Ceglia v. Zuckerberg et al

Filing 598

RESPONSE to Motion re 585 MOTION Intervene filed by Facebook, Inc., Mark Elliot Zuckerberg. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Snyder, Orin)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-----------------------------------PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.
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Civil Action No. 1:10-cv-00569RJA

DEFENDANTS’ RESPONSE TO MOTION TO INTERVENE
On November 5, 2012, this Court docketed a motion to intervene in this case, which was
purportedly filed pro se by federal prisoner James Charles Kopp (the “Motion”). Doc. No. 585.
The Motion is made pursuant to both Fed. R. Civ. P. 24(a), which allows intervention as of right,
and Fed. R. Civ. P. 24(b), which allows intervention with the permission of the Court. The
Motion does not articulate the specific legal basis to intervene, but rather makes various factual
allegations about Plaintiff Paul Ceglia’s criminal and personal history. On November 19, 2012,
Defendants’ counsel received a letter and sworn affidavit via United States mail apparently from
Kopp, in which Kopp swears that the Motion to Intervene attributed to him was fraudulently
filed by an impersonator. A true and accurate copy of this letter and affidavit, which appear to
have been sent to the Court as well, are attached hereto as Exhibit A.
In order to intervene as of right, a movant must either have an unconditional federal
statutory right, or else (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 without him, and
(4) show that the interest is not adequately protected by the parties to the action. Fed. R. Civ. P.
24(a); see New York News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992). Without such an

unconditional right, failure to satisfy any one of the other four requirements provides sufficient
basis to deny intervention. Kheel, 972 F.2d at 485; see, e.g., Schonfeld v. City of New York, 14
Fed. Appx. 128, 131 (2d Cir. 2001) (affirming rejection of pro se motion to intervene as of right
for untimeliness and because movant’s interests were adequately represented); D’Amato v.
Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001) (affirming rejection of pro se motion to intervene
as of right for untimeliness); Kheel, 972 F.2d at 486-87 (affirming rejection of pro se motion to
intervene as of right for lack of a valid interest); Ellis v. Appleton Papers, Inc., No. 94-CV-558,
2006 WL 984693, at *2 (N.D.N.Y. April 14, 2006) (rejecting pro se motion to intervene as of
right for untimeliness, lack of a valid interest, and because disposition of the case would not
affect the movant’s claim); United Parcel Serv. of Am., Inc. v. Net, Inc., 225 F.R.D. 416, 421-22
(E.D.N.Y. 2005) (rejecting pro se motion to intervene as of right for lack of a valid interest);
Coal. for Abortion Rights & Against Sterilization Abuse v. Niagara Frontier Transp. Auth., 584
F. Supp. 985, 986 (W.D.N.Y. 1984) (denying pro se motion to intervene “in all respects” for lack
of timeliness, lack of a valid interest, and failure to show that the movant’s interests were not
represented by the existing parties).
Permissive intervention, on the other hand, may be granted (1) when an applicant has a
conditional statutory right to intervene or (2) has a claim or defense that shares a common
question of law or fact with the ongoing action. Fed. R. Civ. P. 24(b)(1). The Court has broad
discretion in determining whether to grant or deny permissive intervention. See Schonfeld, 14
Fed. Appx. at 132. In deciding whether to allow permissive intervention, Rule 24(b)(3) requires
consideration of the potential delay or prejudice that intervention could cause for the original
litigants. Such concerns have frequently led courts in this Circuit to deny permissive
intervention to pro se applicants. See, e.g., Schonfeld, 14 Fed. Appx. at 132 (affirming rejection

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of pro se motion for permissive intervention for untimeliness); D’Amato, 236 F.3d at 84 n.5
(affirming rejection of pro se motion for permissive intervention because of delay and prejudice
to existing parties); Kheel, 972 F.2d at 487 (affirming rejection of pro se motion for permissive
intervention because of delay and prejudice to existing parties, despite a common issue of fact);
Ellis, 2006 WL 984693 at *3 (rejecting pro se motion for permissive intervention because of
factual differences and prejudice to existing parties); Coal. for Abortion Rights, 584 F. Supp. at
986 (denying pro se motion to intervene “in all respects” for lack of timeliness, lack of a valid
interest, and failure to show that the movant’s interests were not represented by the existing
parties); see also Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983)
(describing policy reasons militating against pro se intervention in the corporate context);
Winchester Assocs. v. Gould, No. 85 Civ. 2246 (MJL), 1987 WL 14909, at *2 n.6 (S.D.N.Y. July
21, 1987) (rejecting pro se intervention in a “complex litigation, which . . . has occasioned 75
entries on its docket sheet, [where] even the skills of a well trained and experienced attorney
would be challenged”).
The Motion to Intervene (Doc. No. 585) should be denied. First, it is unclear in light of
Kopp’s sworn statement that the Motion was actually filed by Kopp. See Exhibit A. And if the
Motion was in fact filed by Kopp, then his later sworn statement is tantamount to a withdrawal of
the Motion. Second, the Motion does not, in any event, satisfy the standards for either
permissive intervention or intervention as of right. The Motion identifies no interest justifying
Kopp’s participation in this lawsuit, and allowing him to intervene at this late date could delay
the proceedings.

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Dated:

New York, New York
November 19, 2012
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
Erik R. Zimmerman
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]

Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.

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