United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
issue is AVX Aircraft Company's (“AVX”)
Motion to Intervene (Doc. 63), to which Plaintiff MD
Helicopters, Inc. (“Plaintiff”) has filed a
Response, (Doc. 69), and AVX has filed a Reply, (Doc. 75).
For the reasons set forth below and in the Court's May
10, 2019 Order granting Sikorsky Aircraft Corporation's
(“Sikorsky”) Motion to Intervene, (Doc. 49), the
Court grants AVX's Motion.
seeks to intervene as a matter of right pursuant to
Fed.R.Civ.P. 24(a)(2), or, alternatively, permissively under
Fed.R.Civ.P. 24(b). (Doc. 63 at 2, 6). Like Sikorsky,
AVX has been selected by the Army to enter into a Future
Attack Reconnaissance Aircraft Competitive Prototype
(“FARA CP”) agreement under the Other Transaction
Authority (“OTA”) of 10 U.S.C. § 2371b, and
has begun performance under this contract. (Id. at
2). Counsel for Defendants United States of America, et al.
(“Defendants”) and counsel for Intervenor
Sikorsky have consented to AVX's Motion. (Id.).
The Court will permit AVX to intervene as a matter of right
pursuant to Rule 24(a)(2) as AVX has demonstrated: (1) that
its Motion is timely; (2) that it has a protectable interest
in the subject of this litigation; (3) that the disposition
of this action may impair or impede AVX's ability to
protect its interests; and (4) that the existing parties do
not adequately represent AVX's interests. League of
United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302
(9th Cir. 1997) (citing Nw. Forest Res. Council v.
Glickman, 82 F.3d 825, 836 (9th Cir.
Response in Opposition to AVX's Motion to Intervene (Doc.
69), Plaintiff does not raise any new arguments regarding the
second and third elements (whether AVX has a protectable
interest in the subject of this litigation and whether the
disposition of this action may impair AVX's ability to
protects its interests) of the League of United Latin Am.
Citizens test for intervention as a matter of right. As
AVX has also been selected to enter into a FARA CP OTA
agreement, has invested significant time and resources in its
negotiations with the Army to reach a satisfactory OTA
agreement, and has actually begun performance under the FARA
CP program, (Docs. 63 at 5; 75 at 4-5), the Court's
findings and holdings as to the second factor made in its
Order ruling on Sikorsky's Motion to Intervene (Doc. 49
at 4-6) apply with equal force to AVX's Motion here.
Further, because AVX is similarly situated to Sikorsky,
AVX's interests could also be significantly impaired if
Plaintiff is successful in this suit. (Docs. 63 at 5-6; 75 at
5). Therefore, the Court defers to the findings and holdings
made in its Order ruling on Sikorsky's Motion to
Intervene (Doc. 49 at 6-8) as to the third factor, as well.
opposition to AVX's Motion mainly stems from the first
and fourth elements of the League of United Latin Am.
Citizens test for intervention as a matter of right.
(See Doc. 69 at 3). These elements are examined
Whether AVX's Motion to Intervene is Timely
Plaintiff contends that AVX cannot show that its Motion is
timely, (id. at 3-4), the Court disagrees. Plaintiff
filed its Complaint on April 5, 2019, (Doc. 1), Defendants
received notice of Plaintiff's suit on April 15, 2019,
(Doc. 17-1), and AVX filed its Motion to Intervene just over
one month later on May 20, 2019, (Doc. 63). Further,
AVX's Motion was filed before Defendants answered,
(see Doc. 71), and substantive proceedings have
still not taken place. (Doc. 63 at 3). As AVX points out,
various courts within the Ninth Circuit have permitted
intervention on motions filed after similar timeframes. (Doc.
75 at 3 (citing Idaho Farm Bureau Fed'n v.
Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995) (holding
that the district court did not err in permitting
intervention as a matter of right four months after the
complaint had been filed as the “intervention motion
was filed at a very early stage, before any hearings or
rulings on substantive matters”); Gila River Indian
Cmty. v. United States, No. CV10-1993 PHX-DGC, 2010 WL
4811831, at *2 (D. Ariz. Nov. 19, 2010) (motion for
permissive intervention was timely where motion was filed six
weeks after commencement of action and where permitting
intervention would not disrupt the expedited litigation
schedule); Agua Caliente Band of Cahuilla Indians v.
Riverside Cty., No. EDCV1400007DMGDTBX, 2014 WL
12588284, at *2 (C.D. Cal. Apr. 21, 2014) (motion for
intervention as a matter of right filed approximately six
weeks after commencement of action and less than a month
after the defendants filed their answer was timely))).
permitting AVX to intervene will not prejudice the other
parties or delay the proceedings. AVX does not propose to
make any additional written briefing in response to
Plaintiff's Motion for Temporary Restraining Order and
Preliminary Injunction (Doc. 13/15), and does not seek to
postpone the hearing on that Motion. (Doc. 63 at 4). In
opposition, Plaintiff contends that AVX's qualification
that it does not seek to submit additional briefing “at
this time” suggests that “AVX may change its
position to the prejudice of the existing parties that did
seek timely participation.” (Doc. 69 at 4). Plaintiff
also states that if AVX later decides to submit further
briefing this “could delay the litigation or at least
unnecessarily complicate the proceedings, thus prejudicing
MDHI's ability to enforce its rights.”
(Id.). Nevertheless, there is no indication that AVX
will do so here, as AVX joined Defendants' and
Sikorsky's responses to Plaintiff's Motion for
Preliminary Injunction and TRO, stating that because these
responses “present sufficient reason for the Court to
deny the Motion, AVX does not intend to submit further
briefing or written argument in opposition.” (Doc. 64
given the early stage of the proceedings, there has not been
any undue delay by AVX in filing its Motion to Intervene.
See Idaho Farm Bureau Fed'n, 58 F.3d at 1397.
Although Plaintiff states that “AVX provides no
justification for waiting to seek intervention until after:
(1) briefing on MDHI's Motion for TRO and Preliminary
Injunction concluded, and (2) Sikorsky's intervention
motion was fully briefed and decided, ” (Doc. 69 at 4),
AVX explicitly noted in its Motion that it “is a
relatively small company, and the expense associated with the
requested intervention was a significant consideration[,
]” (Doc. 63 at 4). Furthermore, Plaintiff's
argument that if “AVX wanted to participate in this
proceeding, it should have participated in the GAO
proceedings” (Doc. 69 at 4) is without merit; the Court
finds no support for Plaintiff's proposition that parties
seeking to intervene at the district court level must have
participated in previous administrative actions concerning
the same suit. For these reasons, the Court finds that
AVX's Motion to Intervene is timely.
Whether the Existing Parties Do Not Adequately Represent
fourth element also weighs in favor of AVX's Motion to
Intervene, as AVX has met its “minimal” burden in
demonstrating that representation of its interests by
existing parties “may be” inadequate. Arakaki
v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (citing
Trbovich v. United Mine Workers of Am., 404 U.S.
528, 538 n.10 (1972)). For the same reasons discussed in the
Court's Order granting Sikorsky's Motion to
Intervene, the United States does not adequately represent
AVX's interests. (See Doc. 49 at 9-11).
Plaintiff asserts that because Sikorsky has
“successfully intervened and is actively participating
in this litigation, the interests of all Phase 1 awardees are
adequately represented to the extent such interests were not
already represented by the Army.” (Doc. 69 at 5).
According to Plaintiff, “AVX and Sikorsky both seek to
preserve their Phase 1 awards and prevent MDHI from receiving
one[, ]” and that “is the extent of their
combined interest in this litigation.” (Id.).
While it is true that Sikorsky and AVX are “generally
aligned in opposing MDHI's claims, ” Sikorsky
cannot adequately represent AVX's interests because the
two, as awardees of FARA CP OTA agreements, “are
ultimately competing against one another” for the award
of a production contract. (Docs. 63 at 6; 75 at 5). Plaintiff
also contends that it is not challenging the award of any
Phase 1 awardee and that the outcome of this litigation
“will not have any impact on the competition between
AVX and Sikorsky.” (Doc. 69 at 5). However, the Court
again notes that if Plaintiff is ultimately awarded a Phase 1
contract, AVX-like Sikorsky-will suffer losses associated
with the increased competition at Phase 1 because AVX will
lose a proportional share of its funding as the pool of FARA
CP performers is increased. (See Doc. 49 at 10
(citing Docs. 13-1 at 9-10, 14; 46 at 4)). Further, AVX's
chances at ultimately receiving a production contract may be
impaired. (See Doc. 13-1 at 9-11). As AVX is
competing with Sikorsky for a production contract, no current
party can adequately protect AVX's interests.
foregoing reasons, IT IS ORDERED that
AVX's Motion to Intervene (Doc. 63) is
GRANTED to the extent that the Court will
permit AVX to intervene as a ...