Berk et al v. Moore et al

Filing 45

Opinion and Order granting the motions for leave to intervene, Doc. Nos. 18 , 19 , 20 ,[ 21], 38 and 44 . Signed by Magistrate Judge Norah McCann King on 5/09/11. (rew) Modified text on 5/10/2011 (rew).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OTTO BERK, et al.,
Plaintiffs,
vs.

Civil Action 2:10-CV-1082
Judge Frost
Magistrate Judge King

ERNIE MOORE, DIRECTOR, et al.,
Defendants.
OPINION AND ORDER
Plaintiffs Otto Berk, Jeff Blair and Don Hall, inmates at the
Marion Correctional Institution [“MCI”] who were convicted of criminal
offenses prior to 1996, bring this action for declaratory and
injunctive relief under 42 U.S.C. §1983 alleging that the retroactive
application to them of Ohio’s current parole laws and guidelines
violate the due process and ex post facto clauses of the United States
Constitution as well as the Ohio Constitution.

This matter is now

before the Court on the motions for leave to intervene filed by three
other MCI inmates who were also convicted prior to 1996 and who also
wish to challenge the retroactive application of new parole laws and
guidelines to them.

Doc. Nos. 18, 19, 20, 21.

Also before the Court

is the motion of an inmate at the Grafton Correctional Facility for
permissive joinder as a plaintiff in this action.

Doc. No. 38.

Although that motion invokes Fed. R. Civ. P. 18, the Court concludes
that this motion, too, is appropriately resolved by reference to the
standards governing intervention. Defendants oppose the motions.
Nos. 23, 40.

Doc.

Movant Keran has filed a reply in support of his motion

for leave to intervene.
INTERVENTION OF RIGHT

Doc. No. 27.

Rule 24(a) of the Federal Rules of Civil Procedure governs
intervention of right, providing as follows:
On timely motion, the Court must permit anyone to intervene
who:
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(2) 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.
Fed. R. Civ. P. 24(a)(2).1

The United States Court of Appeals for the

Sixth Circuit requires that a proposed intervenor satisfy four factors
before establishing a right to intervene under this provision:
(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 intervenor’s
interest.
Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th
Cir. 2007).

“‘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.’”

United States v. Michigan, 424 F.3d

438, 443 (6th Cir. 2005) (quoting Grubbs v. Norris, 870 F.2d 343, 345
(6th Cir. 1989)).
“‘[T]he timeliness of a motion to intervene is a threshold
issue.’”

Blount-Hill v. Zelman, No. 09-3952, 2011 U.S. App. LEXIS

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The proposed intervenors do not assert a right to intervention based
upon federal statute. Therefore, the Court will not address Fed. R. Civ. P.
24(a)(1).

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2932, at *13 (6th Cir. Feb. 16, 2011)(quoting United States v. Ritchie
Special Credit Invs., Ltd., 620 F.3d 824, 832 (8th Cir. 2010)).

In

determining whether a motion to intervene is timely, a court should
consider “‘all relevant circumstances.”’

Stupak-Thrall v. Glickman,

226 F.3d 467, 472-73 (6th Cir. 2000) (quoting Jansen v. City of
Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)).

A court must consider

the following factors when evaluating the timeliness factor:
(1) the point to which the suit has progressed; (2) the
purpose for which intervention is sought; (3) the length of
time preceding the application during which the proposed
intervenors knew or should have known of their interest in
the case; (4) the prejudice to the original parties due to
the proposed intervenors’ failure to promptly intervene
after they knew or reasonably should have known of their
interest in the case; and (5) the existence of unusual
circumstances militating against or in favor of
intervention.
Id. at 473 (quoting Jansen, 904 F.2d at 340) (internal quotation marks
omitted).
In the case presently before the Court, the motions for leave to
intervene were filed shortly after the initiation of the action;
indeed, defendants do not contend that the motions are untimely.

This

action is still in the early stages of litigation.
Second, there is no indication that the proposed intervenors
should have or could have filed their motion earlier.

Stupak-Thrall,

226 F.3d at 479 n.15 (“The ‘purposes of intervention” prong of the
timeliness element normally examines only whether the lack of an
earlier motion to intervene should be excused, given the proposed
intervenor’s purpose - for example, when the proposed intervenor seeks
to intervene late in the litigation to ensure an appeal.”)
Third, there is no evidence that the proposed intervenors’

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failure to file their motions earlier has resulted in prejudice to the
current parties. See Stotts v. Memphis Fire Dep’t, 679 F.2d 579, 592
(6th Cir. 1982) (“The prejudice inquiry is narrow: only that prejudice
attributable to a movant’s failure to act promptly may be considered.
The broader factor of prejudice that may flow from the intervention
itself does not weigh in the balance.”).
Finally, the Court is unaware of the existence of unusual
circumstances militating against or in favor of intervention.
Accordingly, under these circumstances, a balancing of the other four
factors establishes that the motions to intervene are timely.
Having established that the motions for leave to intervene are
timely, the movants must next establish each of the remaining factors
required by Rule 24(a) for intervention of right, including proof that
their interests may be impaired in the absence of intervention. See
Coal. to Defend Affirmative Action, 501 F.3d at 779. The denial of the
motions for leave to intervene would not, of course, preclude the
movants from pursuing their claims in separate litigation.

Therefore,

the Court is not persuaded that the proposed intervenors’ interests
will be impaired absent intervention.

Because the movants have not

established each of the factors required for intervention as of right,
the Court concludes that, to the extent that the motions seek leave to
intervene as of right pursuant to Rule 24(a), the motions are without
merit.

See United States v. Michigan, 424 F.3d at 443.

PERMISSIVE INTERVENTION
Some or all of the motions specifically refer to permissive
intervention.

Fed. R. Civ. P. 24(b) provides, in pertinent part:

(1) In General.

On timely motion, the court may permit

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anyone to intervene who:
(A) is given a conditional right to intervene by a
federal statute; or
(B) 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).

Whether an applicant will be permitted to

intervene under Rule 24(b) lies within the sound discretion of the
trial court.

Cf. Coal. to Defend Affirmative Action, 501 F.3d at 784

(“The denial of permissive intervention should be reversed only for
clear abuse of discretion[.]”) (internal quotation marks and citations
omitted).

“To intervene permissively, a proposed intervenor must

establish that the motion for intervention is timely and alleges at
least one common question of law or fact.”
424 F.3d 438, 444 (6th Cir. 2005) (citing

United States v. Michigan,
Miller, 103 F.3d at 1248).

Once these two requirements are established, the district court must
then take into account undue delay and prejudice to the original
parties, if any, and any other relevant factors to determine whether
intervention should be allowed.

Id.

“Moreover, permissive

intervention under Rule 24(b) is to be liberally granted, so as to
promote the convenient and prompt disposition of all claims in one
litigation.”

Id. (citations omitted).

As discussed supra, the motions for leave to intervene are
timely.
The named plaintiffs do not oppose the motions for leave to
intervene.

Defendants oppose the motions, however, taking the

position that “Ex Post Facto claims require highly individualized
determinations of law and fact” and that to permit the proposed
interventions would unduly delay the litigation and prejudice the

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parties.

Defendants’ Memorandum in Opposition to Motions to

Intervene, Doc. No. 23, at 2-3.
It is clear to this Court that the proposed intervenors’
challenge to the retroactive application of current parole laws and
regulations to persons convicted prior to 1996 presents questions of
law and fact in common with the claims asserted by the named
plaintiffs.

See United States v. Michigan, 424 F.3d at 444. Moreover,

the Court is not convinced that the grant of the motions for leave to
intervene will result in undue delay of the litigation and prejudice
to the parties. It appears, at this juncture, that the resolution of
these claims will be based primarily on issues of law.

Certainly,

defendants have not explained how the particular ex post facto
challenge presented by the named plaintiffs or the proposed
intervenors would require “highly individualized determinations of law
and fact.”

Under these circumstances, the Court concludes that there

is little risk of prejudice to the parties sufficient to warrant
denial of leave to intervene.2
WHEREUPON, the motions for leave to intervene, Doc. Nos. 18, 19,
20, 21 and 38, are GRANTED.
Two of the named plaintiffs have been granted leave to amend or
supplement their pleadings,

Order, Doc. No. 42, and all three of the

named plaintiffs have filed yet another motion to amend or supplement
the original Complaint.

Doc. No. 44. That motion is GRANTED.

The Court concludes that a single, comprehensive complaint that

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The Court expresses its willingness to revisit this issue should it
appear that the joinder of the intervenors’ claims results in actual and
demonstrable delay in the litigation.

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includes all the claims by all the claimants – the three original
named plaintiffs and the four intervenors – will most efficiently
present their common claims for resolution.

To that end, then, the

plaintiffs and the intervening plaintiffs are ORDERED to file, within
thirty (30) days, an amended complaint that includes all the claims to
be submitted to the Court for resolution.

The plaintiffs and

intervenors are reminded that they must each personally sign the
anticipated amended complaint.
IT IS SO ORDERED.

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
May 9, 2011

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