Sewell et al v. Local 333, International Longshoremen's Association, AFL-CIO et al
Filing
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MEMORANDUM AND ORDER denying 72 Motion of Barkhorn, Young, and Holden to Intervene. Signed by Magistrate Judge Susan K. Gauvey on 10/29/13. (dass, Deputy Clerk) (c/m 10/29/13-das)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ABRAM SEWELL, et al.,
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Plaintiffs
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V.
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INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, LOCAL NO. 333
et. al.,
Defendants
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CIVIL NO. SKG-12-00044
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MEMORANDUM OPINION AND ORDER
This action was brought by plaintiffs Abram Sewell, Brian
Warch, and Samuel Thames for violations of Section 301 of the
Labor Management Relations Act, 29 U.S.C. § 185 (“LMRA”) and
breach of contract.
(ECF No. 6, 1).
Defendants are the
International Longshoremen’s Association, Local No. 333 (“Local
333”), Steamship Trade Association of Baltimore, Inc. (“STA”),
Ports America Chesapeake, LLC, (“Ports America”), and Marine
Terminal Corporation East (“MTC”).
(Id.).
Plaintiffs
challenged defendants’ “category hiring” system, alleging it was
discriminatory and in violation of the Local 333’s collective
bargaining agreement.
(Id. at ¶¶ 30-48).
in favor of defendants on March 27, 2013.
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Judgment was entered
(ECF No. 67).
Plaintiffs subsequently continued pro se, and on April 24 filed
a motion to “alter, amend or vacate” the judgment under Rule 59.
(ECF No. 78).
This motion will be addressed in a separate
opinion.
Now pending before the Court is a Motion to Intervene,
submitted on April 25, 2013, by Ronald Barkhorn, Carrie Young,
and Andre Holden.
(ECF No. 72).
For the reasons discussed
herein, this motion is DENIED.
I.
Analysis
Movants seek to intervene by way of either Rule 24(a) or
24(b).
The Court will consider each in turn.
A. Rule 24(a)
A party may intervene by right upon a showing, by timely
motion, that the party:
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)(2).
As such, 24(a) mandates a showing
by the moving party that: 1) the application is timely; 2)
the movant has an interest in the subject matter of the
action; 3) disposition of the action may practically impair
or impede the movant’s ability to protect that interest;
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and 4) that interest is not adequately represented by the
existing parties.
See Newport News Shipbuilding & Drydock
Co. v. Peninsula Shipbuilders' Asso., 646 F.2d 117, 120
(4th Cir. 1981).
The Court finds that movants, as members of Local 333,
are affected by the challenged policies and have an
interest in the subject matter of the litigation.
They
have failed, however, to meet the other 24(a) factors.
The
Court will address each in turn.
1. Timeliness
Defendants note that Mr. Barkhorn has been involved in this
case from the beginning, and characterizes himself as the
“[c]ase manager and investor” in the action.
(ECF No. 77, 3-4).
Because Mr. Barkhorn was aware of the action from its outset,
defendants argue, his motion to intervene, which came a month
following final judgment, is untimely.
(Id. at 4).
Movants
argue that they attempted to intervene at several points during
the litigation, but their request was not honored by their
counsel.
(ECF No. 72, 3).
Timeliness is a “cardinal consideration of whether to permit
intervention.”
Houston Gen. Ins. Co. v. Moore, 193 F.3d 838,
839 (4th Cir. 1999)(citations and quotations omitted).
In the
Fourth Circuit, courts consider three factors to determine the
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timeliness of a motion to intervene: 1) how far the suit has
progressed, 2) the prejudice which delay might cause other
parties, and 3) the reason for tardiness in moving to intervene.
Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989).
While an entry of final judgment is not an absolute bar to
intervention by right, “[t]here is considerable reluctance on
the part of the courts to allow intervention after the action
has gone to judgment.”
Houston, 193 F.3d at 840 (quoting 7C
Wright, Miller & Kane, FEDERAL PRACTICE
at 444-45 (West 1986)).
AND
PROCEDURE: CIVIL 2d § 1916,
Indeed, the First Circuit has held that
a motion to intervene is “never timely . . . if filed after all
rights to appeal have expired.”
Burney v. City of Pawtucket,
728 F.2d 547, 549 (1st Cir. 1983).
A motion to intervene filed
after judgment must make a “strong showing” to overcome the
presumption that it is untimely.
Houston, 193 F.3d at 840; see
also Ohio Valley Envtl. Coalition v. Bulen, No. 3:03-2281, 2004
U.S. Dist. LEXIS 17439 at *10 (S.D. W. Va. Aug. 31, 2004).
Movants have failed to make this showing.
Their entry into
the action at this point in proceedings would cause prejudice to
defendants by unnecessarily complicating and prolonging
proceedings which have already been concluded.
Further, while
their post-judgment motion was filed before the appeal deadline
and as such is not untimely per se, intervenors have failed to
present any good cause for their delay.
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As defendants’ note, Mr. Barkhorn represents that he was
involved in this case from its inception, and Mr. Young has been
aware of the action since at least September 2012.
Their only
stated reason for failing to intervene earlier is neglect on the
part of their attorney.
(ECF No. 72, 3).
Even accepting this
unsupported allegation as true, movants had ample time — more
than a year in Mr. Barkhorn’s case — to intervene independently
in this matter.
A post-judgment motion to intervene “will
usually be denied where a clear opportunity for pre-judgment
intervention was not taken.”
Associated Builders & Contrs.,
Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999); see also
Reaching Hearts Int'l, Inc. v. Prince George's County, 2011 U.S.
Dist. LEXIS 108405 (D. Md. Sept. 23, 2011)(denying post-judgment
motion to intervene where “proposed intervenors were fully
cognizant of the ongoing litigation”).
Accordingly, the Court
finds that the motion is untimely.
2. Adequacy of Representation by Other Parties
Even if their motion were timely, intervenors have failed to
demonstrate that they are not adequately represented by the
named plaintiffs.
Their only argument in this regard is that
the original parties do not represent their interests “because
under Local Rules Pro Se Plaintiffs can not represent a class or
anyone other than themselves.”
(ECF No. 72, 6).
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This argument does not, however, speak to the standard for
adequate representation.
An intervenor’s “burden of showing an
inadequacy of representation is minimal.”
Virginia v.
Westinghouse Electric Corp., 542 F.2d 214, 216 (4th Cir. 1976).
However, “when the party seeking intervention has the same
ultimate objective as a party to the suit, a presumption arises
that its interests are adequately represented.”
Id.
To rebut
this presumption, an intervenor “must demonstrate adversity of
interest, collusion, or nonfeasance” on the part of the parties
in the action.
Id.
The intervenors’ goals exactly align with those of the current
plaintiffs.
Their stated objective in joining this action is to
seek a vacation of the final judgment issued by the Court in
March 2013.
(ECF No. 72, 8).
This is exactly the course taken
by the current pro se plaintiffs.
Indeed, Mr. Barkhorn has
attempted to sign on to plaintiffs’ latest motion “to Alter
Amend or Vacate Judgment Rule 59.”
(ECF No. 73).
While
intervenors have alleged nonfeasance on the part of plaintiffs’
now-dismissed attorneys, they have claimed no adversity of
interest, collusion or nonfeasance on the part of plaintiffs as
they now proceed pro se.
As such, the Court finds that the
intervenors are adequately represented by plaintiffs.
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3. Impairment of the Intervenors’ Ability to Protect
Their Interest
Finally, intervenors have failed to demonstrate why they must
join this action to protect their own interests.
As their
stated goals match those of current plaintiffs, the Court
assumes that their interests are two-fold: 1) injunctive relief
from alleged discrimination emanating from defendants’ category
hiring system, and 2) “damages equal to the amount of wages and
benefits lost as a result” of these alleged discriminatory
practices.
(ECF No. 2, ¶¶ 28-29).
As to the first objective, this interest is protected, and
indeed advanced, by current plaintiffs in their motion to alter,
amend or vacate the judgment entered against them.
73).
(ECF No.
With respect to damages, plaintiffs have not demonstrated
how their interest is impaired by current plaintiffs’ own
pursuit of those same damages.
This is not a case where a
limited common fund is at stake, such that plaintiffs’ victory
(unlikely as it is after final judgment against them) would
deplete the damages available to intervenors.
Neither is it a
case where current plaintiffs’ objectives differ from
intervenors, such that their actions may hinder intervenors’
subsequent ability to pursue their interests.
If anything,
intervenors stand to benefit from plaintiffs’ pursuit of
damages.
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B. Rule 24(b)
Under Rule 24(b), a court may allow intervention upon a timely
motion showing the movant “has a claim or defense that shares
with the main action a common question of law or fact.”
Civ. P. 24(b).
Fed. R.
Whether to permit intervention “lies with the
sound discretion of the trial court.”
672 F.2d 381, 386 (4th Cir. 1982).
Hill v. Elec. Co. Inc.,
In exercising this
discretion, however, a “court must consider whether the
intervention will unduly delay or prejudice the adjudication of
the original parties’ rights.”
Id.
Intervenors were members of Local 333 at the time the
challenged practices were in effect.
They allege that they have
“suffered [the] same harms and loss of wages” as current
plaintiffs.
(ECF No. 72, 2).
As such, the Court finds that
they have a claim that shares a common question of law and fact
with the main action.
The Court declines, however, to grant intervention in this
case.
While much of the analysis supra applies here, the Court
emphasizes again that the intervenors’ have not provided
adequate justification for their post-judgment motion.
Intervention after judgment not only raises timeliness issues,
but “carries with it inherent procedural disruption.”
Usery v.
Brandel, 87 F.R.D. 670, 674 (W.D. Mich. 1980); see also Ferenc
v. Buchanan Marine, No. 99-9253, 2000 U.S. App. LEXIS 9977 (2d
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Cir. May 12, 2000)(post judgment intervention “fosters delay and
prejudice to existing parties.”).
In the absence of some
justification, beyond unsupported allegations of attorney
negligence, for their late intervention, the Court declines to
grant intervenor’s motion.
See Brink v. DaLesio, 667 F.2d 420,
428 (4th Cir. 1981)(allowing post-judgment intervention when
“the lateness of [movant’s] application is completely
explainable”); Moten v. Bricklayers, Masons & Plasterers, Int'l
Union of Am., 543 F.2d 224, 227 (D.C. Cir. 1976)
(noting that
“cases in this Circuit permitting post-judgment intervention
should not be controlling where clear opportunity for prejudgment intervention . . . was not taken).
Ultimately, intervenors seem to want to join this case
because, now that plaintiffs are proceeding pro se, they no
longer have the option of being joined as class members.
No. 72, 6).
333.
(ECF
Nor, for that matter, do any other members of Local
As intervenors have no stated plans to hire counsel,
however, their entry into the case would not change this fact.
As already discussed, movants are adequately represented by
current plaintiffs and will not be prejudiced by their absence
from proceedings.
To join them solely for the purposes of a
motion for reconsideration would have little effect other than
to unnecessarily complicate proceedings.
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II.
Conclusion
For the reasons set forth herein, the Court DENIES the
motion to intervene.
Date:
10/29/2013_______
/s/
Susan K. Gauvey
United States Magistrate Judge
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