AT&T Mobility, LLC v. Yeager, et al.

Filing 164

ORDER signed by Judge Kimberly J. Mueller on 3/3/15 ORDERING that Ms. Yeager's #162 ex parte request to intervene is GRANTED IN PART, subject to the limitations listed in this order. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

AT&T MOBILITY LLC,

12

Plaintiff,

13
14
15
16
17

No. 2:13-cv-0007-KJM-DAD

v.

ORDER

GENERAL CHARLES E. “CHUCK”
YEAGER (RET.); ED BOWLIN; CONNIE
BOWLIN; AVIATION AUTOGRAPHS;
BOWLIN & ASSOCIATES, INC.; LAW
OFFICES OF JOANNA R. MENDOZA,
P.C.; DE LA PENA & HOLIDAY, LLP;
LESSER LAW GROUP,

18

Defendants.

19
20
On November 21, 2014, the court issued an order on Parsons Behle & Latimer’s

21
22

motion to enforce a settlement agreement between itself and General Charles E. (“Chuck”)

23

Yeager (Ret.). Order Nov. 21, 2014, ECF No. 139. In that order the court concluded the

24

settlement agreement was enforceable and General Yeager bound if his then-attorney, R. Parker

25

White,1 had authority to enter it on his behalf. Id. at 5. Applying California law, the court set an

26

evidentiary hearing on the question of Mr. White’s authority, noting General Yeager would bear

27
28

1

The court granted Mr. White’s motion to withdraw on January 14, 2015. ECF No. 145.
1

1

the burden to demonstrate Mr. White acted without authority. Id. at 8–9. The hearing was

2

originally set for January 20, 2015, id. at 9, but was later reset for March 24, 2015, see Minute

3

Order, ECF No. 141; Minute Order, ECF No. 161. On February 23, 2015, Victoria Yeager,

4

General Yeager’s wife, filed an ex parte application to intervene. ECF No. 162. Ms. Yeager’s

5

request to intervene is primarily motivated by her desire to “participate fully in the evidentiary

6

hearing,” for example by “cross-examining witnesses, calling witnesses, submitting evidence, and

7

in opposing Parson Behle’s Motion . . . .” Mem. P.&A. 2, ECF No. 162–1. Parsons Behle

8

opposed the request. ECF No. 163.

9

I.

DISCUSSION

10

First, Parsons Behle opposes Ms. Yeager’s request as procedurally improper. Id.

11

at 2. Pro se litigants are held to the same standard as those represented by a lawyer. See E.D.

12

Cal. L.R. 183(a). Nevertheless, by long tradition, federal courts may afford unrepresented

13

litigants leniency in their filings. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (per

14

curiam); Fajeriak v. McGinnis, 493 F.2d 468, 470 (9th Cir. 1974); Forte v. Cnty. of Merced, No.

15

11-00318, 2014 WL 4745923, at *10 (E.D. Cal. Sept. 23, 2014). Because a motion noticed on the

16

court’s civil law and motion calendar could not be timely resolved before the evidentiary hearing,

17

the court will consider Ms. Yeager’s ex parte request and Parsons Behle’s opposition to it.

18

Second, Parsons Behle opposes the request as untimely and because Ms. Yeager

19

does not describe in which capacity she seeks intervention, or the property or transaction in which

20

she claims an interest.

21
22

Federal Rule of Civil Procedure 24 governs intervention. First, intervention may
be mandatory:

23

[T]he 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 that movant’s ability to protect its
interest, unless existing parties adequately represent that interest.

24
25
26

Fed. R. Civ. P. 24(a). A court may also permit anyone to intervene who “has a claim or defense

27

/////

28

/////
2

1

that shares with the main action a common question of law or fact.” Id. R. 24(b). The Ninth

2

Circuit has distilled these requirements for Rule 24(a):

3

6

(1) [T]he 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.

7

Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). The court’s decision

8

on an application to intervene is “guided primarily by practical and equitable considerations, and

9

the requirements for intervention are broadly interpreted in favor of intervention.” United States

4
5

10

v. Aerojet Gen’l Corp., 606 F.3d 1142, 1148 (9th Cir. 2010) (citation omitted).

11

In addition, any motion to intervene “must state the grounds for intervention and

12

be accompanied by a pleading that sets out the claim or defense for which intervention is sought.”

13

Fed. R. Civ. P. 24(c). The Ninth Circuit has waived this requirement and “approved intervention

14

motions without a pleading where the court was otherwise apprised of the grounds for the

15

motion.” Beckman Indus. v. International Ins. Co., 966 F.2d 470, 474 (9th Cir.1992). Failure to

16

attach a pleading is “a ‘purely technical’ defect which does not result in the ‘disregard of any

17

substantial right.’” Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1188 (9th Cir. 2009)

18

(citation omitted). Ms. Yeager’s request, although filed without a pleading, sufficiently informs

19

the court of its grounds, and will not be denied for this technical failure alone. Ms. Yeager may

20

adopt General Yeager’s pleading in this matter as her own.

21

A.

22

Timeliness
“Intervention, both of right and by permission, can occur only ‘[o]n timely

23

motion.’” Peruta v. Cnty. of San Diego, 771 F.3d 570, 572 (9th Cir. 2014) (quoting Fed. R. Civ.

24

P. 24(a)–(b)). A motion’s timeliness is evaluated in terms of “‘(1) the stage of the proceeding at

25

which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and

26

length of the delay.’” Id. (quoting United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th

27

Cir. 2004)). “Mere lapse of time alone is not determinative.” United States v. State of Or.,

28

/////
3

1

745 F.2d 550, 552 (9th Cir. 1984). The most important factor in considering timeliness is “the

2

issue of prejudice to the existing parties.” Id.

3

The first and third factors, the stage of the proceeding and the reason for and

4

length of the delay, suggest Ms. Yeager’s request is untimely. This case was filed in January

5

2013, Compl., ECF No. 1, General Yeager was served the same month, ECF No. 11, and

6

answered the complaint in February 2013. ECF No. 16. Parsons Behle moved to intervene on

7

December 5, 2013, ECF No. 72, and its motion was granted on April 11, 2014, ECF No. 91,

8

approximately ten months ago. Parsons Behle moved to enforce the settlement agreement on

9

October 10, 2014, nearly five months ago. As noted above, the court has already determined the

10

settlement agreement is enforceable if Mr. White had authority to settle the case. Ms. Yeager has

11

provided no explanation for her delay other than noting Mr. White’s motion to withdraw was

12

granted in mid-January of this year. Mem. P.&A 8. General and Ms. Yeager’s interests in this

13

case have not changed with Mr. White’s withdrawal.

14

The second factor, prejudice to other parties, weighs in favor of Ms. Yeager’s

15

request. The court is aware of no delay Ms. Yeager’s intervention would cause. The focused

16

hearing probing a narrow question will go forward on March 24, 2015, with or without her

17

presence. Parsons Behle has described no specific prejudice it will suffer or delay that could

18

result, relying instead on generalized speculation that her intervention will “interrupt the

19

resolution of the one remaining issue [and] will unduly delay and prejudice the adjudication of the

20

original parties’ rights.” Resp. Mot. Intervene 2:17–18, ECF No. 163.

21
22
23
24

On balance, although Ms. Yeager’s request was delayed, there is no clear prejudice
Parsons Behle will suffer should her request be granted. It is timely for purposes of Rule 24.
B.

Significantly Protectable Interest
This inquiry is a practical one. Berg, 268 F.3d at 818. Ms. Yeager need not

25

establish a specific legal or equitable interest. Id. The interest is usually sufficient if “protectable

26

under some law” and that interest is related to the claims at issue in the existing litigation.

27

Wilderness Soc’y v. United States Forest Serv., 630 F.3d 1173, 1779 (9th Cir. 2011) (internal

28

citation and quotation marks omitted).
4

1

Here, Ms. Yeager’s contractual rights could be impaired if the settlement

2

agreement is enforced. The text of that agreement identifies her as a “Party.” See Ex Parte

3

Request Intervene, Ex. A, at 1, ECF No. 162-1. Its paragraph 4 includes a release: “Except for

4

the obligations created hereunder . . . the Parties . . . hereby completely release and forever

5

discharge one another . . . from any and all actual or potential claims . . . and any and all actual or

6

potential causes of action of any type . . . .” Id. Ex. A, ¶ 4. Ms. Yeager’s interest is sufficiently

7

protectable to satisfy this prong.

8

C.

9

Protection of the Interest
Rule 24 requires the proposed intervenor to show that resolution of the action may

10

practically impair her ability to protect her interest. California ex rel. Lockyer v. United States,

11

450 F.3d 436, 442 (9th Cir. 2006). “‘If an absentee would be substantially affected in a practical

12

sense by the determination made in an action, [s]he should, as a general rule, be entitled to

13

intervene.’” Berg, 268 F.3d at 822 (quoting Fed. R. Civ. P. 24 advisory committee’s notes to

14

1966 amendment). Here Ms. Yeager’s rights with respect to any claim against Parsons Behle

15

could be impaired if the settlement agreement is enforced.

16

D.

17

Existing Adequate Representation of the Interest
Proposed intervenors generally have a low burden to show that their interests are

18

inadequately represented. Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). Courts

19

consider the following three factors in deciding whether the burden is met:

20

(1) [W]hether the interest of a present party is such that it will
undoubtedly make all of a proposed intervenor’s arguments;
(2) whether the present party is capable and willing to make such
arguments; and (3) whether a proposed intervenor would offer any
necessary elements to the proceeding that other parties would
neglect.

21
22
23
24

Id. (citing Cal. v. Tahoe Reg’l Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986)). “The most

25

important factor in determining the adequacy of representation is how the interest compares with

26

the interests of existing parties.” Id.

27

/////

28

/////
5

1

Here, General Yeager’s legal interests include each of those asserted by Ms.

2

Yeager.2 She has made no effort to show otherwise. Her request is instead based on General

3

Yeager’s incapacity to represent her interests without an attorney. General Yeager is 92, and at a

4

recent status conference appeared unable to answer certain of the court’s questions. All things

5

considered, the court cannot conclude he is “capable [of] and willing” to assert arguments on Ms.

6

Yeager’s behalf, assuming he continues to represent himself.

7

II.

CONCLUSION

8
9

Ms. Yeager’s ex parte request to intervene is GRANTED IN PART, subject to the
following limitations:

10

First, this order makes Ms. Yeager a party to the litigation and entitles her to assert

11

defenses on her behalf. She may not assert defenses on General Yeager’s behalf or speak for him.

12

He remains a party to this action and is not represented, and must therefore appear and present his

13

case personally. See E.D. Cal. L.R. 183(a) (“Any individual who is representing himself or

14

herself without an attorney must appear personally or by courtesy appearance by an attorney

15

admitted to the Bar of this Court and may not delegate that duty to any other individual, including

16

husband or wife, or any other party on the same side appearing without an attorney.”).

17

Second, in light of the court’s prior determination that the settlement agreement is

18

conditionally enforceable, Order Nov. 21, 2014, ECF No. 139, Ms. Yeager’s defense is limited in

19

the same way General Yeager’s is, to evidence that Mr. White lacked authority to enter the

20

agreement.

21

IT IS SO ORDERED.

22

DATED: March 3, 2015.

23
24

UNITED STATES DISTRICT JUDGE

25
2

26
27
28

The text of the settlement agreement appears to assign General Yeager obligations in addition to
those of Ms. Yeager. See Mem. P.&A. Ex. A, ¶ 2 (“Gen. Yeager”—not Ms. Yeager—“agrees to
pay Parsons Behle the total sum of Sixty Five Thousand Dollars ($65,000) (the ‘Settlement
Funds’) through the disbursement of funds deposited with the Court by AT&T in the Interpleader
Action, such Settlement Funds to be paid within thirty (30) days.”).
6