PIKE v. NICK'S ENGLISH HUT, INC.
Filing
75
ORDER denying Society Insurance's 66 Motion to Intervene (see Order for details). Signed by Magistrate Judge Mark J. Dinsmore on 1/14/2013. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JON PIKE individually and on behalf of all
other similarly situated,
Plaintiff,
vs.
NICK’S ENGLISH HUT, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 1:11-cv-01304-MJD-WTL
ORDER DENYING MOTION TO INTERVENE
This matter comes before the Court on a Motion to Intervene filed by Society Insurance,
the insurer for Defendant Nick’s English Hut, Inc. [Dkt. 66.] For the following reasons, the
Court DENIES Society’s Motion.
BACKGROUND
This case involves a proposed class action suit brought under the Electronic Funds
Transfer Act. Plaintiff Jon Pike alleges that Defendant failed to post a required notice on an
ATM that charged a fee for transactions. Defendant claims that its conduct fell within the
statutory safe-harbor provision. The complaint was filed on September 26, 2011. On July 27,
2012, Plaintiff moved to certify the class, and on November 2, 2012, Plaintiff moved for
summary judgment.
Defendant’s response to Plaintiff’s Motion for Summary Judgment is
presently due on January 25, 2013.
On August 17, 2012, Defendant’s insurer, Society, filed a declaratory judgment action
under Case No. 1:12-cv-1164-JMS-DML (“Declaratory Judgment Lawsuit”) seeking a
determination that it has no duty to defend Defendant Nick’s against Plaintiff’s claims and no
duty to indemnify Nick’s for any judgment obtained by Plaintiff in this matter. On December
17, 2012, ten days before the previously-scheduled settlement conference, Society filed a motion
for permissive intervention, to which Plaintiff has objected. Society cites to Federal Rule of
Civil Procedure 24(b)(1)(B) as the basis for its Motion to Intervene and seeks intervention
“solely for the purpose of securing a stay to permit a determination of the issues raised in” the
Declaratory Judgment Lawsuit.
DISCUSSION
A.
Legal Standard.
“Permissive intervention is within the discretion of the district court . . . .” Ligas ex rel.
Foster v. Maram, 478 F.3d 771, 775 (7th Cir. 2007). “A request for permissive intervention
under Rule 24(b) is addressed to the court’s sound discretion.” City of Rockford v. Sec’y of
Hous. & Urban Dev., 69 F.R.D. 363, 366 (N.D. Ill. 1975) (citation omitted).
B.
Society Does Not Seek to Become A Party To This Case and Failed to Comply with
Fed. R. Civ. P. 24(c).
A party seeking permissive intervention must present a claim or defense that shares a
common question of law or fact with the main action. Federal Rule of Civil Procedure 24(b)
states:
(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.
Society has not presented a claim or defense to be asserted in this case and has made no showing
that it intends to do so. To the contrary, Society seeks to intervene for the sole purpose of
staying this action while it litigates the Declaratory Judgment Lawsuit. See Motion to Intervene
¶ 14 (“Society seeks leave to intervene in this matter [] solely for the purpose of securing a stay
2
to permit a determination of the issues raised in the Declaratory Judgment complaint.”). This is
not the purpose of intervention and does not comport with Fed. R. Civ. P. 24(b) and (c). See
Tech. Licensing Corp. v. Thomson, Inc., 684 F. Supp. 2d 1206, 1207 (E.D. Cal. 2010) (“Movants
likewise are not entitled to permissive intervention because they do not seek to become parties to
this action. Rather, their sole purpose of intervening is to stay the action and, whether the action
is stayed or not, to have nothing to do with it after that.”).
“Federal Rule of Civil Procedure 24(c) is unambiguous in defining the procedure for an
intervenor. It requires that the motion to intervene shall be ‘accompanied by a pleading setting
forth the claim or defense for which intervention is sought.’” Shevlin v. Schewe, 809 F.2d 447,
450 (7th Cir. 1987). Rule 24(c) provides:
(c) Notice and Pleading Required. A motion to intervene must be served on the
parties as provided in Rule 5. The motion must state the grounds for intervention
and be accompanied by a pleading that sets out the claim or defense for which
intervention is sought.
Society failed to provide any pleading1 for which intervention was sought and thus, its Motion
fails as a matter of law.
Society also fails to comply with the spirit of Rule 24(c) because it does not intend to
become a party to this litigation or to assert any claim or defense. See Motion to Intervene ¶ 14
(stating that its sole purpose of seeking intervention is to obtain a stay of this litigation).
Although Society compares the facts and law at issue in this action with those in its pending
Declaratory Judgment Litigation, it does not seek to assert its Declaratory Judgment claims in
this case. See Motion to Intervene ¶ 7 (“Intervention is proper in this matter as there are claims
or defenses in both cases which share[] with the main action a common question of law or
fact.”); id. ¶ 12 (“Intervention is proper because there is a common question of fact and law in
1
For purposes of the Federal Rules of Civil Procedure the word “pleading” is a term of art and does not encompass
a motion to stay. Fed. R. Civ. P. 7(a).
3
Pike’s cause of action and Society’s Declaratory Judgment complaint as Pike seeks a
determination that Nick’s acted intentionally and in violation of a statute or criminally which are
relevant to Society’s defenses.”). Society is not entitled to intervene in this action solely for the
purpose of staying this case when it does not seek to assert any claims or defenses in this case.
Society’s position that its Declaratory Judgment Litigation claims share common questions of
law and fact with those asserted in this case is irrelevant if Society does not seek to assert those
claims in this matter. The Court finds that Society’s motion does not comply with Fed. R. Civ.
P. 24(c), and, thus, it fails as a matter of law.
C.
Society’s Motion Is Untimely and May Result in Undue Delay to the Original
Parties.
Even if Society’s Motion to Intervene complied with the requirements of Fed. R. Civ. P.
24(b) and (c), it is untimely in light of the procedural history of this case and will cause undue
delay to the original parties.
Rule 24(b)(3) requires the Court to “consider whether the
intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” See
also Holland v. Sterling Enters., Inc., 777 F.2d 1288, 1293 (7th Cir. 1985) (citing NAACP v. NY
Aircraft Corp., 413 U.S. 345, 366 (1973); 7A C. Wright & A. Miller, Fed. Prac. & Proc., § 1916
at 572 (1972)) (“Whether a motion to intervene should be denied because it was not made in a
timely fashion is a decision committed to the discretion of the district court.”). Here, Society’s
motion was filed over a year after this lawsuit was filed. Society did not file its Motion to
Intervene until four months after it filed its Declaratory Judgment Lawsuit, 45 days after Plaintiff
filed a motion for summary judgment, and only ten days before the original parties were
prepared to meet at a settlement conference. Society stated that it “is defending this matter under
a reservation of rights.” Motion to Intervene ¶ 4(D). As a result, Society had knowledge of this
4
lawsuit for months, if not over a year, before seeking intervention. The Court finds that after
considering the procedural history of this matter, Society’s Motion is untimely.
The “sole” purpose of Society’s motion, in its own words, is to “secur[e] a stay to permit
a determination of the issues raised in the Declaratory Judgment complaint” – which is not set
for trial until February 27, 2014. See Motion to Intervene ¶ 14; Docket for Declaratory Judgment
Litigation. Society’s sole purpose in intervening in this matter is to seek a stay of undetermined
length of this case which would cause undue delay to the original parties. As a result, the Court
finds that Society’s intervention and requested stay would unduly delay the disposition of this
case.
CONCLUSION
For the foregoing reasons, the Court FINDS that Society has failed to comply with Fed.
R. Civ. P. 24(c) and has also failed to exhibit circumstances that would cause the Court in its
sound discretion to allow permissive intervention pursuant to Federal Rule of Civil Procedure
24(b). Therefore, the Court DENIES Society’s Motion to Intervene [Dkt. 66].
Date:
01/14/2013
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana
5
Distribution:
Kevin G. Kerr
HOEPPNER, WAGNER & EVANS LLP--Merrillville
kkerr@hwelaw.com
Michael Eugene Tolbert
HOEPPNER, WAGNER & EVANS LLP--Merrillville
mtolbert@hwelaw.com
David Michael Allen
MALLOR GRODNER LLP
mike@lawmg.net
Geoffrey Mitchell Grodner
MALLOR GRODNER LLP
gmg@lawmg.net
Kendra Gowdy Gjerdingen
MALLOR GRODNER LLP
kggjerdi@lawmg.net
Thomas Edward Rosta
METZGER ROSTA LLP
Tom@metzgerrosta.com
Ryan R. Frasher
RYAN FRASHER P.C.
rfrasher@frasherlaw.com
Eric G. Calhoun
TRAVIS, CALHOUN & CONLON PC
eric@travislaw.com
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?