Baker et al v. Warner/Chappell Music, Inc. et al

Filing 234

ORDER on 212 Motion to Intervene. Signed by Magistrate Judge Jonathan Goodman on 10/12/2017. (jdo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14-22403-CIV-GOODMAN
[CONSENT]
GARFIELD BAKER, et al.,
Plaintiffs,
v.
WARNER/CHAPPELL MUSIC, INC., et al.,
Defendants.
________________________________________/
ORDER ON MOTION TO INTERVENE
One of the songs at issue in this case, Don’t Stop the Rock, begins by informing
everyone, “There’s a party in the house and we’ll be rocking tonight.” 1 If the party is
this lawsuit, then the proposed intervenors are trying to crash it. But some of the invited
guests -- albeit unwilling guests, i.e., some Defendants -- ask the Court to keep the
proposed intervenors on the street-side of the velvet rope. The Court declines to close
the door on the intervenors, but does limit their entry.
To be more specific, Sherman Nealy and Music Specialist, Inc. (“MSI”), who
claim to be the legal owners of the works at issue, move to intervene in this action. [ECF
No. 212]. The Crane Defendants (Robert Crane; Pandisc Music Corp.; and Whooping

FREESTYLE, Don’t Stop the Rock, on DON’T STOP
Productions 1997).
1

THE

ROCK (Jam Packed, Hot

Crane Music, Inc.) and the Warner Defendants (Warner/Chappell Music, Inc. and Artist
Publishing Group, LLC) filed opposition responses. [ECF Nos. 222–23]. The proposed
intervenors filed replies. [ECF Nos. 228–29]. Plaintiffs Garfield Baker and Byron Smith -who took the position that they are the beneficial owners and not the legal owners of
the works -- have not filed any opposition.
For the reasons outlined below, the Court grants in part and denies in part the
motion to intervene. The Court finds that the motion to intervene is timely. The Court
also allows Nealy and MSI to permissibly intervene. But the Court also finds that the
proposed intervenor complaint impermissibly expands the scope of this case. Therefore,
by October 23, 2017, Nealy and MSI must file an amended intervenor complaint that is
limited to the parties and works already at issue in this case.
I.

Background
Between 1984 and 1987, Plaintiffs and Defendant Robert Butler 2 co-authored and

composed fourteen musical works. [ECF No. 182, ¶ 20]. The works are titled (1) Don’t
Stop the Rock, (2) It’s Automatic, (3) They’re Playing Our Song, (4) Stay in Love with Me, (5)
All Night, (6) I’ll Be All You Ever Need, (7) How Can We Be Wrong?, (8) Don’t Stop My Love,
(9) All My Love, (10) Catch 22, (11) 24/7, (12) Get Some, (13) Will We Ever Learn, and (14)
Can’t Get Enough. [ECF No. 182, ¶ 20]. Plaintiffs allege that the works “were first
The Court entered a default against Butler and his company, Defendant 321
Music LLC, but held off on entering a final judgment until the claims against the other
Defendants were resolved. [ECF No. 170].
2

2

recorded and exclusively published and distributed for sale by Music Specialists Inc.
and Jam Packed between 1984 and 1987.” [ECF No. 183, ¶ 21]. Under the stage name
“Freestyle,” Plaintiffs performed these musical works, some of which reached the top of
the music charts and were covered and performed by prominent artists. [ECF No. 182,
¶¶ 23–25].
Controversies regarding some of those works resulted in several lawsuits besides
this one. 3 A 2009 federal case before United States District Judge Federico Moreno
resulted in a Mediation Settlement Agreement (the “MSA”), which addressed 11
musical works that are also at issue in this case. [ECF No. 188-1]. Due to the MSA, Judge
Moreno dismissed the case with prejudice, agreeing to retain jurisdiction to enforce the
MSA only if the parties filed the MSA on the record before a certain time. The parties
did not do this, leading Judge Moreno to later deny motions to enforce the MSA.
Four years later, on January 27, 2014, Plaintiffs, acting pro se, filed this action. The
original complaint alleged six counts: (1) direct copyright infringement, (2) contributory
copyright infringement, (3) vicarious copyright infringement, (3) tortious interference
with a business expectancy, (4) civil conspiracy, (5) constructive trust, and (6)
accounting. [ECF No. 1]. Apart from the 11 works set forth in the MSA, this case also

Pandisc Music Corp., et al., v. Warner/Chappell, et al., No. 09-CV-20505 (S.D. Fla.
2009) (Moreno, J. presiding); Pandisc Music Corp., et al., v. Tony Butler, et al., Civil Case
No. 10-59481 CA 40 in the Eleventh Judicial Circuit for Miami Dade County; and
Garfield Baker, et al., v. Warner/Chappell, et al., Civil Case No. 14-019088 in the Eleventh
Circuit for Miami-Dade County.

3

3

implicated three works not named in the MSA: All My Love, Catch 22, and Get Some.
Judge Lenard dismissed the original Complaint and the Amended Complaint
due to several pleading deficiencies. [ECF Nos. 89; 119]. After that, the parties
consented to full magistrate-judge jurisdiction, and Judge Lenard referred the case to
me. [ECF Nos. 135; 140–41]. Following Plaintiffs’ second amended complaint, the Court
dismissed with prejudice the four non-copyright infringement counts and dismissed
without prejudice the copyright infringement counts. [ECF No. 175].
On November 11, 2016, Plaintiffs, still acting pro se, filed the currently-operative
third amended complaint. In it, Plaintiffs allege that they are the “copyright owners” or
“co-owners” of the works at issue. [ECF No. 182, ¶¶ 1, 4, 18, 26, 30, 52, 58]. But in
response to the dismissal motions that followed, Plaintiffs, now with the benefit of
counsel, clarified that they are the “beneficial owners” of the works at issue and
“assigned their rights to Music Specialist in exchange for royalties.” [ECF No. 197,
pp. 4–5].
In Count I, Plaintiffs bring a claim for direct copyright infringement against
Pandisc only. In Count II, Plaintiffs bring a claim for contributory copyright
infringement against Whooping Crane, 321 Music, Artist Publishing Group, and
Warner/Chappell Music. In Count III, Plaintiffs bring a claim for vicarious copyright
infringement against Whooping Crane, 321 Music, Butler, Artist Publishing Group,
Warner/Chappell Music, and Robert Crane. The Court, however, recently dismissed
4

with prejudice the Warner Defendants from Count III. [ECF No. 230]. 4
As an exhibit to their latest pleading, Plaintiffs filed a Notice of Filing of
Plaintiffs’ Copyright Registrations. [ECF No. 183]. But despite the title of the notice
(which uses the words “copyright registrations”), none of the documents are actual
Certificates of Registration. Rather, the notice of filing includes search results from the
U.S. Copyright Office’s website for 13 works. [ECF No. 183].
The results list Plaintiffs as the co-authors of several works. [ECF No. 183, pp. 4–
18]. But the “Copyright Claimant” is listed as either “Music Specialists Publishing,”
“Music Specialist Publishing,” “Music Specialist Inc.” or “321 Music, LLC.” [ECF
No. 183, pp. 4–18]. Plaintiffs’ notice of filing also mentions Nealy as a co-author for two
works. [ECF No. 183, pp. 15, 17].
On June 8, 2017, Nealy and MSI moved to intervene in this case to assert their
rights over the subject works and other works. [ECF No. 212]. Nealy provided an
affidavit in support of his motion to intervene in this lawsuit. [ECF No. 212]. The
motion to intervene also included a proposed intervenor complaint. [ECF No. 212-2].
Nealy affirms in his affidavit that he is the sole owner of Music Specialist Inc.,
which is affiliated with Music Specialist Publishing. [ECF No. 212-1, p. 1]. According to
Nealy, the companies developed, recorded, and published several of the works at issue
Plaintiffs had also brought a declaratory judgment action against Pandisc,
Whooping Crane, 321 Music, and Warner/Chappell, but the Court dismissed Count IV
with prejudice. [ECF No. 230].
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in this case and “engaged” Plaintiffs as artists under their professional name, Freestyle.
[ECF No. 212-1, p. 2]. Nealy further avers that his companies “have been the owner,
exclusive publisher and administrator of copyrights” for the works, and that his
companies never assigned to Plaintiffs or any Defendants in this case the rights to those
works. [ECF No. 212-1, pp. 2–3].
II.

Standard
Federal Rule of Civil Procedure 24 provides, in pertinent part:
(a) Intervention of Right. On timely motion, the court must permit
anyone to intervene who:
***
(2) 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.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to
intervene who:
***
(B) has a claim or defense that shares with the main action a common
question of law or fact.

Fed. R. Civ. P. 24(a)–(b).

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III.

Analysis
A.

The Motion to Intervene is Timely.

Whether intervention is as of right or permissive, Rule 24 requires a “timely
motion.” Fed. R. Civ. P. 24(a), (b). The Eleventh Circuit instructs courts to look at several
factors to determine whether a motion to intervene is timely:
1. The length of time during which the would-be intervenor actually knew
or reasonably should have known of his interest in the case before he
petitioned for leave to intervene[;] 2. The extent of the prejudice that the
existing parties to the litigation may suffer as a result of the would-be
intervenor’s failure to apply for intervention as soon as he actually knew
or reasonably should have known of his interest in the case[;] 3. The extent
of the prejudice that the would-be intervenor may suffer if his petition for
leave to intervene is denied[;] and 4. The existence of unusual
circumstances militating either for or against a determination that the
application is timely.
Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1294 (11th Cir.
2017) (internal quotation omitted). The burden of proving timeliness is on the proposed
intervenor. Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989).
To explain the lengthy delay in moving to intervene in this case, Nealy avers that
he has been “incarcerated twenty-five out of the past thirty years.” [ECF No. 212-1, p. 1].
He claims that he was in prison when this lawsuit was filed and was not released until
July 5, 2015, and that, until recently, he believed this case was resolved. [ECF No. 212,
p. 6]. But by “happenstance,” Nealy learned in “late 2016” of “his potential interest in
this matter.” [ECF No. 212, p. 6].
Nealy and MSI then cite financial difficulties for not moving to intervene at that
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time. Nealy states that after his “release from incarceration, he was financially unable to
conclude the lengthy reinstatement process for MSI until early 2017.” [ECF No. 212,
p. 6]. Nealy also claims that “he was unable to retain counsel for this matter until as
recently as April of 2017 to help establish his lawful claim.” [ECF No. 212, p. 6].
Nealy and MSI then argue that intervention would not prejudice the existing
parties, but actually assist the litigation, by “providing clarity to the overall matter with
respect to the chain of succession of the copyrighted works[.]” [ECF No. 212, p. 7]. They
also argue that, by contrast, as the true copyright claimants in this case, they would
suffer great prejudice if not allowed to intervene. [ECF No. 212, p. 7].
In their opposition response, the Warner Defendants charge Nealy and MSI of
being “evasive” as to how they learned of the litigation. [ECF No. 222, p. 4]. The Warner
Defendants maintain that, at a minimum, Nealy and MSI knew about this lawsuit in
November 2016, as evidenced by a motion Plaintiffs filed at that time saying that Nealy
and MSI had informed Plaintiffs of their intention to intervene in this case. [ECF
Nos. 178, p. 2; 222, p. 5]. The Warner Defendants argue that the eight-month delay
between that time and when Nealy and MSI moved to intervene is inexcusable. [ECF
No. 222, p. 5]. In addition, the Warner Defendants suspect that Nealy and MSI may have
known about this lawsuit even earlier given their statement that they thought the case
had been resolved. [ECF No. 222, pp. 5–6].
Regarding prejudice, the Warner Defendants simply say that “this case has
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painstakingly advanced to the stage where the Defendants are awaiting, if their pending
motions are successful, final disposition of this matter after years of litigation and
expense.” [ECF No. 222, p. 6].
In the Crane Defendants’ opposition response, they argue that Nealy and MSI
were on inquiry or constructive notice for decades that their copyrights had been
infringed because they had not received royalties since the 1990s. [ECF No. 223, p. 9].
They then argue that, in the alternative, Nealy and MSI knew about their potential
rights at least in June 2008, when Nealy and his attorney had a meeting with Robert
Crane and his attorney to discuss the subject copyrights. [ECF No. 223, p. 10].
Elaborating on the meeting, the Crane Defendants explain that although the
motion to intervene suggests that Nealy was continuously incarcerated for 25 years, he
was not in prison between 2008 and 2011. [ECF No. 223, p. 2 n. 2]. At the front end of
that time, in late May or early June 2008, Nealy contacted Robert Crane and told him
that Nealy and his counsel, Jonathan Black, had documents proving that they owned
the songs at issue in this case. [ECF No. 223, p. 2]. That led to Nealy and his counsel and
Crane and his counsel meeting in person on June 9, 2008, and at that meeting, “Nealy
asserted that he and his company, Music Specialist, Inc., were the owners of the songs at
issue in this lawsuit as well as other songs not at issue in this lawsuit.” [ECF No. 223,
p. 3]. As evidence of the meeting, the Crane Defendants provide Robert Crane’s
affidavit and his attorney’s affidavit and time records. [ECF Nos. 223-3; 223-4].
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The Crane Defendants also maintain that in March 2016, which is 15 months
before Nealy and MSI moved to intervene, Nealy hired a different attorney, Frank
Salzano, 5 to make a demand of the Crane Defendants regarding the subject songs. [ECF
No. 223, p. 4]. The response includes a copy of the demand letter. [ECF No. 223-5].
As to prejudice, the Crane Defendants argue that “[i]n addition to the
intervention necessitating additional discovery and broadening the scope of issues
before the Court, this lawsuit could very well be nearing its end.” [ECF No. 223, p. 4].
The “end” the Crane Defendants contemplated was an order dismissing the case with
prejudice, which did not occur. The purported expanded issues include a potential
statute of limitations defense applicable to Nealy and MSI only, and the need to
address, through additional discovery and experts, Nealy and MSI’s additional claims
and issues. [ECF No. 223, pp. 10–13]. The Crane Defendants also argue that, by contrast,
Nealy and MSI would not be prejudiced if not allowed to intervene because they can
pursue independent claims (assuming those claims are viable). [ECF No. 223, pp. 4, 13–
14].
In their replies, Nealy and MSI do not challenge the Crane Defendants’
additional facts. Nealy and MSI acknowledge that they contacted the Crane Defendants
in March 2016 about the subject songs. [ECF No. 229, p. 3]. Nealy and MSI then explain
that “[i]t would take another fifteen months for [them] to raise the finances necessary to

5

Salzano now represents Plaintiffs. [ECF No. 192].
10

reinstate MSI’s corporate status 6 and obtain counsel to represent their interests in this
action.” [ECF No. 229, p. 3]. Moreover, they maintain that the demand letter (which
they do not deny having sent) shows their due diligence in trying to amicably resolve
the case before moving to intervene. [ECF No. 228, p. 8].
Nealy and MSI also do not contradict that they “first contacted the Crane
Defendants in 2008 to assert their rights in the subject songs[.]” [ECF No. 229, p. 4]. But
they argue that the nine-year delay between then and when they sought relief in court is
inconsequential because “a copyright owner need not challenge every actionable
infringement and can defer suit until [the owner] can estimate that litigation is worth
the effort.” [ECF No. 229, p. 4].
The timeliness question is a close one, but the Court ultimately finds that the
motion was timely due to the lack of prejudice to the existing parties if intervention is
allowed. Had this case progressed beyond the pleading stage, Nealy and MSI’s lengthy
delay in moving to intervene would likely have been inexcusable. See Roberts v. Gordy,
No. 13-24700-CIV, 2015 WL 11201183, at *2 (S.D. Fla. Apr. 14, 2015) (denying as
untimely motion to intervene filed one year after the lawsuit began because “numerous
depositions have been taken, mountains of discovery served, and dispositive motions
filed and fully briefed.”). Importantly, although they have the burden of proving
timeliness, Nealy and MSI fail to articulate how or why they first learned of their rights
There reinstatement apparently included paying 30-years’ worth of past dues to
revive MSI as an active corporation. [ECF No. 228, p. 8].

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in this case in January 2016. That position is questionable given the lack of explanatory
detail and considering that they first contacted the Crane Defendants in 2008 to assert
their rights over the same works. Moreover, the issue is not simply when Nealy and
MSI actually knew about their interests in this case, but when they should have known.
Salvors, 861 F.3d at 1294. The Court suspects that Nealy and MSI should have known
about their interests in this case much earlier than January 2016 given their prior history
with the parties.
In addition, the main excuse Nealy and MSI put forward for their delay -financial difficulties -- would not carry the day by itself. The Court understands the
practical limitations of having to pay past-due corporate fees and developing a war
chest before engaging in expensive federal court litigation. But expense alone is not
sufficient reason to delay intervening in a case. See, e.g., United States v. Alisal Water
Corp., 370 F.3d 915, 923–24 (9th Cir. 2004) (“An applicant’s desire to save costs by
waiting to intervene until a late stage in litigation is not a valid justification for delay.”).
As one case colorfully put it, “it seems inequitable to allow a latecomer, who fiddled
while Rome burned, to collect a share of the fire insurance.” Banco Popular de Puerto Rico
v. Greenblatt, 964 F.2d 1227, 1234 (1st Cir. 1992).
Still, as the Eleventh Circuit instructs, “[t]imeliness is not a word of exactitude or
of precisely measurable dimensions,” but one that “must have accommodating
flexibility toward both the court and the litigants if it is to be successfully employed to
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regulate intervention in the interest of justice.” Georgia v. U.S. Army Corps of Engineers,
302 F.3d 1242, 1259 (11th Cir. 2002). Accordingly, “the amount of time that may have
elapsed since the institution of the action are not to be relied upon[.]” Meek v. Metro.
Dade Cty., Fla., 985 F.2d 1471, 1479 (11th Cir. 1993) abrogated on other grounds in 495 F.3d
1324 (11th Cir. 2007). Rather, prejudice must be looked at as “the essence of the
timeliness inquiry[.]” Id. (emphasis added).
Despite Nealy and MSI’s lengthy delay, intervention at this point would not
unduly prejudice the existing parties. The Crane Defendants and Warner Defendants
have yet to answer the third amended complaint. There has been no discovery in the
case. Indeed, because of the pleading deficiencies that plagued the past three
complaints, the case has been protracted in progress. And a large reason that makes up
the Crane Defendants’ and Warner Defendants’ prejudice argument -- i.e. the motions
to dismiss that were pending when they made their argument -- is now moot given the
Court’s recent ruling. [ECF No. 230].
It is true that Nealy and MSI’s intervention could raise new issues, defenses, and
additional discovery and expert needs, which could weigh against intervention. See
Roberts, 2015 WL 11201183, at *3 (denying intervention in part because “intervention
could raise complicated statute of limitations arguments not applicable to the other
plaintiffs” and because intervention would result in “additional experts to prepare
separate damage and profit reports[.]”). But the lack of progress in this litigation also
13

undercuts the potential prejudice that additional work would entail. C.f. id. (noting that
expert disclosure deadline was less than a month away and that the discovery cutoff
was less than three months away). 7
The potential prejudice to Nealy and MSI of not being allowed to intervene also
weighs in favor of intervention. That Nealy and MSI claim to be the legal owners of the
works at issue -- a position Plaintiffs have seemingly adopted as well -- could result in
some prejudice if they are not allowed to intervene in this case. See Dellacasa, LLC v. John
Moriarty & Assocs. of Fla., Inc., No. 07-21659-CIV, 2007 WL 2979865, at *3 (S.D. Fla. Oct.
11, 2007) (finding prejudice if intervention was denied where “[t]he intervenor takes the
position that it is the owner of the subject copyrights and seeks declaratory relief as to
its ownership rights.”).
Lastly, Nealy’s incarceration for the better part of the last 30 years is fairly
described as unusual circumstances. The Court is no stranger to litigation by inmates, to
be sure, so prison is not a complete bar to participating in a lawsuit. But it certainly

The Court also disagrees with the Crane Defendants’ position that their statute of
limitations defense makes the proposed intervention futile. [ECF No. 223, p. 14]. “It is
widely recognized that the separate-accrual rule attends the copyright statute of
limitations.” Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1969 (2014). “Under
that rule, when a defendant commits successive violations, the statute of limitations
runs separately from each violation.” Id. Relying on Petrella, the intervenors contend
that they are “entitled to retrospective relief for infringement that occurred in the three
years before they filed their complaint.” [ECF No. 229, p. 6]. Whether that is true is a
factually-intensive determination that is inappropriate for the intervention stage. Thus,
although the statute of limitations may later bar some or all of the intervenors’ claims, it
does not prevent the intervenors from asserting their claims in the first place.

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undermines one’s ability to do so. So while this factor is not the strongest reason to
allow intervention, when coupled with the lack of prejudice to the existing parties, and
potential prejudice to Nealy and MSI, it helps tip the scales in Nealy and MSI’s favor.
In short, the Court finds that the motion to intervene was timely.
B.

Nealy and MSI May Permissibly Intervene in this Action.

To intervene as of right, the intervenor must show that
(1) his application to intervene is timely; (2) he has an interest relating to
the property or transaction which is the subject of the action; (3) he is so
situated that disposition of the action, as a practical matter, may impede
or impair his ability to protect that interest; and (4) his interest is
represented inadequately by the existing parties to the suit.
Chiles, 865 F.2d at 1213. By contrast, to permissibly intervene, the intervenor must show
that “(1) his application to intervene is timely; and (2) his claim or defense and the main
action have a question of law or fact in common.” Id. 8
“The ‘claim or defense’ portion of the rule has been construed liberally, and
indeed the Supreme Court has said that it ‘plainly dispenses with any requirement that
the intervenor shall have a direct personal or pecuniary interest in the subject of the
litigation.” In re Estelle, 516 F.2d 480, 485 (5th Cir. 1975) (quoting Sec. & Exch. Comm’n v.

Citing to U.S. v. Jefferson Cty., 720 F.2d 1511, 1516 (11th Cir. 1983), the Warner
Defendants misstate the standard for permissive intervention when they say that ofright analysis set forth in Chiles “applies whether the intervenor is claiming intervention
of right or permissive intervention.” [ECF No. 222, p. 1]. That is wrong -- what the
Court in Jefferson County said was that the timeliness analysis (which the Court
previously discussed) applies to both intervention types. See Jefferson Cty., 720 F.2d at
1516.

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U.S. Realty & Imp. Co., 310 U.S. 434, 459 (1940)). The intervening party, however, “must
demonstrate more than a general interest in the subject matter of the litigation before
intervention should be allowed.” Alexander v. Hall, 64 F.R.D. 152, 157 (D.S.C. 1974). And
when exercising its discretion, a district court “can consider almost any factor rationally
relevant but enjoys very broad discretion in granting or denying the motion [to
intervene].” Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104,
113 (1st Cir. 1999); see Dellacasa, 2007 WL 2979865, at *5 (allowing permissive
intervention into copyright case because “intervenor’s claim of ownership of the subject
copyrights is a question of law or fact in common with the main action.”).
Here, although the parties spend considerable time arguing the merits of
intervention as of right, the Court need not consider those arguments because Nealy
and MSI can plainly permissibly intervene. Neither the Warner Defendants nor the
Crane Defendants challenge the fact that Nealy and MSI’s claims share common
questions of law and fact with this case. The Warner Defendants do not address that
aspect of permissive intervention. And the Crane Defendants, in a bid to convince the
Court to nonetheless exercise its discretion to deny intervention, simply reiterate their
position that intervention raises some new issues and may necessitate additional
discovery, motion practice, etc. [ECF No. 223, p. 15].
The Court, however, will permit Nealy and MSI to intervene in this case. Not
only are the legal and factual commonalities undeniable, but the lack of prejudice to the
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existing parties also weighs in favor of permissive intervention. See Mt. Hawley Ins. Co.
v. Sandy Lake Props., Inc., 425 F.3d 1308, 1312 (11th Cir. 2005) (“Permissive intervention
under Fed. R. Civ. Proc. 24(b) is appropriate where a party’s claim or defense and the
main action have a question of law or fact in common and the intervention will not
unduly prejudice or delay the adjudication of the rights of the original parties.”).
But as detailed below, the Court will impose limits on the scope of the
intervention.
C.

The Current Intervenor Complaint Impermissibly Expands the Litigation.

“[A]n intervenor is admitted to the proceeding as it stands, and in respect of the
pending issues, but is not permitted to enlarge those issues or compel an alteration of
the nature of the proceeding.” Vinson v. Wash. Gas Light Co., 321 U.S. 489 (1944). Thus,
“courts have broad authority to limit the ability of intervening parties to expand the
scope of a proceeding beyond the issues litigated by the original parties.” Johnson v. Bd.
of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001). That authority applies
regardless of whether intervention is as of right or permissive. See Southern v. Plumb
Tools, A Div. of O’Ames Corp., 696 F.2d 1321, 1323 (11th Cir. 1983) (“imposing certain
conditions on either type of intervention, of right or permissive, poses no problem in the
federal courts”).
As the Warner Defendants explain [ECF No. 222, p. 7], apart from the copyright
infringement claims and declaratory action, the proposed intervenor complaint adds
17

additional claims for unauthorized fixation and trafficking in sound recordings, fraud
on the court, constructive trust, and accounting. [ECF No. 212-2, pp. 57–64]. The Court
previously dismissed with prejudice Plaintiffs’ constructive trust and accounting claims.
[ECF No. 175]. In addition, Nealy and MSI add claims against Atlantic Recording
Corporation, [ECF No. 212-2, pp. 32, 54, 57, 61], a party also previously dismissed from
this case. [ECF No. 67]. Moreover, Nealy and MSI assert claims over works not at issue
in this case. [ECF No. 212-2, ¶ 25 (listing 29 works)].
Therefore, by October 23, 2017, Nealy and MSI must file an amended intervenor
complaint that is limited to the parties and works at issue.
DONE and ORDERED in Chambers, in Miami, Florida, on October 12, 2017.

Copies furnished to:
All counsel of record

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