IN RE: CAMDEN POLICE CASES

Filing 192

MEMORANDUM OPINION AND ORDER Denying 138 Motion to Intervene; Denying 142 Motion to Intervene. Signed by Magistrate Judge Joel Schneider on 9/24/12. (js)

[C.A. No. 11-1315, Docs. No. 138, 142]
[C.A. No. 11-5827, Doc. No. 25]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
IN RE:

CAMDEN POLICE CASES
Master Docket No. 11-1315
(RBK/JS)

CITY OF CAMDEN
Plaintiff,

Civ. No. 11-5827 (RBK/JS)

v.
STATE NATIONAL
INSURANCE COMPANY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This

matter is

before

the

Court

on

movants’

motions

to

intervene in the insurance coverage declaratory judgment action the
City of Camden (“Camden”) filed against its insurer.1

For the

reasons to be discussed, movants’ motions are DENIED.2
Background
This
Cases.”3

litigation concerns
Starting

in

2009

the

consolidated

approximately

68

“Camden

Police

plaintiffs

filed

1

The insurer defendants are State National Insurance
Company, Star Insurance Company and Meadowbrook Insurance Group
(collectively referred to as “State National”).
2

3

Camden does not oppose these motions.

Thus far the cases have only been consolidated for the
purposes of discovery and case management. C.A. No. 11-1315,

separate complaints against Camden and individual police officers
alleging claims under 42 U.S.C. §1983 for the violation of their
civil rights.
contention,

The common thread in the cases is plaintiffs’

inter

alia,

that

the

police

officer

defendants

falsified their police reports, planted evidence and testified
falsely under oath.

Plaintiffs allege Camden and its police

department acted deliberately indifferent to their rights and
facilitated and tolerated the illegal acts of its police officers.
Four former police officers have either been convicted or pled
guilty to related criminal charges.

Most if not all of the 68

plaintiffs were released from jail as a result of the police
officers’ criminal conduct.

One defendant was recently sentenced

to ten (10) years in prison.

The three other defendants are

awaiting sentencing.
After

the

individual

cases

were

filed

Camden

complaint against State National. (C.A. No. 11-5837).4
was removed to federal court on October 6, 2011.

filed

its

The case

Camden is seeking

a declaratory judgment that State National owes it a defense and/or
indemnification for the claims in the Camden Police Cases.

State

National has denied coverage.

Doc. No. 4. Camden’s coverage action has been designated as a
Camden Police Case. Thus, all discovery, pleadings and motion
practice in the 68 individual cases and Camden’s coverage action
will be shared by all interested parties and counsel.
4

State National’s policies run from October 5, 2004 to July
l1, 2010.
2

The present motion is before the Court on certain plaintiffs’
request to intervene in Camden’s coverage action.5
opposes the motion.

State National

Movants argue they have an important interest

in the coverage case because its outcome will determine the extent
of the City’s available insurance coverage.
Graham (“Brief”), Doc. No. 34 at 2-3).

(Brief of Whitley and

They argue the coverage

lawsuit “may determine what funds are available to pay whatever
judgments [against Camden] are eventually entered, and practically
speaking, what funds are potentially available should the parties
be able to forge a settlement prior to trial.”

Id.6

In opposition

5

The motion was originally filed by plaintiffs James
Anderson, David Bryant, Obie Carmichael, Henry Chavez and Marcus
Collins, “individually, and in a representative capacity for
similarly situated plaintiffs.” See C.A. No. 11-5827, Doc. No.
25. At oral argument it became apparent that the moving parties’
motion and advocacy was woefully deficient. Since the moving
parties were acting in a representative capacity for a group of
approximately 68 plaintiffs, the Court agreed with the
plaintiffs’ group that the interests of justice demanded they be
given another opportunity to brief the relevant issues. The
supplemental brief was filed by counsel representing plaintiffs
Whitley and Graham. The Court has considered their brief [C.A.
No. 11-5827, Doc. No. 34] and State National’s response [C.A. No.
11-5827, Doc. No. 35]. The Court exercises its discretion not to
conduct any additional oral argument. Fed. R. Civ. P. 78; L. R.
Civ. P. 78.1.
6

At the root of movants’ motion is their desire to adopt a
coverage position they believe is more favorable to them than the
policy interpretation set forth by Camden. Thus, if intervention
is permitted it would create the anomalous situation where
movants, strangers to Camden’s insurance policy, would be urging
the Court to adopt their coverage argument rather than that of
Camden, the insured. It would also result in a situation where
State National would have to defend against different coverage
arguments on the same issue.
3

State National argues, inter alia, movants do not satisfy the
criteria under Rule 24 to intervene as of right and permissive
intervention should be denied.

It argues intervention as of right

should be denied because the movants’ economic or contingent
interest in its policies does not support intervention under Rule
24(a)(2).

State National also argues movants are “strangers” to

its insurance contract and the movants’ interests are adequately
protected by Camden. State National argues permissive intervention
should be denied based on controlling Third Circuit case law, there
are no common issues of law or fact, and intervention will delay
the proceedings and prejudice the parties.
Discussion
Intervention is a method of joinder, and is governed by
Federal Rule of Civil Procedure 24.7
of

right

pursuant

to

pursuant to Rule 24(b).
federal

statute

intervene.

gives

Rule

24(a)

Movants seek intervention as
and

permissive

intervention

A party may intervene as of right if a
him

Rule 24(a)(1).

or

her

an

unconditional

right

to

Aside from the Federal Declaratory

Judgment Act, 28 U.S.C. § 2201, which does not give movants a right
to intervene here, movants do not cite any applicable statute

7

A federal court sitting in diversity must apply federal
procedural law. Gasperini v. Cntr. for Humanities, Inc., 518
U.S. 415, 427 (1996); Liberty Mut. Ins. Co. v. Treesdale, Inc.
(“Treesdale”), 419 F.3d 216, 228 (3d Cir. 2005) (holding that the
Erie Doctrine does not require the application of state
procedural law to determine a motion to intervene).
4

giving them a right to intervene.8
C.A. No. 11-5827, Doc. No. 25).
intervention

as

of

right

(See Movants’ Brief at 1-2,

Alternatively, a Court must grant
when

a

prospective

intervenor

demonstrates:
1) a timely application for leave to intervene, 2) a
sufficient interest in the underlying litigation, 3) a threat
that the interest will be impaired or affected by the
disposition of the underlying action, and 4) that the existing
parties to the action do not adequately represent the
prospective intervenor’s interests.

Treesdale, 419 F.3d at 220 (citation omitted); see also Fed. R.
Civ. P. 24(a)(2).

Although a party seeking intervention must meet

all four requirements, “a very strong showing that one of the
requirements is met may result in a lesser showing of another
requirement.”

Harris v. Pernsley, 820 F.2d 592, 596 n. 6 (3d. Cir.

1987); Gen. Star Indem. Co. v. Virgin Islands Port Auth., 224
F.R.D. 372, 375 n.4 (D.V.I. 2004).
Movants’ are foreclosed from intervention as of right by the
Third Circuit’s controlling decision in Treesdale, supra.

Accord

State Farm Fire and Cas. Co. v. Vanaman, Civ. No. 10-1565(JHR),
2012 WL 959421 (D.N.J. March 20, 2012); Guardian Life Ins. Co. of
America v. Estate of Joseph A. Cerniglia, Civ. No. 10-5597(WHW),
2011 WL 1253955 (D.N.J. March 28, 2011).
plaintiffs
sustained

sued
in

a

manufacturer,

connection

with

PMP,

exposure

8

for
to

In Treesdale, the
injuries

allegedly

asbestos-containing

For the same reason, the Court does not consider whether
movants may intervene pursuant to a conditional statutory right.
See Rule 24(b)(1)(A).
5

products.

In a separate action, the manufacturer’s insurer,

Liberty Mutual, sought a declaratory judgment against PMP, arguing
it had no further duty to indemnify PMP.

The plaintiffs in the

asbestos action sought to intervene in PMP’s declaratory judgment
action, claiming the court’s decision could affect their ultimate
right to recovery.
motion

to

plaintiffs’

Affirming the district court’s denial of the

intervene,
interest

the
in

Third

the

Circuit

disputed

concluded

insurance

that

the

policies

was

insufficient to circumvent the general rule that “a mere economic
interest in the outcome of litigation is insufficient to support a
motion to intervene.”

Id. at 220-21 (quoting Mountain Top Condo.

Ass’n. v. Dave Stabbert Master Builder, Inc. (“Mountain Top”), 72
F.3d 361, 366 (3d Cir. 1995)). Like this case, the asbestos
plaintiffs argued the potential recovery for their injuries could
be impacted or eliminated because of the ruling in the related
coverage

case.

Nevertheless,

the

Court

denied

intervention.

Summarizing its ruling, the Third Circuit stated:
Appellants here have no property interest in the Liberty
Mutual UEL policies nor do they have any other legally
protectable interest in the policies. Rather, they have
the kind of economic interest in the insurance proceeds
that we have held does not support intervention as a
matter of right.
419 F.3d at 222.

See also Mountain Top, 72 F.3d at 366 (observing

that

motion

denial

of

to

intervene

would

be

appropriate

if

appellants’ only interest were to ensure the availability of funds
to pay for a possible judgment in their favor). Accordingly, the
6

Court finds that movants do not demonstrate a sufficient interest
in the underlying litigation to assert a right to intervene.
Movants argue they satisfy Rule 24(a) because they “are
persons who have an interest in the interpretation of the insurance
contracts between [Camden] and its insurers.”
3).

(Movants’ Brief at

Movants further argue they satisfy Rule 24(a)(2) because “the

rights and remedies they assert in their underlying claims will be
affected by any determination made by the Court in the instant
matter.”

Id.9

arguments.

See 419 F.3d at 224.

However,

the

Third

Circuit

rejected

these

Movants cite to Mountain Top, supra, to support their argument
that their economic interest in the outcome of Camden’s coverage
case gives them a sufficient interest to warrant intervention as of
right.

Movants’ argument is unavailing because Mountain Top is

plainly distinguishable from this case.

As noted in Treesdale,

although Mountain Top held that a plaintiff may intervene in a
coverage action between an insured and its insurer, this only
occurs if the action involves a specific fund created for the
benefit of the plaintiff.

419 F.3d at 221-23.

created for the movants in this instance.

9

No such fund was

Similar to Treesdale,

Movants reassert this argument in their supplemental brief.
See Supplementary Brief in Support of Plaintiffs’ Motion at 2-3,
C.A. No. 5827, Doc. No. 152 (“Movants’ Supp. Brief”) (“This suit
may determine what funds are available to pay whatever judgment
are eventually entered, and practically speaking, what funds are
potentially available should the parties be able to forge a
settlement prior to trial.”).
7

movants “cite no controlling authority to support their argument
that plaintiffs who have asserted tort claims against the insured
can intervene as of right in an insurance coverage declaratory
action between the insured and its insurer.”

Id. at 223.

Even if the Court were to find that a contingent financial
interest in the outcome of Camden’s declaratory judgment action
constituted a sufficient interest in the underlying litigation to
satisfy Rule 24(a), intervention as of right would still be denied
because movants cannot demonstrate that Camden is not adequately
representing

its

interests.

“The

most

important

factor

in

determining adequacy of representation is how the interest of the
absentee compares with the interest of the present parties. If the
interest of the absentee is not represented at all, or if all
existing parties are adverse to him, then he is not adequately
represented.”

Gen. Star Indem. Co., 224 F.R.D. at 376 (quoting

Mountain Top Condo. Assoc., 72 F.3d at 368).
and

Camden

share

a

“similarity

of

Movants concede they

interests

declaration that the insurers must indemnify.”
3).

in

seeking

a

(Movants’ Brief at

However, they argue that Camden’s coverage strategy in the

declaratory judgment action may be adverse to their position in the
underlying litigation.
city’s ultimate
“directly
Interveners

and

(Movants’ Supp. Brief at 5).

interests
materially

(sic)”

in

the

Camden Police

adverse

(Movants’

Brief

8

to
at

those
3),

of

While the

Cases
the

those

may

be

proposed

conflicting

interests are not at play in the coverage action movants seek to
join.

See Gen. Star Indem. Co., 224 F.R.D. at 377 (noting

“identical” interests where proposed intervenors and insured both
sought to ensure coverage for intervenors’ claimed losses). Camden
and plaintiffs share the same interest in maximizing Camden’s
available insurance coverage.

Thus, since movants’ interests in

Camden’s coverage action are adequately protected, movants may not
intervene as of right.
In the absence of a showing of adverse interests in Camden’s
declaratory judgment action, movants must make “a concrete showing
of

circumstances

in

the

particular

case

that

representation inadequate.” Id. (citation omitted).

make

the

Although the

Third Circuit recognizes the right to intervene where an insured is
insolvent

and

cannot

defend

a

declaratory

judgment

action

adequately, which is not applicable here, the ability of an insured
to hire counsel and to participate actively in a declaratory
judgment action is sufficient evidence of its ability to adequately
represent the interests of a proposed intervenor.
F.3d at 226.
ability

to

Treesdale, 419

Accordingly, the Court concludes that Camden’s

hire

counsel

and

to

participate

actively

in

its

declaratory judgment action is sufficient to demonstrate adequate
representation of movants’ interests.

Intervention as of right

pursuant Rule 24(a)(2) is, therefore, denied.
In addition to seeking intervention as of right, movants seek

9

permissive intervention.

See Rule 24(b).

In relevant part, Rule

24(b) permits a party to intervene by demonstrating 1) a timely
application for intervention, and 2) that the party’s claim or
defense shares a common question of law or fact with the underlying
action.

See Rule 24(b)(1)(B).

“Whether to allow a party to

permissively intervene is left to the sound discretion of the
Court.”

Worthington

v.

Bayer

Healthcare,

LLC,

Civ.

No.

11-

2793(ES)(CLW), 2011 WL 6303999, at *8 (D.N.J. Dec. 15, 2011)
(citation omitted).

“The purpose of permissive intervention is to

avoid a multiplicity of suits by settling related controversies in
a single action.”

Wolf by Wolf v. Procter & Gamble, Co., 555 F.

Supp. 613, 627-28 (D.N.J. 1982).

When reviewing a request for

permissive intervention, the court must also consider whether
permissive

intervention

would

“unduly

delay

or

prejudice

adjudication of the rights of the original parties.”

the

Pansy v.

Borough of Stroudsburg, 23 F.3d 772, 779 n.6 (3d Cir. 1994)
(quoting Rule 24(b)(3)).
Movants’ permissive intervention request is also foreclosed by
Treesdale.

In Treesdale the Third Circuit held that a contingent

financial interest in the outcome of an indemnification action is
insufficient to demonstrate a common question of law or fact
supporting permissive intervention under Rule 24(b).

See 419 F.3d

at 227-28. Movants argue Treesdale is distinguishable. They argue
their claims share a common question of law or fact with Camden’s

10

declaratory judgment complaint, e.g., whether the alleged incidents
at issue represent one incident or multiple occurrences. (Movants’
Supp. Brief at 7).

Movants’ argument is misguided.

Treesdale

makes it clear that Camden’s coverage action has nothing to do with
whether Camden violated the movant’s constitutional rights. Id. at
227-28.10

“Where a proposed intervenor has only a contingent

financial interest in a declaratory judgment action to establish
insurance coverage, he/she cannot accurately claim that there are
common questions of law or fact between the coverage dispute and
actions to determine liability for injuries [the insured] may have
caused.

Id. at 228.11

In sum, the Court concludes that movants may not intervene in
defendants’ declaratory judgment action pursuant to Rule 24.
Movants’ interest in maximizing Camden’s insurance coverage does
not create a sufficient interest to support intervention as of
right.

Also, since Camden and the movants share the same interest

10

In fact, the Third Circuit wrote, “this argument warrants
little discussion or analysis. The declaratory judgment action
turns on the interpretation of the contracts of insurance.... It
has nothing to do with whether PMP caused asbestos-related bodily
injuries....” Id.
11

The Court also denies permissive intervention because of
the unnecessary complexity it will interject into Camden’s
coverage action. The presence of non-Camden parties will likely
result in further management problems in an already complex case.
This includes, but is not limited to, the fact that if the
movants intervene State National may have to defend against
inconsistent coverage arguments. This is unnecessary since
Camden and the movants share the same interest in maximizing
Camden’s coverage.
11

in maximizing Camden’s insurance coverage, movant’s interests are
adequately protected.

Movants’ contingent financial interest in

Camden’s insurance policies is also insufficient to create a common
question of law or fact supporting permissive intervention.
Furthermore, while permissive intervention would do little to
expedite plaintiffs’ consolidated cases, it would significantly
complicate Camden’s declaratory judgment action and would result in
undue confusion and prejudice.
Conclusion
According, for all the foregoing reasons,
IT IS HEREBY ORDERED this 24th day of September, 2012, that
movants’ Motions to Intervene [C.A. 11-1315, Docs. No. 138, 142;
C.A. No. 11-5827, Doc. No. 25] are DENIED.12
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

12

Movants’ motion also requested that the Camden County
Prosecutor’s Office be jointed as a “discovery defendant.” The
request is denied as N.J.R. 4:11-1 is not applicable to cases
pending in federal court.
12