Fortune Players Group, Inc. et al v. Quint, Jr. et al

Filing 76

ORDER denying 61 Non-party DFEH's Motion for Limited Intervention, Abstention and Dismissal. Signed by Judge Thelton E. Henderson on 12/19/16. (tehlc1, COURT STAFF) (Filed on 12/19/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FORTUNE PLAYERS GROUP, INC., et
al.,
Plaintiffs,

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Case No. 16-cv-00800-TEH

v.
WAYNE QUINT, JR., et al.,

ORDER DENYING NON-PARTY
DFEH'S MOTION FOR LIMITED
INTERVENTION

Defendants.

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This matter comes before the Court on a motion for limited intervention filed by the
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United States District Court
Northern District of California

Department of Fair Employment and Housing (“DFEH”). While DFEH’s motion was
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pending, the parties to the original action—Fortune Players Group, Inc. and Wayne Quint
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Jr., as well as other agents of the Bureau of Gambling Control (“Bureau”)—entered into a
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binding settlement agreement. In light of the settlement agreement, any interest DFEH
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might have had in intervention is now moot and the motion is hereby DENIED.
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An applicant seeking intervention as of right bears the burden of showing that four
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elements are satisfied:
(1) the intervention application is timely; (2) the applicant has
a significant protectable interest relating to the property or
transaction that is the subject of the action; (3) the disposition
of the action may, as a practical matter, impair or impede the
applicant’s ability to protect its interest; and (4) the existing
parties may not adequately represent the applicant’s interest.
Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011)

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(internal quotation marks and citation omitted).
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DFEH seeks intervention for the limited purpose of requesting that the present
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federal action be dismissed in order to avoid any interference with an ongoing appeal in a
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state court case—Dep’t of Fair Employment and Housing v. Fortune Players Group, Inc.
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(1st Dist. Ct. App. filed June 17, 2016, A148624). Now that the case before this Court has
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settled and dismissal is forthcoming, DFEH cannot show that the disposition of this action
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will interfere with its ability to protect its interest in the state litigation. DFEH’s only

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asserted interest is to ensure that there is no ruling by this Court on the constitutionality of

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the Bureau’s search of the premises of Fortune Players Group. Mot. at 7-8 (ECF No. 61).

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This Court will not render a decision on the constitutionality of the search, and there is

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nothing in the settlement agreement to suggest a finding of a Fourth Amendment violation

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or an admission of such a violation. Consequently, there is no reason to believe that

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DFEH’s interests will be adversely impacted by dismissal of this case once the settlement

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agreement has been executed. 1
At oral argument, counsel for DFEH expressed some concerns that evidence of the

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settlement agreement might be admitted against it in the pending state court appeal for

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United States District Court
Northern District of California

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reasons other than liability. Those concerns do not rise to the level of a significant

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protectable interest in the present litigation to justify intervention as of right after the

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parties have agreed to settle. Permissive intervention is also not appropriate here because

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there is no question of law or fact that remains for the Court to decide. Fed. R. Civ. Proc.

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24(b). Moreover, the Court has discretion to deny permissive intervention and would do so

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here. See Orange County v. Air Calif., 799 F.2d 535, 539 (9th Cir. 1986) (“Permissive

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intervention is committed to the broad discretion of the district court…”).
Having found that DFEH has not met its burden of showing that dismissal of the

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complaint following entry of settlement will interfere with its interests, the Court DENIES

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DFEH’s motion to intervene in its entirety.

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IT IS SO ORDERED.

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Dated: 12/19/16

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_____________________________________
THELTON E. HENDERSON
United States District Judge

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DFEH’s reliance on Tenth Circuit cases is misplaced. See Tosco Corp. v. Hodel, 804 F.2d
590 (10th Cir. 1986); Federal Deposit Ins. Corp. v, Jennings, 816 F.2d 1488 (10th Cir.
1987). Neither case is binding on this Court. Neither case stands for the proposition that a
motion to intervene filed prior to an agreement to settle requires a district court to hear and
decide the motion on the merits.
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