Boyd v. Koch Foods of Alabama, LLC et al

Filing 75

OPINION AND ORDER: Tarsha Hunter's motion to intervene 47 is granted pursuant to Fed. R. Civ. P. 24(b)(1)(B). Signed by Honorable Judge Myron H. Thompson on 1/10/2012. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

TINA BOYD,

)
)
Plaintiff,
)
)
v.
)
)
KOCH FOODS OF ALABAMA, LLC, )
et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:11cv748-MHT
(WO)

OPINION AND ORDER
This cause is now before the court on Tarsha Hunter’s
motion to intervene under Federal Rule of Civil Procedure
24.

Plaintiff Tina Boyd and Hunter both assert various

employment-discrimination claims against defendants Koch
Foods

of

Alabama,

Burchfield.
motion

on

defendants’

LLC,

Koch

Foods,

Inc.,

and

David

Hunter, however, premises her intervention
her

and

civil

Boyd’s

shared

violations

allegations

under

the

of

the

Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. §§ 1962(c) & 1964(c).

Specifically, Boyd and

Hunter claim that the defendants caused direct injury to

their

business

interests

by

knowingly

employing

undocumented immigrants at their poultry factory.
For the reasons that follow, Hunter’s motion will be
denied to the extent she seeks intervention as of right,
but will be granted to the extent she seeks permissive
intervention.

I. Intervention as of Right
A party seeking to intervene as of right under Rule
24(a)(2) must satisfy the following requirements: (1) the
motion to intervene is timely; (2) the interest asserted
must relate to the property or transaction which is the
subject of the action; (3) the applicant must be so
situated that disposition of the action, as a practical
matter, may impede or impair the ability to protect that
interest;

and

(4)

the

interest

asserted

must

be

represented inadequately by the existing parties to the
suit.

Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th

2

Cir. 1989).

Intervention as of right is proper only if

all four requirements have been established.
The requirement that an intervenor is inadequately
represented by existing parties “is satisfied if the
applicant shows that representation of his interest ‘may
be’ inadequate; and the burden of making that showing
should be treated as minimal.”

Trbovich v. United Mine

Workers

U.S.

528,

538

n.10

burden

may

be,

it

“However

of

America,

‘minimal’

404

this

(1972).

cannot

be

treated as so minimal as to write the requirement out of
the rule.”

Bush v. Viterna, 740 F.2d 350, 355 (5th Cir.

1984). “There is a presumption of adequate representation
when an existing party seeks the same objectives as the
interveners.”

Stone v. First Union Corp., 371 F.3d 1305,

1311 (11th Cir. 2004).
Hunter

contends

that

her

interest

in

conducting

business transactions free of civil RICO violations is
inadequately represented by Boyd.

3

The court agrees that

Hunter’s

interest

is

the

same

as

Boyd’s.

Thus,

a

presumption of adequate representation applies.
Hunter has failed to rebut that presumption with a
showing

of

strategy.

any

potential

divergence

of

interest

or

In fact, Hunter and Boyd have colluded to argue

that Hunter’s attorney would provide better representation
than Boyd’s counsel would.

Boyd’s attorney attached a

submission to Hunter’s intervention brief, consenting to
the intervention because it would “assist, protect and
enhance Boyd’s interests regarding her RICO claims against
the Defendants, in that Hunter’s counsel, The Frederick
Firm, has extensive experience with issues that arise from
an employer’s employment of illegal aliens in general and
extensive experience in particular as to the RICO claims
[alleged] here.”

Boyd Submission (Doc. No. 60-1), at 2.

In turn, Hunter contends that Boyd’s attorney “does not
have the extensive experience that Hunter’s counsel” has
with these issues.
5.

According

to

Intervention Brief (Doc. No. 60), at
Hunter,

4

this

lack

of

“extensive

experience” means that her interests are inadequately
represented under Rule 24(a)(2).
While

adequacy

of

counsel

may

be

a

factor

in

certification of a class action, see Lyons v. GeorgiaPacific Corp. Salaried Employees Retirement Plan, 221 F.3d
1235, 1253 (11th Cir. 2000), such a requirement is alien
to the Rule 24 inquiry.1

Courts grant intervention when

a party has multiple objectives or a litigation strategy
different from those of the intervenor.
371

F.3d

at

1311

(finding

See, e.g., Stone,

inadequate

representation

because the defendant’s discriminatory conduct may have
differed between plaintiff and intervenor). By contrast,
1. The court recognizes that the adequacy-ofrepresentation language of Rule 24 and that of Federal
Rule of Civil Procedure 23 mirror one another.
Nevertheless, the issues animating the Rule 23 adequacyof-representation analysis for class actions differ from
those in the Rule 24 context in significant ways. Under
Rule 23, the court must conduct an inquiry into the
competency of class counsel. See Fed. R. Civ. P. 23(g).
Class actions also raise due-process concerns because a
final judgment may bind non-participating class members.
See generally Phillips Petroleum Co. v. Shutts, 472 U.S.
797 (1985). Thus, under Rule 24(a)(2), the court sees no
need to compare the relative expertise of counsel in
conducting an adequacy-of-representation inquiry.
5

courts routinely deny intervention on an adequacy-ofrepresentation ground when there is a convergence of
interest.

See, e.g., United States v. City of Miami, 278

F.3d 1174, 1178-79 (11th Cir. 2002) (finding that the
United States of America’s interest in the litigation was
identical

to

a

police

officer’s

association);

Athens

Lumber Co. v. FEC, 690 F.2d 1364, 1367 (11th Cir. 1982)
(denying intervention because a union and the defendant
“both have precisely the same objective”).
Precedent
representation

makes

clear

analysis

that

hinges

on

the

adequacy-of-

whether

interests

diverge, not whether the plaintiff and intervenor believe
that one party’s attorney is more skilled in an area of
law.

If Boyd and Hunter’s reading of Rule 24(a)(2) were

correct, any consenting party could nullify the adequacyof-representation prong by stating that the intervenor’s
attorney was more experienced or had better resources.

6

Because Hunter’s interests are adequately represented
by Boyd, the court finds intervention under Rule 24(a)(2)
inappropriate.

II.

Permissive Intervention

Hunter also seeks to intervene as a matter of the
court’s discretion pursuant to Rule 24(b)(1)(B).

The

court may grant permissive intervention if the applicant
can demonstrate that (1) the application to intervene is
timely and (2) the claim asserted and the main action have
a question of law or fact in common.

Chiles, 865 F.2d at

1213. Additionally, the court must consider “whether the
intervention

will

unduly

delay

or

prejudice

adjudication of the original parties’ rights.”
Civ. P. 24(b)(3).

the

Fed. R.

Permissive intervention “lies within

the discretion of the district court.”

Athens Lumber, 690

F.2d at 1367.
Here, Hunter’s motion to intervene is timely.

Hunter

filed her motion to intervene on the same day as Boyd

7

filed her second amended complaint.

Although Boyd’s

second amended complaint comes a year after the case was
initiated, this court granted the amendment and permitted
Boyd to correct service of process.

Boyd v. Koch Foods of

Alabama, LLC, 2011 WL 6141064 (M.D. Ala. Dec. 8, 2011).
Moreover, Boyd’s second amended complaint was the first
pleading to raise the civil RICO allegations.
Hunter’s claims share common questions of law and fact
with Boyd’s suit: the same practice of hiring undocumented
aliens at the defendants’ Montgomery poultry facility.
Indeed,

the

defendants

concede

that:

The

“Intervenor

Complaint alleges the exact same RICO allegations as
Plaintiff’s Renewed First Amended Complaint.

The only

difference is the substitution of Intervenor’s name for
Plaintiff’s name.”

Opposition to Motion to Intervene

(Doc. No. 59), at 5 (internal citations omitted).2

2. While Koch raises concerns about the plausibility
of the intervenor complaint, these issues are best
resolved with a Rule 12(b)(6) motion to dismiss, not at
the motion-to-intervene stage.
8

Finally, neither party will be prejudiced by Hunter’s
intervention.

Boyd has consented to the intervention,

alleviating any concerns raised by the defendants about
Boyd’s involvement in Hunter’s employment-discrimination
claim.

As the civil RICO claims are only now commencing,

the defendants have not been prejudiced by an additional
plaintiff raising nearly identical claims.

Given that

Hunter could file her own independent lawsuit, judicial
economy strongly favors granting permissive intervention.
*

*

*

Accordingly, it is ORDERED Tarsha Hunter’s motion to
intervene (Doc. No. 47) is granted pursuant to Fed. R.
Civ. P. 24(b)(1)(B).
DONE, this the 10th day of January, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE