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Associated General Contractors of America v. California Dep't of Transportation

December 22, 2009

ASSOCIATED GENERAL CONTRACTORS OF AMERICA, SAN DIEGO CHAPTER, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF TRANSPORTATION; RANDALL IWASAKI; AND OLIVIA FONSECA, DEFENDANTS, AND COALITION FOR ECONOMIC EQUITY; AND NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, SAN DIEGO CHAPTER, DEFENDANT-INTERVENORS



ORDER GRANTING MOTION TO INTERVENE

This matter comes before the Court on a Motion to Intervene by the Coalition for Economic Equity ("CEE") and the National Association for the Advancement of Colored People, San Diego Chapter ("NAACP") (collectively "Intervenors"). Intervenors seek to intervene as defendants in a suit brought by the Associated General Contractors of America, San Diego Chapter ("AGCA") against the California Department of Transportation ("CA DOT"), CA DOT Director Randall Iwasaki and Deputy Director Olivia Fonseca. AGCA opposes the Motion to Intervene. CA DOT has not addressed the motion.*fn1

FACTUAL AND PROCEDURAL BACKGROUND

CA DOT, as a recipient of federal funds, complies with the federal requirements for maintaining a Disadvantaged Business Enterprises ("DBE") program for administering contracts. This program is administered pursuant to the federal requirements and is based on data from a 2007 minority contractor disparity study commissioned by CA DOT.

On June 11, 2009, AGCA filed the present lawsuit, alleging that the DBE program is unconstitutional pursuant to the Fourteenth Amendment of the United States Constitution, 42 U.S.C. §§ 1981, 1983, and 2000d, and Article 1, Section 31 of the California Constitution. AGCA seeks declaratory and injunctive relief. CA DOT filed its answer on July 7, 2009, and Intervenors filed the present Motion to Intervene on September 14, 2009. No other motions have been filed in the case, and trial is set for March 2011.

Intervenors are two organizations whose memberships include minority business owners who are among the intended beneficiaries of the DBE program. Intervenors advocate for equality on behalf of their members, and have been active in urging CA DOT to implement its current DBE program.

I. OPINION

A. Legal Standard

Parties may intervene in a lawsuit as a matter of right or by permission of the Court. The Ninth Circuit applies a four-part test in evaluating a motion for intervention as of right pursuant to Federal Rule of Civil Procedure 24(a): (1) the application for intervention must be timely;(2) the applicant must have a "significantly protectable" interest relating to the property or transaction that 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 the applicant's ability to protect that interest; and(4) the applicant's interest must not be adequately represented by the existing parties in the lawsuit. Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). Each of these requirements must be met before an intervention of right can be allowed. NAACP v. New York, 413 U.S. 345, 369 (1973).

The test is applied "liberally in favor of potential intervenors," and the Court's analysis "is 'guided primarily by practical considerations,' not technical distinctions." Southwest Ctr. for Biological Diversity, 268 F. 3d at 818. The burden is on the party seeking intervention to demonstrate that each of the elements are satisfied before the court will provide the nonparty with a right to intervene. League of United Latin American Citizens v. Wilson, 131 F. 3d 1297, 1302 (9th Cir. 1997).

A party has a sufficient interest for intervention purposes if it will suffer a practical impairment of its interests as a result of the pending litigation. California ex rel Lockyer v. U.S., 450 F. 3d 435, 441 (9th Cir. 2006). In evaluating a motion to intervene, the court must 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. Southwest Ctr. For Biological Diversity, 268 F. 3d at 820.

Compared with intervention as of right, a district court has broad discretion in deciding a motion for permissive intervention pursuant to Federal Rule of Civil Procedure 24(b).

San Jose Mercury News, Inc. v. U.S. Dis. Court, Northern Dis. (San Jose), 187 F.3d 1096, 1100 (9th Cir. 1999). A party may be allowed to intervene so long as: (1) "independent grounds for jurisdiction [exist]; (2) the motion is timely; and (3) the applicant's claim or defense, and the main action, have a question of law or... fact in common." Id.

In determining whether a motion for intervention is timely, courts consider the following three factors: "(1) the stage of the proceedings; (2) whether the parties would be prejudiced; and (3) the reason for and any delay in moving to intervene." Northwest ...


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