Malcolm v. Reynolds Polymer Technology, Inc.

Filing 54

ORDER by Judge William J. Martinez on 12/20/2018, re: 33 ATM's Motion to Intervene is GRANTED; 48 ATM'S Motion for Oral Argument is DENIED AS MOOT. ATM's proposed Answer (ECF No. 33-1) is ACCEPTED AS FILED. The Clerk shall docket the proposed Answer as a separate filing on CM/ECF; and The Clerk and parties shall amend the caption of this case to reflect that AcrylicTank Manufacturing, Inc., is an Intervenor-Defendant in this action. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-2835-WJM-KLM
STEVEN MALCOLM,
Plaintiff,
v.
REYNOLDS POLYMER TECHNOLOGY, INC., a foreign company,
Defendant.

ORDER GRANTING PROPOSED INTERVENOR’S MOTION TO INTERVENE

In this action, Plaintiff Steven Malcolm (“Plaintiff”) brings negligence and strict
liability claims against Defendant Reynolds Polymer Technology, Inc. (“Defendant”).
(ECF No. 29 at 3–5.) Before the Court is Acrylic Tank Manufacturing, Inc.’s (“ATM”)
Motion to Intervene (“Motion” or “Motion to Intervene”; ECF No. 33) and Unopposed
Request for Oral Argument in regard to the Motion (“Motion for Oral Argument”; ECF
No. 48). For the reasons set forth below, the Motion to Intervene is granted and the
Motion for Oral Argument is denied as moot.
I. BACKGROUND
On September 6, 2007, Plaintiff hired ATM to design, build, and install a 25,000
gallon custom, state-of-the-art marine aquarium (the “Aquarium”) for his home in
Scotland. (ECF Nos. 29 at 2 & 33-2 at 3.) ATM subsequently retained Defendant to
manufacture the Aquarium according to ATM’s specifications. (ECF No. 29 at 2.)
Defendant manufactured the Aquarium and shipped it from its factory in Colorado

directly to Scotland, where it was installed by ATM in 2010. (Id.)
ATM alleges that after it had installed the Aquarium, Plaintiff, without ATM’s
knowledge or approval, substantially modified the tank by connecting it to the roof of the
house. (ECF No. 33 at 4.)1 In addition, ATM claims that representatives from
Defendant inspected the Aquarium in 2013 and observed the roofing modification but
did not notify ATM of the alterations. (Id. at 5.) On November 30, 2015, the Aquarium
suddenly collapsed, allegedly causing significant damage to Plaintiff’s home. (ECF No.
29 at 3.)
On April 21, 2017, Plaintiff filed suit against ATM and Defendant in the United
States District Court for the District of Nevada (“Nevada lawsuit” or “Nevada action”),
seeking damages relating to the collapse of the Aquarium. (ECF No. 33 at 5.)
Defendant subsequently filed a motion to dismiss Plaintiff’s claims against it for lack of
personal jurisdiction. (Id.) The motion was granted on July 6, 2017, and Defendant was
dismissed from the Nevada lawsuit. (Id.) On November 14, 2017, ATM filed a third
party complaint against Defendant in the Nevada action, seeking contribution and
indemnification for the damages sought by Plaintiff in regard to the collapse of the
Aquarium. (Id. at 5–6.)
After Defendant was dismissed from the Nevada lawsuit, Plaintiff filed the instant
action against Defendant on November 27, 2017. (ECF No. 1.) Plaintiff amended his

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This allegation appears to be denied by Plaintiff, who claims that the “Aquarium
remained in the home, without change in design or construction, until it suddenly collapsed.”
(ECF No. 29 at 3.) Defendant, however, alleges that Plaintiff and his architects “may have
improperly planned the [A]quarium . . . to be a structural element to support the roof of the
house and/or a skylight, causing or contributing to the [A]quarium’s collapse.” (ECF No. 32 at
3.)

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complaint on March 1, 2018, but neither the original complaint nor the amended
complaint included ATM as a defendant. (See ECF Nos. 1 & 29.) On February 7, 2018,
Defendant filed a motion in the Nevada action to dismiss ATM’s third party complaint
against it for lack of personal jurisdiction over Defendant. (ECF No. 38-4 at 6.)
While Defendant’s motion to dismiss was still pending before the Nevada court,
ATM filed the instant Motion to Intervene on June 13, 2018. (ECF No. 33.) ATM states
its reason for wanting to intervene as follows:
Until recently, the parties believed that the jurisdictional issues in
Nevada would be resolved by now, eliminating the need to litigate
this case in Colorado. When it became clear that the Nevada
court might not resolve the jurisdictional issues before this case
became active, however, ATM promptly filed its motion to intervene.
(ECF No. 39 at 3.) On August 21, 2018, the Nevada court granted Defendant’s motion
to dismiss ATM’s third party complaint against it for lack of personal jurisdiction. (ECF
No. 41.) Thus, Defendant is no longer a party in the Nevada lawsuit. On November 14,
2018, ATM filed an Unopposed Request for Oral Argument in regard to its Motion to
Intervene. (ECF No. 48.)
II. LEGAL STANDARD
A.

Intervention by 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:
[C]laims 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.
Under Tenth Circuit law interpreting this rule, “an applicant may intervene as a matter of
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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. P’ship v. B.P. Am. Prod. Co., 407 F.3d 1091, 1103
(10th Cir. 2005). “The Tenth Circuit generally follows a liberal view in allowing
intervention under Rule 24(a).” Id.
B.

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.” The decision whether or not to grant
a motion for permissive intervention under Rule 24(b) 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). In exercising this discretion, “the court must consider whether
the intervention will unduly delay or prejudice the adjudication of the original parties’
rights.” Fed. R. Civ. P. 24(b)(3).
III. ANALYSIS
ATM seeks to intervene both as a matter of right under Rule 24(a) and
permissively under Rule 24(b). (ECF No. 33 at 2–3.) In its response to ATM’s Motion
to Intervene, Defendant states the following:
[Defendant] does not oppose ATM’s request to intervene in this
Colorado case as it will promote judicial economy to have all
parties in a single forum without jurisdictional issues and challenges,
as is currently occurring in the parallel case in the . . . District of
Nevada, in addition to the reasons set forth in ATM’s Motion.

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(ECF No. 37 at 1.) Plaintiff, however, opposes intervention in any form. (ECF No. 38.)
Because the Court will exercise its discretion and allow ATM to intervene under
Rule 24(b), it need not address whether ATM is entitled to intervene as a matter of right.
See Lower Ark. Valley Water Conservancy Dist. v. United States, 252 F.R.D. 687, 690
(D. Colo. 2008). The Tenth Circuit has held that Rule 24 is to be construed liberally in
favor of intervention. Utahns for Better Transp. v. United States Dep’t of Transp., 295
F.3d 1111, 1115 (10th Cir. 2002). Ultimately, the Court has significant discretion with
respect to whether to permit a party to permissibly intervene under Rule 24(b). Kane
Cnty., Utah v. United States, 597 F.3d 1129, 1135 (10th Cir. 2010).
Rule 24(b) allows permissive intervention under the following conditions: (i) the
application to intervene is timely; (ii) the applicant’s claim or defense and the main
action have a question of law or fact in common; and (iii) intervention will not unduly
delay or prejudice the adjudication of the original parties’ rights. See Fed. R. Civ. P.
24(b).
A.

Timeliness
The “timeliness of a motion to intervene is assessed in light of all the

circumstances, including the length of time since the applicant knew of his interest in the
case, prejudice to the existing parties, prejudice to the applicant, and the existence of
any unusual circumstances.” Utah Ass’n of Cntys. v. Clinton, 255 F.3d 1246, 1250
(10th Cir. 2001) (internal quotation marks omitted). “The requirement of timeliness is
not a tool of retribution to punish the tardy would-be intervenor, but rather a guard
against prejudicing the original parties by the failure to apply sooner. Federal courts
should allow intervention where no one would be hurt and greater justice could be
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attained.” Id. (internal quotation marks omitted).
ATM argues that its Motion “is timely because in light of all the circumstances,
ATM’s need for intervention became apparent only recently, there is no prejudice to the
existing parties, and ATM would be significantly prejudiced without intervention to this
action.” (ECF No. 33 at 7.) In support of the assertion that the need for intervention
became apparent only recently, ATM points out that Plaintiff originally sued both
Defendant and ATM in Nevada, but Defendant was able to obtain dismissal for lack of
personal jurisdiction. (Id.) In addition, ATM explains that it “attempted to bring
[Defendant] back in the Nevada action through a third-party complaint,” but the parties
are still disputing whether the Nevada court had personal jurisdiction over Defendant.
(Id.) ATM asserts that “[w]hen it became clear that the Nevada court might not resolve
the jurisdictional issues before this case became active, [] ATM promptly filed its motion
to intervene.” (ECF No. 39 at 3.)
In addition, ATM argues that its June 13, 2018 Motion to Intervene is timely and
that Plaintiff and Defendant “would not be prejudiced by ATM’s intervention” because
the action is still in its “initial stages ([Plaintiff] just on March 1, 2018 filed his first
Amended Complaint, and only on March 15, 2018 [Defendant] filed its Answer).” (ECF
No. 33 at 7–8; see ECF Nos. 29 & 30.) Moreover, ATM argues that its Motion is timely
and that the existing parties will not be prejudiced since discovery had not yet begun
and because the parties are already aware of all the facts relating to ATM’s involvement
in the underlying transaction. (ECF No. 39 at 2.)
Finally, ATM alleges that it would suffer a great deal of prejudice if it is not
allowed to intervene in the instant action:
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ATM would have to defend its position in the Nevada action
with the risk that another finder of fact could reach a contrary
conclusion in Colorado. Also . . . ATM would have to file a
whole separate Colorado action to recover against [Defendant],
and this would entail a significant increase in expenditure not
only for all parties, but also for the judicial system as a whole.
(ECF No. 33 at 8.)
In its response, Plaintiff argues that ATM’s Motion is untimely because “ATM
waited nearly seven months after [Plaintiff] filed suit against [Defendant] before filing the
subject Motion to Intervene.” (ECF No. 38 at 5.) In addition, Plaintiff alleges that
“ATM’s attempt to force itself into this litigation as a party Defendant thwarts [Plaintiff’s]
choice of forum and is contrary to law which gives preference to the forum where an
action is first brought.” (Id.)
In determining whether the Motion was timely, the Court finds the short length of
time that ATM knew of its interest in the case to be particularly persuasive. Before
Plaintiff brought this action, Plaintiff, Defendant, and ATM were all parties to the Nevada
lawsuit. Although Defendant was able to obtain a dismissal of Plaintiff’s claims against
it, ATM brought Defendant back into the Nevada action by filing a third party complaint.
Thus, ATM reasonably believed that it did not need to join this action. Defendant,
however, moved to dismiss the third party complaint. Concerned that the Nevada court
would not rule on Defendant’s motion before this lawsuit became active, ATM filed its
Motion to Intervene.
A key argument in Plaintiff’s response to ATM’s Motion, is that ATM “brought a
third-party action against Defendant” in Nevada, “thereby joining the same three parties
that ATM seeks to join in this action through its intervention.” (ECF No. 38 at 1.) In
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other words, Plaintiff is arguing that ATM should not be allowed to intervene in this case
since all three parties are already joined in the Nevada lawsuit. In addition, Defendant
notes:
Although [Defendant] filed a motion to dismiss ATM’s third party
claim for lack of personal jurisdiction, ATM responded to
[Defendant’s] motion by identifying additional evidence supporting
various contacts [Defendant] had within the State of Nevada that
are pertinent to [Defendant’s] motion to dismiss and will subject
[Defendant] to the jurisdiction of the Nevada court.
(Id. at 2–3 (emphasis added).) The Nevada court, however, granted Defendant’s
motion to dismiss ATM’s third party complaint. (See ECF No. 41 at 1.) Thus,
Defendant is no longer a party in the Nevada action. This dismissal did not occur until
August 21, 2018, therefore, ATM’s interest in this case has only recently become ripe.
In addition, this Court finds that allowing intervention would not prejudice the
existing parties because the action is still in its initial stages. At the time the Motion was
filed on June 13, 2018, discovery had not yet begun and was subsequently stayed until
August 30, 2018. (ECF No. 43.) In addition, the existing parties have just now filed a
motion to extend discovery deadlines and are already apprised to the relevant facts
relating to ATM’s involvement in the underlying transaction. (ECF Nos. 51 & 53.)
Moreover, ATM has shown that it would suffer a considerable amount of prejudice if its
Motion is denied as ATM would have to file a separate action in Colorado to attempt to
recover from Defendant.
In sum, the Court concludes that greater justice could be attained in this case by
allowing ATM to intervene. Accordingly, the Court finds that, in light of all the
circumstances, ATM’s Motion was timely.
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B.

Common Questions of Law and Fact
In addition, permissive intervention requires that the intervenor have 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). ATM asserts that it “unambiguously has claims . . . against
[Defendant] and defenses towards [Plaintiff] that share with this action common
questions of law and common questions of fact.” (ECF No. 33 at 11.) Plaintiff, on the
other hand, “disputes that ATM’s claims and defenses share common questions of law
and fact with this action [since] ATM is not a party to this action and no claims or crossclaims are being asserted against it in this action since the subject action is based in
tort, whereas the claims against ATM in Nevada are based in contract.” (ECF No. 38 at
9.)
The Court finds Plaintiff’s argument to be wholly unconvincing. A review of
Defendant’s answer and ATM’s proposed answer clearly shows that ATM’s affirmative
defenses share common questions of law and fact with the main action. (See ECF Nos.
33-1 at 3–8 & 30 at 4–5.) The same can be said about Plaintiff’s claims against
Defendant and ATM’s proposed cross-claims. (See ECF Nos. 29 at 3–4 & 33-2 at
9–10.)
Indeed, Plaintiff’s own prior conduct contradicts its assertion that ATM’s claims
and defenses do not share common questions of fact with this action. In filing a “Notice
of Related Cases” pursuant to D.C.COLO.LCivR 3.2, Plaintiff noted how this action and
its case against ATM in Nevada both “involve the collapse of the Aquarium that caused
damage to Plaintiff’s home and personal property.” (ECF No. 12 at 2.) According to
D.C.COLO.LCivR 3.2, “[a] party to a case shall file a notice identifying all cases pending
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in this or any other federal, state, or foreign jurisdiction that are related to the case. . . .
Related cases are cases that have common facts and claims and [ ] have at least one
party in common.” Since ATM’s claims and defenses would likewise revolve around the
collapse of the Aquarium, ATM’s claims and defenses share, at the very least, common
questions of fact with this action.
Therefore, this Court finds that ATM has claims against Defendant and defenses
towards Plaintiff that share with this action common questions of law and common
questions of fact.
C.

Undue Delay or Prejudice to the Existing Parties
According to Federal Rule of Civil Procedure 24(b)(3), “the court must consider

whether the intervention will unduly delay or prejudice adjudication of the original
parties’ rights.” Expounding upon this rule, the Tenth Circuit has explained that if an
applicant’s intervention “clutter[s] the action” without aiding the current parties or issues,
the applicant’s motion to intervene may be denied. Arney v. Finney, 967 F.2d 418,
421–22 (10th Cir. 1992).
This Court has already concluded that ATM’s intervention will not prejudice the
existing parties and Plaintiff has not provided this Court with any further arguments to
support a contrary finding. (See ECF No. 38 at 9.) Therefore, this Court will only
address whether ATM’s intervention will unduly delay adjudication of the original action.
In its response, Plaintiff’s only argument is that ATM’s intervention “will undoubtedly
delay the proceedings.” (Id.) The Court finds this argument also to be unavailing.
Several weeks after ATM filed its June 13, 2018 Motion to Intervene, Plaintiff and
Defendant filed a joint motion to stay discovery. (ECF No. 35.) This motion was
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subsequently granted (ECF No. 40) and discovery was stayed until August 30, 2018
(ECF No. 43). In addition, Plaintiff and Defendant filed a joint motion to extend
discovery deadlines on December 11, 2018 (ECF No. 51), which was subsequently
granted (ECF No. 53). Moreover, Plaintiff and Defendant are already apprised to the
facts relating to ATM’s involvement in the underlying transaction. Thus, this Court finds
that allowing ATM to intervene would not cause undue delay to the existing parties. In
addition, this Court finds that ATM’s input will not prejudice adjudication of the original
parties’ rights, but instead is likely to make a significant and useful contribution to the
development of the underlying factual and legal issues. See Lower Ark. Valley Water
Conservancy Dist., 252 F.R.D. at 691.
In conclusion, the Court finds that ATM’s request to intervene is timely, that ATM
has a claim and defenses with facts and questions of law common to the existing
parties, and that allowing intervention will not unduly delay these proceedings or cause
undue prejudice to the existing parties. Accordingly, the Motion to Intervene (ECF No.
33) is granted. Because the Motion is granted, the Court need not hear oral argument
pertaining to the Motion. Therefore, ATM’s Motion for Oral Argument (ECF No. 48) is
denied as moot.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

ATM’s Motion to Intervene (ECF No. 33) is GRANTED;

2.

ATM’s Motion for Oral Argument (ECF No. 48) is DENIED AS MOOT;

3.

ATM’s proposed Answer (ECF No. 33-1) is ACCEPTED AS FILED. The Clerk
shall docket the proposed Answer as a separate filing on CM/ECF; and
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4.

The Clerk and parties shall amend the caption of this case to reflect that Acrylic
Tank Manufacturing, Inc., is an Intervenor-Defendant in this action.
Dated this 20th day of December, 2018.
BY THE COURT:

William J. Martínez
United States District Judge

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