Winston et al v. Department of Agriculture et al

Filing 50

ORDER by Judge Maria-Elena James granting 46 Motion to Intervene (cdnS, COURT STAFF) (Filed on 12/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LUCILLE WINSTON, et al.,

Case No. 14-cv-05417-MEJ

Plaintiffs,
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ORDER RE: MOTION TO INTERVENE

v.

Re: Dkt. No. 46

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UNITED STATES OF AMERICA,
KEENAN LEE GRAW, KAREN HIMES
GRAWE, and DOES 1-50,

United States District Court
Northern District of California

Defendants.
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INTRODUCTION
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Plaintiff Lucille M. Winston (“Plaintiff”), individually and as Guardian Ad Litem for

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Lumari Newsome, her minor daughter, brings this negligence action related to two car accidents.
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Pending before the Court is a Motion to Intervene pursuant to Federal Rule of Civil Procedure
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(“Rule”) 24, filed by Mercury Insurance Company (“Mercury”). Dkt. No. 46. Defendant United

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States of America filed a Statement of Non-Opposition. Dkt. No. 49. Plaintiff and Defendants
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Keenan Lee Grawe and Karen Himes Grawe did not respond. The Court finds this matter suitable
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for disposition without oral argument and VACATES the February 4, 2016 hearing. See Fed. R.
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Civ. P. 78(b); Civ. L.R. 7-1(b). Having considered the parties’ positions, relevant legal authority,

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and the record in this case, the Court GRANTS Motion for the following reasons.
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BACKGROUND
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Plaintiff and her minor daughter were involved in automobile accidents on December 12,
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2012 and February 28, 2013. Second Am. Compl. (“SAC”) ¶¶ 11-13, 18-19, Dkt. No. 40. The

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2012 accident involved a vehicle owned by the government and driven by Asmaa Ali Ali, a
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federal employee. Id. ¶ 4. The 2013 accident involved a vehicle owned and/or managed by
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Defendants Keenan Lee Grawe and Karen Himes Grawe. Id. ¶ 16. Plaintiff filed her initial

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Complaint on December 11, 2014. Dkt. No. 1. She filed the SAC on November 2, 2015.

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Mercury filed the present Motion on December 11, 2015. It seeks to intervene as

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Plaintiff’s insurance company, arguing that disposition of this case without Mercury’s

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participation may impede its claims, as it has a subrogation claim based on an assignment from

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Plaintiff. Mot. at 2. In its proposed Complaint in Intervention, Mercury alleges it paid $10,611.16

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for expenses associated with Plaintiff’s vehicle after the December 12, 2012 accident. Id., Ex. 1.

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LEGAL STANDARD
Intervention is a procedure by which a nonparty can gain party status without the consent
of the original parties. United States ex rel. Eisenstein v. City of N.Y., 556 U.S. 928, 933 (2009)

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United States District Court
Northern District of California

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(“Intervention is the requisite method for a nonparty to become a party to a lawsuit.” (citation

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omitted). There are two types of intervention: (1) intervention of right, and (2) permissive

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intervention. See Fed. R. Civ. P. 24(a)-(b).

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Intervention exists as a matter of right when a federal statute confers the right to intervene

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or the applicant has a legally protected interest that may be impaired by disposition of the pending

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action and existing parties do not adequately represent that interest. Fed. R. Civ. P. 24(a). A court

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must permit an applicant to intervene as a matter of right when: “(1) it has a significant protectable

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interest relating to the property or transaction that is the subject of the action; (2) the disposition of

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the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest;

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(3) the application is timely; and (4) the existing parties may not adequately represent the

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applicant’s interest.” Chamness v. Bowen, 722 F.3d 1110, 1121 (9th Cir. 2013) (citation and

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internal quotation omitted). “Each of these four requirements must be satisfied to support a right

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to intervene. While Rule 24 traditionally receives liberal construction in favor of applicants for

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intervention, it is incumbent on the party seeking to intervene to show that all the requirements for

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intervention have been met.” Id. (internal citation, quotation, and alterations omitted). Failure to

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satisfy any one of the requirements is fatal to the application. Perry v. Proposition 8 Official

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Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

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Alternatively, under Rule 24(b), a court may also permit anyone to intervene who “has a
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claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ.

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P. 24(b)(1)(B). Unlike intervention as of right, permissive intervention focuses on possible

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prejudice to the original parties to the litigation, not the intervenor. Donnelly v. Glickman, 159

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F.3d 405, 411 (9th Cir. 1998). Thus, “in exercising its discretion, the court is to consider ‘whether

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the intervention will unduly delay or prejudice the adjudication of the rights of the original

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parties.’” Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1128 n.10 (9th Cir. 2002),

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abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir.

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2011) (quoting Fed. R. Civ. P. 24(b)(2)). “[P]ermissive intervention ‘requires (1) an independent

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ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between
the movant’s claim or defense and the main action.’” Freedom from Religion Found., Inc. v.

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United States District Court
Northern District of California

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Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (quoting Beckman Indus., Inc. v. Int’l Ins. Co., 966

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F.2d 470, 473 (9th Cir. 1992)). “Even if an applicant satisfies those threshold requirements, the

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district court has discretion to deny permissive intervention.” Donnelly, 159 F.3d at 412.
In ruling on a motion to intervene, the Court must accept as true the nonconclusory

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allegations of the motion and proposed pleading. Sw. Ctr. for Biological Diversity v. Berg, 268

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F.3d 810, 819 (9th Cir. 2001).
DISCUSSION

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Mercury’s unopposed Motion seeks to intervene as a matter of right under Rule 24(a), or in

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the alternative, permission to intervene under Rule 24(b). As set forth below, the Court finds

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Mercury has sufficiently satisfied the four-factor test for intervention as a matter of right under

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Rule 24(a), and thus the Court need not address whether intervention is proper under Rule 24(b).

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A.

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Significant Protectable Interest
“An applicant has a ‘significant protectable interest’ in an action if (1) it asserts an interest

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that is protected under some law, and (2) there is a ‘relationship’ between its legally protected

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interest and the plaintiff’s claims.” Cal. ex rel. Lockyer v. United States, 450 F.3d 436, 441 (9th

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Cir. 2006) (quoting Donnelly, 159 F.3d at 409). To trigger the right to intervene, an economic

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interest must be concrete and related to the underlying subject matter of the litigation. United

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States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). As Mercury’s subrogation claim
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is identical to the subject matter of this litigation, Mercury easily establishes a cognizable, legally

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protectable interest.

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Practical Impairment of Mercury’s Interests
When considering possible impairments to an intervenor’s interests in an action, “courts are

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guided primarily by practical and equitable considerations.” Id. Consistent with the liberal standard

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in favor of intervention, a proposed intervenor need not show impairment is an “an absolute

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certainty.” Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 900 (9th Cir.

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2011). Rather, the intervenor’s interests need only be “‘substantially affected in a practical sense

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by the determination made in an action.’” Berg, 268 F.3d at 822 (quoting Fed. R. Civ. P. 24
advisory committee note to 1966 amendment)). Generally, after determining the applicant has a

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United States District Court
Northern District of California

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protectable interest, courts have “little difficulty concluding” the disposition of the case may affect

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such interest. Lockyer, 450 F.3d at 442.
Mercury argues it shares a cause of action for property damage with Plaintiff, and should

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she resolve that cause of action without its permission, Mercury will be barred from pursuing

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reimbursement of its claim. Mot. at 6. Given that Mercury’s subrogation claim is identical to the

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subject matter of this litigation, the Court finds disposition of this case will substantially affect

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Mercury’s interest.

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C.

Timeliness

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In determining whether a motion to intervene is timely, courts weigh three factors: “(1) the

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stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties;

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and (3) the reason for and length of the delay.” Alisal, 370 F.3d at 921. “Timeliness is a flexible

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concept; its determination is left to the district court’s discretion.” Id. (citing Dilks v. Aloha

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Airlines, 642 F.2d 1155, 1156 (9th Cir. 1981)). The Court must be lenient in applying the

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timeliness requirement where intervention is sought as a matter “of right.” United States v.

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Oregon, 745 F.2d 550, 552 (9th Cir. 1984). Although delay can strongly weigh against

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intervention, the mere lapse of time, without more, is not necessarily a bar to intervention. Id.

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Stage of the Proceedings

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With regard to the stage of the proceedings, the Court finds Mercury’s Motion timely.
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Although Plaintiff filed this case in 2014, several procedural delays meant the operative SAC was

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not filed until November 2, 2015, and Defendants did not file their Answers until November 5 and

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23, 2015. Dkt. Nos. 42-43. As discovery has yet to commence and no significant substantive

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rulings have been made, the case remains in the early stages of litigation. Thus, the proceedings

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have not advanced to the point where intervention in inappropriate. See N. Cal. River Watch v.

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Fluor Corp., 2014 WL 3385287, at *15 (N.D. Cal. July 9, 2014) (granting motion to intervene

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where discovery had yet to commence and the court had not “significantly engaged the issues.”);

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S. Yuba River Citizens League & Friends of the River v. Nat’l Marine Fisheries Svc., 2007 WL

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3034887, at *12 (E.D. Cal. Oct. 16, 2007) (allowing intervention where motion to dismiss had
been filed, no discovery had been conducted, and party moved for intervention before dispositive

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United States District Court
Northern District of California

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motion filing deadline); cf. League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1303

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(9th Cir. 1997) (affirming denial of motion to intervene where there had been multiple

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proceedings, including a preliminary injunction, appeal to the Ninth Circuit, and partial grant of

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summary judgment).

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2.

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The issue of prejudice to the existing parties is the most important consideration in

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deciding whether a motion for intervention is untimely. Oregon, 745 F.2d at 552. “[C]ourts have

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emphasized the seriousness of the prejudice which results when relief from long-standing

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inequities is delayed.” Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978).

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Intervention has been denied at pretrial stages when “a lot of water [has] passed under . . . [the]

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litigation bridge.” Alisal, 370 F.3d at 922 (citations omitted). In assessing this factor, courts

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consider “whether existing parties may be prejudiced by the delay in moving to intervene . . . ‘not

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whether the intervention itself will cause the nature, duration or disposition of the lawsuit to

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change’ (otherwise, intervention would never be allowed because it inevitably prolongs the

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litigation).” Defenders of Wildlife v. Johanns, 2005 WL 3260986, at *4 (N.D. Cal. Dec. 1, 2005)

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(citation omitted). “The court looks to factors such as loss of evidence, settlements made in

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expectation of no further claims, and the need to reopen matters previously resolved.” Id.

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Prejudice to the Other Parties

Nothing in the record shows there would be prejudice to any of the existing parties. No
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party has raised an issue regarding loss of evidence, no evidence has been presented of a

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settlement agreement among any of the parties, and no substantive issues have been resolved in

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the course of this litigation. Cf. Oregon, 913 F.2d at 588-89 (finding that intervention would

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prejudice all parties because it would challenge a complex and delicately balanced plan achieved

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after four years of negotiation); League of United Latin Am. Citizens, 131 F.3d at 1304 (prejudice

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to all parties existed where proposed intervenor waited 27 months before seeking to intervene and

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petitioned the court for full party status when litigation was beginning to wind down).

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Accordingly, the Court finds intervention would not result in prejudice to the parties in this case.

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3.

Reason and Length of Delay

Last, the Court considers Mercury’s reason and length of the delay in moving for

United States District Court
Northern District of California

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intervention. “While the length of time that has passed since a suit was filed is not, in and of

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itself, determinative of timeliness, a party seeking to intervene must act as soon as he knows or has

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reason to know that his interests might be adversely affected by the outcome of the litigation.”

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Cal. Dep’t of Toxic Substances Control v. Commercial Realty Projects, 309 F.3d 1113, 1120 (9th

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Cir. 2002) (internal citation, quotation, and alteration omitted). Thus, the party seeking

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intervention must provide a reason for its delay in seeking to enter into the case. Alisal, 370 F.3d

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at 923. The key date for assessing the timeliness of a motion to intervene is the date the applicant

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should have been aware that its interests would no longer be adequately represented by one of the

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existing parties. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

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Mercury provides no reason why it waited nearly one year to move to intervene in this

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case. At the same time, the timeliness inquiry in which a court engages on a motion to intervene is

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to be determined from all of the circumstances. See NAACP v. New York, 413 U.S. 345, 366

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(1973). “The Court may, in its discretion, decide whether the length of and reason for the delay,

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combined with the other timeliness factors, are reasonable.” Defs. of Wildlife, 2005 WL 3260986,

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at *4. Furthermore, “[t]he mere passage of time, in itself, does not render an application untimely;

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rather, the important question concerns actual proceedings of substance on the merits.” Id. (citing,

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among others, Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 837 (9th Cir. 1996), as amended

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on denial of reh’g (May 30, 1996) (finding motion timely where it had been filed “before the
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district court had made any substantive rulings.”)). Thus, on balance, given the early stage of the

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proceedings and the lack of prejudice to all parties, the Court finds the delay was not excessive.
For these reasons, the Court finds Mercury’s Motion to Intervene is timely.

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Adequacy of Representation
An applicant for intervention must demonstrate that representation of its interests by

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existing parties to the litigation “may be” inadequate. Forest Conservation Council v. United

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States Forest Serv., 66 F.3d 1489, 1498 (9th Cir. 1995). The burden of showing inadequate

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representation is minimal, and doubts about adequacy of representation should be resolved in

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favor of the intervenor. Id.; see also Arakaki v. Cayetano, 324 F.3d 1078, 1084 (9th Cir. 2003).
In making this determination, the Court considers three factors: (1) “whether the interest of a

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United States District Court
Northern District of California

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present party is such that it will undoubtedly make all of a proposed intervenor’s arguments”; (2)

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“whether the present party is capable and willing to make such arguments”; and (3) “whether a

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proposed intervenor would offer any necessary elements to the proceeding that other parties would

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neglect.” Arakaki, 324 F.3d at 1086. “When an applicant for intervention and an existing party

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have the same ultimate objective, a presumption of adequacy of representation arises.” Id.;

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League of United Latin Am. Citizens, 131 F.3d at 1305. Thus, where “the applicant’s interest is

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identical to that of one of the present parties, a compelling showing should be required to

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demonstrate inadequate representation.” Prete v. Bradbury, 438 F.3d 949, 957 (9th Cir. 2006)

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(citing Arakaki, 324 F.3d at 1086).
Because Mercury is pursuing reimbursement of its subrogation claim, and no other party is

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furthering such interest, the Court finds representation of its interests by the existing parties is

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likely inadequate. See Defs. of Wildlife, 2005 WL 3260986, at *8 (“The court also may find that a

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proposed intervenor’s interests are not adequately represented where the intervenor would bring a

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perspective none of the other parties to the litigation have.”).

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CONCLUSION

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Based on the analysis above, the Court GRANTS Mercury’s Motion to Intervene.

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Mercury shall e-file its Complaint in Intervention by January 4, 2016. No chambers copy is

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required.

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IT IS SO ORDERED.

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Dated: December 29, 2015
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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United States District Court
Northern District of California

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