Colombo Candy & Tobacco Wholesale Co. v Ameristar Casino Council Bluffs, Inc.

Filing 12

ORDER granting 11 Motion to Intervene. Continental shall have until June 19, 2013, to file the Intervenor Complaint. The parties shall have until July 8, 2013, to meet, confer, and file a planning report with the court pursuant to Federal Rule of Civil Procedure 26(f). Ordered by Magistrate Judge Thomas D. Thalken. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

COLOMBO CANDY & TOBACCO
WHOLESALE CO.,
8:13CV148
Plaintiff,
vs.

ORDER

AMERISTAR CASINO COUNCIL
BLUFFS, INC.,
Defendant.
This matter is before the court on Continental Western Group’s (Continental)
Motion to Intervene (Filing No. 11). Attached to Continental’s Motion to Intervene is a
Complaint to Intervene. See id. Ex. A. The original parties did not file any response to
the motion.

BACKGROUND
This matter arises out of alleged tortious acts committed by Jane Doe, an
employee of the plaintiff, Colombo Candy & Tobacco Wholesale Co. (Colombo). See
Filing No. 1 - Second Amended Complaint p. 63-86.1

Colombo alleges Jane Doe

embezzled or stole four million dollars ($4,000,000) belonging to Colombo. Id. at 65-66.
Colombo alleges Jane Doe cashed checks and made withdrawals at Ameristar Casino
Council Bluff, Inc. (Ameristar) and gambled at Ameristar.

Id.

Colombo generally

alleges Ameristar knew Jane Doe gambled with embezzled or stolen money or
Ameristar had information that would lead a reasonable person to believe the money
was embezzled or stolen. Id.
On April 9, 2013, Colombo filed a complaint against Ameristar in the District
Court of Douglas County, Nebraska. Id. at 1. On April 10, 2013, Colombo filed an
amended complaint.

Id.

Ameristar was served with summons and a copy of the

Amended Complaint on April 11, 2013.2
1

Id.

Colombo filed a second amended

Due to the numerous documents attached to the Notice of Removal (Filing No. 1), the court will
use CM/ECF pagination for citation purposes and clarification.
2
Ameristar states it was never served with the original Complaint. See Filing No. 1 - Notice of
Removal p. 1.

complaint on April 17, 2013, and served Ameristar with a copy on April 18, 2013. Id. at
1-2. On May 9, 2013, Ameristar removed this action to the United States District Court
for the District of Nebraska. Id. Ameristar’s answer is due June 17, 2013. See Filing
No. 6 - Order (Text).
On May 23, 2013, Continental filed the instant motion.

See Filing No. 11 -

Motion. Continental states it is has an insurance policy with Colombo that includes
dishonest employee coverage.

See Filing No. 11 Ex. A - Complaint to Intervene.

Continental states Colombo made a dishonest employee claim and that based on
Continental’s payment to Colombo pursuant to the insurance policy, Continental has a
right to pursue a subrogation interest against third parties responsible for losses paid
under the insurance policy. Id.

ANALYSIS
Federal Rule of Civil Procedure 24 provides:
(a) Intervention of Right. On timely motion, the court must
permit anyone to intervene who:
(1) is given an unconditional right to intervene by a
federal statute; or
(2) 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. Courts “construe Rule 24 liberally and resolve any doubts in favor of
the proposed intervenors.” United States v. Ritchie Special Credit Inv., Ltd., 620
F.3d 824, 831 (8th Cir. 2010).

The original parties do not contest the motion to

intervene. Continental filed a timely motion to intervene and Continental’s intervention
does not unduly delay or prejudice the original parties. Further, Continental “claims an
interest relating to the property or transaction that is the subject of the action” and
therefore has a right to intervene under Fed. R. Civ. P. 24. Accordingly,

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IT IS ORDERED:
1.

Continental’s Motion to Intervene (Filing No. 11) is granted. Continental

shall have until June 19, 2013, to file the Intervenor Complaint.
2.

The parties shall have until July 8, 2013, to meet, confer, and file a

planning report with the court pursuant to Federal Rule of Civil Procedure 26(f).

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 12th day of June, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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