Forsyth et al v. HP Inc. et al

Filing 400

Order denying #384 Motion to Intervene. Signed by Judge Edward J. Davila on August 21, 2020.(ejdlc2S, COURT STAFF) (Filed on 8/21/2020)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7
DONNA J. FORSYTH, et al.,

8

Plaintiffs,

9

v.

10

HP INC., et al.,

United States District Court
Northern District of California

11

Defendants.

12

Case No. 5:16-cv-04775-EJD
ORDER DENYING DANIEL
COCHRAN’S MOTION TO
INTERVENE AS A PLAINTIFF
Re: Dkt. No. 384

13

On August 18, 2016, Plaintiffs filed a putative class action alleging that Defendants

14

violated the Age Discrimination in Employment Act (“ADEA”), California Fair Employment and

15

Housing Act (“FEHA”), and other California laws. Complaint ¶ 4, Dkt. 1. Daniel Cochran

16

(“Cochran”) seeks to intervene in this action. Notice and Motion for Intervention as Plaintiff and

17

Memorandum of Points and Authorities in Support Thereof (“Mot.”), Dkt. 384. Both Plaintiffs

18

and Defendants oppose Cochran’s motion to intervene. Having considered the Parties’ papers, the

19

Court DENIES Cochran’s motion to intervene.1
I.

20

BACKGROUND
A. Factual Background

21

In October 2013, HP’s Chief Executive Officer (“CEO”) Meg Whitman stated during a

22
23

Securities Analyst Meeting that HP planned to “recalibrate and reshape” the workforce by

24

“replacing” existing workers with “a whole host of young people.” Plaintiffs filed this action

25

alleging that HP’s Workforce Reduction Plan (“WFR”) caused age discrimination in violation of

26
27
28

1

Pursuant to N.D. Cal. Civ. L.R. 7-1(b) and General Order 72-5, this Court found this motion
suitable for consideration without oral argument. See Dkt. 396.
Case No.: 5:16-cv-04775-EJD
ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF
1

1

the ADEA, FEHA, and other California laws. Plaintiffs’ original Complaint and the operative

2

pleading, the Fourth Amended Complaint, both plead facts showing that Defendants are liable

3

under disparate treatment and disparate impact (two commonly accepted age discrimination

4

theories).

5

On May 1, 2020, Cochran filed a complaint in the District of Colorado alleging ADEA and

6

Colorado state-law age discrimination claims in connection with the WFR. Cochran’s Colorado

7

action alleges claims under the ADEA, Colorado Fair Employment Practice Act (“CFEPA”), and a

8

Colorado state-law claim for wrongful termination. On May 21, 2020, Cochran filed an amended

9

complaint, which added a Colorado Consumer Protection Act (“CCPA”) claim. The amended
complaint includes two putative classes: a Nationwide Class and a Colorado Class. The

11
United States District Court
Northern District of California

10

Nationwide Class comprises: “All current, former, or prospective employees who worked for HP

12

in the United States between May 1, 2016 and present who were at least 40 years old at the time

13

HP selected them for termination under HP’s Workforce Reduction Plan.” The Colorado Class

14

comprises: “All current, former, or prospective employees who worked for HP in the State of

15

Colorado between May 1, 2016 and present who were at least 40 years old at the time HP selected

16

them for termination under HP’s Workforce Reduction Plan.”

17
18

B. Procedural History
On June 12, 2020, Cochran filed his motion to intervene. See Mot. As noted, both

19

Plaintiffs and Defendants oppose Cochran’s request to intervene. Defendants’ Opposition to

20

Cochran’s Motion for Intervention (“D Opp.”), Dkt. 385; Plaintiffs’ Opposition to Cochran’s

21

Motion for Intervention (“P Opp.”), Dkt. 386. On July 2, 2020, Cochran filed replies to Plaintiffs’

22

and Defendants’ oppositions. See Reply to Defendants’ Opposition to Motion for Intervention

23

(“Reply re D Opp.”), Dkt. 388; Reply to Plaintiffs’ Opposition to Motion for Intervention (“Reply

24

re P Opp.”), Dkt. 387.

25
26
27
28

Case No.: 5:16-cv-04775-EJD
ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF
2

1
2

II.

LEGAL STANDARD
A court must permit a nonparty to intervene in a pending lawsuit and gain party status if a

3

federal statute confers an unconditional right to intervene. Fed. R. Civ. P. 24(a)(1). Where, as

4

here, the nonparty does not claim a right to intervene by a federal statute, the party must show that:

5

(1) it has a ‘significant protectable interest’ relating to the property
or transaction that is the subject of the action; (2) the disposition of
the action may, as a practical matter, impair or impede the
applicant’s ability to protect its interest; (3) the application is timely;
and (4) the existing parties may not adequately represent the
applicant’s interest.

6
7
8

Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998) (citation and quotation marks omitted);

10

see also Fed. R. Civ. P. 24(a)(2); U.S. ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391

11
United States District Court
Northern District of California

9

(9th Cir. 1992) (“Generally, Rule 24(a)(2) is construed broadly in favor of proposed intervenors

12

and ‘we are guided primarily by practical considerations.’” (quoting United States v. Stringfellow,

13

783 F.2d 821, 826 (9th Cir. 1986))). “Failure to satisfy any one of the requirements is fatal to the

14

application, and [the court] need not reach the remaining elements if one of the elements is not

15

satisfied.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

16

If a party cannot meet the standard to intervene as of right, the Court may still allow

17

permissive intervention. See Fed. R. Civ. P. 24(b)(1)(B) (allowing intervention if the party has a

18

claim or defense that shares with the main action a common question of law or fact). An applicant

19

who seeks permissive intervention must prove that it meets three threshold requirements: “(1) it

20

shares a common question of law or fact with the main action; (2) its motion is timely; and (3) the

21

court has an independent basis for jurisdiction over the applicant's claims.” Donnelly, 159 F.3d at

22

412. Even if an applicant satisfies those threshold requirements, the court retains discretion to

23

deny intervention. See Orange Cty. v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986) (“Permissive

24

intervention is committed to the broad discretion of the district court . . . .”).

25
26
27
28

Case No.: 5:16-cv-04775-EJD
ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF
3

III.

1

A. Intervention of Right

2

The Court first considers whether Cochran meets the standard to intervene as of right.

3
4

DISCUSSION

Cochran does not claim a right to intervene by a federal statute. Therefore, he must show that:

5

(1) [he] has a ‘significant protectable interest’ relating to the
property or transaction that is the subject of the action; (2) the
disposition of the action may, as a practical matter, impair or impede
the applicant’s ability to protect its interest; (3) the application is
timely; and (4) the existing parties may not adequately represent the
applicant’s interest.

6
7
8

Donnelly, 159 F.3d at 409 (citation and quotation marks omitted). Failure to meet any one of the

10

four requirements disqualifies Cochran from intervening as of right. See Perry 587 F.3d at 950.

11
United States District Court
Northern District of California

9

Both Plaintiffs and Defendants contend Cochran has not met the second factor. That, is,

12

they argue that the disposition of this action will not, as a practical matter, impair or impede

13

Cochran’s ability to protect his interests in his Colorado action. P Opp. 3-4; D Opp. 10-15. The

14

Court agrees. Cochran is not a member of the state classes pled in the Fourth Amended

15

Complaint, and he retains the right to opt out of the nationwide class.2 See Dkt. 391 at ¶¶ 114, 115

16

(alleging only a California class); Bergman v. Thelen LLP, 2009 WL 1308019, at *5–6 (N.D. Cal.

17

May 11, 2009) (finding that the proposed intervenors’ ability to protect their interests was not

18

impaired because they could opt out to assert their claims separately) (citing Glass v. UBS

19

Financial Services, 2007 WL 474836, at *7–8 (N.D. Cal. Jan. 17, 2007)); see also Cotter v. Lyft,

20

Inc., 2016 WL 3654454, at *2–3 (N.D. Cal. June 28, 2016) (“The Zamora plaintiffs’ ability to

21

protect their interest in the claims released by the Cotter action will not be impaired by the Cotter

22

settlement, because the Zamora plaintiffs may file formal objections and appear at the final

23

approval hearing, or opt out of the Cotter settlement and continue to pursue their claims

24
25
26
27
28

2

Plaintiffs’ nationwide class adequately represents Cochran because Plaintiffs and Cochran’s
share the same “ultimate objective” of addressing age discrimination grievances. See Citizens for
Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 898 (9th Cir. 2011) (“If an applicant
for intervention and an existing party share the same ultimate objective, a presumption of
adequacy of representation arises.”).
Case No.: 5:16-cv-04775-EJD
ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF
4

1

against Lyft if they wish.”).

2

First, Cochran’s Colorado claims are unaffected Forsyth. See P Opp. 3; D Opp. 10-13.

3

There is no relationship between Plaintiffs’ California claims and Cochran’s Colorado claims.

4

Cochran himself acknowledges that his proposed Colorado class “has never been—and will never

5

be—represented in Forsyth.” Mot. 9. Cochran puts forth “three separate and distinct Colorado

6

claims against HP that will not and cannot be pursued in the Forsyth Action.” Id. (emphasis

7

omitted). Thus, the Forsyth action will never impair or impede Cochran’s ability to protect his

8

Colorado claims. See Donnelly, 159 F.3d at 409
Second, while Cochran acknowledges that he may opt-out of the nationwide Forsyth class,

9

he still asserts that his ability to pursue his claims may be impaired by any settlement agreement

11
United States District Court
Northern District of California

10

between Plaintiffs and Defendants. Mot. 10-11. The Court is not convinced. No settlement

12

agreement has been proposed. Further, the speculative settlement agreement does not rise to the

13

level of concreteness necessary to demonstrate that the disposition of this action would impair

14

Cochran’s interests. See Fisher v. Arizona, 594 Fed. App’x 917, 919 (9th Cir. 2014) (finding that

15

the state could not intervene as of right because their alleged protectable interest was too

16

speculative) (citing City of Emeryville v. Robinson, 621 F.3d 1251, 1259 (9th Cir. 2010)). Even if

17

Cochran’s predictions come to fruition, he may still protect his interests by objecting to any

18

settlement. See, e.g., Raquedan v. Centerplate of Del., Inc., 376 F. Supp. 3d 1038 (N.D. Cal.

19

2019) (reasoning that a settlement would not impair the putative intervenor’s interest because she

20

could opt out or object to it).
Cochran thus fails to satisfy the second factor and the Court DENIES his motion to

21
22

intervene as of right.3 No further analysis of the other requirements is necessary. See Perry 587

23

F.3d at 950.

24
25
26
27
28

3

As discussed below, this action is already forty-eight months underway. While the Court does
not base its analysis on timeliness, the Court remains concerned about timeliness because
Cochran’s intervention would likely further delay proceedings. See infra III.B.
Case No.: 5:16-cv-04775-EJD
ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF
5

1
2

B. Permissive Intervention
In the alternative, Cochran moves for permissive intervention pursuant to Rule 24(b). Mot.

3

at 17. A court may grant permissive intervention when the applicant for intervention shows

4

(1) independent grounds for jurisdiction, (2) that the motion is timely, and (3) a common question

5

of law or fact with the applicant’s claim or defense and the main action. Nw. Forest Res. Council

6

v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996). “Even if an applicant satisfies those threshold

7

requirements, the district court has discretion to deny permissive intervention.” Donnelly v.

8

Glickman, 159 F.3d 405, 412 (9th Cir. 1998). As Cochran acknowledges, “[i]n exercising its

9

discretion, the court must consider whether the intervention will unduly delay or prejudice the

10

United States District Court
Northern District of California

11

adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3); Mot. 17.
Cochran claims that his motion is timely because the action “is still in its infancy,” as no

12

expert designations have been made, no classes have been certified, and more time has been

13

devoted to mediations than active litigation. Mot. 16. The Court disagrees. In fact, this action has

14

been underway for forty-eight months. As Cochran notes, a great deal of time has been dedicated

15

to mandatory pre-arbitration mediations for each individual who signed a Release Agreement

16

(“RA”). See Mot. 16. If permitted to intervene, Cochran’s claims would introduce more

17

individuals to this action who are subject to the same RA, and would thus be required to

18

participate in the same process of pre-arbitration mediation. This would inevitably delay

19

proceedings even further. The potential magnitude of such a delay raises serious judicial economy

20

concerns. The Court finds that permitting intervention “would not significantly add to the full

21

development of the underlying factual issues in this case nor the equitable adjudication of the legal

22

questions involved but, instead, would significantly delay the proceedings and prejudice the rights

23

of the original parties here.” See Gallucci v. Boiron, Inc., 2012 WL 12864924, at *8 (S.D. Cal.

24

Apr. 25, 2012). Accordingly, in its discretion, the Court DENIES Cochran’s motion for

25

permissive intervention. See Orange Cty. v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986)

26

(“Permissive intervention is committed to the broad discretion of the district court . . . .”).

27
28

Case No.: 5:16-cv-04775-EJD
ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF
6

1

C. CONCLUSION

2

For the foregoing reasons, Cochran’s request to intervene is DENIED.

3

IT IS SO ORDERED.

4
5
6

Dated: August 21, 2020
______________________________________
EDWARD J. DAVILA
United States District Judge

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case No.: 5:16-cv-04775-EJD
ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF
7