Mgm Resorts Global Development, LLC v. Department of the Interior

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MGM GLOBAL RESORTS DEVELOPMENT, :
LLC, AND BLUE TARP REDEVELOPMENT :
LLC : Civil Action No.: 19-2377 (RC)
Plaintiffs, :
:
v. : Re Document Nos.: 24, 28
:
UNITED STATES DEPARTMENT OF THE :
INTERIOR, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING MOTION FOR LIMITED INTERVENTION;
DENYING AS MOOT MOTION FOR SCHEDULING ORDER
Before the Court are relatively preliminary motions in the latest round of litigation in a
long-running battle over a stalled casino project in East Windsor, Connecticut. Not long ago, the
State of Connecticut (“Connecticut”), the Mashantucket Pequot Tribe (the “Pequot”), and the
Mohegan Tribe of Indians of Connecticut (the “Mohegan”) (together with the Pequot, the
“Tribes”) sued the Department of the Interior seeking administrative approval of certain
amendments (the “Amendments”) to certain agreements between the Connecticut and the Tribes.
Interior’s approval was necessary to give effect to the Amendments, which would have cleared
the way for the development of the East Windsor casino. Plaintiffs here, MGM Global Blue
Resorts Development LLC and Blue Tarp Redevelopment LLC (together “MGM”), intervened in
that case based on competitive harms they would suffer if the Amendments were approved by
Interior. That case resolved itself when Interior approved the Amendments. Now the same
parties have returned to this Court, but their alliances have shifted. This time MGM is suing
Interior and related government defendants (collectively, the “Government Defendants”) in an
effort to unravel the Government’s approval of the Amendments. Connecticut and the Tribes
(together, “Movants”) now move to intervene alongside the Government Defendants on a limited
basis to argue that they are an indispensable party to the action which, they say, must be
dismissed because their sovereign immunity makes their joinder here impossible.
At the moment the Court considers only whether this limited intervention should be
allowed. Because the Court concludes that it should, the Court grants Movants’ motion to
intervene and will allow the filing of the Movants’ proposed Motion to Dismiss. That motion
will need to be briefed before the Court can address the sovereign immunity argument and other
arguments for dismissal raised by the Government Defendants in their own pending Motion to
Dismiss. The Court also addresses a pending motion concerning scheduling below.
I. BACKGROUND
In earlier opinions in a related case, the Court has recounted in more detail the factual and
procedural history among the participants here. See Connecticut v. U.S. Dep’t of the Interior
(“Connecticut I”), 344 F. Supp. 3d 279, 288–95 (D.D.C. 2018); Connecticut v. U.S. Dep’t of the
Interior (“Connecticut II”), 363 F. Supp. 3d 45, 51–54 (D.D.C. 2019). In future opinions the
Court will have the opportunity to do so again, as there is at least one dispositive motion already
pending in this current case. See Motion to Dismiss, ECF No. 16. For now, the Court provides
only the broad overview necessary to resolve the instant motions for intervention and for a
scheduling order. The Court relies on its prior opinions here, as well as on both the Motion to
Intervene and MGM’s complaint because “motions to intervene are usually evaluated on the
basis of well pleaded matters in the motion, the complaint, and any responses of opponents to
intervention.” Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981).
2
MGM’s claims in the Complaint are brought primarily under the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701–706, and the Indian Gaming Regulatory Act
(“IGRA”), 25 U.S.C. §§ 2701–2721. The IGRA governs Class III casino gaming—blackjack,
roulette, and other table games—on tribal land. 25 U.S.C. §2710(d); 25 C.F.R. § 502.4; Amador
Cty. v. Salazar, 640 F.3d 373, 376 (D.C. Cir. 2011). It mandates that a tribe must obtain
authorization from a state before conducting Class III gaming on land within that state’s borders.
25 U.S.C. § 2710(d)(1)(C). This authorization can be secured through a negotiated agreement
between the tribe and the state, called a “tribal-state compact,” or, in cases where the tribe and
the state cannot agree, through “secretarial procedures” laid out by the Secretary of the Interior in
consultation with the tribe and a mediator. See 25 U.S.C. § 2710(d)(3)(A) (tribal-state compact),
(d)(7)(B)(vii) (secretarial procedures). The Mohegan Tribe operates a casino on its land pursuant
to a Compact with Connecticut, and the Pequot operates one on its lands pursuant to secretarial
procedures. Compl. ¶ 25 (citing 56 Fed. Reg. 24,996 (May 31, 1991) (“Pequot Procedures”); 59
Fed. Reg. 65,130 (Dec. 16, 1994) (“Mohegan Compact”)); Mem. P. & A. Supp. Mot. for Limited
Intervention at 1–2 (“Mot. Intervene”), ECF No. 24-1. Each Tribe has also executed a
Memorandum of Understanding with Connecticut relating to their casino operations. Compl.
¶ 27; see Mot. Intervene at 2 (referencing “related Memoranda of Understanding”).
In 2015, the Tribes formed a joint venture, MMCT Venture LLC (“MMCT”), with the
aim of building and operating an off-reservation, commercial casino in East Windsor,
Connecticut. Connecticut I, 344 F. Supp. 3d at 291; Compl. ¶¶ 39–40. Because this type of
casino was not permitted under the Mohegan Compact, Pequot Procedures, and related
Memoranda of Understanding, Connecticut passed a law, Public Act 17-89, providing
authorization for the casino but stating that this authorization would not be effective unless and
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until those documents were amended and those amendments approved by the Secretary of the
Interior. Connecticut I, 344 F. Supp. 3d at 291–2; Compl. ¶¶ 42–45; see 2017 Conn. Acts 17-89
(Reg. Sess.). 1 The Tribes and Connecticut approved and executed the necessary amendments
thereafter and requested approval from the Department of the Interior’s Office of Indian Gaming.
Connecticut I, 344 F. Supp. 3d at 292. When the Secretary “returned” the proposed
Amendments without approving them, Connecticut and the Tribes filed suit in this Court under
the APA and IGRA seeking an order compelling their approval. Id. at 292–93. Interior later
recognized that the Mohegan Amendments were “deemed approved” 2 and the Mohegan dropped
out of the case. 83 Fed. Reg. 25,484 (June 1, 2018); Mot. Intervene at 4.
MGM moved to intervene as a defendant, arguing that the East Windsor casino would
create new competition very close to an MGM casino in Springfield, Massachusetts, and that the
Amendments’ handling of royalty payments would incentivize Connecticut to prefer future
development proposals from MMCT over otherwise comparable proposals from MGM. See
Connecticut I, 344 F. Supp. 3d at 297. The Court granted MGM’s intervention motion. Id. at
306. At the same time, however, it granted a motion to dismiss the action for failure to state a
claim. Id. Thereafter, Connecticut and the Pequot moved to amend their complaint and the
Court granted this motion as well. Connecticut II, 363 F. Supp. 3d at 50. Thereafter, Interior
approved the Pequot Amendments, 84 Fed. Reg. 11,122 (Mar. 25, 2019), and the parties
1
Public Act 17-89 is available at https://www.cga.ct.gov/2017/ACT/pa/pdf/2017PA-
00089-R00SB-00957-PA.pdf. The Court takes judicial notice of this Act as a public record. See
Cannon v. District of Columbia, 717 F.3d 200, 205 n.2 (D.C. Cir. 2013) (taking judicial notice of
document posted on the District of Columbia’s Retirement Board website); Johnson v. Comm’n
on Presidential Debates, 202 F. Supp. 3d 159, 167 (D.D.C. 2016) (taking judicial notice of
“political and statistical facts that the Federal Election Commission has posted on the web”).
2
The distinction between amendments that have been “approved” as opposed to “deemed
approved” is relevant to the merits of this case but not particularly important for the resolution of
this motion.
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stipulated to dismissal of the Connecticut case, Connecticut v. Dep’t of the Interior, No. 17-cv-
02564, ECF 40 (D.D.C. June 15, 2018).
MGM then filed this action in which they allege that Interior’s approval of the Pequot
Amendments and deemed approval of the Mohegan Amendments violated the APA and the
IGRA. See generally Compl. As mentioned above, the Government Defendants have moved to
dismiss. Motion to Dismiss, ECF No. 16. Connecticut and the Tribes seek limited intervention
for the purpose of moving to dismiss the case under Federal Rule of Civil Procedure 19 for
failure to join an indispensable party. Mot. Intervene, ECF No. 24-1. Movants have submitted,
but not filed, a proposed motion to dismiss arguing that the case cannot proceed without them
because they are indispensable parties but that they cannot be joined because they are entitled to
sovereign immunity. See Intervenor Tribes and State of Conn.’s Mot. to Dismiss, ECF No. 24-2.
The Government Defendants “take no position on the Motion for Limited Intervention.” Fed.
Defs.’ Resp. to Mot. for Limited Intervention at 1, ECF No. 31. MGM opposes limited
intervention, but says it would not oppose Movants’ intervention as full parties to the litigation.
Pl.’s Opp’n to Mot. for Limited Intervention (“Opp’n) at 2, ECF No. 34. The Motion to
Intervene is now ripe for decision.
II. LEGAL STANDARD
“The right of intervention conferred by Rule 24 implements the basic jurisprudential
assumption that the interest of justice is best served when all parties with a real stake in a
controversy are afforded an opportunity to be heard.” Hodgson v. United Mine Workers, 473
F.2d 118, 130 (D.C. Cir. 1972). Specifically, Rule 24(a) provides that:
[o]n 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
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the movant’s ability to protect its interest, unless existing parties adequately
represent that interest.
Fed. R. Civ. P. 24(a).
The D.C. Circuit has established that the right to intervene under Rule 24(a) depends on
the applicant’s ability to satisfy four factors: (1) whether the motion to intervene was timely; (2)
whether the applicant claims an interest relating to the property or transaction that is the subject
of the action; (3) whether the applicant is so situated that the disposition of the action may as a
practical matter impair or impede the applicant's ability to protect that interest; and (4) whether
the applicant's interest is adequately represented by existing parties. See Fund for Animals, Inc.
v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (citations omitted); see also Jones v. Prince
George's Cty., 348 F.3d 1014, 1017 (D.C. Cir. 2003) (listing the four elements of Rule 24(a) as
“timeliness, interest, impairment of interest, and adequacy of representation”). In addition, an
applicant seeking to intervene as of right under Rule 24(a) must possess Article III standing to
participate in the lawsuit. See Jones, 348 F.3d at 1017; Fund for Animals, 322 F.3d at 731–32.
“Courts are to take all well- pleaded, nonconclusory allegations in the motion to intervene, the
proposed complaint or answer in intervention, and declarations supporting the motion as true
absent sham, frivolity or other objections.” WildEarth Guardians v. Salazar, 272 F.R.D. 4, 9
(D.D.C. 2010) (quoting Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir.
2001)).
III. ANALYSIS
A. Standing
Before reaching the Rule 24(a) factors, the Court must consider whether the Movants
have Article III standing to participate in the lawsuit. “It is axiomatic that Article III requires a
showing of injury-in-fact, causation, and redressability.” Deutsche Bank Nat’l Tr. Co. v. Fed.
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Deposit Ins. Corp.., 717 F.3d 189, 193 (D.C. Cir. 2013). In Lujan v. Defs. of Wildlife, 504 U.S.
555 (1992), the Supreme Court described the injury-in-fact element as requiring a showing of an
invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Id. at 560. “Where, as here, a party seeks to intervene
as a defendant to uphold an action taken by the government, the party must establish that it will
be ‘injured in fact by the setting aside of the government’s action it seeks to defend, that this
injury would have been caused by that invalidation, and the injury would be prevented if the
government action is upheld.’” Forest Cty. Potawatomi Cmty. v. United States, 317 F.R.D. 6, 11
(D.D.C. 2016); (quoting Am. Horse Prot. Ass’n, Inc. v. Veneman, 200 F.R.D. 153, 156 (D.D.C.
2001)).
In this lawsuit, MGM seeks to vacate Interior’s decisions approving the Mohegan
Amendments and deeming approved the Pequot Amendments, which are agreements among the
Movants. See Compl. at 32. If that approval were vacated, those agreements would no longer be
effective. See Connecticut I, 344 F. Supp. 3d at 291 (“By their terms, both the Pequot
Procedures and the Mohegan Compact . . . do not become effective until the Secretary approves
them and publishes notice of that approval . . . .”). Rendering their agreements ineffective would
do an obvious injury to the Movants. By MGM’s own characterization, the Amendments
“authorize a proposed commercial casino gaming facility in East Windsor Connecticut,” in
which all three Movants have obvious interests. Compl. at 1. MGM’s success in this lawsuit
would render the agreements ineffective, and a successful defense of Interior’s actions would
redress that potential injury by avoiding it entirely.
Notably, MGM has raised no argument against the Movants’ standing. See Opp’n. This
is not surprising. It stands to reason that if the Tribes and Connecticut were able to sue in the
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Court’s prior case based on Interior’s non-approval of the Amendments, they would be injured
once more by a vacatur that returns things to the pre-approval state that was the basis for their
earlier complaint. The Movants therefore have standing to intervene in this case. It is essentially
a mirror image of the previous round of litigation.
B. Rule 24
MGM also has not addressed whether the Movants meet the four prerequisites for
intervention identified in Federal Rule 24(a). See Opp’n. Again, the Movants meet these
prerequisites in a straightforward manner, so the Court need only address them briefly before
turning to MGM’s procedural arguments.
First, the Motion for Limited Intervention was filed in a timely manner.
Timeliness is to be judged in consideration of all the circumstances, especially
weighing the factors of time elapsed since the inception of the suit, the purpose for which
intervention is sought, the need for intervention as a means of preserving the applicant’s
rights, and the probability of prejudice to those already parties in the case.”
Amador Cty. v. U.S. Dep’t of Interior, 772 F.3d 901, 903 (D.C. Cir. 2014) (quoting United States
v. British Am. Tobacco Austl. Servs., Ltd., 437 F.3d 1235, 1238 (D.C. Cir. 2006)). MGM’s
complaint was filed on August 7, 2019. See ECF Nos. 1, 3. The Motion was filed on October
22, 2019, about two weeks after the Government Defendants filed their motion to dismiss. See
ECF Nos. 16, 24. This Court finds that the motion to intervene was reasonably prompt, that the
parties will not be prejudiced (none has argued otherwise), and that the few weeks that briefing
on Movants’ motion to dismiss will require will not unduly disrupt or delay the litigation. 3
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This delay might be unavoidable in any event. The Court has an independent obligation
to raise and look into Rule 19 issues sua sponte. Cook v. Food & Drug Admin., 733 F.3d 1, 6
(D.C. Cir. 2013) (quoting Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765, 772 n.6 (D.C. Cir.
1986)). Given that the Movants have raised this issue, even if they were non-parties, the Court
would need to consider it, and would potentially seek briefing from MGM and the Government
Defendants on the issue regardless of whether Movants enter the case.
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Moving on to the second and third factors in Rule 24(a), the Court also finds that the
Movants have demonstrated “a legally protected interested” and that the Movants are so situated
that the disposition of this action could impair or impede their ability to protect that interest.
SEC v. Prudential Sec., Inc., 136 F.3d 153, 156 (D.C. Cir. 1998). Where, as here, a prospective
intervenor “has constitutional standing, it a fortiori has ‘an interest relating to the property or
transaction which is the subject of the action.’” Crossroads Grassroots Policy Strategies v. FEC,
788 F.3d 312, 320 (D.C. Cir. 2015) (quoting Fund for Animals, 322 F.3d at 735); see also Safari
Club Int’l v. Salazar, 281 F.R.D. 32, 38 (D.D.C. 2012) (“The injury-in-fact and causation
connection with the challenged action requirements for standing are closely related to the second
and third factors under Rule 24(a) . . . .”).
The final Rule 24(a) factor requires that the Court evaluate whether existing parties
would adequately represent the Movants’ interests in the case. As the Court noted when MGM
sought to intervene in the prior action, the Supreme Court has explained that the adequate
representation requirement of Rule 24(a) “is satisfied if the applicant shows that representation
of his interest ‘may be’ inadequate; and [that] the burden of making that showing should be
treated as minimal.” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). The
D.C. Circuit has likewise described this requirement as “not onerous.” Dimond v. District of
Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986). Even in cases like this one, where the intervenor
and the government may agree in broad terms on a legal position or course of action, the D.C.
Circuit nonetheless “often [has] concluded that governmental entities do not adequately represent
the interests of aspiring intervenors.” Fund for Animals, 322 F.3d at 736. This is primarily
because the government entity’s overarching “obligation is to represent the interests of the
American people,” while the intervenor’s obligation is to represent its own interests. Id. Here,
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the Movants intend to argue their own sovereign immunity. See Mot. Intervene at 9. The federal
government does not share this interest, nor does it share the Movants’ interest in the casino that
the Amendments’ approval would authorize. On the other side, Movants and MGM are plainly
at odds and have divergent interests. The final factor from Rule 24(a) is thus fulfilled.
MGM raises two procedural arguments against MGM’s motion. The first of these is that
while MGM says it “has no objection to participation by [the Tribes and Connecticut] as full
parties to the case” it opposes their request for “limited” intervention on the ground that the
federal rules require them to “interven[e] fully or not at all.” Opp’n at 2. The D.C. Circuit has
not spoken directly on this issue, but some precedent suggests that limited intervention is
permissible in this sort of circumstance. In Vann v. Kempthorne, 534 F.3d 741 (D.C. Cir. 2008),
the Cherokee Nation had intervened at the district court level for the same limited purpose the
Mohegan and Pequot tribes assert here: “challenging the suit under . . . Rule 19 . . . on the
grounds that although it was a necessary and indispensable party, sovereign immunity barred its
joinder.” Id. at 745. The D.C. Circuit reversed in part a district court decision denying the
Cherokee Nation’s motion to dismiss, and gave no indication that limited intervention was
improper. See id. at 756. The D.C. Circuit has also allowed a party to intervene at the appellate
level for the limited purpose of asserting an immunity defense. Fields v. Office of Eddie Bernice
Johnson, No. 04-5315 (D.C. Cir. May 5, 2005) (per curiam order granting motion “to intervene
for the limited purpose of asserting speech or debate clause immunity”), 459 F.3d 1, 6 (D.C. Cir.
2006). A number of cases from outside this Circuit, some of which the Movants identified, also
suggest that limited intervention is permissible under these circumstances. Lac Du Flambeau
Band of Lake Superior Chippewa Indians v. Norton, 327 F. Supp. 2d 995, 1000 (W.D. Wis.
2004) (“Those entities [that have sovereign immunity] may intervene for a limited purpose such
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as moving to dismiss the lawsuit for failure to join an indispensable party without waiving their
sovereign immunity.”), aff’d, 422 F.3d 490 (7th Cir. 2005); Kansas v. United States, 249 F.3d
1213, 1220–21, 1231 (10th Cir. 2001) (affirming the grant of a preliminary injunction in a case
where a tribe had voluntarily intervened in order to join a motion to dismiss for lack of subject
matter jurisdiction and to raise an ultimately unsuccessful Rule 19 argument for dismissal based
on sovereign immunity); Citizens Against Casino Gambling in Erie County v. Kempthorne, 471
F. Supp. 2d 295, 312 (W.D.N.Y. 2007) (allowing a the Seneca Nation of Indians to submit an
amicus brief raising Rule 19 issues while also noting that “[a]s other tribes have done, it could
have moved to intervene for the sole purpose of seeking Rule 19 dismissal”).
Arguing against this, MGM points to “the general rule” that “[i]ntervenors under Rule
24(a)(2) assume the status of full participants in a lawsuit and are normally treated as if they
were original parties once intervention is granted.” District of Columbia v. MSPB, 762 F.2d 129,
132 (D.C. Cir. 1985). The cases MGM cites for this “general rule” do not involve parties that
sought limited intervention. Opp’n at 2–3 (citing Schneider v. Dumbarton Developers, Inc., 767
F.2d 1007, 1017 (D.C. Cir. 1985); MSPB, 762 F.2d at 132)). In reviewing these relatively
straightforward requests for intervention, the Circuit would have had no reason to elaborate on
anything more than the basic rule. MGM also cites Wichita and Affiliated Tribes of Oklahoma v.
Hodel, 788 F.2d 765 (D.C. Cir. 1986), but that case is likewise distinguishable. Opp’n at 3.
There, two tribes had successfully moved to intervene as defendants, arguing that they were
indispensable parties; one of those intervening tribes then brought a cross-claim against the
Government. 788 F.2d at 771. Neither tribe sought to intervene on a limited basis, and one was
seeking extensive involvement by bringing a cross-claim. Id. The Court is thus unpersuaded by
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this collection of cases, all of which additionally predate those favoring the Movants by quite
some time.
MGM also points to a more recent concurrence by Judge Randolph in Amador County v.
U.S. Dep’t of the Interior, 772 F.3d 901 (D.C. Cir. 2014), which suggested that a tribe should not
be able to use sovereign immunity as a basis for intervention under Rule 24(a)(2) because
sovereign immunity is not at issue in the case until the tribe intervenes, and thus does not qualify
as an “interest relating to the property or transaction that is the subject of the action.” Id. at 906
(Randolph, J., concurring) (quoting Fed. R. Civ. P. 24(a)(2)); Opp’n at 3. A Circuit concurrence
is not binding on this Court, nor are any of the cases to which Judge Randolph cites in his. It is
not clear to this Court that the interest relating to the action required under Rule 24(a)(2)
necessarily needs to be the same interest that a party asserts once it intervenes. Nothing in this
Circuit’s Rule 24 precedent states that a party cannot get its foot in the door with one interest and
then argue based on a different theory. Vann, which is binding precedent, suggests that a motion
akin to the one filed by these Movants can succeed, 534 F.3d at 745, provided that it is timely,
unlike the motion in Amador County, 772 F.3d at 906. Accordingly, the Court will not adopt
MGM’s “all or nothing” approach to intervention.
MGM’s second procedural argument is that the Motion to Intervene is improper because
Movants have not attached the pleading required by Rule 24(c). Opp’n at 6. That rule states that
“[a] motion to intervene . . . must state the grounds for intervention and be accompanied by a
pleading that sets out the claim or defense for which intervention is sought.” Fed. R. Civ. P.
24(c). However, courts in this Circuit have not applied this rule particularly rigidly. E.g., Wash.
All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 395 F. Supp. 3d 1, 21 n.4 (D.D.C. 2019)
(citing Spring Constr. Co. v. Harris, 614 F.2d 374, 376–77 (4th Cir. 1980)) (holding that where
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the intervenors’ position was apparent and where the parties would not be prejudiced by
intervention, “failure to include . . . a copy of [intervenors’] proposed answer to the Complaint
does not procedurally bar [them] from intervening”); Massachusetts v. Microsoft Corp., 373 F.3d
1199, 1236 n.19 (D.C. Cir. 2004) (citing McCarthy v. Kleindienst, 741 F.2d 1406, 1416 (D.C.
Cir. 1984) (“[P]rocedural defects in connection with intervention motions should generally be
excused by a court.”)); Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 395 F. Supp.
3d 1, 21 n.4 (D.D.C. 2019). The D.C. Circuit has explicitly noted its “willingness to adopt
flexible interpretations of Rule 24 in special circumstances.” EEOC v. Nat’l Children’s Ctr., Inc.,
146 F.3d 1042, 1045–46 (D.C. Cir. 1998) (citing Textile Workers Union v. Allendale Co., 226
F.2d 765, 767 (D.C. Cir. 1955) (en banc) (“Obviously tailored to fit ordinary civil litigation,
these [Rule 24] provisions require other than literal application in atypical cases.”)).
“The purpose of the rule requiring the motion to state the reasons therefor and
accompanying the motion with a pleading setting forth the claim or defense is to enable the court
to determine whether the applicant has the right to intervene, and, if not, whether permissive
intervention should be granted.” Miami Cty. Nat’l Bank of Paola v. Bancroft, 121 F.2d 921, 926
(10th Cir. 1941). There can be no mistake on those fronts here, as Connecticut and the Tribes
have explained their interest and their intent to argue their immunity from suit and the
impracticability of joining them as parties. Mot. to Intervene at 5. Given the posture of the case
and the arguments that Connecticut and the Tribes plan to raise, it would not make sense to
require an answer from the intervenors at this time. Cf. Microsoft Corp., 373 F.3d at 1236 n.19
(permitting a motion to intervene without an attached pleading in a case where “judgment had
already been rendered” and it was unclear “what type of pleading the would-be intervenors could
have filed”). When a party is asserting an immunity defense, it may not even be appropriate for
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a court to require them to address the merits of a lawsuit before resolving the immunity
argument. See Process & Indus. Developers Ltd. v. Federal Republic of Nigeria, 962 F.3d 576,
584 (D.C. Cir. 2020) (holding that a “district court erred in requiring [a foreign sovereign] to
defend the merits before resolving its colorable immunity assertion”); cf. Mitchell v. Forsyth, 472
U.S. 511, 525 (1985) (“[T]he essence of absolute immunity is its possessor’s entitlement not to
have to answer for his conduct in a civil damages action.”). In fact, the filing of an answer
contributes to the waiver of sovereign immunity in some circumstances. E.g., Ashraf-Hassan v.
Embassy of France in the United States, 40 F. Supp. 3d 94, 101–02 (D.D.C. 2014). Under
circumstances like these, there is good reason to allow a motion to intervene notwithstanding the
lack of an attached pleading. 4
IV. SCHEDULING MOTION
Also pending before the Court is a Motion by MGM seeking a scheduling order that
would govern further proceedings. Mot. to Govern Further Proceedings, ECF No. 28. The
Government Defendants and the Movant-Intervenors each filed responses. Opp’n of Intervenors
to Pls.’ Mot. to Govern Further Proceedings, ECF No. 30; Pls.’ Reply in Supp. of Mot. to Govern
Further Proceedings, ECF No. 32. In these filings the parties addressed the order in which they
believed the pending motions should be addressed and decided. To a large extent this motion
was overtaken by events. The parties briefed the Motion for Limited Intervention and the
Government Defendants’ Motion to Dismiss without the benefit of a Scheduling Order. The
4
Movants argue, correctly, that MGM’s opposition was filed thirty-one days after their
motion to intervene and that it was thus untimely under Local Rule 7(b). Because the opposition
fails on the merits, there is no prejudice to the Movants and the Court need not determine
whether the late filing should be considered a waiver.
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parties also addressed which motion(s) they believed the Court ought to address first. The
issuance of this opinion moots whatever is left of their arguments on this front.
The Court has resolved the Motion for Limited Intervention first. This means that the
Intervenors’ previously lodged Motion to Dismiss will be filed and docketed. The Court will
await additional briefing on that motion before ruling on either motion to dismiss. In the Court’s
contemporaneously-issued Order, the Court has ordered the parties to submit a proposed
schedule governing briefing on this motion. The motion seeking a scheduling order is therefore
denied as moot.
V. CONCLUSION
For the foregoing reasons, the State of Connecticut and the Tribes’ Motion for Limited
Intervention (ECF No. 24) is GRANTED and Plaintiff’s Motion to Govern Further Proceedings
(ECF No. 28) is DENIED AS MOOT. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: September 16, 2020 RUDOLPH CONTRERAS
United States District Judge
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