Ballesteros v. MERS et al

Filing 30

ORDER Denying without prejudice 28 Motion to Intervene. Signed by Magistrate Judge Nancy J. Koppe on 12/3/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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REBECCA N. BALLESTEROS,

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Plaintiff(s),

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vs.

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MERS, et al.,

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Defendant(s).

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2:13-cv-01239-GMN-NJK
ORDER DENYING MOTION TO
INTERVENE
(Docket No. 28)

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Pending before the Court is the emergency motion to intervene filed by Saticoy Bay LLC,

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Series 9509 Green Spruce (“Movant”). Docket No. 28. The Court ordered that any response be

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filed in opposition no later than November 26, 2013, Docket No. 29, but to date none has been filed.

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Accordingly, the Court has discretion to grant the motion as unopposed. See Local Rule 7-2(d).

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Nonetheless, the Court will consider the motion on its merits. For the reasons discussed below, the

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Court hereby DENIES the motion without prejudice.

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I.

BACKGROUND

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Movant obtained title to 9509 Green Spruce Street through a foreclosure sale. See Docket

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No. 28 at 2. Movant is attempting to sell the property, but cannot do so in light of Plaintiff’s lis

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pendens. Id. Movant seeks to intervene in this case so that it may file a joinder to Defendants’

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motion to dismiss and for release of lis pendens. See id. at Exh. 2.

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II.

ANALYSIS

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The pending motion is brought to intervene as of right under Fed.R.Civ.P. 24(a)(2). See

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Docket No. 28 at 2. To prevail on such a motion, an applicant for intervention as of right must

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demonstrate that “(1) it has a significant protectable interest relating to the property or transaction

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that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair

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or impede the applicant's ability to protect its interest; (3) the application is timely; and (4) the

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existing parties may not adequately represent the applicant’s interest.” United States v. Alisal Water

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Corp., 370 F.3d 915, 919 (9th Cir. 2004). The party seeking to intervene bears the burden of

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showing that all the requirements for intervention have been met. Id.; see also United States v.

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Aerojet Gen. Corp., 606 F.3d 1142, 1149 (9th Cir. 2010) (“Under Rule 24(a)(2), the burden of

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showing inadequate representation is on the applicant . . .”).

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The Court finds that the pending motion does not sufficiently address the controlling

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standards.1 Of particular note, Movant fails to provide any explanation as to how the existing parties

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do not adequately represent its interests.2 Indeed, Movant seeks intervention to file a joinder to the

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pending motion to dismiss and release the lis pendens, which Movant indicates “adequately set[s]

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forth” the grounds supporting that relief. See Docket No. 28 at 3.3

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III.

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CONCLUSION
For the reasons discussed more fully above, the motion to intervene is hereby DENIED

without prejudice.

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IT IS SO ORDERED.

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DATED: December 3, 2013

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NANCY J. KOPPE
United States Magistrate Judge

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The only authority cited in the motion is Fed. R. Civ. P. 24.

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“This Court considers three factors in determining the adequacy of representation: (1)
whether the interest of a present party is such that it will undoubtedly make all of a proposed
intervenor’s arguments; (2) whether the present party is capable and willing to make such
arguments; and (3) whether a proposed intervenor would offer any necessary elements to the
proceeding that other parties would neglect.” Aerojet General, 606 F.3d at 1153 (quoting Arakaki
v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)).
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Although the Court highlights herein the inadequacy regarding the representation
requirement, it makes no findings that the motion is otherwise meritorious. Instead, to the extent
Movant renews its motion, it should make a fuller showing as to all of the required elements.

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