Clover v. Camp Pendleton & Quantico Housing LLC
- Proceeding
- district
- Area
- civil
- Panel
- Larry Alan Burns (author)
Analysis
The court addressed a government notice of interest filed in response to a motion to dismiss based on derivative immunity. The court proposed to treat the notice as a motion for leave to intervene, vacated the hearing on the motion to dismiss, and extended the deadline for the defendants' reply brief.
| What the court decided | The model |
|---|---|
Proposed to treat the government's notice of interest as a motion for leave to intervene“The Court proposes to treat the motion, in part, as a motion for leave to intervene as to the issue raised, which it would be inclined to grant.” | agree with court The court correctly identified that a non-party government entity filing a notice of interest that argues specific facts and legal positions effectively acts as an intervenor. Treating it as such allows the court to manage the procedural posture and ensure proper standing and authorization under 28 U.S.C. § 517. |
Vacated the hearing on the motion to dismiss“The hearing on the motion to dismiss, currently on calendar for Monday, November 23, 2020, at 11:15 a.m. is VACATED, but may be reset if appropriate.” | agree with court Vacating the hearing is a reasonable procedural step to allow the parties to address the new procedural posture created by the government's intervention-like filing and to allow the defendants to file an extended reply brief. |
Extended the page limit and deadline for the defendants' reply memorandum“The page limit for their reply is extended to 15 pages, and the reply should be filed by November 30, 2020.” | agree with court Granting additional time and pages to address new arguments raised by the government's notice is a standard and equitable procedural accommodation. |
The order itself: sound — The order is procedurally sound. It correctly identifies the procedural irregularity of a non-party government filing a substantive notice of interest and proposes a standard remedy (treating it as a motion to intervene). It appropriately manages the docket by vacating the hearing and allowing additional briefing time. The reliance on 28 U.S.C. § 517 and the cited district court case is appropriate for the procedural issue at hand.
Opinion
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)
12 Plaintiffs, ORDER PROPOSING TO TREAT 13 v. GOVERNMENT’S NOTICE AS MOTION FOR LEAVE TO 14 CAMP PENDLETON & INTERVENE; AND QUANTICO HOUSING LLC, et al. 15 Defendants. ORDER VACATING HEARING 16 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 || 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 □□ 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 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 IT IS SO ORDERED. 19 ||Dated: November 16, 2020 20 / Mu 4. ‘4, Wy 21 Honorable Larry Alan Burns 29 Chief United States District Judge 23 24 25 26 27 28