N.J. Judge Grants Intervention to 7 Residents in Verizon’s Small-Cells Fight vs. County

U.S. Magistrate Judge Brendan Day for New Jersey in Trenton granted seven Belmar, New Jersey, residents' motion to permissively intervene as defendants in Verizon’s small-cells fight with Monmouth County, said his signed memorandum order Thursday (docket 3:23-cv-18091). The county took no position on the motion to intervene, but Verizon opposed it (see 2310240030).

The judge denied without prejudice, and without explanation, Children’s Health Defense's motion to intervene, said the memorandum order. The judge ordered the intervenors to refile their motion to dismiss Verizon’s complaint by Tuesday. Their earlier motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim (see 2310180031) was disallowed because they weren’t yet parties to the action.

The intervenors moved to intervene as of right under Rule 24(a) and for permissive intervention under Rule 24(b). The judge grants permissive intervention and need not, and doesn’t, address the motion to intervene as of right, said the memorandum order. As an “initial threshold matter,” Verizon doesn’t, and can’t, dispute that the intervenors’ motion was timely, it said. They filed their motion “a mere three weeks after Verizon filed the complaint” and before the county filed its answer, it said.

As another threshold matter, the interests, defenses and arguments that the intervenors seek to assert in this case share common questions of law and fact with those at issue between Verizon and the county, said the memorandum order. The intervenors and the county “have asserted various -- and not entirely overlapping -- arguments" as to why the county’s denial of Verizon’s small-cells application was justified, “or at least not unlawful,” and why Verizon isn’t entitled to relief under the Telecommunications Act, it said.

“Expressing no view on the merits” of the intervenors’ legal challenges, the judge believes that their participation “will aid a more robust disposition of the case,” said the memorandum order. For one thing, the intervenors seek to assert Rule 12 challenges to the complaint’s “legal sufficiency” that the county “has elected not to assert through a motion to dismiss,” it said. The county filed an answer to Verizon’s complaint, but the intervenors believe that the complaint should be dismissed under Rule 12 as “inadequately pleaded,” it said.

For purposes of permissive intervention, the intervenors “are pressing a somewhat different legal strategy,” with somewhat different arguments, than the county, said the memorandum order. This persuades the court that permitting intervention will “more robustly aid” the court’s resolution of the parties’ “claims and defenses,” it said. At this early juncture, the court disagrees with Verizon that the intervenors won’t add “anything of meaningful value to the litigation,” it said.

The court concludes that permitting intervention won’t “unduly delay or prejudice the adjudication of the original parties’ rights,” said the memorandum order. Verizon doesn’t explain how intervention “will prejudice or delay its ability to pursue the relief that it seeks -- beyond baldly stating that it will,” it said.

This case “is at its earliest stages,” having been filed Sept. 7, said the memorandum order. The intervenors moved to intervene just three weeks later, and the court has resolved their motion “just three months after the completion of briefing and oral argument,” it said.

The court has set an initial Rule 16 scheduling conference for April 8, and so discovery hasn’t yet begun, said the memorandum order. The court expects that the intervenors “can and will participate in the case with little prejudicial impact on the orderly resolution of the parties’ claims and defenses,” it said.