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 
2

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). 
3

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 
4

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/2017PA00089-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. 
5

stipulated to dismissal of the Connecticut case, Connecticut v. Dep’t of the Interior, No. 17-cv02564, 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 
6

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. 
7

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 
8

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

 

 3

 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.
9

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, 
10

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 
11

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 
12

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 
13

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 
14

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. 
15

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