Michigan v. Ford Motor Company

Filing 35

OPINION and ORDER Denying Proposed Intervenors' 10 MOTION to Intervene Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Plaintiff,
and

Case No. 17-cv-12372

BRUCE TENNISWOOD, ET AL.,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

Proposed Intervenors,
UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN

v.
FORD MOTOR COMPANY,
Defendant.
/

OPINION AND ORDER DENYING PROPOSED INTERVENORS’
MOTION TO INTERVENE [#10]
I. INTRODUCTION
Plaintiff Michigan Department of Environmental Quality initiated this
Resource Conservation and Recovery Act (“RCRA”) suit against Defendant Ford
Motor Company on July 21, 2017. Dkt. No. 1. By July 27, 2017, the parties had
reached a settlement and the Court entered a final judgment. Dkt. No. 7. The
instant Motion was filed a year and three months later. Dkt. No. 10.

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Present before the Court is Proposed Intervenors’ Motion to Intervene
pursuant to Federal Rule of Civil Procedure 24(a) [#10]. The matter is fully
briefed, and the Court finds that no hearing on the Motion is necessary. See E.D.
Mich. LR 7.1(f)(2). For the reasons set forth below, the Court will DENY the
Motion [#10].
II. BACKGROUND
On April 21, 2017, counsel for Proposed Intervenors filed a ninety-day
notice of intent to sue Defendant under the “citizen suit” provision of the RCRA.
Dkt. No. 24, p. 10 (Pg. ID 725). Proposed Intervenors planned to sue Defendant in
connection with contamination that had migrated through groundwater from
Defendant’s Livonia Transmission Plant into the subdivision where Proposed
Intervenors’ homes were located. Id.
The purpose of the RCRA’s ninety-day notice provision is to provide
government agencies with the first opportunity to take the lead in initiating a
RCRA enforcement action.

See 42 U.S.C. § 6972(b)(2)(A), (C).

If the

government agency chooses to file suit, then the private citizen, with certain
exceptions, is prohibited from pursuing their own RCRA action. See 42 U.S.C. §
6972(b)(2)(C).
On July 21, 2017, Plaintiff filed a RCRA Complaint against Defendant.
Dkt. No. 1. Simultaneously, Plaintiff filed a Consent Decree to resolve all the

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claims in the Complaint. Dkt. No. 1; Dkt. No. 3. The Consent Decree is over
eighty pages long and outlines an investigation and remediation plan to bring
Defendant into compliance with certain environmental regulations. See Dkt. No. 3.
On July 27, 2017, the Court entered the Consent Decree, which acted as a final
judgment and closed the case. Dkt. No. 7. Proposed Intervenors brought the
instant Motion a year and three months later, seeking the opportunity to participate
in future decision-making surrounding the enforcement of the Consent Decree.
Dkt. No. 10, p. 16 (Pg. ID 341).
III. DISCUSSION
A. The RCRA’s Citizen Suit Provision does not Present a Bar to
Proposed Intervenors’ Motion.
As an initial matter, Plaintiff argues that intervention is precluded by the
RCRA’s “citizen suit” provision that prohibits any person from commencing an
action under § 6972(a)(1)(B) if “the State . . . has commenced and is diligently
prosecuting an action under subsection (a)(1)(B) of this section.” See Dkt. No. 24,
pp. 21-22 (Pg. ID 737-37) (citing 42 U.S.C. § 6972(b)(2)(C)(i)).

Plaintiff

maintains that Proposed Intervenors’ attempt to intervene in this case is no
different than initiating a citizen suit. Plaintiff, however, fails to recognize §
6972(b)(2)(E) of the RCRA.
Section 6972(b)(2)(E) explicitly permits any person to intervene as a matter
of right in any action under subsection (a)(1)(B) if that person “claims an interest
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relating to the subject of the action and he is so situated that the disposition of the
action may, as a practical matter, impair or impede his ability to protect that
interest.” See 42 U.S.C. § 6972(b)(2)(E). Intervention is restricted only where the
State shows that the person’s interest is “adequately represented by existing
parties.” Id. This language parallels Federal Rule of Civil Procedure 24(a)(2)’s
requirements for intervention as of right, which also requires that a motion to
intervene be timely. See Fed. R. Civ. P. 24(a)(2).
Clearly, Congress did not intend to completely foreclose citizens from
intervening in a suit brought under the RCRA. As such, the Court finds that the
RCRA citizen suit provision does not present a bar to Proposed Intervenors’
Motion.
B. The Court will Deny the Motion to Intervene as Untimely.
Proposed Intervenors argue that they have a right to intervene under Federal
Rule of Civil Procedure 24(a). Dkt. No. 10, p. 2 (Pg. ID 327). Rule 24(a)(2)
states:
On timely motion, the court must permit anyone 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 interest, unless
existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2). More plainly, the Sixth Circuit has identified four factors
a movant must satisfy before intervention as of right will be granted. Michigan

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State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997). These factors are:
“(1) timeliness of the application to intervene, (2) the applicant’s substantial legal
interest in the case, (3) impairment of the applicant’s ability to protect that interest
in the absence of intervention, and (4) inadequate representation of that interest by
parties already before the court.” Id. Importantly, “failure to meet one of the
criteria will require that the motion to intervene be denied.” Grubbs v. Norris, 870
F.2d 343, 345 (6th Cir. 1989).
Proposed Intervenors assert that their Motion is timely because the
investigation and clean-up efforts under the Consent Decree are still in their early
stages and Proposed Intervenors do not seek to interfere with the Consent Decree.
See Dkt. No. 10, p. 35 (Pg. ID 360). Plaintiff and Defendant both oppose this
notion, arguing that attempting to intervene a year and three months after the Court
entered a final judgment can never be considered timely. See Dkt. No. 24, p. 35
(Pg. ID 750); Dkt. No. 26, pp. 30-33 (Pg. ID 948-51).
“The determination of whether a motion to intervene is timely should be
evaluated in the context of all relevant circumstances.”

Jansen v. City of

Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). To that end, the Sixth Circuit has
emphasized that courts must consider the following five factors in determining
whether a motion to intervene was timely filed:
(1) the point to which the suit has progressed; (2) the purpose for which
intervention is sought; (3) the length of time preceding the application
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during which the proposed intervenors knew or should have known of their
interest in the case; (4) the prejudice to the original parties due to the
proposed intervenors’ failure to promptly intervene after they knew or
reasonably should have known of their interest in the case; and (5) the
existence of unusual circumstances militating against or in favor of
intervention.
Id. The Court will analyze Proposed Intervenors’ Motion under these five
factors, in turn, below.
1. Stage of the Proceeding
The first timeliness factor requires courts to look at the point to which the
lawsuit has progressed.

Id.

Proposed Intervenors cite to the Sixth Circuit’s

opinion in United States v. City of Detroit for the proposition that intervention can
be considered timely even after a court has entered a final judgment. Dkt. No. 10,
p. 34 (Pg. ID 359); see 712 F.3d 925, 931-32 (6th Cir. 2013). There, the Sixth
Circuit recognized that courts often permit intervention, even after final judgment,
for the limited purpose of allowing movants to participate in future remedial
proceedings. Id. at 932. In doing so, the court clarified that the proper focus under
this first factor is not the mere passage of time, but instead the stage of the
proceedings and the nature of the case. Id. at 931. But City of Detroit can be
distinguished from the instant case.
In City of Detroit, the EPA filed suit against the City for violations of the
Clean Water Act.

Id. at 927.

Soon after, the parties reached a settlement

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agreement and, like in this case, the district court entered a consent judgment. See
id. For the next thirty years, however, the City fell in and out of compliance with
the initial consent decree, requiring ongoing court proceedings and multiple
amended consent judgments. Id.
Roughly thirty years after the initial consent judgment, the district court
judge entered a remedial order that adversely affected the collective bargaining
rights of union workers in the City. Id. at 929-30. Within thirty days, the labor
union filed a motion to intervene, but the district court ruled that the motion was
untimely. Id. at 930-31. In overturning the district court’s decision, the Sixth
Circuit emphasized that the passage of thirty years was not particularly important
to this first timeliness factor. Id. at 931. Instead, the court focused on the fact that
the suit had been in a remedial, non-adversary posture from the start, and despite
significant progress, could not be expected to end any time soon. Id. at 931.
Hence, the court concluded that it was appropriate to permit the union to intervene
for the limited purpose of participating in future remedial proceedings and to
challenge the recently issued remedial court order. See id. at 933.
Here, unlike in City of Detroit, this case has been closed and inactive since
the Court entered a final judgment on July 27, 2017. See Dkt. No. 7. The lack of
court involvement up to this point suggests there will be no need for future
remedial proceedings.

Because at this stage of the case the claims in the

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underlying suit appear well-settled, the Court finds that this first factor weighs
against a finding of timeliness. See United States v. BASF-Inmont Corp., 1995 WL
234648, at *2-3 (6th Cir. 1995) (holding a motion to intervene filed during the
final stages of a proceeding is not favorably viewed and that where the only step
remaining in litigation is the approval of a proposed consent decree, this constitutes
a final stage of the proceeding).
2. Purpose for Intervention
The second timeliness factor looks to the purpose for which intervention is
sought. Jansen, 904 F.2d at 340. Proposed Intervenors assert that they only wish
to participate in future decision-making, and thus, do not wish to file a complaint
or amend the Consent Decree. See Dkt. No. 10, p. 35 (Pg. ID 360). Plaintiff and
Defendant argue that Proposed Intervenors have an ulterior motive: to usurp
Plaintiff’s oversight role. See Dkt. No. 24, p. 39 (Pg. ID 754); Dkt. No. 26, p. 34
(Pg. ID 952). Such an action, they suggest, would necessarily require amending
the Consent Decree.
The Sixth Circuit has held that courts are not faced with an all-or-nothing
choice between granting or denying intervention. City of Detroit, 712 F.3d at 931.
In some fact-specific situations, where a case is complicated, non-adversarial, and
implicates public interest, some form of limited intervention may be appropriate.
Id. at 932. Still, the Sixth Circuit recognizes that “[i]nterested parties should not be
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able to join at a late stage and re-litigate issues that they watched from the
sidelines.” Id.
Here, even the most limited form of intervention would require disturbing
the Consent Decree and having the parties re-litigate and/or re-negotiate its key
provisions.

Under the Decree, the decision to approve or disapprove of any

corrective action plans lies exclusively with Plaintiff. See Dkt. No. 7.

This

includes, among other things, Defendant’s Response Activity Plans, Remedial
Investigation Plans, and Remedial Action Plans. See id. To limit Plaintiff’s
discretion over these decisions in any way -- as Proposed Intervenors effectively
ask here -- would necessarily require amending the Consent Decree.
Moreover, Proposed Intervenors’ claim of simply wanting the opportunity to
“participate in future decision-making” appears misleading. See Dkt. No. 10, p. 35
(Pg. ID 360). Section 6.12 of the Consent Decree sets out the public notice,
comment, and meeting requirements under the agreement. See Dkt. No. 7, p. 37
(Pg. ID 263). Per this section, Plaintiff has the authority to make any proposed
Response Activity Plans or Remedial Investigation Reports available for public
comment. Id. Upon request, Plaintiff will hold a public meeting to discuss these
matters. Id. at p. 38 (Pg. ID 264). Further, after any review period, Plaintiff can
refer the reports or plans back to Defendant to make revisions that address the
public’s comments. Id.

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According to Plaintiff and Defendant, Proposed Intervenors have taken full
advantage of this public forum, and Plaintiff has accepted Proposed Intervenors’
comments and incorporated them into the responses to Defendant’s correctiveaction-plan submissions. See Dkt. No. 24, pp. 14-17 (Pg. ID 729-32); Dkt. No. 26,
pp. 19-20 (Pg. ID 937-38). Hence, by claiming this is not sufficient participation
to protect their legal interest, Proposed Intervenors are suggesting they not only
want the opportunity to participate in future decision-making, but also want
decision-making authority. See Dkt. No. 32, pp. 24-25 (Pg. ID 1620-21). Granting
this request would require amending the Consent Decree.
Because the Court is concerned that Proposed Intervenors ultimately seek to
relitigate issues that have been settled in the Consent Decree for well over a year,
this second factor will weigh against a finding of timeliness.
3. Time Preceding Application to Intervene
The third factor concerns “the length of time preceding the [movants]
motion to intervene, during which they knew, or should have known, of their
interest in the case.” Stupak-Thrall v. Glickman, 226 F.3d 467, 477 (6th Cir.
2000). Here, Proposed Intervenors knew of their interest in this case for the entire
one year and three months preceding their Motion. In fact, Proposed Intervenors
were initially prepared to file this RCRA suit themselves. See Dkt. No. 10, p. 14
(Pg. ID 339).
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Nevertheless, Proposed Intervenors claim their Motion is timely because
they only recently learned of facts that would cause them to doubt whether their
rights would be protected under the Consent Decree. See id. at p. 30 (Pg. ID 355).
But the Sixth Circuit explicitly rejected this same argument in United States v.
Tennessee. See 260 F.3d 587, 593-94 (6th Cir. 2001) (holding an entity that is
aware that its interests may be impaired by the outcome of the litigation is
obligated to seek intervention as soon as it is reasonably apparent that it is entitled
to intervene). Here, Proposed Intervenors should have attempted to intervene at
their first opportunity -- which was when the suit was initially filed -- rather than
taking a wait-and-see approach. See id.
Moreover, the Sixth Circuit opinions that Proposed Intervenors cite do not
support their argument.

In both City of Detroit and Grubbs, the proposed

intervenors’ legal interests in the cases were not apparent when those lawsuits were
originally filed. Instead, their legal interests were triggered by adverse remedial
court orders entered during the late stages of litigation. See 712 F.3d at 929-30;
870 F.2d at 346. Here, on the other hand, the Court has not entered any orders
since it entered a final judgment on July 27, 2017. See Dkt. No. 7. Given that
Proposed Intervenors’ recent interest in the case cannot be attributed to an adverse
order from this Court, and in light of their failure to act before or soon after the

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Court entered the final judgment, this third factor will weigh against a finding of
timeliness.
4. Prejudice to Original Parties
The fourth timeliness factor looks to the prejudice caused by proposed
intervenors’ failure to promptly intervene after they knew or reasonably should
have known of their interest in the case.

Jansen, 904 F.2d at 340. The proper

focus of this factor is “the prejudice caused by the untimeliness, not the
intervention itself.” City of Detroit, 712 F.3d at 933.
Proposed Intervenors argue that allowing them to intervene will not
prejudice the original parties or delay the case because there will be no need for
additional discovery and they do not seek to interfere with the Consent Decree.
See Dkt. No. 10, p. 35 (Pg. ID 360). But as discussed earlier, the type of relief
Proposed Intervenors ultimately seek will necessarily require amending the
Consent Decree. Here, the Consent Decree has been settled for over a year and the
investigation and clean-up efforts outlined within it are well under way.

As

amending the Consent Decree will halt these efforts and hinder the current
momentum, the Court finds that Proposed Intervenors’ untimeliness would indeed
prejudice the original parties to this case. See BASF-Inmont Corp., 1995 WL
234648, at *4 (“Where intervention would require renewal of negotiations and a
delay in implementing [the remediation plans], the intervention would prejudice
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the parties’ interests.”). Therefore, this fourth factor will also weigh against a
finding of timeliness.
5. Unusual Circumstances
The final factor looks to whether there are any unusual circumstances that
weigh in favor of or against granting a motion to intervene. Jansen, 904 F.2d at
340. Here, there are no unusual circumstances that factor into the Court’s decision.
In sum, four of the five factors discussed above weigh against a finding of
timeliness. Because this finding, alone, would require denying the instant Motion,
it is not necessary to discuss the remaining intervention factors. See Grubbs, 870
F.2d at 345 (“failure to meet one of the criteria will require that the motion to
intervene be denied”). This finding would also mandate that the Court deny
permissive intervention under Federal Rule of Civil Procedure 24(b)(1)(B). See
Fed. R. Civ. P. 24(b)(1) (requiring a “timely” motion).
C. Federal Rule of Civil Procedure 60(b) Presents an Additional Hurdle
to Intervention.
When the Court entered the Consent Decree on July 27, 2017, this served as
a final judgment between and among the parties. See Dkt. No. 7, p. 85 (Pg. ID
311).

Because the relief that Proposed Intervenors request would inevitably

require amending the Consent Decree, they must make a showing under Federal
Rule of Civil Procedure 60(b) to justify such relief. See Fed. R. Civ. P. 60(b).

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Proposed Intervenors have made no such showing, and thus, the Court will Deny
the Motion to Intervene on this additional basis.
IV. CONCLUSION
For the reasons stated herein, the Court will DENY the Motion to Intervene
[#10].
IT IS SO ORDERED.

Dated:

February 28, 2019
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, February 28, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager

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