Pacific Radiation Oncology, LLC et al v. The Queen's Medical Center et al

Filing 32

ORDER DENYING 9 JOHN DOE'S MOTION TO INTERVENE IN THE PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER, OR IN THE ALTERNATIVE, FOR A PRELIMINARY INJUNCTION. Signed by District JUDGE LESLIE E. KOBAYASHI on February 9, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered 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
PACIFIC RADIATION ONCOLOGY,
LLC, a Hawai`i Limited
Liability Corporation, et
al.,

)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
THE QUEEN’S MEDICAL CENTER, a )
)
Hawai`i Non-Profit
)
Corporation, et al.,
)
)
Defendants.
_____________________________ )

CIVIL NO. 12-00064 LEK-KSC

ORDER DENYING JOHN DOE’S MOTION TO INTERVENE IN
THE PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER,
OR IN THE ALTERNATIVE, FOR A PRELIMINARY INJUNCTION
Before the Court is John Doe’s1 Motion to Intervene in
the Plaintiffs’ Motion for a Temporary Restraining Order, or in

1

Before removal, the state court judge granted John Doe’s
ex parte petition to proceed under a pseudonym. John Doe filed
both his motion to intervene (“State Court Motion”) and his
petition to proceed under a pseudonym, which contains the order
granting the petition (“Pseudonym Petition”), on January 30, 2012
in state court. These documents, however, were not among those
attached to the Notice of Removal, [dkt. no. 1,] nor were they
part of the documents transmitted to the district court from the
First Circuit Court [dkt. no. 17]. John Doe attached the State
Court Motion and the Pseudonym Petition to the instant Motion as
Exhibits 1 and 2, respectively. [Dkt. nos. 9-1, 9-2.] The
instant Motion essentially incorporates the State Court Motion by
reference, and the instant Motion does not have its own
memorandum in support or its own affidavits. All citations in
this Order to the “Memorandum in Support of Motion” refer to the
memorandum in support of the State Court Motion, and all
citations to affidavits in support of the instant Motion refer to
affidavits attached to the State Court Motion.

the Alternative, for a Preliminary Injunction (“Motion”), filed
on February 1, 2012.

Defendants The Queen’s Medical Center, a

Hawai`i Non-Profit Corporation, Queen’s Development Corp, a
Hawai`i for Profit Corporation, and the officers and/or trustees
of Queen’s Medical Center, in their individual and official
capacities (collectively “Defendants”) filed their memorandum in
opposition on February 6, 2012.

Plaintiffs Pacific Radiation

Oncology, LLC, a Hawai`i Limited Liability Corporation, PRO
Associates, LLC, a Hawai`i Limited Liability Corporation, and
John Lederer, M.D., Individually and as a Manager of the LLCs
appearing for the Pacific Radiation Oncology Physicians
(collectively “Plaintiffs”) did not respond to the Motion.

The

Court finds this matter suitable for disposition without a
hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice
of the United States District Court for the District of Hawai`i.
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, John Doe’s
Motion is HEREBY DENIED for the reasons set forth below.
BACKGROUND
The instant case arises from Defendants’ decision to
adopt a closed-facility model for the radiation oncology
department of The Queen’s Medical Center (“Queen’s”).

Plaintiffs

represent six radiation oncologists who treat patients at
Queen’s, among other places, but who are not employed by Queen’s.

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Under the terms of the new policy, they would lose their hospital
privileges at Queen’s and would no longer be able treat their
patients there.

The new policy was to take effect on

February 1, 2012.

On January 27, 2012, in state court,

Plaintiffs filed their Verified Complaint for Declaratory and
Injunctive Relief and for Damages (“the Complaint”) and their
Motion for Temporary Restraining Order, or in the Alternative,
for a Preliminary Injunction (“Plaintiffs’ Motion”).
On February 3, 2012, this Court issued an order
addressing the portion of Plaintiffs’ Motion requesting a
temporary restraining order (“TRO Order”).

[Dkt. no. 19.]

The

Court granted Plaintiffs’ request for a temporary restraining
order in part and ordered that Defendants allow Plaintiffs to
perform the procedures listed in the TRO Order at Queen’s,
including any in-patient treatment, hospitalization, chart or
record review, surgery, follow-up care and/or scheduling
associated with those procedures, until this Court rules on the
remaining portion of Plaintiffs’ Motion, which requests a
preliminary injunction.

One of the listed procedures is
[Id. at 20-21.]

brachytherapy radiation therapy.

Plaintiffs’

request for a preliminary injunction is set for hearing on
February 14, 2012.
I.

John Doe’s Motion
John Doe states that he “only seeks to appear at the

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hearing for injunctive relief.”

[Mem. in Supp. of Motion at 3.]

John Doe argues that, under the circumstances, the Court should
grant him either intervention as of right under Federal Rule of
Civil Procedure 24(a) or permissive intervention under Rule
24(b).

John Doe has been diagnosed with Stage 4 advanced

prostate cancer.

He is a patient of Plaintiff John Lederer, M.D.

[Motion, Aff. of Cancer Patient 1, at ¶¶ 1-2.]

He states that

his best possibility for a cure is high dose rate brachytherapy
treatment, which can only be performed at Queen’s.
6-7.]

[Id. at ¶¶ 4,

John Doe states that he does not want to change physicians

because of his confidence in Dr. Lederer, who has performed the
treatment hundreds of times, and because he does not believe
there is anyone else in Hawai`i who is as qualified as Dr.
Lederer.

[Id. at ¶¶ 5, 10.]
John Doe argues that he meets all of the requirements

for intervention as of right: the Motion is timely; he has an
obvious interest in the outcome of Plaintiffs’ Motion; the ruling
on Plaintiffs’ Motion may, as a practical matter, impede or
impair his ability to obtain the life-saving treatment he needs
at Queen’s; and Plaintiffs do not adequately represent his
interests.

In the alternative, John Doe argues that permissive

intervention is appropriate because his claim, that he is being
denied live-saving treatment because of Defendants’ actions, is
common to the claims alleged by Plaintiffs.

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Further, John Doe

argues that his intervention will not unduly delay the
proceedings and will not prejudice Defendants.
II.

Defendants’ Opposition
In their memorandum in opposition, Defendants argue

that John Doe’s Motion is moot because Defendants will
voluntarily allow Dr. Lederer to continue to treat patients at
Queen’s.

Defendants also contend that the Motion is procedurally

defective because: 1) Rule 24 does not permit intervention for a
limited special purpose, as opposed to intervention in order to
fully participate in the litigation; and 2) John Doe failed to
attach a pleading setting forth his claim or defense, as required
by Rule 24(c).
If the Court is inclined to consider the merits of the
Motion, Defendants argue that John Doe cannot satisfy the
requirements for intervention as of right under Rule 24(a).
Defendants contend that John Doe’s interest is not protected
under any identified law and, even if he had a legally
protectable interest, it is adequately represented by Plaintiffs.
Defendants also argue that the Court should deny John Doe’s
request for permissive intervention because John Doe has not
alleged any independent claims and, to the extent that he has
asserted an interest separate from Plaintiffs’ interests, John
Doe has not established that there is an independent basis for
jurisdiction over his claim.

Further, injecting issues regarding

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John Doe’s individual medical condition and treatment would
unduly delay the proceedings.

Defendants therefore urge the

Court to deny John Doe’s Motion.
DISCUSSION
I.

Procedural Challenges
The Court must first address Defendants’ argument that

John Doe’s Motion is improper because: 1) he only seeks to
intervene for the limited purpose of presenting oral argument on
Plaintiffs’ request for a preliminary injunction; and 2) he
failed to attach a complaint in intervention.
The Ninth Circuit has recognized that “as a general
rule, intervenors are permitted to litigate fully once admitted
to a suit.”

League of United Latin Am. Citizens v. Wilson, 131

F.3d 1297, 1304 (9th Cir. 1997) (citation omitted).

Further,

other courts have noted that “the Federal Rules do not anticipate
limited, ‘special status’ intervenors” who do not wish to
participate fully in the litigation, and therefore such motions
for limited intervention “are looked upon with disfavor.”

New

York News Inc. v. Newspaper & Mail Deliverers’ Union of New York,
139 F.R.D. 291, 293 (S.D.N.Y. 1991) (citation omitted).

These

authorities, however, merely express the general rule and,
insofar as this Court has concluded that John Doe cannot prevail
on the merits of his Motion, this Court declines to address the
issue whether Federal Rule of Civil Procedure 24 precludes, as a
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matter of law, motions to intervene for limited purposes.
Similarly, this Court will not deny the Motion merely
because John Doe failed to attach a complaint in intervention.
See Fed. R. Civ. P. 24(c) (stating that 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”).

New York News recognized that the

failure to comply with Rule 24(c) is not alone fatal to a motion
to intervene.

139 F.R.D. at 293.

Further, this district court

has recognized that it “could very liberally construe [a proposed
intervenor’s] motion and the attachments to comply with” Rule
24(c)’s requirement that a motion to intervene include a
pleading.

Glyn v. Roy Al Boat Mgmt. Corp., 897 F. Supp. 451, 453

(D. Hawai`i 1995).
This Court therefore rejects Defendants’ argument that
the Court should not consider the merits of John Doe’s Motion
because it is procedurally defective.
II.

Mootness
Defendants also argue that the Court should not

consider John Doe’s Motion because it is moot.

Defendants note

that, during a status conference regarding Plaintiffs’ request
for a temporary restraining order, Defendants’ counsel informed
opposing counsel and the Court that Queen’s would modify its
closed-facility policy to allow Dr. Lederer to continue to treat

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his patients, including John Doe, at Queen’s until the conclusion
of the litigation.

John Doe’s counsel responded that, if that

happened, John Doe’s claim would probably be moot.

Defendants

assert that “by QMC’s agreement, the Proposed Intervenor will
receive the same treatment he seeks via his motion to intervene
in the preliminary injunction hearing” and John Doe’s claims are
therefore moot.

[Mem. in Opp. at 2.]

As noted in this Court’s

TRO Order, however, the parties were not able to reach an
agreement providing for the continuing care of Plaintiffs’
patients at Queen’s.

Under the TRO Order, John Doe would be

entitled to have Dr. Lederer perform the brachytherapy radiation
therapy he needs at Queen’s.

The TRO Order, however, only

addresses the period until this Court issues its decision on
Plaintiffs’ request for a preliminary injunction.

The Court

therefore FINDS that John Doe’s Motion is not moot, and the Court
now turns to the merits of the Motion.
III. Intervention as of Right
Federal Rule of Civil Procedure 24(a) states:
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.

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John Doe has not identified any federal statute giving him an
unconditional right to intervene.

He therefore alleges that he

is entitled to intervene pursuant to Rule 24(a)(2), which
requires him to show that:
(1) [he] has a “significant protectable interest”
relating to the property or transaction that is
the subject of the action; (2) the disposition of
the action may, as a practical matter, impair or
impede the applicant’s ability to protect [his]
interest; (3) the application is timely; and (4)
the existing parties may not adequately represent
the applicant’s interest.
Canatella v. California, 404 F.3d 1106, 1112 (9th Cir. 2005)
(citation omitted).

Other than the element of timeliness, which

is not at issue here, the elements are considered under a
practical and equitable analysis.

Id. at 1113.

A party seeking to intervene has a “significantly
protectable interest” if his interest “is protected by law and
there is a relationship between the legally protected interest
and the plaintiff’s claims.”

United States v. Alisal Water

Corp., 370 F.3d 915, 919 (9th Cir. 2004) (citations omitted).
The interest can be protectable under any statute.

Id.

While

John Doe has not cited a specific statute, this Court has no
difficultly finding that John Doe’s interest in receiving a
potentially life-saving treatment in a timely manner from an
experienced physician is significant, and that this interest is
legally protectable where Defendants’ closed-facility policy
threatens to deny him access to that treatment and Defendants’
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actions in adopting that policy allegedly violated state law
regarding, inter alia, deceptive trade practices and unfair
methods of competition.

Further, the Court’s decision on

Plaintiffs’ request for a preliminary injunction may, as a
practical matter, impair John Doe’s ability to protect his
interest.
The critical factor in the instant Motion is whether
Plaintiffs will adequately protect John Doe’s interest.

John Doe

argues that he “has an interest significantly different than that
of the Plaintiffs” because his “life is on the line, and his
concerns go far beyond issues of unfair trade practices or unfair
methods of competition.”

[Mem. in Supp. of Motion at 2-3.]

The

issue at the heart of Plaintiffs’ Motion, however, is not whether
Defendants committed unfair trade practices or unfair methods of
competition in adopting the closed-facility policy.

What this

Court must ultimately decide in ruling on the remaining portion
of Plaintiffs’ Motion is whether Plaintiffs can continue to treat
their patients at Queen’s during the pendency of this action.

To

the extent that Plaintiffs want to continue to treat all of their
patients at Queen’s and John Doe is one of those patients, John
Doe’s interest will be adequately protected by Plaintiffs.2

2

The

Although the Court does not base its decision on John
Doe’s request for intervention as of right solely on counsel’s
representations, the Court does note that, during the pendency of
this Motion, this Court allowed John Doe’s counsel to participate
(continued...)
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Court therefore CONCLUDES that John Doe is not entitled to
intervene as a matter of right pursuant to Fed. R. Civ. P. 24(a).
III. Permissive Intervention
Rule 24(b) states, in pertinent part:
(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.
. . . .
(3) Delay or Prejudice. In exercising its
discretion, the court must consider whether the
intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.
John Doe has not identified any federal statute giving him a
conditional right to intervene.

He therefore urges the Court to

grant him permissive intervention pursuant to Rule 24(b)(2)
because there are common issues between his claim and Plaintiffs’
claim.

“An applicant who seeks permissive intervention must

prove that it meets three threshold requirements: (1) it shares a
common question of law or fact with the main action; (2) its
motion is timely; and (3) the court has an independent basis for
jurisdiction over the applicant’s claims.”

Donnelly v. Glickman,

159 F.3d 405, 412 (9th Cir. 1998) (citation omitted).

2

It is true

(...continued)
in the status conferences regarding Plaintiffs’ request for a
temporary restraining order. At no point in those conferences
did it appear that John Doe’s interests diverged from Plaintiffs’
interests.
11

that both John Doe and Plaintiffs are contending that patients
are being denied necessary, even life-saving treatment, because
of Defendants’ actions.

Further, allowing John Doe to intervene

would not unduly delay the proceedings associated with
Plaintiffs’ request for a preliminary injunction, nor would it
prejudice the parties.

The decision to grant permissive

intervention, however, is discretionary.

Kukui Gardens Corp. v.

Holco Capital Grp., Inc., 261 F.R.D. 523, 534 (D. Hawai`i 2009);
see also Donnelly, 159 F.3d at 412 (“Even if an applicant
satisfies those threshold requirements, the district court has
discretion to deny permissive intervention.” (citation omitted)).
It is not entirely clear what the independent basis for
jurisdiction is for John Doe’s claim because it is not entirely
clear what his claim is.

Even assuming arguendo that there was

an independent basis for jurisdiction over John Doe’s claim, this
Court finds that there is no significant reason for this Court to
exercise its discretion to grant the Motion.

John Doe’s interest

in this case is limited to oral argument on Plaintiffs’ Motion,
and John Doe’s position on Plaintiffs’ Motion does not add
anything beyond what Plaintiffs will present.
This Court therefore, in the exercise of its
discretion, DENIES John Doe’s request for permissive intervention
pursuant to Fed. R. Civ. P. 24(b).

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CONCLUSION
On the basis of the foregoing, John Doe’s Motion to
Intervene in the Plaintiffs’ Motion for a Temporary Restraining
Order, or in the Alternative, for a Preliminary Injunction, filed
on February 1, 2012, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 9, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

PACIFIC RADIATION ONCOLOGY, ET AL. V. THE QUEEN’S MEDICAL CENTER,
ET AL; CIVIL NO. 12-00064 LEK-KSC; ORDER DENYING JOHN DOE’S
MOTION TO INTERVENE IN THE PLAINTIFFS’ MOTION FOR A TEMPORARY
RESTRAINING ORDER, OR IN THE ALTERNATIVE, FOR A PRELIMINARY
INJUNCTION

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