Nitz et al v. Lee et al

Filing 45

OPINION AND ORDER denying Norman R. Ayres 35 Motion to Intervene. Signed by Magistrate Judge Paul R Cherry on 6/11/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BRADLEY R. NITZ and
LINDSAY A. SCHILD,
Plaintiffs,

)
)
)
)
and
)
)
NORMAN R. AYRES,
)
Movant,
)
)
v.
)
)
DANIEL LEE, in his individual capacity, )
MICHAEL BRAZIL, in his individual
)
capacity, STEVE MEECE, in his individual )
capacity, STANKO GLIGIC, in his
)
individual capacity, and CITY OF
)
CROWN POINT, INDIANA,
)
Defendants.
)

CAUSE NO.: 2:13-CV-379-RL-PRC

OPINION AND ORDER
This matter is before the Court on Norman R. Ayres’ Motion to Intervene [DE 35], filed on
May 2, 2015.
FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 2013, Plaintiffs Bradley R. Nitz and Lindsay A. Schild filed a Complaint,
alleging that Defendants Daniel Lee, Michael Brazil, Steven Meece, Stanko Gligic, and the City of
Crown Point, Indiana (“Crown Point”) violated their Fourth Amendment rights when police officers
Lee, Brazil, Meece, and Gligic shot and killed Plaintiffs’ two dogs on July 17, 2013. At the time of
the incident, Lee, Brazil, Meece, and Gligic were employed as police officers with the City of
Crown Point. Plaintiffs allege that the officers shot Plaintiffs’ dogs after the dogs escaped the care
of Norman Ayres and attacked the pet cat of Janet Hawn. Since the filing of the Complaint, the
Court has granted five motions for extension of time to complete discovery.

On February 26, 2015, the proposed intervenor, Norman A. Ayres, and Plaintiffs filed a
document titled “Norman R. Ayres’ Motion for Joinder as a Plaintiff and Charles Sprague as
Defendant and Plaintiffs’ Motion for Leave to File First Amended Complaint.” On April 29, 2015,
the Court denied the motion as moot after the reply brief clarified that Ayres was seeking to
intervene under Federal Rule of Civil Procedure 24.
Subsequently, on May 2, 2015, Ayres filed the instant Motion to Intervene. Defendants filed
a response on May 18, 2015, and Ayres filed a reply on May 26, 2015. In his proposed intervenor
complaint, Ayres alleges that, on July 17, 2013, Plaintiffs’ dogs were being watched by Ayres at
Ayres’ residence and that the dogs got free from Ayres’ backyard. The dogs subsequently attacked
Hawn’s cat. Ayres alleges that on September 5, 2013, Crown Point filed a two-count civil complaint
against him in the Crown Point City Court, seeking the maximum fine of $500 for each violation
under a local ordinance for allowing the two dogs to run loose in Crown Point. Ayres alleges that,
Chuck Sprague, a civilian employee for the Crown Point Police Department, issued two citations
to Ayres. Ayres alleges that Janet Hawn’s cat was not leashed and was running loose but that Janet
Hawn was not issued a citation for violating the ordinance.
ANALYSIS
In the instant motion, Norman Ayres seeks to intervene to assert a claim for a violation of
the Equal Protection Clause of the Fourteenth Amendment under a class-of-one theory on the basis
that the City of Crown Point ordinance was enforced against him but not against the owner of the
cat. Contending that his claim stems from and relates to the same facts as Plaintiffs’ claim, Ayres
seeks leave to intervene of right pursuant to Federal Rule of Civil Procedure 24(a)(2). Alternatively,
Ayres seeks permissive intervention pursuant to Rule 24(b). The Court considers each in turn.

2

A. Intervention of Right
Federal Rule of Civil Procedure 24(a)(2) provides that, on a timely motion, a
court must permit any party to intervene 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 interests, unless existing parties adequately represent that
interest.
Fed. R. Civ. P. 24(a)(2). The party seeking intervention of right must demonstrate that (1) the motion
is timely; (2) he possesses an interest related to the subject matter of the action; (3) disposition of
the action threatens to impair that interest; and (4) the parties to the suit fail to adequately represent
that interest. United States v. BDO Seidman, 337 F.3d 802, 808 (7th Cir. 2003). The failure to meet
any one factor requires denial of the motion. Vollmer v. Publishers Clearing House, 248 F.3d 698,
705 (7th Cir. 2001).
First, the motion must be timely. The test for timeliness is essentially one of reasonableness.
Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995). When determining timeliness
under the totality of the circumstances, a court considers “(1) the length of time the intervenor knew
or should have known of his or her interest in this case, (2) the prejudice to the original party caused
by the delay, (3) the resulting prejudice to the intervenor if the motion is denied, and (4) any unusual
circumstances.” Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir. 1991) (quoting South v. Rowe, 759
F.2d 610, 612 (7th Cir. 1985)). “Potential intervenors need to be reasonably diligent in learning of
a suit that might affect their rights, and upon so learning they need to act reasonably promptly.”
Nissei Sangyo Am., Ltd. v. United States, 31 F.3d 435, 438 (7th Cir. 1994) (citing United States v.
City of Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989)). While the passage of time is an important
factor, it is not the only element in determining timeliness; “rather the most important consideration

3

in deciding whether a motion for intervention is untimely is whether the delay in moving for
intervention will prejudice the existing parties to the case.” Id. at 439 (quoting 7C Charles Alan
Wright, et al., Federal Practice and Procedure: Civil 2d § 1916 (1986)) (internal quotation marks
omitted).
Defendants argue that Ayres’ motion is not timely because he seeks to join the action more
than a year and a half after it was initiated. The parties focus on when Ayres became aware that he
might have a legal claim based on the citation that was issued to him in Fall 2013. It is not clear
when he learned that Hawn was not issued a citation. However, the timeliness factor focuses on
when Ayres became aware that this lawsuit that might affect his rights. Id. at 438. And, it appears
that Ayres did not learn of the lawsuit until he became involved in the discovery process in this case.
Regardless, the timing of Ayres’ motion to intervene will prejudice the existing parties to
this case. The recent, fifth request to extend the discovery deadline was granted for a limited
purpose, and Defendants are ready to proceed with briefing dispositive motions. Permitting Ayres
to intervene would result in undue delay and prejudice to Defendants, who would need to undertake
additional discovery on Ayres’ intervenor claims. Additionally, the litigation would be prolonged
as Ayres will need to serve the proposed individual defendant, Sprague, with the summons and
intervenor complaint and the parties to the intervenor complaint will need to conduct discovery. In
contrast, Ayres would not be prejudiced by the denial of the motion, other than the cost of the filing
fee, because he can bring a lawsuit in his own right. Thus, the motion is not timely.
Second, the intervenor must demonstrate that he “claims an interest relating to the property
or transaction that is the subject of the action.” Fed. R. Civ. P. 24(a)(2). This interest must be a
“direct, significant, legally protectable” one. Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d

4

1377, 1380-81 (7th Cir. 1995) (citing Am. Nat’l Bank v. City of Chicago, 865 F.2d 144, 146 (7th Cir.
1989)). The movant’s interest must be something more than a “betting” interest, id. (citing Reich v.
ABC/York Estates Corp., 64 F.3d 316 (7th Cir. 1995)), but may be less than a property right, id.
(United States v. City of Chicago, 870 F.2d 1256, 1260 (7th Cir. 1989)). Third, the intervenor must
show that he is “so situated that disposing of the action may as a practical matter impair or impede
[his] ability to protect [his] interest.” Fed. R. Civ. P. 24(a)(2). “Impairment exists when the decision
of a legal question . . . would, as a practical matter, foreclose the rights of the proposed intervenor
in a subsequent proceeding.” Shea v. Angulo, 19 F.3d 343, 347 (7th Cir. 1994) (quoting Meridian
Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th Cir. 1982)).
Ayres contends that he has an interest in the action because Crown Point is already named
as a defendant and Ayres seeks to bring a § 1983 claim against both Sprague and Crown Point.
However, an interest in the action does not exist merely because the defendants are the same; rather,
Ayres must identify that he personally has an interest in the matter currently pending. Ayres has not
explained how he has an interest in Plaintiffs’ § 1983 claim brought under the Fourth Amendment
based on the shooting of their dogs; Ayres has not asserted any ownership interest in the dogs.
Ayres’ proposed § 1983 equal protection claim relates to whether he was treated similarly with
respect to Janet Hawn, who Ayres alleges committed a similar ordinance violation but who was not
issued a citation. The determination of Ayres’ equal protection claim is independent from the
determination of Plaintiffs’ Fourth Amendment claim. Ayres has failed to establish an interest in this
action.
Moreover, Ayres has not identified any legal question in this litigation the disposition of
which will affect his ability to bring his equal protection claim against Sprague. This action concerns

5

the reasonableness of the four officers’ actions in shooting the dogs. Ayres’ proposed intervenor
complaint concerns his treatment by Sprague months later regarding the enforcement of a city
ordinance; the enforcement of that ordinance is not at issue in the present litigation. Ayres has not
attempted to suggest how the resolution of Plaintiffs’ claim in this case might adversely affect
Ayres’ proposed equal protection claim. Thus, Ayres has failed to show that his ability to protect
his interests will be impaired or impeded by this litigation. Because Ayres does not have an interest
in this litigation that will be impeded if he is not allowed to intervene, the fourth factor of adequate
representation of his interest in this litigation is inapplicable.
Ayres has failed to establish the requirements of Rule 24(a)(2), and, therefore, the Court
denies the motion to intervene of right.
B. Permissive Intervention
In the alternative, Ayres seeks the Court’s permission to intervene under Federal Rule of
Civil Procedure 24(b), which provides that, “[o]n timely motion, the court may permit anyone to
intervene 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 rule also provides that, “[i]n exercising its 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); see also Vollmer, 248 F.3d at 707. The decision
to allow permissive intervention is wholly within the discretion of the district court. Sec. Ins. Co.
of Hartford, 69 F.3d at 1381.
Ayres does not contend that his class-of-one equal protection claim shares a common
question of law with the Plaintiffs’ Fourth Amendment claim. Rather, Ayres argues that the claims
share a common question of fact. Yet, he fails to specifically identify any common facts. Plaintiffs’

6

claims are premised on the reasonableness of the officers’ actions toward Plaintiffs’ dogs, whereas
Ayres’ equal protection claim is premised on the alleged discriminatory application of an ordinance
by Sprague, who was not involved with the shooting, well after the police action was over.
Defendants are correct that, although the two claims have some factual commonality in that the two
citations Ayres received were for the same two dogs that were shot by the police officers, Ayres has
not identified any fact common to both cases that needs to be resolved. Thus, there is no common
question of law or fact. In addition, the motion is untimely because of the prejudice to the parties
to the current litigation, as discussed in detail in the previous section.
Because the proposed claims do not share a common question of law or fact with the claims
in this lawsuit and because the motion is untimely, the Court, in its discretion, denies the motion for
permissive intervention.
CONCLUSION
For the foregoing reasons, the Court hereby DENIES Norman R. Ayres’ Motion to Intervene
[DE 35].
SO ORDERED this 11th day of June, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

7