Upsolve, Inc. et al v. James

Filing 65

RESPONSE in Opposition to Motion re: 64 MOTION to Intervene., 63 MOTION to Intervene. . Document filed by Rev. John Udo-Okon, Upsolve, Inc...(Silbert, Gregory)

Case 1:22-cv-00627-PAC Document 65 Filed 05/23/22 Page 1 of 2

BY ECF

May 23, 2022

767 Fifth Avenue
New York, NY 10153-0119
[phone] tel
[phone] fax
Gregory Silbert
[phone]
[e-mail]

Hon. Paul A. Crotty
United States District Court
Southern District of New York
500 Pearl Street, Chambers 1350
New York, New York 10007
Re: Upsolve, Inc., et al., v. James, 22-CV-627 (PAC)
Dear Judge Crotty:
We represent Plaintiffs Upsolve, Inc. and Rev. John Udo-Okon in connection with the abovereferenced matter. On May 10, 2022, Mr. Erwin Rosenberg filed a Motion for Permissive Intervention
(ECF 63), (the “Motion”). See also Amended Motion for Permissive Intervention (ECF 64), (the
“Amended Motion”) (filed May 23, 2022). Because Mr. Rosenberg’s case involves distinct factual
and legal issues from this action and would delay this action’s resolution, Plaintiffs respectfully
oppose the Motion and the Amended Motion.
“[T]he Court has broad discretion to deny an applicant’s motion for permissive intervention.”
Nat’l Acad. of Television Arts and Scis., Inc. v. Multimedia Sys. Designs, Inc., 551 F. Supp. 3d 408,
417 n.1 (S.D.N.Y. 2021) (citing New York News, Inc. v. Kheel, 972 F.2d 482, 486–87 (2d Cir. 1992)).
Rule 24(b) permits intervention only by a party who “has a claim or defense that shares with the main
action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). Courts thus deny permissive
intervention where it would raise distinct factual or legal questions. See, e.g., Washington Elec. Coop, Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990) (upholding denial
of intervention where it would “inject” additional legal issues); Wingate v. Gives, No. 05 Civ. 1872,
2009 WL 424359, at *6 (S.D.N.Y. Feb. 13, 2009) (“[E]ven where the underlying legal theories are the
same, courts may deny permissive intervention where dissimilarity of facts would cause confusion
and raise extrinsic issues.”). “The principal guide in deciding whether to grant permissive
intervention,” the Second Circuit has explained, “is whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.” Olin Corp. v. Lamorak Ins. Co., 325
F.R.D. 85, 87 (S.D.N.Y. 2018) (quoting United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir.
1994)) (internal quotation marks and brackets omitted); see Fed. R. Civ. P. 24(b)(3).
This Court should deny the Motion and the Amended Motion because Mr. Rosenberg’s case
raises distinct factual and legal issues and intervention will unduly complicate and delay this
litigation. Mr. Rosenberg is a disbarred attorney asserting a facial challenge to the Attorney General’s
“right to admit, suspend, and/or disbar a lawyer.” Motion at 1–3; see, e.g., id. at 2 (asserting a general
constitutional attack on the “authority from or relating to N.Y. Jud. Law §§ 90, 468-a, 476-a, 478,
484, 485, 750, 753 and the Rules of the Chief Administrator of the Courts which imposes a prior

Case 1:22-cv-00627-PAC Document 65 Filed 05/23/22 Page 2 of 2

restraint on his speech, namely by asserting the right to admit, suspend and/or disbar a lawyer”). See
also Amended Motion at 1–3 (replicating the Motion’s claims). The facts of Mr. Rosenberg’s case
have nothing in common with Plaintiffs’ “free and reliable person-to-person legal advice about how to
fill out a state-provided form” within the confines of a well-regulated program. PI Reply Br. (ECF 62)
at 1, 4. Nor does Mr. Rosenberg’s broad facial challenge to the Attorney General’s disbarment
authority involve the sole legal issue raised by Plaintiffs’ case: whether “a prosecution under New
York’s rules governing the unauthorized practice of law (“UPL”) would violate the First Amendment
as applied to [Plaintiffs’] specific program.” Id. at 1. Most importantly, allowing intervention would
complicate and delay this action to the parties’ detriment, especially since the parties have now
completed briefing and oral argument on Plaintiffs’ Motion for a Preliminary Injunction.
Plaintiffs respectfully ask the Court to deny the Motion and the Amended Motion.
Respectfully submitted,
/s/ Gregory Silbert
Gregory Silbert
cc: Counsel of Record (via ECF)