Design Basics, LLC v. A.J. Bokar Building Company Inc.
Opinion & Order signed by Judge James S. Gwin on 10/17/16 denying Westfield Insurance Company's motion to intervene for the reasons set forth in this order. (Related Doc. 20 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------DESIGN BASICS, LLC,
A.J. BOKAR BUILDING COMPANY,
INC. D/B/A WILLOW WOOD HOMES,
CASE NO. 16-CV-669
OPINION & ORDER
[Resolving Doc. 20]
-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Design Basics, LLC brings copyright claims against Defendant A.J. Bokar
Building Company, Inc. (“A.J. Bokar Building”).1 Pursuant to Federal Rule of Civil Procedure
24, Westfield Insurance Company (“Westfield”) moves to intervene to assert a claim for
declaratory judgment on issues related to insurance coverage.2 Plaintiff and Defendant oppose
the motion.3 For the following reasons, this Court DENIES Westfield’s motion to intervene.
On March 18, 2016, Plaintiff Design Basics filed a complaint against Defendant A.J.
Bokar Building alleging copyright infringement.4
Westfield says that it issued the Defendant commercial liability insurance policies during
times relevant to the underlying action. Accordingly, Westfield states that it has “an interest
relating to the subject of the action” since it may have a “duty to provide coverage or to defend
or indemnify A.J. Bokar with regard to the claims asserted by Plaintiff.”5 Westfield therefore
Docs. 26 & 28. Westfield replies. Doc. 33.
Doc. 1 at 5-6.
Doc. 20 at 2-3.
Case No. 16-cv-669
asks the Court to allow it to intervene and seek a declaratory judgment as to its rights and
obligations under insurance contracts with Defendant A.J. Bokar Building.
II. Legal Standard
Westfield has argued both that it must be allowed to intervene as of right, and
alternatively that the Court should exercise its discretion to allow Westfield to permissively
Under Rule 24(a)(2), a third party may, “on timely motion,” intervene in an action as “of
right” when the would-be intervenor “claims an interest relating to the property or transaction
which 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 the existing
parties adequately represent that interest.”6 In the Sixth Circuit, before being entitled to
intervene, a party seeking to intervene as of right must establish four factors:
(1) the motion to intervene is timely; (2) the proposed intervenor has a substantial
legal interest in the subject matter of the case; (3) the proposed intervenor’s
ability to protect their interest may be impaired in the absence of intervention; and
(4) the parties already before the court cannot adequately protect the proposed
“‘The proposed intervenor must prove each of the four factors; failure to meet one of the
criteria will require that the motion to intervene be denied.’”8
Under Rule 24(b)(1)(B), a court has discretion to allow intervention upon a timely
motion when the would-be intervenor “has a claim or defense that shares with the main
action a common question of law or fact.”9 In the exercise of this discretion, a court
Fed. R. Civ. P. 24(a)(2).
Coal. To Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007).
United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th
Fed. R. Civ. P. 24(b)(1)(B).
Case No. 16-cv-669
considers whether the intervention will “unduly delay or prejudice the adjudication of the
original parties’ rights.”10
The Court will address in turn whether Westfield may intervene as of right or
permissively. Because it lacks a substantial interest in this case, Westfield is not entitled to
intervene as of right. The Court will also not allow permissive intervention since the insurance
action would not share questions of law or fact with the underlying copyright litigation.
A. Intervention of Right
Westfield cannot establish a substantial interest in the case. A movant’s interest “‘must be
direct, not contingent.’”11 When an insurer “‘offers to defend the insured but reserves the right to
deny coverage, . . . the insurer’s interest in the liability phase of the proceeding is contingent on
the resolution of the coverage issue.’”12 If insurers could intervene to protect these contingent
interests, they would “‘interfere with and in effect control the defense.’”13
The subject matter of the underlying action—copyright infringement—has nothing to do
with Westfield’s interest. Westfield seeks declaratory judgment over whether Defendant A.J.
Bokar Building is entitled to a defense, indemnification, and/or reimbursement of attorney’s fees
for representation prior to the litigation’s filing.14 In short, Westfield’s interest “is simply ‘the
amount it will have to pay’” if the Plaintiff wins.15 Westfield cannot “shoehorn its potential
Fed. R. Civ. P. 24(b)(3).
ProBuilt Homes, Inc. v. Jelenic, No. 1:13-CV-1685, 2014 WL 810833, at *2 (N.D. Ohio Feb. 28, 2014) (quoting
Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638 (1st Cir. 1989)).
Id. (quoting Travelers Indem., 884 F.2d at 638).
Id. (quoting Travelers Indem., 884 F.2d at 639).
Doc. 20 at 3.
Siding & Insulation Co. v. Beachwood Hair Clinic, Inc., No. 1:11-CV-01074, 2012 WL 645996, at *2 (N.D. Ohio
Feb. 28, 2012) (quoting Restor-A-Dent Dental Laboratories, Inc. v. Certified Alloy Products, 725 F.2d 871, 875 (2d
Case No. 16-cv-669
declaratory judgment contract claim” into this copyright action.16 Because Westfield only seeks
to resolve insurance policy coverage issues, its motion to intervene does not satisfy Rule 24(a)’s
B. Permissive Intervention
The Court also considers Westfield’s alternative argument that the Court should allow
permissive intervention under Rule 24(b)(1)(B). Westfield asserts, without support, that the
questions of fact presented by its declaratory judgment are “in common with the questions of
fact” presented by the copyright claim.17
For the same reasons that Westfield lacks a substantial legal interest in the outcome of the
underlying litigation, it cannot establish that its insurance action shares questions of law and
facts with the underlying copyright action. Accordingly, the Court finds that permitting
intervention would unduly delay this action and prejudice the rights of the original parties.
Westfield is not entitled to intervene under Rule 24(b).
For the reasons above, this Court DENIES Westfield’s motion to intervene.
IT IS SO ORDERED.
Dated: October 17, 2016
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Doc. 20 at 6.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?