Reaching Hearts International, Inc. v. Prince George's County et al

Filing 195

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/23/11. Associated Cases: 8:11-cv-01959-RWT, 8:05-cv-01688-RWT(cms, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

REACHING HEARTS
INTERNATIONAL, INC.,
Plaintiff,
v.
PRINCE GEORGE’S COUNTY, et al.,
Defendants.

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Case No.: RWT 05cv1688
Case No.: RWT 11cv1959

MEMORANDUM OPINION
On June 21, 2005, Reaching Hearts International, Inc. (“RHI”) filed a Complaint for
Declaratory Judgment, Injunctive Relief, and Compensatory Damages in this Court.
Doc. No. 1.1 RHI alleged that Prince George’s County and the County Council for Prince
George’s County (collectively “the County”) violated the Equal Protection clause of the
Fourteenth Amendment of the United States Constitution and the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”) 42 U.S.C. §§ 2000cc et seq. by denying
RHI’s two water and sewer service category change applications and also by enacting an
ordinance, CB-83-2003, which reduced the permitted lot coverage of any non-residential
building within 2,500 feet of a drinking water reservoir, thereby preventing RHI from building a
church on the land it had purchased. Id.
After denial of the County’s Motion to Dismiss, the case proceeded through discovery
in 2006. A seven-day jury trial began on April 15, 2008. On April 24, 2008, the jury returned a
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The document numbers in this Opinion refer to the documents listed in the 2005 case.

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verdict in favor of RHI finding that the County’s actions were motivated in part on the basis of
religious discrimination. Doc. No. 97. The jury further concluded that the County’s actions
imposed a substantial burden on RHI’s exercise of its religion. Id. A conditional award of
damages of $3,714,822.36 was also made. Id.
On November 4, 2008, this Court issued an extensive Memorandum Opinion and Order
denying the County’s Renewed Motion for Judgment as a Matter of Law and entering judgment
in favor of RHI and against the County on the jury’s conditional verdict. Doc. Nos. 118, 119.
The Court also declared CB-83-2003 unconstitutional as applied to RHI, enjoined the County
from applying the provisions of CB-83-2003 to RHI’s Prince George’s County property, and
ordered the County to “process any water and sewer category change application thereafter filed
by the Plaintiff without reference to the provisions of CB-83-2003 and without delay or religious
discrimination.” Doc. No. 119.
On November 10, 2008, the County noted an appeal to the Court of Appeals for the
Fourth Circuit. Doc. No. 120. The Fourth Circuit affirmed the judgment of this Court on
March 3, 2010 and denied the County’s subsequent motions for rehearing and rehearing en banc.
Doc. Nos. 137, 143.
On July 18, 2011, RHI filed a Motion for Order of Contempt against the County.
Doc. No. 165. In support of its motion, RHI stated that it had, on August 13, 2010, filed an
application for a water and sewer service category change with the Prince George’s County’s
Department of Environmental Resources. Id. As was the case with RHI’s prior applications, the
application was recommended for approval, but ultimately denied by the County Council on
July 12, 2011, for what appears to be the same environmental concerns rejected by the jury that

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heard this case, and again rejected by this Court in its November 4, 2008 Memorandum Opinion.
Id. On July 22, 2011, this Court issued a Memorandum Opinion and Order directing the County
to show cause why it should not be held in contempt and sanctioned for violating this Court’s
November 4, 2008 Order. Doc. Nos. 167, 168.
On September 13, 2011, the County Council reconsidered its earlier denial, and granted a
portion of RHI’s application, while denying the balance. This action was alleged to be a
“compromise” that complied with earlier orders of this Court. On September 15, 2011, this
Court directed supplemental briefing on the issue of whether the September 13 actions of the
County Council conformed with earlier orders of this Court. Discovery is ongoing and a hearing
is scheduled before this Court on October 20, 2011.
On August 9, 2011, over six years after the original Complaint was filed in this case, five
years after discovery was completed, three years after the jury trial, and one year after the Fourth
Circuit affirmed this Court’s ruling, Michael F. Dugan, Kathleen O. Dugan, David Ridgway, and
Mary Ridgway (collectively “proposed intervenors”) filed a Motion to Intervene pursuant to
Federal Rule of Civil Procedure 24. Doc. No. 175. Proposed intervenors, neighbors who border
RHI’s property on both the east and west sides, maintain that they satisfy the requirements for
both mandatory and permissive intervention under Federal Rule of Civil Procedure 24. Id. As
explained below, they do not satisfy either basis for intervention.
A. Intervention of Right
Federal Rule of Civil Procedure 24 allows for “Intervention of Right” and “Permissive
Intervention.” Rule 24(a)(2) of the Federal Rules of Civil Procedure allows intervention of right
when:

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The applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant is so
situated that the disposition of the action may as a practical matter
impair or impede the applicant’s ability to protect that interest,
unless the applicant’s interest is adequately represented by the
existing parties.
FED. R. CIV. PRO. 24(a)(2). The Fourth Circuit interprets Rule 24(a)(2) to require that proposed
intervenors demonstrate four factors in order to intervene as a matter of right: (1) their motion is
timely; (2) they possess a “direct and substantial interest” in the subject matter of the litigation;
(3) the denial of intervention would significantly impair or impede their ability to protect their
interests; and (4) their interests are not adequately protected by the existing parties.
See Richman v. First Woman’s Bank, 104 F.3d 654, 658-59 (4th Cir. 1997). Here, proposed
intervenors fail to satisfy the first and fourth factors.
1. Proposed Intervenors’ Motion is Not Timely
“Both intervention of right and permissive intervention require timely application.”
Gould v. Allegheny Beverage Corp., 883 F.2d 281, 286 (4th Cir. 1989) (quotation omitted). The
Fourth Circuit “has stressed the importance of timeliness and the wide discretion afforded the
district courts.” Id. (citations omitted). The Supreme Court has held that “[t]imeliness is to be
determined from all the circumstances. And it is to be determined by the court in the exercise of
its sound discretion . . . .” NAACP v. New York, 413 U.S. 345, 366 (1973). “Although entry of
final judgment is not an absolute bar to filing a motion . . . [t]here is considerable reluctance on
the part of the courts to allow intervention after the action has gone to judgment and a strong
showing will be required of the applicant.” Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 840
(4th Cir. 1999) (citations omitted).

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The Fourth Circuit has established certain criteria to determine the timeliness of a motion
to intervene, which include: (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,
883 F.2d at 286. Here, proposed intervenors fail all of the timeliness criteria. Additionally,
proposed intervenors are attempting to intervene long after the action has gone to judgment and
fail to demonstrate a strong showing for intervention at this late date.
First, the underlying litigation between RHI and the County Council has been ongoing for
over six years. Discovery was completed five years ago on the merits of the case. Over three
years ago a jury returned a verdict in favor of RHI finding that the County’s actions were
motivated in part on the basis of religious discrimination. The Fourth Circuit affirmed this
Court’s ruling over a year ago.
RHI filed a Motion for Order of Contempt against Prince George’s County on
July 18, 2011, seeking to enforce this Court’s prior orders and has completed most supplemental
discovery relating to the compliance issues before the Court.

Doc. No. 165. Simply put, the

proposed intervenors are over six years late. The existing parties have engaged in six years of
extensive litigation. As in Gould, where the Fourth Circuit found that a motion to intervene was
untimely two years after the filing of an initial complaint because of extensive litigation between
the parties, here, “[t]he tardiness of the motion is the strongest reason supporting its denial.”
883 F.2d at 286.
Second, granting the motion to intervene will cause RHI prejudice because of the status
of this case. RHI filed a motion for contempt in order to enforce this Court’s prior orders.

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Discovery is nearly complete.

Allowing intervention at this point in the litigation would

unnecessarily complicate and prolong the proceedings.
Finally, the proposed intervenors have failed to provide an adequate reason for the
tardiness of their motion. In their Memorandum in Support of Motion to Intervene, proposed
intervenors recount that they have participated in hearings regarding RHI’s water and sewer
service category change applications before the Prince George’s Planning Board of the
Maryland-National Capital Park and Planning Commission from 2005 to 2007. Doc. No. 175-1
at 1. Proposed intervenors also appeared in the Court of Special Appeals of Maryland in support
of the Planning Board’s disapproval of RHI’s application and acted as amicus curiae in the
Fourth Circuit’s review of the underlying action here. Id. at 1-2. If anything, these actions
demonstrate that proposed intervenors were fully cognizant of the ongoing litigation in this
Court, and inexplicably failed to intervene. Proposed intervenors fail to give any reason “for
tardiness in moving to intervene,” despite their obvious awareness of the litigation. Gould,
883 F.2d at 286.
Therefore, because the suit has been litigated for over six years, the potential prejudice
that delay might cause, and the failure of proposed intervenors to explain the reason for their
tardiness in moving to intervene, the Court finds the motion to intervene to be untimely.
2. Proposed Intervenors’ Interests are Adequately Protected
by the Existing Parties
While the “burden of showing an inadequacy of representation is minimal . . . . [w]hen
the party seeking intervention has the same ultimate objective as a party to the suit, a
presumption arises that its interests are adequately represented, against which the petitioner must

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demonstrate adversity of interest, collusion, or nonfeasance.” Commonwealth of Virginia v.
Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976).
Additionally, there is an “assumption of adequacy when the government is acting on
behalf of a constituency that it represents.”

Arakaki v. Cayetano, 324 F.3d 1078, 1086

(9th Cir. 2003). “In the absence of a ‘very compelling showing to the contrary,’ it will be
presumed that a state adequately represents its citizens when the applicant shares the same
interest.”

Id. (quoting 7C Charles Alan Wright, Arthur R. Miller & Mary Kane, Federal

Practice and Procedure: Civil 2d § 1909, at 332 (Supp. 2002); see also Washington v. Keller,
479 F. Supp. 569, 572 (D. Md. 1979) (“The very rare cases in which a member of the public is
allowed to intervene in an action in which the United States, or some other governmental agency,
represents the public interest are cases in which a very strong showing of inadequate
representation has been made.”) (citation omitted).
Here, although the burden of showing inadequacy of representation is minimal, proposed
intervenors share the same ultimate concerns as the County, namely to satisfy this Court that the
County’s actions conform to the orders of this Court. Because they share the same ultimate goal,
proposed intervenors are required to overcome the presumption that their interests are adequately
represented, which requires a showing of “adversity of interest, collusion, or nonfeasance.”
Westinghouse Elec. Corp., 542 F.2d at 216. Proposed intervenors have completely failed to
make such a showing.
Additionally, because the County is acting on behalf of its constituents, there is a
presumption that the proposed intervenors’ interests are adequately represented. See Arakaki,
324 F.3d at 1086; Washington, 479 F. Supp. at 572. Here, proposed intervenors have failed to

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demonstrate that the County does not adequately represent their interests. Instead, the extensive
litigation in this case indicates the exact opposite.2
Therefore, because the motion to intervene is untimely and proposed intervenors’
interests are adequately represented, intervention of right is not appropriate.
B. Permissive Intervention
Federal Rule of Civil Procedure 24(b) governs when permissive intervention is proper.
“On a 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. PRO. 24(b)(1)(B).
The decision to grant or deny a motion to intervene pursuant to Rule 24(b) “lies with the sound
discretion of the trial court” although “some standards have been developed to guide the courts
in making intervention determinations.”
(4th Cir. 1982).

Hill v. W. Elec. Co. Inc., 672 F.2d 381, 386

A court, in exercising its discretion, “must consider whether the intervention

will unduly delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV.
PRO. 24(b)(3). The Fourth Circuit has indicated an important factor to consider for permissive
intervention is whether the original parties will be prejudiced. See W. Elec. Co. Inc., 672 F.2d
at 386.
As discussed above, the proposed intervenors’ motion is woefully late and granting the
motion will prejudice RHI. Additionally, proposed intervenors fail to demonstrate that they have
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Proposed intervenors’ reliance on Trbovich v. United Mine Workers, 404 U.S. 528 (1972) for the proposition that a
movant can demonstrate inadequate representation with the mere possibility that a proposed intervenor’s interests
differ from a party’s is misplaced. Although the Supreme Court announced a minimal standard in Trbovich, courts
have found that presumptions arise for movants to overcome to demonstrate that there interests are not adequately
represented. Here, proposed intervenors have failed to overcome the presumption of adequate representation that
exists when a movant seeks to intervene on the side of a party that seeks that same result, see Westinghouse Elec.
Corp., 542 F.2d at 216, and proposed intervenors have failed to overcome the assumption of adequate representation
that arises when a governmental entity is acting on behalf of its constituents. See Arakaki, 324 F.3d at 1086;
Washington, 479 F. Supp. at 572. Thus, proposed intervenors’ interests are adequately represented.

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a claim or defense that shares with the main action a common question of law or fact. The time
for assertion of claims or defenses in this case is long past. The main action now consists of an
effort to enforce existing orders of this Court. Both the proposed intervenors and the County
claim that the County is in compliance with those orders. Therefore, because the motion to
intervene is not timely and will prejudice RHI, permissive intervention is inappropriate.
For the foregoing reasons, the Court will deny proposed intervenors’ Motion to Intervene,
Doc. No. 175, but will grant leave for proposed intervenors to submit a memorandum as amicus
curiae.3 A separate order follows.

Date: September 23, 2011

/s/
DEBORAH K. CHASANOW FOR
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

3 On September 22, 2011, RHI filed a Motion for Protective Order seeking to prevent proposed intervenors from
participating in depositions by questioning witnesses. Doc. No. 194. Because the proposed intervenors have been
denied intervention, the Motion for Protective Order will be denied as moot.

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