Williams v. Vicktoroff et al

Filing 22

ORDER denying 20 Interested Parties Wayne Albright, Michale Dixon, Sarah Pender, Stephanie Davis, Desa Hooter, and Amber Lamberts' Motion to Intervene, by Magistrate Judge Michael J. Watanabe on 5/19/2015.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02239-RBJ-MJW
LA SHUNDRA DIAN WILLIAMS,
Plaintiff,
v.
NURSE BRANDY,
Defendant.
ORDER DENYING MOTION TO INTERVENE
(Docket No. 20)
MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this court pursuant to an Order of Reference to Magistrate
Judge issued by Judge R. Brooke Jackson on February 18, 2015 (Docket No. 13). Six
individuals—Wayne Albright, Michale Dixon, Sarah Pender, Stephanie Davis, Desa
Hooter, and Amber Lambert—have moved to intervene in this lawsuit under either Fed.
R. Civ. P. 24(a)(2) and 24(b). (Docket Nos. 20, 21.) The Court has reviewed
intervenor’s motion, taken judicial notice of the Court’s entire file in this case, and
considered the applicable Federal Rules of Civil Procedure, statutes, and case law. The
Court finds that the motion can be resolved without waiting for responses from the
parties. See D.C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes a judicial officer
from ruling on a motion at any time after it is filed.”).
In this District, motions to intervene are treated as non-dispositive for purposes of
28 U.S.C. § 636(b). Pub. Serv. Co. Of Colo. v. Bd. Of County Comm’rs of San Miguel

2
County, No. 04-cv-01828-REB-CBS, at *2-3 (D. Colo. Sept. 19, 2005).1
I.

Intervention as a Matter of Right
Federal Rule of Civil Procedure 24(a)(2) provides that, on timely motion, the

court must permit intervention as of right to anyone who: “claims an interest relating to
the property or transaction that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately represent that interest.” Fed. R.
Civ. P. 24(a)(2). Under Tenth Circuit law interpreting this rule, “an applicant may
intervene as a matter of right if (1) the application is timely, (2) the applicant claims an
interest relating to the property or transaction which is the subject of the action, (3) the
applicant's interest may be impaired or impeded, and (4) the applicant's interest is not
adequately represented by existing parties.” Elliott Indus. Ltd. P'ship v. B.P. Am. Prod.
Co., 407 F.3d 1091, 1103 (10th Cir. 2005).
Intervenors do not meet any of these conditions. Instead, they say:
Intervenors have a common vested interest in support of Plaintiff Williams
claims. Intervenors will provide questions of laws and facts that are common in
this action. Intervenors will provide this honorable court newly discovered
evidence which consists of documents, exhibits, records, graphs, charts, emails,
132 photographs.
(Docket No. 20, pp.1-2.) Intervenors thus do not purport to have any cognizable legal
interest in this litigation. They have relevant evidence, but their own legal rights and
1

The Second and Eleventh Circuits disagree, treating motions to intervene as
dispositive when brought under Rule 24(a)(2). Day v. Persels & Assocs., LLC, 729 F.3d
1309, 1321-22 (11th Cir. 2013); Medina v. Fischer, 2013 WL 1294621, at *1 n.1 (S.D.
N.Y. Mar. 29, 2013). Motions brought under Rule 24(b) are unequivocally
nondispositive. In re Gabapentin Patent Litig., 312 F. Supp. 2d 653, 661-62 (D. N.J.
2004); United States v. W.R. Grace & Co.-Conn., 185 F.R.D. 184, 187 (D. N.J. 1999).

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duties are not implicated. Thus, intervention is inappropriate.
II.

Permissive Intervention
Federal Rule of Civil Procedure 24(b)(1)(B) provides that, on timely motion, the

court may permit intervention to anyone who “has a claim or defense that shares with
the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The
decision whether or not to grant a motion for permissive intervention is within the district
court's sound discretion. See, e.g., City of Stilwell v. Ozarks Rural Elec. Co-op. Corp.,
79 F.3d 1038, 1043 (10th Cir. 1996).
The result under this test is no different. Intervenors do not purport to have any
claim or defense that shares common law or facts with this lawsuit. Indeed, since this
lawsuit is about Defendant Brandy’s alleged deliberate indifference to Plaintiff’s medical
needs, it is very difficult to see how anyone (other than perhaps Defendant Brandy’s
employer) could have related claims or defenses with the parties.
To the extent intervenors have relevant evidence, the proper way to get that
evidence before the Court is for Plaintiff to subpoena or otherwise procure those
records from intervenors.

For the foregoing reasons, it is ORDERED that the Motion to Intervene as
Plaintiffs with Newly Discovered Evidence Under Fed. R. Civ. P. Rule 24(a)(2) and Rule
24(b) (Docket Nos. 20) is DENIED. It is further ORDERED that the Clerk of Court shall
mail copies of this order to:
Wayne R. Albright
# LD2583

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301 Institution Dr.
Bellefonte, PA 16823
Michale M. Dixon
# 95900
1107 Recharge Rd.
York, NW 68467
Sarah J. Pender
#953968
2596 N. Girls School Rd.
Indianapolis, IN 46214
Stephanie D. Davis
#526426
29501 Kickapoo
McCloud, OK 74851
Desa R. Hooter
990 Cypress Station Dr., Apt. 1501
Houston, TC 77090
Amber Lambert
#181498
P.O. Box 88550
Pearl, MS 39288

Dated: May 19, 2015
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge