Weisshaus v. The Port Authority of New York and New Jersey et al

Filing 49

OPINION AND ORDER re: (47 in 1:11-cv-06616-RKE) MOTION to Intervene in support of the pleading of entry 104 in 11-cv-6746(RKE) filed by Yoel Weisshaus: Accordingly, Mr. Weisshaus's motion to intervene is DENIED. The Clerk of Court is directed to close document number 111 on the docket of this case. (Signed by Judge Richard K. Eaton on 10/17/2014) ***As per chambers, Filed in 11cv6746 and 11cv6616. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
AUTOMOBILE CLUB OF NEW YORK, INC.,
:
d/b/a AAA New York, and AAA NORTH
:
JERSEY, INC.,
:
:
:
Plaintiffs,
:
:
v.
:
:
THE PORT AUTHORITY OF NEW YORK
:
AND NEW JERSEY,
:
:
Defendant.
:
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Before: Richard K. Eaton, Judge*
11 Civ. 6746 (RKE)

OPINION and ORDER
Before the court is the motion of Yoel Weisshaus, proceeding pro se, for permissive
intervention in this case pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. By his
motion, Mr. Weisshaus seeks to intervene on the side of plaintiffs Automobile Club of New
York, Inc., doing business as AAA New York, and AAA North Jersey, Inc. (“AAA”) in
objecting to the Magistrate Judge’s denial of AAA’s motion to compel. Mr. Weisshaus’s
motion1 is opposed by defendant, the Port Authority of New York and New Jersey (the “Port
Authority”). For the reasons set forth below, Mr. Weisshaus’s motion is denied.

*

Judge Richard K. Eaton, of the United States Court of International Trade, sitting by designation.

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Mr. Weisshaus also, in the alternative, asks that his letters be considered as amicus briefs.
Because these letters raise arguments not presented to the Magistrate Judge, they are not accepted as amicus curiae
briefs. See Andersen v. Leavitt, No. 03–cv–6115 (DRH)(ARL), 2007 WL 2343672, at *2 (E.D.N.Y. Aug. 13, 2007)
(quoting Citizens Against Casino Gambling in Erie Cnty. v. Kempthorne, 471 F. Supp. 2d 295, 311 (W.D.N.Y.
2007), amended on reconsideration in part, No. 06-CV-0001S, 2007 WL 1200473 (W.D.N.Y. Apr. 20, 2007))
(“[T]he filing of an amicus curiae brief should not be used to address ‘wholly new issues not raised by the
parties.’”); see also Lehman XS Trust, Series 2006-GP2 v. Greenpoint Mortg. Funding, Inc., No. 12 Civ.

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BACKGROUND
On September 27, 2011, AAA sued the Port Authority alleging that it had unlawfully
approved certain toll increases. Compl. 1–2 (ECF Dkt. No. 1). Previously, on September 19,
2011, Mr. Weisshaus, too, had sued the Port Authority, also alleging that the toll increases were
not in accordance with law. See Compl. at 3, Weisshaus v. Port Authority of N.Y. & N.J., No. 11
Civ. 6616 (S.D.N.Y. Sept. 19, 2011), ECF Dkt. No. 2. Mr. Weisshaus’s suit was dismissed by
the District Court and was the subject of a subsequent order denying reconsideration. Order of
Dismissal, Weisshaus v. Port Authority of N.Y. & N.J., No. 11 Civ. 6616 (S.D.N.Y. Oct. 24,
2011), ECF Dkt. No. 4; Order, Weisshaus v. Port Authority of N.Y. & N.J., No. 11 Civ. 6616
(S.D.N.Y. Dec. 8, 2011), ECF Dkt. No. 9. On appeal to the Second Circuit, the District Court
orders were affirmed, except that the Court remanded the question of whether Mr. Weisshaus
had sufficiently alleged a cause of action under the dormant Commerce Clause. Weisshaus v.
Port Auth. of N.Y. & N.J., 497 F. App’x 102, 105, 106 (2d Cir. 2012), cert. denied, 134 S. Ct.
386 (2013).
AAA’s suit has proceeded through discovery and the court is about to hear oral argument
on AAA’s appeal of the Magistrate Judge’s Opinion and Order on AAA’s motion to compel.
See Op. and Order (ECF Dkt. No. 102). Mr. Weisshaus hopes to intervene in this case in order
to argue for reversing the appealed Order of the Magistrate Judge based on arguments not made
to Judge Pitman. See Letter from Yoel Weisshaus to Judge Richard K. Eaton 2, 5 (July 22,
2014) (ECF Dkt. No. 111) (“Thus, the deliberative process privilege, if any, is revoked by

7935(ALC)(HPB), 2014 WL 265784, at *1 (S.D.N.Y. Jan. 23, 2014) (citing Jamaica Hosp. Med. Ctr., Inc. v. United
Health Grp., Inc., 584 F. Supp. 2d 489, 497 (E.D.N.Y. 2008)) (“[T]he decision to grant leave to file a brief amicus
curiae is in the firm discretion of the court.”); Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., No. 11 Civ.
6746(RJH), 2011 WL 5865296, at *1 (S.D.N.Y. Nov. 22, 2011) (citation omitted) (“District courts have broad
discretion to permit or deny an appearance as amicus curiae in a case.”).

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statute” and “[w]ithout a doubt, if the Magistrate had considered the factual issues I raise, AAA’s
motion would have been granted.”).

DISCUSSION
An applicant may be permitted to intervene under Rule 24(b) of the Federal Rules of
Civil Procedure, at the discretion of the court, if its application is timely, the applicant “has a
claim or defense that shares with the main action a common question of law or fact,” and “the
intervention will [not] unduly delay or prejudice the adjudication of the original parties’ rights.”
Fed. R. Civ. P. 24(b). When a claim for intervention is “permissive” under Rule 24(b), “[t]he
court considers substantially the same factors” as it does when the claim is “of right” under Rule
24(a), which require an applicant to “(1) timely file an application, (2) show an interest in the
action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4)
show that the interest is not protected adequately by the parties to the action.” “R” Best
Produce, Inc. v. Shulman-Rabin Mktg. Corp., 467 F.3d 238, 240 (2d Cir. 2006) (citation omitted)
(quoting In re Bank of N.Y. Derivative Litig., 320 F.3d 291, 300 (2d Cir. 2003)).
Here, it is apparent that the second and third factors, listed above, are satisfied. That is,
both Mr. Weisshaus’s and AAA’s suits involve similar challenges to the Port Authority’s
authorization of the tolls. Also, it could be the case that Mr. Weisshaus’s interest might be
impaired to the extent that the dormant Commerce Clause is considered in the context of AAA’s
suit. Thus, the court’s consideration of the second and third factors cut in favor of Mr.
Weisshaus’s application.
As to the first factor, however, the application is wanting. Mr. Weisshaus has simply
waited too long. “The timeliness of [a motion to] intervene[e] is measured by ‘(1) the stage of

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the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3)
the reason for the length of the delay.’” Sanford v. MemberWorks, Inc., 483 F.3d 956, 965 (9th
Cir. 2007) (quoting United States v. Carpenter, 298 F.3d 1122, 1125 (9th Cir. 2002)). Here, the
Magistrate Judge’s order is on appeal. According to Mr. Weisshaus, he wishes to argue new
legal theories for why the discovery he seeks should be granted. Except for document requests
made pursuant to the Freedom of Information Act, it is not clear to the court that Mr. Weisshaus
has engaged in any discovery, let alone the extensive discovery engaged in by AAA that is the
subject of the Magistrate Judge’s Order. To allow him to intervene now and to make arguments
not considered by the Magistrate Judge in the first instance, would necessarily delay the process
and potentially prejudice the Port Authority by requiring it to litigate matters not heard by Judge
Pitman. Moreover, Mr. Weisshaus has offered no compelling reason for his delay in seeking to
intervene.
In addition, Mr. Weisshaus has not shown or even argued that his interests are not
adequately protected. See Citizens Against Casino Gambling, 704 F. Supp. 2d at 287 (denying
Rule 24(b) motion for permissive intervention because, even had the motion been timely, the
“relevant factors [did] not weigh in favor of intervention” because the movant did “not contend
that its interests [would] not be adequately represented by [the d]efendants . . . and its
participation [would] not significantly contribute to full development of factual issues.”).
Therefore, it is apparent that, of the four factors generally considered for motions
pursuant to Rule 24(b), Mr. Weisshaus has failed to satisfy two.

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CONCLUSION
Accordingly, Mr. Weisshaus’s motion to intervene is DENIED. The Clerk of Court is
directed to close document number 111 on the docket of this case.
SO ORDERED.
Dated:

October 17, 2014
New York, New York

/s/ Richard K. Eaton
Richard K. Eaton

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