Romero et al v. Securus Technologies, Inc.

Filing 73

ORDER denying 53 Motion to Intervene. Signed by Judge Jeffrey T. Miller on 10/31/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 13 14 Case No.: 16cv1283 JM (MDD) JUAN ROMERO, FRANK TISCARENO, and KENNETH ELLIOTT, on behalf of themselves and all others similarly situated, Plaintiffs, 12 15 v. 16 ORDER DENYING MOTION TO INTERVENE SECURUS TECHNOLOGIES, INC., 17 Defendant. 18 19 Putative Intervenor Pedro Rodriguez (“Rodriguez”) moves, pursuant to Federal Rule 20 of Civil Procedure 24, to intervene in this action as a matter of right and for permissive 21 intervention. (Doc. No. 53.) Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliott 22 (collectively, “Plaintiffs”) oppose the motion, (Doc. No. 58), as does Defendant Securus 23 Technologies, Inc. (“Securus” or “Defendant”), (Doc. No. 57). The court finds the matter 24 appropriate for decision without oral argument pursuant to Local Rule 7.1(d)(1) and, for 25 the following reasons, denies the motion. 26 BACKGROUND 27 Plaintiffs are two former inmates and a criminal defense attorney, all of whom used 28 Defendant’s telephone systems to make calls to and from certain correctional facilities in 1 16cv1283 JM (MDD) 1 California. Plaintiffs filed their original complaint on May 27, 2016. (Doc. No. 1.) The 2 operative third amended complaint alleges six causes of action: (1) violation of the 3 California Invasion of Privacy Act; (2) violation of California’s Unfair Competition Law; 4 (3) fraudulent concealment/intentional omission of material facts under California Civil 5 Code §§ 1709, 1710(3); (4) fraud and intentional misrepresentation under California Civil 6 Code §§ 1709, 1710(1); (5) negligence; and (6) unjust enrichment. (Doc. No. 30.) All six 7 counts stem from Defendant’s allegedly improper recording of attorney-client calls. 8 Plaintiffs have moved the court to represent a class of individuals whose attorney-client 9 conversations to or from a number “designated or requested not to be recorded” were 10 eavesdropped on or recorded during the class period. (Doc. No. 62-1 at 1.) As of the date 11 of this order, the parties have completed the first phase of discovery and Plaintiffs have 12 moved the court to certify the class. (See Doc. Nos. 46, 62.) 13 On July 7, 2017, Rodriguez, an inmate at Maguire Correctional Facility, filed the 14 instant pro se motion to intervene. (Doc. No. 53.) In his motion, Rodriguez alleges three 15 causes of action: (1) negligence; (2) fraud, concealment, intentional omission and 16 misrepresentation of fact; and (3) false representations. While Rodriguez incorporates the 17 same factual allegations as Plaintiffs’ original complaint, Rodriguez also alleges that 18 Defendant passed “privileged calls” to the prosecution in a criminal action against 19 Rodriguez and that a Securus employee both provided false documentation in response to 20 a subpoena and gave false testimony at Rodriguez’s trial. (Id. at 4–7.) The crux of 21 Rodriguez’s complaint is that Defendant allegedly acted “as a vassal to the prosecution 22 team,” which “prevented [Rodriguez] from presenting a defense and pursuing avenues of 23 defense.” (Id. at 6–7.) 24 LEGAL STANDARDS 25 Rodriguez seeks to intervene both as a matter of right and through permissive 26 intervention. Rule 24 of the Federal Rules of Civil Procedure provides for two types of 27 intervention. Under Rule 24(a)(2), the court “must” permit an individual to intervene who 28 “claims an interest relating to the property or transaction that is the subject of the action, 2 16cv1283 JM (MDD) 1 and is so situated that disposing of the action may as a practical matter impair or impede 2 the movant’s ability to protect its interest, unless existing parties adequately represent that 3 interest.” Under Rule 24(b), the court has discretion to allow an individual to intervene 4 when his claim and the primary action involve a common question of law or fact, and 5 allowing intervention will not “unduly delay or prejudice the adjudication of the original 6 parties’ rights.” In either case, Rule 24 has traditionally been construed liberally in favor 7 of applicants for intervention. See Washington State Bldg. & Const. Trades Council, AFL- 8 CIO v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982). 9 DISCUSSION 10 I. Intervention as a Matter of Right 11 A party satisfies the requirements for intervention as a matter of right upon showing: 12 “(1) the application for intervention must be timely; (2) the applicant must have a 13 ‘significantly protectable’ interest relating to the property or transaction that is the subject 14 of the action; (3) the applicant must be so situated that the disposition of the action may, 15 as a practical matter, impair or impede the applicant’s ability to protect that interest; and 16 (4) the applicant’s interest must not be adequately represented by the existing parties in the 17 lawsuit.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). The 18 court accepts as true the non-conclusory allegations made in support of a motion to 19 intervene. Id. at 819. The intervenor bears the burden of showing that the elements for 20 intervention as a matter of right are met. Citizens for Balanced Use v. Montana Wilderness 21 Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). “Failure to satisfy any one of the requirements 22 is fatal.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009). 23 With respect to Rodriguez’s argument to intervene as a matter of right, the court 24 concludes that Rodriguez’s limited interest in Plaintiffs’ claims, if any, will not be 25 significantly impaired and, additionally, is adequately represented by Plaintiffs. 26 Rodriguez’s claims are similar to those of Plaintiffs only to the extent that he incorporated 27 the factual allegations in Plaintiffs’ original complaint. (See Doc. No. 53 ¶ 8.) While 28 Rodriguez claims that his “privileged calls were recorded,” he does not explain how the 3 16cv1283 JM (MDD) 1 proceedings in this action would impair or impede his ability to protect his interests. 2 Plaintiffs are seeking class certification. If the class is certified, Rodriguez can either 3 remain in the class or opt out, providing he qualifies as a class member. If the class is not 4 certified or Rodriguez does not qualify as a class member, then the outcome of this action 5 will have no effect on his interests. Therefore, Rodriguez’s interest “falls far short of the 6 ‘direct, non-contingent, substantial and legally protectable’ interest required for 7 intervention as a matter of right.” S. California Edison Co. v. Lynch, 307 F.3d 794, 803 8 (9th Cir.), modified, 307 F.3d 943 (9th Cir. 2002) (internal citation omitted); see also 9 California ex rel. Lockyer v. United States, 450 F.3d 436, 442 (9th Cir. 2006) (“Even if 10 this lawsuit would affect the proposed intervenors’ interests, their interests might not be 11 impaired if they have ‘other means’ to protect them.”) (emphasis in original). 12 Similarly, Rodriguez fails to show that any limited interest he may have in this action 13 is not adequately represented by Plaintiffs. “If an applicant for intervention and an existing 14 party share the same ultimate objective, a presumption of adequacy of representation 15 arises.” Citizens for Balanced Use, 647 F.3d at 898. To the extent that Rodriguez’s factual 16 claims are similar to Plaintiffs’, Rodriguez has not provided evidence to rebut this 17 presumption. Furthermore, there is no indication in the record that Plaintiffs’ counsel has 18 failed to provide effective representation in this action or will fail to do so in the future. 19 Accordingly, Rodriguez’s interest in the alleged recording of attorney-client calls, if any, 20 is adequately represented by Plaintiffs. 21 22 Therefore, the motion to intervene as a matter of right is denied. II. Permissive Intervention 23 The court denies Rodriguez’s motion for permissive intervention for three reasons. 24 First, Rodriguez fails to allege a common question of law or fact between his claims and 25 Plaintiffs’. Although Rodriguez alleges Defendant recorded his privileged calls, he does 26 not allege that those calls were with his attorney nor otherwise explain how they were 27 privileged. Moreover, Rodriguez himself notes that his claims for negligence, fraud, and 28 false representations are “unique” because they turn on his allegations that Securus 4 16cv1283 JM (MDD) 1 “directly funneled” his privileged calls to the prosecution team and gave false testimony in 2 Rodriguez’s criminal trial. Those claims bear little to no factual or legal similarity to 3 Plaintiffs’ claims, which turn on Defendant’s alleged recording or eavesdropping of 4 attorney-client conversations to or from a number designated or requested not to be 5 recorded. 6 Second, Rodriguez’s intervention would enlarge the scope of this action, result in an 7 undue delay in resolving this action, and undermine judicial economy. Third, Federal Rule 8 of Civil Procedure 1 provides that the Federal Rules of Civil Procedure “should be 9 construed, administered, and employed by the court and the parties to secure the just, 10 speedy, and inexpensive determination of every action and proceeding.” 11 Rodriguez’s motion to intervene furthers the goals of Rule 1. 12 Denial of Therefore, the motion for permissive intervention is denied. 13 CONCLUSION 14 For the foregoing reasons, the court denies Rodriguez’s motion to intervene. 15 IT IS SO ORDERED. 16 17 DATED: October 31, 2017 JEFFREY T. MILLER United States District Judge 18 19 20 21 22 23 24 25 26 27 28 5 16cv1283 JM (MDD)

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