Arnold et al v. DirecTV, Inc. et al

Filing 133

MEMORANDUM AND ORDER re: 125 MOTION to Intervene filed by Intervenor Defendant DirectSAT USA, Inc. motion is DENIED. Signed by District Judge John A. Ross on 12/4/12. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMIE ARNOLD, et al.,
Plaintiffs,
v.
DIRECTTV, INC., et al.,
Defendants.

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No. 4:10-CV- 352-JAR

MEMORANDUM AND ORDER
This matter is before the Court on DirectSat USA, LLC’s Motion to Intervene. [ECF No.
125] The Motion is fully briefed and ready for disposition. For the following reasons, the Court
finds intervention by DirectSat is not appropriate at this time and denies the motion to intervene.
Background
This is an action for unpaid minimum wages and overtime pay under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C.§§ 201-219, and the Missouri Minimum Wage Law
(“MMWL”), Mo. Rev. Stat. §§ 290.500-530. Plaintiffs worked as satellite installation and repair
technicians for Defendants DirecTV, Inc. d/b/a/ DirecTV Home Services and DTV Home
Services II, LLC, and their three “predecessors-in-liability,” UpCommunications Services, LLC,
AeroSatUSA, LLC, and Premier Communications, all of which conducted business in Missouri.
DirectSat USA, LLC (“DirectSat”) performs satellite installation and service support for
DirecTV as a home service provider in Pennsylvania pursuant to the terms of an independent
contractor agreement.
On September 28, 2012, this Court conditionally certified a class of:
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Persons who (1) are currently working or previously worked as an Installation or
Service Technician for DirecTV, Inc., DirecTV Home Services, a DirecTV Home
Service Provider, or through one of their subcontractors, for any period of time
after July 22, 2008; (2) exclusively installed and/or serviced DirecTV equipment;
(3) were paid on a piece-rate basis, meaning they were paid specific amounts for
certain tasks they competed; and (4) worked more than 40 hours per week.
[ECF No. 121] On October 15, 2012, Plaintiffs submitted their Notice of Lawsuit and Consent to
Become a Party Plaintiff. [ECF No. 122] On October 30, 2012, Defendants filed their Objections
to Plaintiffs’ Proposed Notice Process and Notice. [ECF No. 123] Also on October 30, 2012,
DirectSat filed its motion to intervene pursuant to Fed.R. Civ.P. 24 for the limited purpose of
filing objections to the Plaintiffs’ proposed class notice based on issue preclusion. Plaintiffs state
they are not opposed to DirectSat’s intervention in the second stage of this litigation, and would
consent to DirectSat being added to the case to participate in discovery and any potential
decertification motions after notice issues. (Doc. No. 131, p. 2) However, Plaintiffs oppose
DirectSat’s motion which they characterize as a request that the Court reconsider the scope of
the conditionally certified class. (Id.)
Discussion
Legal Standard
Under Rule 24(a) of the Federal Rules of Civil Procedure, “[a] party is entitled to
intervene as a matter of right if: (1) it claims an interest relating to the subject of the action; (2)
the disposition of the action may impair or impede its ability to protect its interest; and (3) its
interest is not adequately represented by existing parties.” United Fire & Casualty Co. v. Titan
Contractors Service, Inc., 2012 WL 3065517, at *3 (E.D. Mo. July 27, 2012) (quoting Chiglo v.
City of Preston, 104 F.3d 185, 187 (8th Cir. 1997); see also Fed. R. Civ. P. 24(a)(2). The party
seeking intervention must satisfy all three parts of the test. Id. (citations omitted).
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Rule 24(b) governs permissive intervention and requires only that the party “has a claim
or defense that shares with the main action a common question of law or fact.” Stenger v.
Kellett, 2012 WL 1392292, at *2 (E.D. Mo. April 23, 2012); Fed.R.Civ.P. 24(b)(1)(B). The
decision to grant or deny a motion for permissive intervention is wholly discretionary even
though there is a common question of law or fact, or the requirements of Rule 24(b) are
otherwise satisfied. South Dakota ex rel Barnett v. United States Department of Interior, 317
F.3d 783, 787 (8th Cir. 2003) (citing Bush v. Viterna, 740 F.2d 350, 359 (5th Cir.1984)). The
principal consideration in ruling on a Rule 24(b) motion is whether the proposed intervention
would unduly delay or prejudice the adjudication of the parties' rights. South Dakota, 317 F.3d at
787; United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir.1994).
When moving for intervention either as a matter of right or on a permissive basis, the
motion must be timely. United Fire, 2012 WL 3065517, at *2 (citing Planned Parenthood of the
Heartland v. Heineman, 664 F.3d 716, 718 (8th Cir. 2011)). “The issue of the timeliness of a
motion to intervene is a threshold issue.” Id. (quoting United States v. Ritchie Special Credit
Invs., Ltd., 620 F.3d 824, 832 (8th Cir. 2010)). “The question for determining the timeliness of
the motion is whether existing parties may be prejudiced by the delay in moving to intervene.”
United States v. Union Elec. Co., 64 F.3d 1152, 1159 (8th Cir. 1995). In determining timeliness,
the Court considers (1) the reason for any delay by the proposed intervenor, (2) how far the
litigation has progressed before the motion to intervene is filed, and (3) how much prejudice the
delay in seeking intervention may cause to the other parties if intervention is allowed. Id.
A proposed intervenor under Rule 24 must have Article III standing. United Fire, 2012
WL 3065517, at *1 (citing Curry v. Regents of the Univ. of Minn., 167 F.3d 420, 422 (8th

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Cir.1999) and Mausolf v. Babbitt, 85 F.3d 1295, 1301 (8th Cir.1996)). To demonstrate standing,
a party must allege an “injury in fact,” which is an injury to a legally protected interest that is
concrete, particularized and either actual or imminent. Stenger v. Kellet, 2012 WL 381769, at *1
(E.D. Mo. February 6, 2012) (citing United States v. St. Louis Metropolitan Sewer Dist., 569
F.3d 829, 833–34 (8th Cir.2009)). “The purpose of the imminence requirement is ‘to ensure that
the alleged injury is not too speculative ... [and] that the injury is certainly impending.’” Id.
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n. 2 (1992)). In addition, a party
invoking standing must establish a causal connection between the injury and the conduct
complained of, and it must be likely that the injury will be redressed by a favorable decision.
Stenger, 2012 WL 381769, at *1 (citing Lujan, 504 U.S. at 560–61). The burden is on the
proposed intervenor to establish standing. Id.
Discussion
In support of its motion to intervene, DirectSat argues that with the addition of its
technicians to the putative class, it faces thousands of claims for monetary relief under the terms
of its HSP agreement with DirecTV. Pursuant to that agreement, DirectSat maintains it is
obligated to defend and indemnify DirecTV against any claims brought by its technicians. (Doc.
No. 126, p. 3) Unless its motion to intervene is granted, DirectSat argues it will be deprived of its
right to protect its interests by way of objecting to Plaintiff’s class notice. (Id., pp. 5-6)
Plaintiffs respond that DirectSat’s potential liability for indemnification is too speculative
and remote to confer standing to object at the notice stage of this case. (Doc. No. 131, p. 2)
DirectSat’s argument is that if its technicians receive notice, the technicians might opt-in to the
class, and if those technicians prevail, DirectSat might eventually be subject to claims for

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monetary relief through its indemnification agreement with DirecTV. Interests that are
contingent upon the occurrence of a sequence of events are not “direct, substantial, and legally
protectable.” Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 1008 (8th Cir. 2007).
“Economic interests staked solely on the outcome of litigation are not sufficient to establish a
legally protectable claim.” See id. (citing Curry, 167 F.3d at 422). (Doc. No. 131, p. 3)
Plaintiffs argue that DirectSat cannot point to any imminent harm that will result from its
technicians receiving notice. Even if the indemnity agreement applied, DirectSat would not be
subject to liability simply because its technicians opted-in to the case. (Id.) Plaintiffs further
contend that DirectSat’s interests are being adequately represented by DirecTV. (Id., p. 4)
Finally, Plaintiffs argue DirectSat’s motion is untimely since DirectSat could have sought
intervention at any time during the fourteen months between when the motion for conditional
certification was filed and when the motion was granted on September 28, 2012. Instead,
DirectSat filed its motion two weeks before the Court’s deadline for notice to issue.
In reply, DirectSat claims it only learned of Plaintiffs’ proposed class notice two weeks
prior to filing its motion and that prior to filing, it had no reason to monitor this action since none
of the Plaintiffs are DirectSat employees. (Doc. No. 126, p. 8) DirectSat maintains it has a
legally cognizable right in defending against claims brought by its technicians that will
inevitably lead to attorneys’ fees, costs and substantial business interruption. (Doc. No. 132, p.
3) DirectSat further argues that providing notice to any of its technicians is futile under the
doctrine of issue preclusion because in Espenscheid v. DirectSat USA, LLC, 2011 WL 2009967
(W.D. Wis. May 23, 2011), the court found a nationwide class of DirectSat technicians were not
similarly situated for purposes of the FLSA. (Doc. No. 132, pp. 8-14)

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Aside from the issues of standing and timeliness, the Court cannot find that DirectSat has
an interest in this action sufficient to meet the requirements of Rule 24(a) for intervention of
right. An interest is cognizable under Rule 24(a)(2) only where it is “direct, substantial, and
legally protectable.” Medical Liability Mutual Ins. Co. v. Alan Curtis, LLC, 485 F.3d 1006, 1008
(8th Cir. 2007). As discussed above, “[a]n interest that is contingent upon the occurrence of a
sequence of events before it becomes colorable is . . . not sufficient to satisfy Rule 24(a)(2).” Id.
Here, DirectSat’s interest in this action is its potential liability to defend and indemnify DirecTV.
To date notice has not issued and DirectSat technicians have not yet opted-in. Additionally, even
if DirectSat had a cognizable interest, it has not shown its interest is not adequately represented
by existing parties. Indeed, DirecTV has filed its objections to Plaintiffs’ proposed notice and
advanced the same issue preclusion argument asserted by DirectSat based on the decertification
of a nationwide class of DirectSat technicians in Espenscheid. (see, Doc. No. 123, pp. 6-10)
DirectSat may have an interest that shares a common question of law or fact with the
main action in this case, however, the Court finds that permissive intervention would not
promote the efficiency of these proceedings and would only delay the notice process. This case
has proceeded for more than two years, and the Court is ready to approve the notice.
Additionally, the case on which DirectSat relies, Espenscheid, 2011 WL 2009967, is not
dispositive at this stage of the litigation. The standard for determining whether plaintiffs are
“similarly situated” at the decertification stage is “much more stringent” than the standard
applicable to the initial notice stage of a collective action. Butler v. DirectSAT USA, LLC, 2012
WL 1203980, at * 9 (D. Md. April 10, 2012) (citation omitted). Further, in decertifying the class,
the Espenscheid court emphasized the plaintiffs' repeated failure to submit a satisfactory trial

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plan addressing certain technician subclasses that the court had imposed following conditional
certification. Any request to exclude DirectSat technicians from the class before notice has
issued and before any technician opts-in is premature.
Accordingly,
IT IS HEREBY ORDERED that DirectSat USA, LLC’s Motion to Intervene [125] is
DENIED without prejudice.

Dated this 4th day of December, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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