Prestige Builder & Management LLC v. Safeco Insurance Company of America, et al

Filing 18

ORDER granting 14 Motion to Intervene. Ordered by Judge I. Leo Glasser on 4/23/2013. (Levy, Joshua)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------x
PRESTIGE BUILDER &
MANAGEMENT LLC,
Plaintiff,

ORDER
12 Civ. 1947 (ILG) (LB)

- against SAFECO INSURANCE COMPANY OF
AMERICA, et al.
Defendants.
------------------------------------------------------x
GLASSER, Senior United States District Judge:
This action began in April 2012 when plaintiff Prestige Builder & Management
LLC (“Prestige”), a New York-based subcontractor, sued several California-based
employees of Triton Structural Concrete Incorporated (“Triton”), a general contractor,
and Triton’s surety, Safeco Insurance Company of America (“Safeco”), seeking payment
for work completed as part of a construction project. Dkt. No. 1. 1 On March 8, 2013,
Triton moved to intervene pursuant to Rule 24(a)(2) of the Federal Rules of Civil
Procedure, or, in the alternative, Rule 24(b)(1)(B). Dkt. No. 14.
Under Rule 24(a)(2), “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.” “In order to intervene as of right pursuant to Rule 24(a)(2), the applicant

The factual background and procedural history of this action are set out more
fully in the Court’s previous decision, familiarity with which is assumed. Prestige
Builder & Mgmt. LLC v. Safeco Ins. Co. of Am., --- F. Supp. ----, 2012 WL 4801769, at
*1-2 (E.D.N.Y. Oct. 10, 2012).
1

1

must: (1) file a timely motion; (2) show an interest in the litigation; (3) show that its
interest may be impaired by the disposition of the action; and (4) show that its interest
is not adequately protected by the parties to the action.” Farinella v. Paypal, Inc., 611 F.
Supp. 2d 250, 258 (E.D.N.Y. 2009) (quoting In re Holocaust Victims Assets Litig., 225
F.3d 191, 197 (2d Cir. 2000)). A general contractor can intervene as of right “in a
subcontractor’s suit against a surety on a payment bond [where] the ‘defendant surety is
unable to represent adequately petitioner’s interest because it cannot interpose
petitioner’s personal defenses or claims.’” United States ex rel. Milestone Tarant,
LLC/Highland Ornamental Iron Works, Inc. v. Fed. Ins. Co., 815 F. Supp. 2d 36, 39
(D.D.C. 2011) (quoting Coleman Capital Corp. v. Fidelity Deposit Co. of Md., 43 F.R.D.
407, 408 (S.D.N.Y. 1967)).
Under Rule 24(b)(1)(B), “the court may permit anyone to intervene who . . . has a
claim or defense that shares with the main action a common question of law or fact.”
“In exercising its discretion, the court must consider whether the intervention will
unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P.
24(b)(3).
Triton’s motion to intervene is granted because (1) it was filed in accordance with
the magistrate judge’s scheduling order; (2) Triton is a party to contracts at issue in this
action; (3) Triton must reimburse Safeco if Prestige recovers damages in this action; and
(4) only Triton can assert its counterclaims based on the same two contracts at issue in
this action. Dkt. Nos. 11 & 14-4. To the extent Triton’s counterclaims rely on additional
contracts between Triton and Prestige, the Court permits intervention because the
counterclaims present nearly identical questions of law on similar facts, so there is no
prejudice to the original parties.
2

SO ORDERED.
Dated:

Brooklyn, New York
April 23, 2013
_/s/
_
I. Leo Glasser
Senior United States District Judge

3