United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
issue is the Motion to Intervene filed by Arizona Downs, LLC
(Doc. 42, Mot.), to which Plaintiffs Monarch Content
Management LLC (“Monarch”) and Laurel Racing
Association, Inc. (“Laurel Park”) filed a
Response in opposition (Doc. 53, Resp.), and Arizona Downs
filed a Reply (Doc. 55, Reply). The Court will decide the
present Motion without oral argument. See LRCiv
7, 2019, the Arizona Legislature passed House Bill
(“HB”) 2547 and the Governor signed it into law.
HB 2547 amends A.R.S. § 5-112 by, among other things,
requiring providers of live horse racing simulcasts for the
purpose of pari-mutuel wagering, whether originating in
Arizona or out of state, to offer the simulcasts at a
reasonable price to all live horse racing permittees and
off-track betting (OTB) sites in Arizona. HB 2547 vests the
Arizona Racing Commission with the exclusive authority to
determine the charge that any simulcast provider may levy on
live racing permittees and OTB sites in Arizona. The law went
into effect on August 27, 2019.
are out-of-state providers of live horse racing simulcasts;
Monarch distributes simulcasts for 13 out-of-state
racetracks, including Laurel Park. Monarch has entered into a
contract for the provision of simulcasts to Turf Paradise, a
live horse racing permittee with OTB sites in Arizona, but
does not provide its simulcasts to Arizona Downs, the only
other such permittee with OTB sites in Arizona. Monarch
alleges that it made a business decision not to distribute
its simulcasts to Arizona Downs because such distribution
“would create dilution of the wagering product and
depress the overall consumption of content.” (Doc. 1,
Compl. ¶ 43.)
August 9, 2019, Plaintiffs filed this action against the
Arizona Department of Gaming-the Arizona agency charged with
regulating gaming-and the Arizona Racing Commission, as well
as the individual directors and commissioners of each.
Plaintiffs seek a declaration that enforcement of A.R.S.
§ 5-112, as amended by HB 2547, violates the Contract
Clauses of the U.S. and Arizona Constitutions, the Dormant
Commerce Clause, and Plaintiffs' free speech rights under
the U.S. and Arizona Constitutions; is preempted by the
Interstate Horse Racing Act of 1978, 15 U.S.C. §§
3001 et seq.; and is void for vagueness. Plaintiffs
seek an Order permanently enjoining enforcement of A.R.S.
§ 5-112, as amended by HB 2547. On August 13, 2019,
Plaintiffs filed a Motion for Temporary Restraining Order
(“TRO”) with Notice (Doc. 20), which remains
August 30, 2019, Arizona Downs filed the present Motion to
Intervene, which the Court will now resolve.
Rule of Civil Procedure 24 provides for two types of
intervention: intervention as of right and permissive
intervention. The Ninth Circuit outlines four requirements
for intervention as of right under Rule 24(a)(2):
(1) the motion must be timely; (2) the applicant must claim a
“significantly protectable” interest relating to
the property or transaction which is the subject of the
action; (3) the applicant must be so situated that the
disposition of the action may as a practical matter impair or
impede its ability to protect that interest; and (4) the
applicant's interest must be inadequately represented by
the parties to the action.
United States v. Aerojet Gen. Corp., 606 F.3d 1142,
1148 (9th Cir. 2010) (quoting Cal. ex rel. Lockyer v.
United States, 450 F.3d 436, 440 (9th Cir. 2006)). The
movant's failure to satisfy any single one of these four
factors is fatal to a motion to intervene under Rule
24(a)(2). Perry v. Proposition 8 Official
Proponents, 587 F.3d 947, 950 (9th Cir. 2009).
24(b) governs permissive intervention. An applicant must
demonstrate: “‘(1) independent grounds for
jurisdiction; (2) [that] the motion is timely; and (3) [that]
the applicant's claim or defense, and the main action,
have a question of law or a question of fact in
common.'” S. Cal. Edison Co. v. Lynch, 307
F.3d 794, 803 (9th Cir. 2002) (quoting United States v.
City of L.A., 288 F.3d 391, 403 (9th Cir. 2002)). Even
where those three elements are satisfied, however, the
district court retains the discretion to deny permissive
intervention. Id. (citing Donnelly v.
Glickman, 159 F.3d 405, 412 (9th Cir. 1998)). In
exercising its discretion, a court must consider whether
intervention will unduly delay or prejudice the original
parties and should consider whether the applicant's
interests are adequately represented by the existing parties
and judicial economy favors intervention. Venegas v.
Skaggs, 867 F.2d 527, 530-31 (9th Cir. 1998).