Carr v. Beverly Health and Rehabilitation Services, Inc.

Filing 85

ORDER by Judge Edward M. Chen Denying 71 Veurink's Motion to Intervene. (emcsec, COURT STAFF) (Filed on 2/14/2014)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

ANDREW CARR,

9

11
For the Northern District of California

United States District Court

10

No. C-12-2980 EMC

Plaintiff,
v.
BEVERLY HEALTH CARE AND
REHABILITATION SERVICES, INC.,

ORDER DENYING VEURINK’S
MOTION TO INTERVENE
(Docket Nos. 71, 81, 82)

12
13

Defendant.
___________________________________/

14
15
16

The Court entered a final judgment in this case on November 5, 2013. See Docket No. 66

17

(final judgment). On January 2, 2014, Leslie Veurink filed the currently pending motion to

18

intervene. After briefing on the intervention motion was completed, Plaintiff Andrew Carr filed a

19

notice of appeal with respect to the final judgment entered by the Court (as well as the Court’s order

20

denying his motion for reconsideration). See Docket No. 79 (notice). In light of Mr. Carr’s appeal,

21

this Court now lacks the jurisdiction to entertain Ms. Veurink’s intervention motion. See, e.g.,

22

Taylor v. KeyCorp, 680 F.3d 609, 616 (6th Cir. 2012) (holding that “the district court was correct to

23

deny the motion to intervene . . . because once a notice of appeal was filed, the district court was

24

divested of jurisdiction”).

25

To the extent Ms. Veurink asks the Court to make an indicative ruling on her intervention

26

motion pursuant to Federal Rule of Civil Procedure 62.1, the request is denied. First, Rule 62.1(a) is

27

predicated on there being a “timely motion . . . for relief.” Fed. R. Civ. P. 62.1(a). Second, even if

28

1

the intervention motion were timely for purposes of Rule 62.1(a), the Court would not be inclined to

2

grant the intervention motion on the merits.

must be timely made. See generally Fed. R. Civ. P. 24(a)-(b). Here, Ms. Veurink has given no good

5

explanation as to the reason or factual basis for her delay in seeking to intervene. See United States

6

v. Alisal Water Corp., 370 F.3d 915, 923 (9th Cir. 2004) (stating that “[a] party must intervene when

7

he ‘knows or has reason to know that his interests might be adversely affected by the outcome of

8

litigation’”) (emphasis added). No declaration was submitted by Ms. Veurink either as a part of her

9

opening motion or even in her reply brief. Furthermore, “postjudgment intervention is generally

10

disfavored,” in particular, “because it creates ‘delay and prejudice to existing parties,’” Calvert v.

11
For the Northern District of California

Under Federal Rule of Civil Procedure 24, intervention – whether as of right or permissive –

4

United States District Court

3

Huckins, 109 F.3d 636, 638 (9th Cir. 1997), and, in the instant case, there is a sufficient showing of

12

prejudice. More specifically, if the Court were to allow Ms. Veurink to intervene, she would be

13

entitled to the benefit of equitable tolling for statute-of-limitations purposes. See Employers-

14

Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Anchor Cap. Advisors, 498 F.3d 920, 925

15

(9th Cir. 2007) (stating that “the commencement of an original class suit tolls the running of the

16

statute of limitations for all purported members of the class until class certification is denied”).

17

Without intervention, Ms. Veurink would be compelled to file a new suit for which BHRS would

18

have smaller exposure given that the statute of limitations would not reach as far back as Mr. Carr’s

19

case. Allowing intervention deprives BHRS of the benefit of the statute of limitations, a cognizable

20

prejudice.

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

2

1

Accordingly, the Court DENIES Ms. Veurink’s motion to intervene on the basis that it is

2

without jurisdiction to entertain the motion. The Court also denies Ms. Veurink’s request for a Rule

3

62.1 indicative ruling. Finally, the Court GRANTS BHRS’s motion for leave to file a sur-reply, in

4

which it raised the jurisdictional issue for the Court’s consideration, as well as Ms. Veurink’s

5

response to that motion.

6

This order disposes of Docket Nos. 71, 81, and 82.

7
8

IT IS SO ORDERED.

9
Dated: February 14, 2014

11
For the Northern District of California

United States District Court

10

_________________________
EDWARD M. CHEN
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3