Chapman, II et al v. Krutonog et al

Filing 125

AMENDED 124 ORDER DENYING PETITIONERS DUANE CHAPMAN AND BETH CHAPMAN'S 93 MOTION TO INTERVENE. Signed by Magistrate JUDGE LESLIE E KOBAYASHI on December 9, 2009. (bbb, )CERTIFICATE OF SERVICEParticipants re gistered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII DUANE LEE CHAPMAN II, LELAND CHAPMAN, and TIM CHAPMAN, ) ) ) Plaintiffs, ) ) vs. ) ) BORIS KRUTONOG, PIVOT POINT ) ENTERTAINMENT, LLC, a limited ) liability company, DOE ) DEFENDANTS 1-20, DOE ) CORPORATIONS 1-20, and DOE ) PARTNERSHIPS 1-20, ) ) Defendants. ) _____________________________ ) CIVIL NO. 08-00579 HG-LEK

AMENDED ORDER DENYING PETITIONERS DUANE CHAPMAN AND BETH CHAPMAN'S MOTION TO INTERVENE Before the Court is Petitioners Duane Chapman and Beth Chapman's (collectively "Petitioners") Motion to Intervene ("Motion"), filed on August 7, 2009. Defendants Boris Krutonog

and Pivot Point Entertainment LLC (collectively "Defendants") filed their memorandum in opposition on August 27, 2009. Plaintiffs Duane Lee Chapman II, Leland Chapman, and Tim Chapman1 (collectively "Plaintiffs") filed their statement of no opposition also on August 27, 2009. Petitioners filed their The Court finds this

reply memorandum on September 10, 2009.

matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States Duane Lee Chapman II and Leland Chapman are Petitioners' sons. Tim Chapman is Duane Chapman's "hanai" brother.
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District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, the Motion is HEREBY DENIED for the reasons set forth below. BACKGROUND Petitioners and Plaintiffs are bounty hunters and stars of the A&E Network television show "Dog the Bounty Hunter" ("the Program"). I. Chapman I In approximately March 2005, Petitioners' company, Dog Corporation, contracted with Defendant Vertex Communications, LLC ("Vertex") to have Maureen Kedes Krutonog, formerly known as Maureen Kedes ("Kedes") and Vertex, provide public relations services for Petitioners and the Program. Although the contract

expired in June 2005, Kedes and Vertex (collectively "Kedes/Vertex") continued to provide publicity services for Petitioners and the Program until Petitioners terminated their services in approximately May 2006. On October 23, 2008, Petitioners filed the lawsuit known as Duane "Dog" Chapman, et al. v. Maureen Kedes Krutonog, et al., Civil No. 08-1-2181-10 VSM ("Chapman I"), in state court. The Complaint alleges claims for: breach of fiduciary duty; fraudulent concealment; and negligent or intentional misrepresentation. Petitioners seek general, special, 2

consequential, and incidental damages, attorney's fees and costs, prejudgment interest, and other appropriate relief. On December 8, 2008, Kedes/Vertex removed Chapman I based on diversity jurisdiction.2 The notice of removal

contained an express reservation of all defenses, including, inter alia, lack of personal jurisdiction. On December 15, 2008,

Kedes/Vertex filed a Motion to Dismiss Complaint Pursuant to FRCP 12(b)(2), which the district judge denied on September 22, 2009. II. Chapman II On October 23, 2008, Plaintiffs filed the instant action, known as Duane Lee Chapman II, et al. v. Krutonog, et al., Civil No. 08-1-2180-10 GJK ("Chapman II"), in state court. Plaintiffs allege that Defendants engaged in various improper acts while purportedly working as Plaintiffs' manager and "de facto talent agent". [Complaint at ¶ 5.] The primary allegation

is that Defendants negotiated contractual provisions which were favorable to Defendants at Plaintiffs' expense. The Complaint

alleges the following claims: breach of fiduciary duty; constructive fraud, fraudulent concealment; and misrepresentation. Plaintiffs seek: a declaration that

Defendants are not entitled to further compensation under any unlawful agreements; general, special, consequential, and

The federal court case number for Chapman I is CV 0800552 HG-LEK. 3

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incidental damages; attorneys' fees and costs; prejudgment interest; and any other appropriate relief. On December 18,

2008, Defendants removed the instant action based on diversity jurisdiction. In the instant Motion, Petitioners argue that they are entitled to intervene in Chapman II as a matter of right because they have an interest in maintaining the privacy and confidentiality of financial and trade secret information. In their memorandum in opposition, Defendants argue that the Motion is unnecessary because there is a Stipulated Protective Order in place which provides that a non-party may designate confidential information. Defendants question the need

for any further protection and characterize Petitioners' claims of privacy as being exaggerated or involving documents that Petitioners already disclosed in other proceedings, thereby waiving any right to privacy.3 In their reply, Petitioners reiterate that: the Motion is timely; they have a right to privacy which mandates intervention; and they cannot adequately protect their privacy rights without intervention. DISCUSSION

Defendants also urged the Court to hold the Motion in abeyance or to deny it pending the district judge's ruling on the motion to dismiss in Chapman I. This argument is now moot in light the denial of the motion to dismiss on September 22, 2009. 4

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A motion to intervene "must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought." P. 24(c). Fed. R. Civ.

Petitioners have complied with this requirement by However, this

attaching a proposed complaint to the Motion.

Court cannot conclude that Petitioners have fully stated, either in the Motion or in the proposed complaint, "the legal and factual grounds for intervention." Beckman Indus., Inc. v. Int'l Petitioners provide

Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992).

only a general reference to their right to privacy and to the existence of financial information and trade secrets. Rule 24(a) provides: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (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. Fed. R. Civ. P. 24(a). Petitioners do not argue that they have a In order to intervene pursuant to

statutory right to intervene.

Rule 24(a)(2), they must show that: (1) the intervention application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the disposition of the action may, as a practical matter, impair or impede the applicant's ability 5

to protect its interest; and (4) the existing parties may not adequately represent the applicant's interest. Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (citation and internal quotation marks omitted). The proposed intervenor

has the burden of establishing each and every one of these elements, but courts interpret the elements broadly in favor of intervention. See id.

The instant action is in the early stages of litigation and thus the Motion was timely filed. Petitioners, however, fail

to demonstrate that Plaintiffs may not adequately represent Petitioners' interest. "The `most important factor' to determine whether a proposed intervenor is adequately represented by a present party to the action is `how the [intervenor's] interest compares with the interests of existing parties.'" Perry v. Proposition 8

Official Proponents, ___ F.3d ___, No. 09-16959, 2009 WL 3857201, at *2 (9th Cir. Nov. 19, 2009) (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)) (alteration in original). This

Court finds that Plaintiffs can adequately represent Petitioners' privacy and other interests in Chapman II. Petitioners and

Plaintiffs are related to one another, are in business with one another, and (most importantly) are all represented by the same team of attorneys. Their collective objectives in their

respective litigations are essentially identical in that they are 6

all united in their efforts against Krutonog and Kedes.

"When an

applicant for intervention and an existing party have the same ultimate objective, a presumption of adequacy of representation arises. If the applicant's interest is identical to that of one

of the present parties, a compelling showing should be required to demonstrate inadequate representation." 956 (citation omitted). Prete, 438 F.3d at

This Court concludes that Petitioners

have failed to rebut the presumption that Plaintiffs adequately represent Petitioners' interest. In addition, the stipulated protective order filed on May 28, 2009 in Chapman II provides that parties and non-parties may designate documents as confidential. Should there be a See,

dispute, the parties are able to request court assistance. e.g., LR37.1(c). Plaintiffs' counsel, who also represent

Petitioners, will be able to advise Petitioners of any discovery disputes in Chapman II that may affect Petitioners' interests, and Petitioners may seek leave to participate in the discovery motion, conference, or other proceedings if necessary to protect their interests. As Petitioners are not able to demonstrate that their interests are inadequately represented in the instant action, this Court need not analyze the remaining elements for intervention. The Court therefore finds that Petitioners are not

entitled to intervention as of right. 7

III. Permissive Intervention Rule 24(b) states, in pertinent part: (b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b). Petitioners have not identified any

statute that confers a conditional right to intervene in this case. Further, Petitioners have not alleged any independent This Court therefore finds that permissive intervention

claims.

is not warranted in this case. CONCLUSION On the basis of the foregoing, Petitioners' Motion to Intervene, filed on August 7, 2009, is HEREBY DENIED. IT IS SO ORDERED. DATED AT HONOLULU, HAWAII, December 9, 2009.

/S/ Leslie E. Kobayashi Leslie E. Kobayashi United States Magistrate Judge DUANE LEE CHAPMAN, II, LELAND CHAPMAN AND TIM CHAPMAN V. BORIS KRUTONOG, ET AL; CIVIL NO 08-00579 HG-LEK; AMENDED ORDER DENYING PETITIONERS DUANE CHAPMAN AND BETH CHAPMAN'S MOTION TO INTERVENE

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