Northern Improvement Co. v. United States

          ORDER

          DAVID G, CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE

         Burlington Northern Santa Fe Railway (“BNSF”) has moved to intervene in this longstanding litigation. Doc. 105. The motion is fully briefed (Docs. 106, 107, 113), and no party has requested oral argument. The Court will deny the motion.

         I. Background.

         Plaintiffs filed this action on January 18, 2012. After a round of initial discovery, Defendant filed a motion to dismiss and Plaintiffs filed a motion for partial summary judgment. Both motions were denied by Judge Rosenblatt on September 30, 2014. On June 1, 2015, Judge Rosenblatt stayed the case on stipulation of the parties to permit settlement talks. Status reports were filed on February 17, June 2, and November 30, 2016, and on February 28, April 26, June 27, and October 25, 2017.

         When the case was reassigned to the undersigned judge on January 4, 2018 (Doc. 90), the Court promptly set a status conference that resulted in the following order:

The Court held a status conference with the parties today. To allow time for Plaintiffs to obtain an appraisal and Defendant to consider any settlement offer based on the appraisal, the Court will set a case management conference for April 18, 2018, at 4:00 p.m. The Court will set a schedule at the conference for resuming discovery and filing dispositive motions. One week before the conference, the parties shall jointly file a proposed schedule for completing fact and expert discovery and filing motions for summary judgment. The Court will not bifurcate discovery on jurisdictional issues, but will require the parties to proceed on all fronts to complete this longstanding litigation.

Doc. 94 (emphasis added).

         The case did not settle within the time allowed by this order, and the Court entered a Case Management Order which required all fact and expert discovery to be completed by November 30, 2018. Doc. 97. The order required the parties to file letters summarizing anticipated summary judgment arguments by November 9, 2018, with summary judgment motions due on December 21, 2018. Id. The Case Management Order included this specific caution:

The Deadlines Are Real. The parties are advised that the Court intends to enforce the deadlines set forth in this Order, and should plan their litigation activities accordingly. The parties are specifically informed that the Court will not, absent truly unusual circumstances, extend the schedule in this case to accommodate settlement talks.

Id., ¶ 8 (underscoring in original).

         BNSF did not move to intervene until October 12, 2018, more than six years after the start of this case and only weeks before the close of all discovery. Doc. 105.

         II. Analysis.

         Timeliness is a requirement for intervention of right and permissive intervention. See Fed. R. Civ. P. 24(a), (b) (both requiring a “timely motion”); Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (for intervention of right, “the applicant must timely move to intervene”); League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997) (for permissive intervention, the applicant must show that “the motion is timely”). To determine whether a motion is timely, courts consider three factors: “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (quotation marks and citation omitted).

         A. Stage of ...