Have a great day,
Mr Baker
Sent from my iPhone
The National Basketball Association’s (“NBA”) Motion to Intervene should be denied for two reasons. First, the NBA’s submission fails to comply with Rule 24(c), which requires a prospective intervenor to file with its motion a pleading articulating the applicant’s proposed claims or defenses. The NBA’s failure to submit such a pleading, which would define the scope of the proposed intervention, violates Rule 24(c) and
compromises the ability of the Court and the parties to evaluate whether intervention is proper. The Motion should be denied on the basis of this defect alone.
Second, the NBA’s Motion should be denied because the NBA cannot satisfy Rule 24’s intervention requirements with respect to the liability component of this litigation, which should be tried first. By separate motion, plaintiff has moved the Court to bifurcate this case so that the parties first litigate the straightforward issue of PBC’s liability to BCOS, while reserving for a second phase the more complex issue of the appropriate remedy. Plaintiff respectfully submits that the Court should decide this Motion to Intervene after it decides Plaintiff’s Motion to Bifurcate because the decision on bifurcation will determine the shape of the litigation, thereby informing the Court’s decision on the NBA’s Motion.
The NBA is not entitled to participate in the liability phase of a bifurcated trial because its only interest is in the choice of remedy. It is well established that, in a bifurcated proceeding, an entity may intervene only in those phases for which the applicant can satisfy the intervention requirements of Rule 24. One of these requirements is the existence of a protectable interest in the issue to be tried. The NBA has no protectable interest in the issue to be tried in the liability phase: whether defendant is liable to plaintiff for fraud or breach of contract. The NBA’s only interest arises out of the potential transfer of the team to a third party, and that issue would be addressed exclusively in the remedy phase of a bifurcated trial. If plaintiff prevails on the issue of liability, it may be appropriate for the NBA to participate in the crafting of injunctive relief. Until that time, however, the Federal Rules do not permit the NBA to participate in a phase of the litigation in which it has no interest.
Finally, the NBA’s motion should be denied because the NBA intends by its intervention to unnecessarily make this litigation “very expensive” for BCOS and its members, as reflected by the NBA’s statements and demand that plaintiff pay the attorneys’
fees for both the NBA and the PBC, even if plaintiff prevails. This Court should deny the NBA’s request to intervene, at least in the liability phase, so that the NBA is not permitted to impose unreasonable, unnecessary, and punitive burdens and expenses on plaintiff’s prosecution of its claims.
For these reasons, plaintiff respectfully submits that the Court should deny the NBA’s Motion, with leave to file a renewed Motion (that complies with Rule 24(c)’s pleading requirement) at the outset of the second phase of this litigation.
III.
NBA INTERVENTION SHOULD BE DENIED OR LIMITED TO THE REMEDIES PHASE.
A.
The NBA’s Motion Should be Denied for Failure to Comply With Rule 24(c).
The NBA’s motion does not comply with Rule 24(c) because the motion is not accompanied by a pleading setting forth a claim for relief. Rule 24(c) provides 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) (emphasis added).
An intervenor cannot become a party to a lawsuit without setting out its claims in a pleading any more than a plaintiff can commence litigation without a complaint. As is the purpose of a complaint or an answer, “the purpose of requiring an intervenor to file a pleading is to place the other parties on notice of the claimant’s position, the nature and basis of the claim asserted, and the relief sought by the intervenor.” Dillard v. City of Foley, 166 F.R.D. 503, 506 (M.D. Ala. 1996) (denying motion to intervene based on “procedural defect” of failure to file a pleading).
For this reason, courts routinely deny motions to intervene where the applicant fails to satisfy the pleading requirement. See, e.g., FTC v. Med Resorts Int’l, Inc., 199 F.R.D. 601, 606 (N.D. Ill. 2001) (intervenor’s “total dereliction” of Rule 24(c)’s “unambiguous” requirements “warrants dismissal of the motion”); Township of South Fayette v. Allegheny County Housing Auth., 183 F.R.D. 451, 453 (W.D. Pa. 1998) (“Because movants have not submitted pleadings setting forth the claim or defense for which intervention is sought, their motions are subject to dismissal”); Roberts v. Heim, No. 88-3373TEH, 1989 WL 80401 *1 (N.D. Cal March 30, 1989) (“the motion to intervene must be denied” for failure to submit a pleading); Associated Students v. Kleindienst, 60 F.R.D. 65, 68 (C.D. Cal. 1973) (denying motion to intervene for failure to file a claim for relief).1
The NBA’s noncompliance with Rule 24(c) is no mere technicality. Permitting the NBA free-floating participation in the litigation untethered to a claim for relief or a defense would leave the Court and BCOS with no way to evaluate the appropriateness of the NBA’s discovery requests, motions, and other litigation activities. This is of particular concern here in light of Mr. Stern’s statement that the NBA will impose “very expensive” litigation costs on BCOS and its members, and because the NBA’s belief that BCOS will pay the NBA’s legal fees removes the cost deterrent that would normally restrict an intervenor from overlitigating a case. The Motion should be denied for failure to comply with Rule 24(c).
B
. If Bifurcation is Granted, NBA Intervention Should Be Limited to the Remedies Phase.
1.
In Bifurcated Litigation, an Applicant May Intervene Only in Phases For Which the Applicant Can Satisfy Rule 24. An entity applying to intervene bears the burden of establishing that (1) the applicant has a significant protectable interest in the litigation subject matter; (2) the disposition of the litigation may impair or impede that interest; (3) the application is timely; and (4) the existing parties may not adequately represent the interest. United States v. Alisal Water Corp., 370 F.3d 915, 920 (9th Cir. 2004). In determining whether intervention is appropriate, a court should be “guided primarily by equitable and practical considerations.” Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998).
Have a great day,
Mr Baker
Sent from my iPhone
Have a great day,
Mr Baker
Sent from my iPhone
Have a great day,
Mr Baker
Sent from my iPhone
Sent from my iPhone
Have a great day,
Mr Baker
Sent from my iPhone
NEW YORK, July 2, 2008 -- NBA Commissioner David Stern has issued the following statement:
“We are pleased that the Sonics and the City of Seattle have settled their litigation. While the decision has been made to relocate the Sonics to Oklahoma City, the NBA continues to regard Seattle as a first-class NBA city that is capable of serving as home for another NBA team.
In order for this to occur, a state-of-the-art NBA arena must be funded and constructed in the Seattle area, a subject that has been extensively debated -- but not ultimately acted upon -- by local political and business leaders over the past four years. We are pleased that the City remains committed to addressing this fundamental requirement for the return of NBA basketball to Seattle and we hope that other elected officials critical to a solution will support the City’s efforts.
We understand that City, County, and State officials are currently discussing a plan to substantially re-build KeyArena for the sum of $300 million. If this funding were authorized, we believe KeyArena could properly be renovated into a facility that meets NBA standards relating to revenue generation, fan amenities, team facilities, and the like.
Assuming the funding can be committed, the league is willing to work with the City on the design and construction of the re-build to facilitate this result. Under these circumstances, if an opportunity arose in the future for an NBA team to be located in Seattle, we would support that team playing its home games in a re-built KeyArena, if it wished.
However, given the lead times associated with any franchise acquisition or relocation and with a construction project as complex as a KeyArena renovation, authorization of the public funding needs to occur by the end of 2009 in order for there to be any chance for the NBA to return to Seattle within the next five years.
We are pleased that Steve Ballmer has expressed the continuing willingness of his group, Seattle Center Investors, managed by Seattle developer Matt Griffin, to be a part of the solution for returning NBA basketball to Seattle. The NBA will keep SCI and the City informed if opportunities arise in the next five years for franchise sale, relocation and/or expansion. Under the circumstances outlined above, the NBA would be happy to return to the City of Seattle.”
City of Seattle
Gregory J. Nickels, Mayor
NEWS ADVISORY
SUBJECT: Statement by Mayor Nickels on the settlement of the City's lawsuit with the Seattle Sonics
FOR IMMEDIATE RELEASE:
7/2/2008 5:00:00 PM FOR MORE INFORMATION CONTACT:
Alex Fryer (206) 684-8358
Statement by Mayor Nickels on the settlement of
the City's lawsuit with the Seattle Sonics
Today, I am announcing a settlement with Mr. Bennett and the Professional Basketball Club. Our goals for the settlement were two: To protect the taxpayers’ investment in KeyArena and have a long-term future for professional basketball.
In exchange for terminating the lease two years early, Mr. Bennett has agreed to settlement package with a payment up to $75 million to the City of Seattle. Under the agreement, $45 million will be paid to the City immediately. That covers rent and loss of tax revenue, and allows us to pay off outstanding debt on KeyArena.
Our agreement calls for Mr. Bennett and his co-owners to pay an additional $30 million in 2013—if the NBA has not approved a team to play in Seattle.
The NBA was an important part of our negotiations—agreeing that a renovated KeyArena can be a competitive NBA facility. This is a crucial point for us. A KeyArena with professional basketball is a cornerstone for a vibrant Seattle Center.
The NBA has committed to helping us secure a future team—informing us of any sale, relocation or expansion opportunities.
Committed local ownership is critical—and we are grateful that Steve Ballmer and his group, represented here by Matt Griffin, are working to secure a new team.
The city is ready to do its part. Local investors have stepped up. Now, the State Legislature must act. If it fails to approve public funding next year to remodel KeyArena, we will lose our rights to that $30 million payment if we do not get a team.
I believed all along that enforcing our lease would create time for a better deal. We now have that deal.
The Sonics name and history stay in Seattle. Seattle is a natural home for professional basketball—loyal fans, and a rich, 40-year tradition.
Working together, we are now in the best position to continue that legacy in Seattle.
Visit the mayor’s web site at www.seattle.gov/mayor. Get the mayor’s inside view on efforts to promote transportation, public safety, economic opportunity and healthy communities by signing up for The Nickels Newsletter at www.seattle.gov/mayor/newsletter_signup.htm
Seattle Post-Intelligencer
Nagging question: Fix KeyArena?
City hopes it can finally get the Legislature on board
Friday, July 4, 2008
Last updated 1:07 a.m. PT
By GREG JOHNS
P-I REPORTER
Even as the team formerly known as the Sonics begins packing for a one-way trip to Oklahoma, the story line of the NBA's long-term prospects in Seattle seems to have come full circle.
We're back to this. The region needs a new arena. Without a state-of-the-art facility, there will be no pro basketball franchise in Seattle again.
Whether it's a renovated KeyArena, which NBA Commissioner David Stern suddenly says would be just fine, or a brand-new palace, which Sonics Chairman Clay Bennett briefly pursued, no new ownership group is going to emerge without a modern building to host its team.
Microsoft Corp. Chairman Steve Ballmer and his three local partners remain interested in buying another NBA team to eventually wear the Sonics' green and gold, according to Seattle developer Matt Griffin, but won't even begin scanning the waters until a firm financing plan is in place for a KeyArena makeover.
"Without that, you're going into any negotiation with one arm tied behind your back," said Griffin, who'll continue serving as spokesman for the group that also includes Costco Chief Executive Jim Sinegal and software mogul John Stanton.
Two weeks ago, Griffin was on the witness stand in U.S. District Judge Marsha Pechman's court being grilled about his group's role in the city's plan to force Bennett to sell the Sonics. The experience wasn't pleasant, but being dragged through the mud didn't diminish the quartet's interest in pursuing a pro basketball solution in Seattle.
"The good thing about the body is it doesn't remember pain very well. It's the reason we do a lot of things the second time," Griffin said with a laugh. "We're ready to work the problem. That doesn't mean it's going to happen, but we're ready to work it."
So fire up the political debates, the battles over public vs. private money and the Citizens for More Important Things against sports fans who place tremendous value on the entertainment provided by professional athletics.
Bennett's basketball team might be gone, but questions over what comes next are just beginning.
City of Seattle leaders are still hoping to leverage a KeyArena solution out of the Legislature. If a financing plan can be committed during next year's session, Ballmer's group -- now dubbed the Seattle Center Investors -- remains willing to foot half the projected $300 million renovation costs.
Just don't expect a replacement NBA team to hurry into Seattle on the wings of Bennett's departure.
"Realistically, we're looking at a couple of years at the earliest," Deputy Mayor Tim Ceis said.
Brian Robinson, chairman of the Save Our Sonics fan group, said it's going to take some people time to even decide how much emotion they want to invest into a push for a replacement.
"The next step is for people to kind of deal with their grief and decide if they want the NBA here again," Robinson said. "I'm not thrilled with the decision to let the team go. But I do understand the logic is to increase the chances of getting a team in the next five years."
It's possible that a long-term solution might not even include KeyArena. Dave Bean, a local businessman, continues teaming with former Sonic Fred Brown on an effort to promote a privately financed arena in the region that could house both pro basketball and hockey.
Bean said their B2 firm has done further site analysis and investor searching in the past few months and hopes to step more to the fore now that the Sonics are gone.
"What this does is perhaps accelerate the process for all parties involved," Bean said. "We're going to continue to go down our private road and see what develops. We've been making progress, but we do have some concerns about the direction Mayor Nickels is talking about, going back to Olympia for public funding and refocusing on KeyArena.
"That's not our plan. I guess it's going to get down to who can deliver a suitable facility to the NBA and do it in a way that makes the most sense. We think we've got a much better approach with no tax dollars."
But Bean's ambitious project remains an admitted long shot, given the plan requires both NBA and NHL tenants to pencil out financially. Not to mention, he and Brown are swimming against the political stream, as city leaders are invested heavily in trying to salvage KeyArena.
"They've given our product zero recognition, but that's fine," Bean said. "We understand that game. We're going to keep doing our thing, and we're happy with the progress we've made over the last three months."
Bean believes Seattle's vibrant market and size make his proposal possible and that Stern will be interested once the pieces are in place.
"The NBA is very facility-driven," he said.
He'll get no arguments there from Griffin, but Ballmer's partner indicates his own focus is almost exclusively on a KeyArena solution.
"You never say never," Griffin said. "But my interest shrinks considerably when it's not Seattle Center. One of my reasons to get involved is I worry about the Center being empty."
Ultimately, it might take some interesting partnerships to get pro basketball back to the city. City Councilman Nick Licata, viewed as an obstructionist to previous KeyArena proposals, sounds willing to work toward a solution.
"The best thing right now is the NBA is willing to help Seattle get a team," Licata said. "That wouldn't have happened if we'd gone the straight court route (and not settled with Bennett).
"Quite honestly, the road may get a bit rougher as we approach the state Legislature," he said. "There may be some differences of opinion there. The devil is always in the details, but we'll see how it works. We have to present something that makes sense to the Legislature, just like it makes sense to the council and public. I think we can do that."
King County Councilman Pete von Reichbauer said the city will even need to look at Bennett as a potential ally toward getting a replacement.
Bennett will owe the city $30 million if a new team doesn't come to Seattle by 2013, assuming the Legislature also approves a tax plan for KeyArena by the end of next year.
"This region is going to need to work with him if it wants another team," said von Reichbauer, a staunch sports fan who helped broker a Seahawks solution between Ken Behring and Paul Allen in 1997 that resulted in Qwest Field's construction.
"He's one of the youngest members of the NBA Board of Governors. He's going to be there awhile."
P-I reporter Greg Johns can be reached at 206-448-8314 or gregjohns@seattlepi.com.
© 1998-2008 Seattle Post-Intelligencer
But House Finance Chairman Ross Hunter said the city is working on a new funding proposal that he thinks will be more palatable to lawmakers. The new plan relies on taxes collected entirely within the city, said Hunter, D-Medina.
Under past proposals, the city and Sonics were seeking legislative approval to tap King County taxes on car rentals and restaurants — money now being used to pay off the debt on Safeco Field.
After shooting down the latest proposal this year, Gregoire and legislative leaders agreed to set up a task force to examine a broader package of King County taxes that could pay for projects for the arts, education, youth sports, low-income housing, Puget Sound cleanup and a renovation of Husky Stadium — along with KeyArena.
That task force will hold its first meeting this month.
But Hunter, who has been briefed by Seattle officials, said the city is now eyeing a different pot of money.
For years the state has collected a hotel and motel tax to help pay off the debt on the Washington State Convention & Trade Center. Those collections exceed what is needed for the convention-center debt, Hunter said.
Hunter said the city's plan is to shift a tiny portion of that money to Seattle Center for improvements not related to KeyArena. That presumably would free up other money for the arena renovation.
Such a shift would require legislative approval.
Alex Fryer, spokesman for the city, confirmed the city wants to tap the hotel and motel taxes.
Hunter, who has not supported previous proposals, said he thinks the new plan has a better chance in Olympia because it's not just a "taxpayer subsidy for professional basketball."
He said he thinks lawmakers will be more open to helping the city tackle an obvious financial problem — "an empty building that bleeds money." - Seattle Times, 7/4/2008
Statement by Mayor Nickels on the settlement of the City's lawsuit with the Seattle Sonics
Today, I [Mayor Nickels] am announcing a settlement with Mr. Bennett and the Professional Basketball Club. Our goals for the settlement were two: To protect the taxpayers’ investment in KeyArena and have a long-term future for professional basketball.
In exchange for terminating the lease two years early, Mr. Bennett has agreed to settlement package with a payment up to $75 million to the City of Seattle. Under the agreement, $45 million will be paid to the City immediately. That covers rent and loss of tax revenue, and allows us to pay off outstanding debt on KeyArena.
Our agreement calls for Mr. Bennett and his co-owners to pay an additional $30 million in 2013—if the NBA has not approved a team to play in Seattle.
The NBA was an important part of our negotiations—agreeing that a renovated KeyArena can be a competitive NBA facility. This is a crucial point for us. A KeyArena with professional basketball is a cornerstone for a vibrant Seattle Center.
The NBA has committed to helping us secure a future team—informing us of any sale, relocation or expansion opportunities.
Committed local ownership is critical—and we are grateful that Steve Ballmer and his group, represented here by Matt Griffin, are working to secure a new team.
The city is ready to do its part. Local investors have stepped up. Now, the State Legislature must act. If it fails to approve public funding next year to remodel KeyArena, we will lose our rights to that $30 million payment if we do not get a team.
I believed all along that enforcing our lease would create time for a better deal. We now have that deal.
The Sonics name and history stay in Seattle. Seattle is a natural home for professional basketball—loyal fans, and a rich, 40-year tradition.
Working together, we are now in the best position to continue that legacy in Seattle.
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