Waiver system and properly oversee and direct lead agencies.” (Id.
at 5.) In essence, Plaintiffs suggest that permitting intervention brings “the third major
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stakeholder in the system” into this litigation, allowing the Court to “be fully informed of
the various interests when it resolves the matter.” (See id. at 5-6.) The Court considers
the parties’ arguments and the propriety of intervention, below.
DISCUSSION
I.

Intervention Under Federal Rule of Civil Procedure 24
Federal Rule of Civil Procedure 24 provides two avenues for a movant to

intervene in an ongoing case. Rule 24(a) governs intervention of right—also referred to
as mandatory intervention—and provides the following:
On 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); see also Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 485 F.3d
1006, 1008 (8th Cir. 2007). 1 Rule 24(b), governing permissive intervention, gives the
court discretion to permit intervention as follows: “On 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). 2 The Eighth

1

Rule 24(a)(1) provides for intervention of right to anyone “who . . . is given an
unconditional right to intervene by a federal statute.” Fed. R. Civ. P. 24(a)(1). This
provision is not at issue in the Court’s consideration of the pending motion.
2

Other rules governing permissive intervention in Rule 24(b)(1)(A) and
Rule 24(b)(2) are not material here.

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Circuit requires that movants have standing in order to intervene in an action. 3 United
States v. Geranis, 808 F.3d 723, 727 (8th Cir. 2015). “[I]n analyzing both Article III
standing and Rule 24, the court should . . . focus[] on the [plaintiffs’] complaint and the
allegations in [the movant’s] motion to intervene.” See Nat’l Parks Conservation Ass’n
v. U.S. EPA, 759 F.3d 969, 973 (8th Cir. 2014). Courts in this Circuit construe Rule 24
“liberally” and “with all doubts resolved in favor of the proposed intervenor.” Id. at 975
(quotation marks and citation omitted). Below, the Court considers the threshold issues
of standing and timeliness before turning to an application of the particular Rule 24
requirements.
II.

Standing
Defendant argues that the Court should deny intervention because ARRM lacks

the requisite Article III standing. “When a party opposes a motion to intervene on the
basis of standing, the prospective intervenor must allege facts showing the familiar
elements of Article III standing.” ACLU of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d
1088, 1092 (8th Cir. 2011). This requires an intervenor to demonstrate “(1) injury,
(2) causation, and (3) redressability.” Geranis, 808 F.3d at 727 (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992)). The “injury in fact” element refers to “an
3

There appears to be some uncertainty over whether the Eighth Circuit requires
intervenors to establish standing for both Rule 24(a) and Rule 24(b) intervention.
Because it is not necessary to resolve this issue to dispose of the pending motion, the
Court declines to do so and simply assumes standing is required for intervention under
either provision. See Franconia Minerals (US) LLC v. United States, 319 F.R.D. 261,
266 (D. Minn. 2017) (“[A]lthough the Eighth Circuit has not explicitly required that
parties intervening under Rule 24(b)(1)(B) establish Article III standing, most district
courts in this circuit to have considered the matter have done so.”).
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invasion of a ‘legally cognizable right.’” Tarek ibn Ziyad Acad., 643 F.3d at 1092
(citation omitted). “[T]he injury must be ‘concrete, particularized, and either actual or
imminent.’” Geranis, 808 F.3d at 727 (quoting Curry v. Regents of the Univ. of Minn.,
167 F.3d 420, 422 (8th Cir. 1999)). In addition, “the injury or threat of injury must be
both real and immediate, not conjectural or hypothetical.” FTC v. Johnson, 800 F.3d
448, 451 (8th Cir. 2015) (quoting City of L.A. v. Lyons, 461 U.S. 95, 101-02 (1983)).
Threatened harms dependent upon multiple contingencies are unlikely to meet this
standard. See id; see also Mo. Coal. for the Env’t Found. v. Mccarthy,
Civ. No. 2:16-cv-04069-NKL, 2016 WL 3566253, at *3-4 (W.D. Mo. June 27, 2016)
(finding no standing to intervene under Rule 24(a) where “a specific chain of events must
[have] occur[ed] for [the plaintiff’s] desired relief to cause the Intervenors’ claimed
injury”). However, allegations of certain injury if an existing party prevails establishes
an imminent injury to support intervention. Tarek ibn Ziyad Acad., 643 F.3d at 1092-93;
see also South Dakota v. Ubbelohde, 330 F.3d 1014, 1024-25 (8th Cir. 2003) (“When we
consider the effect that an ultimate ruling for South Dakota might have, we think the
proposed intervenors presented sufficient evidence of a threatened injury to give them
standing.”). A court should thus consider “[t]he link between [the] plaintiffs’ requested
relief and the possibility of harm to [the movant]” to determine whether the threatened
harms are sufficiently direct to support standing. See United States v. Metro. St. Louis
Sewer Dist., 569 F.3d 829, 836 (8th Cir. 2009). It is irrelevant whether the plaintiffs are
in fact legally entitled to prevail “unless their allegations and requests for relief . . . ‘are
frivolous on their face.’” See Nat’l Parks Conservation Ass’n, 759 F.3d at 974 (quoting
10

Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1080, 1081 (8th Cir.1999)). At
this stage, the court “must construe the motion to intervene in favor of the prospective
intervenor, accepting all material allegations as true.” Tarek ibn Ziyad Acad., 643 F.3d at
1092.
Here, ARRM asserts associational standing on behalf of its membership. “Even in
the absence of injury to itself, an association may have standing solely as the
representative of its members.” Warth v. Seldin, 422 U.S. 490, 511 (1975). “The
association must allege that its members, or any one of them, are suffering immediate or
threatened injury as a result of the challenged action of the sort that would make out a
justiciable case had the members themselves brought suit.” Id. For an organization to
establish standing to sue on behalf of its membership, it must establish that “(a) its
members would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
Typically, an organization seeking to establish standing on behalf of its
membership must demonstrate that one or more of its members have personally suffered
or will face harm through specific averments or proof. See Summers v. Earth Island Inst.,
555 U.S. 488, 498-99 (2009); cf. Franconia Minerals (US) LLC v. United States, 319
F.R.D. 261, 267 (D. Minn. 2017) (finding that an organization had standing to intervene
where it had “submitted the declarations of several members” describing their claimed
injuries). However, an organization need not identify a specific member who will suffer
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harm “where all the members of the organization are affected by the challenged activity.”
See Summers, 555 U.S. at 498-99 (citing NAACP v. Alabama ex rel. Patterson, 357 U.S.
449, 459 (1958)); see also Ouachita Watch League v. U.S. Forest Serv., 858 F.3d 539,
543-44 (8th Cir. 2017). Where the members’ “status and interests are . . . diverse and the
possibilities of conflict . . . obvious,” the organization may not be “an appropriate vehicle
to litigate the claims of its members.” See Associated Gen. Contractors of N.D. v. Otter
Tail Power Co., 611 F.2d 684, 691 (8th Cir. 1979).
According to Defendant, ARRM has failed to demonstrate associational standing
because “ARRM does not claim that all of its members have standing and did not submit
an affidavit to establish that any identified individual member has standing.” (Doc.
No. 156 at 10.) According to Defendant, the sparse allegations in ARRM’s Complaint in
Intervention are inadequate. Defendant also emphasizes that ARRM is required to
establish standing “based on the suit as it exists, not based on potential new claims that it
would like to raise.” (Id.) Given the distinct injuries alleged by Plaintiffs and ARRM
members, Defendants argue, ARRM fails to establish standing on this basis. In addition,
Defendant contends that ARRM’s alleged injury resulting from the potential “systematic
reduction or emptying of CRS facilities” is speculative. (Id. at 11.) Finally, Defendant
suggests that conflicts of interest between ARRM’s members should preclude
organizational standing because some members only offer services in CRS facilities
while others provide services to individuals residing in community homes.
ARRM contends it has standing to intervene. Citing the Complaint in
Intervention, ARRM asserts that its “purpose is dedicated to leading the advancement of
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Minnesota’s home and community-based service programs that support people living
with disabilities in their pursuit of meaningful lives.” (Doc. No. 140 at 8 (citing Compl.
Int. ¶¶ 1-6).) ARRM contends that “the outcome of this action will be statewide, and will
directly impact the license and property rights of ARRM members, as well as their
existing duty under Minn. Stat. § 245D.04, subd. 3(a)(4) to provide waiver services in the
least restrictive manner that is appropriate for each waiver recipient.” (Id. at 5-6.)
ARRM argues that it has associational standing on behalf of its members because its
“mission is directly related to the rights it seeks to enforce in this lawsuit,” (id. at 8), and
all of its “members have a stake in the pending litigation,” (Doc. No. 162 at 4). In
particular, ARRM notes that its members are all licensed to provide Disability Waiver
services which are funded and authorized by DHS and Minnesota counties. ARRM
asserts that its members must all comply with the ADA and the RA in delivering services
and contends that its members “have an interest in ensuring that the Commissioner does
not prevent ARRM members from fulfilling these federal responsibilities.” (Id.)
According to ARRM, any new claims raised in the Complaint in Intervention “spring
from the Plaintiff Class’s allegations concerning Defendant’s failure to direct or guide
lead agencies to provide services in the most integrated setting.” (Id. at 5.) Finally,
ARRM disputes that its injuries are speculative or that conflicts among ARRM members
require participation of all members. ARRM argues that its “members would [all] benefit
from the uniform administration of the waiver system across the state.” (Id. at 7.)
After careful consideration, the Court concludes that ARRM lacks standing to
intervene in this matter. Even assuming that ARRM has properly established
13

associational standing on behalf of its membership, ARRM has failed to identify an
injury that is sufficiently concrete and immediate to support standing. Specifically,
ARRM identifies the potential harm to its members’ property and license rights if CRS
facility beds are emptied, reduced, or ultimately closed. A review of Plaintiffs’ Amended
Class Action Complaint reveals that this result is not plainly sought by Plaintiffs.
Construing the allegations in the Complaint in Intervention to be true, the Court
acknowledges that ARRM’s members’ license and property rights may eventually be
impacted if (1) Plaintiffs are successful in their claims, (2) changes to Defendant’s
service system results in Plaintiffs accessing individualized housing services,
(3) Plaintiffs choose to move out of CRS facilities, and (4) Defendant eliminates CRS
facility capacity consistent with DHS’s alleged interpretation of Minn. Stat. § 245A.03.
Such threatened harms dependent on a sequence of contingencies, however, are
insufficient to support intervenor standing. See id. Simply put, ARRM “has not shown
that the harm to it and its members would be the inevitable result of judgment in the
Plaintiffs’ favor.” See Pettet v. May, Civ. No. 2:11-CV-04049-NKL, 2011 WL 3354089,
at *2 (W.D. Mo. Aug. 3, 2011).
Although there is arguably a more direct connection between Plaintiffs’ lawsuit
and ARRM’s alleged harms under the ADA and the Section 504 of the RA (Count III),
the Court also finds that ARRM has failed to establish standing on this basis. ARRM
analogizes its position to that of a school district which “joins in an action by students to
sue a state to enjoin laws or actions that prevents the students from receiving, and the
district from providing, services in a manner that comports with equal protection of the
14

laws.” (Doc. No. 140 at 15 (citing Cincinnati City Sch. Dist. v. State Bd. of Educ., 680
N.E.2d 1061, 1066 (Ohio App. 1996)).) ARRM alleges that “[a]s an express obligation
of their licenses issued under Minnesota Statutes 245D, Defendant mandates that ARRM
members must provide supports and services that are the least intrusive and most
normalized, given the level of supervision and protection required for the person.”
(Compl. Int. ¶ 199.) Thus, ARRM contends that Defendant has delegated her federal
obligations to ARRM members. (Id. ¶ 200.) ARRM further asserts “that its members
hold indirect rights that require the Defendant to administer a fair and uniform waiver
service system that enables, and does not frustrate, their ability, obligation and right to
provide supports and services in the least intrusive setting.” (Id. ¶ 203.)
Even if ARRM’s members have such enforceable rights, however, ARRM has
failed to establish how the resolution of Plaintiffs’ lawsuit will result in “concrete,
particularized, and . . . actual or imminent” injury to these rights. Geranis, 808 F.3d at
727 (citation omitted). ARRM alleges no facts to demonstrate concrete, particularized, or
imminent harm to ARRM’s membership relating to their alleged “enforceable right to
provide services to the Plaintiff Class in a manner and form that complies with the ADA
and Section 504.” (Doc. No. 140 at 15.) In particular, ARRM has not alleged that its
membership has been threatened with any legal claims under these provisions or that its
members’ license rights have been threatened by Defendant based on any alleged failure
to provide services consistent with the ADA and the RA’s requirements. Although the
allegations in Count III of the Complaint in Intervention are certainly similar to the

15

claims raised by the Plaintiff Class, that alone is not enough to establish standing to
intervene. 4 The Court concludes that ARRM lacks standing.
The Court alternatively concludes, below, that even though ARRM’s motion was
filed in a timely manner, the Court would ultimately deny both mandatory and permissive
intervention under Rule 24(a) and (b). Thus, even if ARRM properly had standing to
intervene, the Court would deny intervention in this case.
III.

Timeliness of ARRM’s Motion
Intervention under either Rule 24(a) or 24(b) must be timely. See Planned

Parenthood of the Heartland v. Heineman, 664 F.3d 716, 718 (8th Cir. 2011).
Timeliness is therefore a “threshold issue” to be determined by the court before
addressing the relevant considerations for mandatory or permissive intervention. See id.
(citation omitted). A court’s timeliness determination should involve specific
consideration of the following factors: “(1) the extent the litigation has progressed at the
time of the motion to intervene; (2) the prospective intervenor’s knowledge of the
litigation; (3) the reason for the delay in seeking intervention; and (4) whether the delay
in seeking intervention may prejudice the existing parties.” In re Wholesale Grocery
Prods. Antitrust Litig., 849 F.3d 761, 767 (8th Cir. 2017) (quoting Tarek ibn Ziyad Acad.,
643 F.3d at 1094). Notwithstanding these enumerated factors, a court’s timeliness

4

Furthermore, to the extent ARRM challenges Defendant’s alleged failure to
ensure that Plaintiffs are provided services in the most integrated setting appropriate to
their needs under the integration mandates of the ADA and the RA, the Court concludes
that Plaintiffs adequately represent this interest, making intervention under Rule 24(a)
unwarranted in any case.
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determination is discretionary and “based on all of the circumstances” at issue. Tarek ibn
Ziyad Acad., 643 F.3d at 1094; see also Mille Lacs Band of Chippewa Indians v. State of
Minn., 989 F.2d 994, 998 (8th Cir. 1993) (“Whether a motion to intervene is timely is
determined by considering all the circumstances of the case. No ironclad rules govern
this determination.” (citation omitted)).
A party’s delay in seeking to intervene may be excusable where the threatened
harm to its interests was not apparent at an earlier stage of the litigation. See Linton
ex rel. Arnold v. Comm’r of Health & Env’t, State of Tenn., 973 F.2d 1311, 1313-18
(6th Cir. 1992). Seeking to intervene in a putative class action prior to certification may
be deemed premature because “class certification is not a ‘forgone conclusion,’” and the
litigation may ultimately have no effect on the intervenor’s interests. See George v.
Uponor, Inc., 290 F.R.D. 574, 577-78 (D. Minn. 2013). With respect to the fourth factor,
a court should focus on the potential prejudice caused by the movant’s delay rather than
by their potential presence in the litigation. See United States v. Union Elec. Co., 64 F.3d
1152, 1159 (8th Cir. 1995). However, the court may find prejudice due to delay where
intervention would result in “[t]he introduction of a new legal theory” because this “could
change the parties’ respective strategies or framing of the issues during preliminary
motion practice.” See Tarek ibn Ziyad Acad., 643 F.3d at 1094-95.
Defendant argues that ARRM’s motion should be denied because it is untimely.
Specifically, Defendant contends that ARRM has failed to provide a sufficient reason to
support its delay in seeking intervention. Further, Defendant asserts that “the litigation
has already progressed to an advanced stage,” and “substantial discovery” has already
17

taken place. (Doc. No. 156 at 15.) Finally, Defendant argues that “ARRM’s motion will
prejudice the parties by causing further delay and expanding the scope of the litigation at
this late stage.” (Id.)
ARRM argues that its motion was filed in a timely manner shortly after the Court
certified this case as a Class Action. According to ARRM, “[i]ntervention would not
have been warranted or appropriate if this Court had denied Class certification.” (Doc.
No. 140 at 14.) ARRM acknowledges that this case began in August 2016, but argues
that it moved to intervene once it became aware that its statewide interests may be
impacted by this litigation. ARRM argues that “[i]ntervening prior to the certification of
the class would have been premature because, prior to the certification of the class, the
contours of the lawsuit were unclear.” (Doc. No. 162 at 8.) ARRM points out that
Defendant’s concern over potential delay is unfounded because it appears that Defendant
“has not embraced a litigation strategy designed to achieve a quick resolution of the
case.” (Id. at 9.)
Considering the particular circumstances of this case, the Court determines that
ARRM’s Motion to Intervene was timely. ARRM persuasively explains its reason for
delay in seeking to intervene, and the Court finds that any delay was justified. Although
the record does not establish when ARRM first became aware of this litigation, ARRM
argues that it had no basis on which to intervene until after the Court granted Plaintiffs’
Motion for Class Certification. The Court agrees. Considering the change in this
litigation’s potential scope following Class Certification, ARRM reasonably waited until
after that time to meet and confer with the parties about its desire to intervene. Finally,
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the Court concludes that the parties would not be prejudiced by ARRM’s delay. In
particular, the Court discerns no prejudice to Plaintiffs as they are amenable to
intervention at this late stage. In addition, Defendants have not clearly identified any
potential prejudice caused by ARRM’s delay in seeking to intervene. In sum, the
relevant factors and the unique circumstances of this case support the conclusion that
ARRM’s Motion to Intervene was timely.
IV.

Intervention of Right
A party shall be permitted to intervene as a matter of right in an action if it

demonstrates “that it: (1) has a recognized interest in the subject matter of the litigation
that (2) might be impaired by the disposition of the case and that (3) will not be
adequately protected by the existing parties.” Johnson, 800 F.3d at 452 (quoting
N. Dakota ex rel. Stenehjem v. United States, 787 F.3d 918, 921 (8th Cir.2015)); see also
Fed R. Civ. P. 24(a)(2). “An interest is cognizable under Rule 24(a)(2) only where it is
‘direct, substantial, and legally protectable.’” Med. Liab. Mut. Ins. Co., 485 F.3d at 1008
(quoting Union Elec. Co., 64 F.3d at 1161). “The interest test should be construed
broadly, so as to include as many parties as practicable and . . . the interest may be
contingent on the outcome of litigation.” Animal Prot. Inst. v. Merriam, 242 F.R.D. 524,
527 (D. Minn. 2006); see also Union Elec. Co., 64 F.3d at 1162 (“Although the
intervenor cannot rely on an interest that is wholly remote and speculative, the
intervention may be based on an interest that is contingent upon the outcome of the
litigation.”). However, the movant’s asserted interest must not be “contingent upon the
occurrence of a sequence of events before it becomes colorable.” Med. Liab. Mut. Ins.
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Co., 485 F.3d at 1008 (quoting Standard Heating & Air Conditioning Co. v. City of
Minneapolis, 137 F.3d 567, 571 (8th Cir. 1998)). A movant “must . . . demonstrate that
the subject matter of the action affects its interests in a direct rather than tangential way.”
Metro. St. Louis Sewer Dist., 569 F.3d at 839. Therefore, “[a] court must carefully
analyze whether the proposed intervenor’s asserted interest really is bound up with the
subject matter of the litigation.” Id. at 840.
With respect to the second element, the movant must establish “a ‘sufficient stake’
in the litigation” by demonstrating that its interests may be impaired absent intervention.
Union Elec. Co., 64 F.3d at 1161 (citation omitted). “When a third party files suit to
compel governmental agency action that would directly harm a regulated company, the
company’s economic interests in the lawsuit satisfy Rule 24(a)(2)’s recognized-interest
requirement.” Nat’l Parks Conservation Ass’n, 759 F.3d at 976 (finding an interest
sufficient to support Rule 24(a) intervention where a group of plaintiffs sought to compel
environmental regulation affecting the movant’s property and financial interests and
noting that “[the movant’s] interests are the ultimate target” of the litigation).
The adequacy-of-representation element poses only a “minimal burden” for
potential intervenors. Animal Prot. Inst., 242 F.R.D. at 528 (citation omitted). To
evaluate this element, the court should “compar[e] the interests of the proposed
intervenor with interests of the current parties to the action.” Id. “[I]ntervention is
appropriate if the interests are disparate, even if they share the same legal goal.” Id.
Under the parens patriae doctrine, a government party is presumed to be an adequate
representative of the public interest, but an intervenor may overcome this presumption by
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“show[ing] that its interests are distinct” and “not shared by the general citizenry.” See
Little Rock Sch. Dist. v. N. Little Rock Sch. Dist., 378 F.3d 774, 780 (8th Cir. 2004).
Defendant argues that ARRM has failed to identify a recognized interest in the
outcome of this litigation that is directly related to the relief Plaintiffs seek to obtain—
more autonomy over their individual housing choices. Rather, Defendant suggests,
ARRM merely asserts an interest “in the collateral issue of how its members are treated
by counties that administer Disability Waiver services.” (Doc. No. 156 at 16.)
According to Defendant, “[t]his tangential interest is not sufficient to support intervention
as of right.” (Id. at 17.) Further, Defendant argues that ARRM’s claimed interest will
not actually be impaired by the outcome of this litigation because Plaintiffs do not seek
“the systematic emptying or reduction in occupancy of CRS facilities.” (Id.) Finally,
Defendant argues that to the extent ARRM asserts a recognized interest that may actually
be impaired by this litigation, Plaintiffs adequately represent this interest. Specifically,
Defendant contends, both ARRM and Plaintiffs seek to “limit[] the discretion provided to
county lead agencies.” (Id. at 18.) Defendant also argues that much of the relief ARRM
identifies as posing a threat to its interests is beyond the scope of what the Court could
actually order in this case.
In contrast, ARRM argues that it meets the requirements for intervention of right.
First, ARRM suggests that its members have a recognized interest in this case “[a]s the
current and future licensed providers of home and community based services to members
of the Plaintiff Class.” (Doc. No. 140 at 8.) ARRM highlights how the allegations in its
Complaint in Intervention build upon what it describes as “the crux of the subject matter
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of this litigation” as outlined in Plaintiffs’ Amended Complaint—“Defendant’s lack of
supervision of lead agencies.” (Id. at 8-9.) ARRM contends that “[i]f the outcome of this
litigation tweaks Defendant’s current policies and practices yet preserves the underlying
status quo of county lead agency decision-making and unbridled control, then ARRM
members’ licensure and property rights will continue to be redefined, diminished, and
ultimately impaired.” (Id. at 10.) In addition, ARRM asserts that both its members and
the Plaintiff Class suffer from the same “county-by-county budgetary considerations” and
resulting “lack of uniformity” throughout the State’s Waiver Services system. (Id.)
ARRM also points out that both it and the Plaintiffs assert claims under the ADA and the
Rehabilitation Act relating to the same conduct by Defendant.
Second, ARRM argues that its recognized interests may be impaired by this
litigation. Specifically, ARRM points to the possibility that “the disposition of this case
results in a mandate to reduce or empty Minnesota’s Community Residential Settings by
a set and established schedule, without enforcing a prudent method for selecting
Community Residential Settings or addressing how those changes impact the property
and licensing rights held by ARRM members.” (Id. at 11.) This outcome, ARRM
suggests, “could easily result in a body blow to the industry, resulting in a greater denial
of access to services.” (Id. at 11-12.) ARRM also argues that “if the Plaintiffs are
successful in their claims, any resolution fashioned by the Court would impact ARRM
members.” (Doc. No. 162 at 11.) ARRM points out that the Plaintiffs’ requested relief
all relates to the “ultimate goal of moving individuals who desire to do so out of licensed
settings into their own homes.” (Id.) According to ARRM, “[i]t is near inconceivable
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that these actions will not impact ARRM members’ protectable [sic] interests,”
particularly due to Defendant’s alleged interpretation of state law that permits the closure
or consolidation of licensed beds once an individual moves out of a CRS facility. (Id.)
And further, ARRM contends, if Plaintiffs’ requested relief is denied in all respects,
ARRM will continue to be affected by Defendant’s alleged mismanagement of the
Disability Waiver services system across the state.
Third, ARRM argues that its interests would not be adequately represented by
Plaintiffs or Defendants. ARRM asserts that its “interests are commensurate with, but
not identical to” the interests of the Plaintiff Class. (Id. at 12.) ARRM also argues that
“[i]f taken to their extreme, some of the remedies sought by the Plaintiffs would injure
ARRM members.” (Id.) For example, ARRM contends that its members’ license and
property rights may be undermined if Defendant responds to Plaintiffs’ allegations by
strictly defining what constitutes a community-based residence under federal Medicaid
regulations. Because its interests are admittedly distinct from those of the existing
parties, ARRM contends that it has met the minimal burden of establishing inadequate
representation.
The Court concludes that ARRM has failed to establish that it is entitled to
intervention of right. First, for many of the same reasons outlined above with respect to
standing, ARRM has not articulated “a recognized interest in the subject matter of the
litigation” that is “direct, substantial, and legally protectable.” See Johnson, 800 F.3d at
452; Med. Liab. Mut. Ins. Co., 485 F.3d at 1008 (citation omitted). The Court
acknowledges that the interest test is to be broadly construed. Even so, the Court
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concludes that ARRM’s asserted interests in this litigation are too “remote and
speculative” or “contingent upon the occurrence of a sequence of events” to support
Rule 24(a) intervention. See Union Elec. Co., 64 F.3d at 1162; Med. Liab. Mut. Ins. Co.,
485 F.3d at 1008 (citation omitted). ARRM’s claimed interests, although tangentially
related to Plaintiffs’ lawsuit, are not directly bound up with the particular claims
Plaintiffs assert or the relief they seek. Second, and relatedly, ARRM has failed to
demonstrate that its claimed interests may actually be impaired by this litigation. This is
not the sort of case where the plaintiffs’ lawsuit directly targets the potential intervenors’
conduct or rights. See Nat’l Parks Conservation Ass’n, 759 F.3d at 976. Rather, it is
only upon a sequence of speculative contingencies that ARRM’s protectable interests
may be impaired.
Finally, the Court concludes that at least one of ARRM’s claimed interests will be
adequately protected by the Plaintiff Class in this case. Specifically, ARRM’s alleged
interest in providing services consistent with the requirements of the ADA and the RA is
the central thrust of Plaintiffs’ entire case. As even ARRM acknowledges, Plaintiffs
themselves are the parties with directly enforceable rights under these federal provisions.
(See Compl. Int. ¶ 51.) Any claimed rights asserted by ARRM are merely derivative of
the rights Plaintiffs are already vigorously pursuing in this action. And to the extent
ARRM has obligations to fulfill the requirements of these federal statutes in order to
maintain their licenses under state law, the outcome of Plaintiffs’ claims will resolve
what is required of Defendant, her agents, or licensed providers such as ARRM’s
members to ensure Plaintiffs are residing in the most integrated setting appropriate to
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their needs. 5 With respect to ARRM’s other asserted rights such as their license and
property rights in the residential facilities they own and operate, neither of the existing
parties adequately represents that interest. However, as previously explained, the Court
concludes that these interests are not plainly threatened by the potential disposition of this
case. Based on the foregoing considerations, the Court therefore concludes that even if
ARRM adequately established standing in this matter, it would not be entitled to
intervention of right under Federal Rule of Civil Procedure 24(a).
V.

Permissive Intervention
A party unable to meet the requirements for intervention as a matter of right may

still be permitted to intervene upon timely application when an applicant’s claim or
defense and the main action have a question of law or fact in common. See
Fed. R. Civ. P. 24(b). In these circumstances, the court should consider “whether the
proposed intervention would unduly delay or prejudice the adjudication of the parties’
rights.” S. Dakota ex rel. Barnett v. U.S. Dep’t of Interior, 317 F.3d 783, 787 (8th Cir.
2003); see also Fed. R. Civ. P. 24(b)(3). The court may exercise its discretion to decline
intervention if the proposed intervenor’s “presence in the case would interject collateral
issues.” Curry, 167 F.3d at 423; see also Mo. Coal. for the Env’t Found., 2016 WL
3566253, at *5-6 (denying Rule 24(b) intervention where the intervenors’ participation
would be “more likely to delay and sidetrack” the litigation). This is consistent with the
5

To the extent ARRM asserts a distinct interest under the ADA and the RA with
respect to services its members provide to individuals outside of the Plaintiff Class, such
an interest would not be within the scope of this litigation or potentially impaired by the
outcome of this case.
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proposition that “as a general rule, intervenors are limited to the claims already at issue in
a case in which they are allowed to intervene.” See White Earth Nation v. Kerry, Civ.
No. 14-4726, 2015 WL 12778751, at *6 (D. Minn. Jan. 23, 2015) (collecting cases).
Defendant contends that the Court should deny permissive intervention because it
would cause undue delay and prejudice to the existing parties. In particular, Defendant
asserts that “[a]llowing ARRM to intervene would expand the scope and cost of litigation
by introducing new and collateral issues.” (Doc. No. 156 at 20.) ARRM argues that it
should be permitted to intervene under Rule 24(b) if the Court concludes that mandatory
intervention is not warranted. Although it raises distinct claims from the Plaintiff Class,
ARRM contends that its claims are all built upon “the same facts concerning Defendant’s
oversight of her county agents.” (Doc. No. 140 at 15.) In particular, ARRM points to
“the alleged root cause that Defendant delegates too much unfettered authority to county
lead agencies,” resulting in inconsistencies throughout the state’s Disability Waiver
system. (Id. at 14.) ARRM also argues that its asserted rights under the ADA and
Section 504 are analogous to those asserted by Plaintiffs. Finally, ARRM argues that
granting permissive intervention would not result in any undue delay or prejudice to the
parties because ARRM does not seek to alter the existing schedule for this litigation,
Plaintiffs support intervention, and “permitting intervention here will actually serve to
promote efficiency.” (Doc. No. 162 at 13.) ARRM recognizes that its participation could
“expand the scope of the litigation,” but suggests that efficiency favors intervention in
this case. (Id.)

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The Court concludes that ARRM’s Complaint in Intervention raises common
questions of law and fact with Plaintiffs’ case. For example, both causes of action raise
common factual questions regarding the nature of Defendant’s oversight over county lead
agencies with respect to the provision of Waiver Services. In addition, both ARRM and
the Plaintiff Class assert related claims under the ADA and the RA, suggesting that
common questions of law would arise in resolving both matters. Cf. Ball v. Kasich, Civ.
No. 2:16-cv-282, 2017 WL 3172778, at *10 (S.D. Ohio July 25, 2017) (“Here, the
common question of law argued by Plaintiffs, Defendants, and [the potential intervenors]
is: What does Olmstead require of Defendants to comply with the ADA?”).
However, in its discretion, the Court declines to grant permissive intervention in
this matter based on the significantly expanded nature and scope of litigation
contemplated by ARRM’s presence in the litigation. Aside from the commonalities
noted above, ARMM’s Complaint in Intervention bears little relationship to the actual
factual allegations and legal claims asserted by the Plaintiff Class. Instead, ARRM
alleges a number of additional and distinct legal claims relating to its members’ license
and property rights as providers of Waiver Services. It also challenges a number of
aspects of Defendant’s administration of the Waiver Services system that are unrelated to
the conduct that Plaintiffs challenge. For example, ARRM points to alleged disparities in
Defendants’ statewide administration of the Waiver Services system based on specific
funding mechanisms and coordination of county authority over Waiver Services. These
specific disparities are not the focus of Plaintiffs’ case. Rather, these allegations and
ARRM’s related Equal Protection and Due Process claims “would interject collateral
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issues” and needlessly complicate this already complex Class Action litigation. See
Curry, 167 F.3d at 423. ARRM is certainly within its rights to pursue a separate action
against Defendant, but the Court concludes that permitting the addition of these wholly
separate claims in this matter would not promote the interests of efficiency or timely
resolution of this case. Thus, notwithstanding Plaintiffs’ support for intervention, the
Court determines that it is appropriate to deny ARRM’s request for permissive
intervention.
VI.

Leave to Serve as Amicus Curiae
As an alternative to intervention, ARRM seeks leave to serve as amicus curiae in

this action. “Although a party fails to meet the standard for intervention under Rule 24, a
court may nonetheless allow a party to participate in litigation as an amicus curiae where
although short of a right to intervene, the amicus has a special interest that justifies his
having a say.” Pettet, 2011 WL 3354089, at *4 (quotation marks and citation omitted).
A determination on a request to participate as amicus curiae is discretionary, and “the
court . . . may grant or refuse leave according as it deems the proffered information
timely, useful, or otherwise.” Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of
Eng’rs, 38 F. Supp. 3d 1043, 1055 (D. Minn. 2014) (quoting Mausolf v. Babbitt, 158
F.R.D. 143, 148 (D. Minn.1994), rev’d on other grounds, 85 F.3d 1295 (8th Cir. 1996)).
ARRM indicates “that its members are witness to inconsistent, confusing and
arbitrary decisions and actions taken by counties that directly impact ARRM members”
and ultimately the Plaintiff Class. (Doc. No. 140 at 17.) ARRM specifically requests to
participate in an amicus capacity by submitting an amicus memorandum, “appear[ing] at
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any hearing or in-chamber discussion as invited and requested by the Court,” and by
providing comment on a potential Class Action Settlement prior to Court approval. (Id.)
Defendant does not take a position on ARRM’s request to participate as amicus curiae.
The Court grants ARRM’s request to participate as amicus curiae. As both
ARRM and Plaintiffs have persuasively suggested, ARRM offers useful information for
the Court in this matter because its provider members represent “the third major
stakeholder” in the state’s Waiver Services system. (See Doc. No. 157 at 5; see also Doc.
No. 162 at 1 (identifying these key stakeholders as “persons with disabilities, the state,
and service providers”).) ARRM’s participation will aid the Court in resolving Plaintiffs’
claims against Defendant with the most thoroughly informed understanding of how the
Waiver Services system operates in practice. Although the Court concludes that
ARRM’s claimed interests in this litigation do not rise to the level to support mandatory
or permissive intervention, the Court welcomes ARRM’s participation as amicus curiae
to assist the Court in considering the merits of Plaintiffs’ claims. Should ARRM wish to
participate in a particular capacity with respect to a pending motion or matter before the
Court, ARRM shall notify the Court by filing a letter on the docket detailing its request.
CONCLUSION
ARRM’s asserted interests in this litigation are insufficient as a matter of law to
support standing to intervene. Furthermore, even if ARRM had standing, ARRM has
failed to establish the requirements for mandatory intervention under Rule 24(a), and the
Court declines to grant permissive intervention under Rule 24(b). Thus, the Court denies
ARRM’s motion to intervene. Instead, the Court shall permit ARRM to participate as
29

amicus curiae to provide an important perspective that will be useful to the Court as it
resolves the complex claims alleged in Plaintiffs’ Amended Class Action Complaint.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1.

ARRM’s Motion to Intervene or, in the Alternative, for Leave to Serve as

Amicus Curiae (Doc. No. [138)]) is GRANTED IN PART and DENIED IN PART as
follows:
a.

ARRM’s Motion to Intervene pursuant to Federal Rule of

Civil Procedure 24(a) or 24(b) is DENIED.
b.

ARRM’s request to participate as amicus curiae is

GRANTED. Should ARRM wish to participate in a particular capacity
with respect to a pending motion or matter before the Court, ARRM shall
notify the Court by filing a letter on the docket detailing its request.
Dated: May 4, 2018

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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