Vasandani v. Dublin Green Condominium Owners' Association, Inc. et al
Filing
21
OPINION and ORDER granting 14 Motion to Intervene. Signed by Magistrate Judge Terence P Kemp on 6/13/2014. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lata Vasandani,
:
Plaintiff,
:
Case No.
:
JUDGE GEORGE C. SMITH
Dublin Green Condominium Owners’:
Association, Inc., et al.,
Magistrate Judge Kemp
v.
Defendants.
2:14-cv-0059
:
OPINION AND ORDER
On January 16, 2014, Plaintiff, Lata Vasandani, filed an
action in this Court against Defendants Dublin Green Condominium
Owners’ Association, Inc., Apogee Property Management, Ltd., and
Lynette Gehring seeking damages pursuant to 42 U.S.C.
§3604(f)(3)(B); 24 CFR §100.204; and O.R.C. §4112.02(H)(19).
On
May 1, 2014, Nationwide Property & Casualty Insurance Company
(“Nationwide”) filed a motion to intervene as a party plaintiff
and an intervenor’s complaint and cross-complaint.
(Doc. 14).
The parties have not filed any opposition to Nationwide’s motion,
and the motion is now ripe for adjudication.
For the following
reasons, Nationwide’s motion to intervene as a party plaintiff
will be granted.
I.
Ms. Vasandani alleges that Defendants failed to clear snow
and ice in certain common areas near her condominium and that, as
a result, she slipped and fell on or about January 18, 2012. Ms.
Vasandani further alleges that she has a disability and that
Defendants failed in their duty to provide a reasonable
accommodation as required by 42 U.S.C. §3604(f)(3)(B); 24 CFR
§100.204; and O.R.C. §4112.02(H)(19).
In its motion to
intervene, Nationwide represents that it issued an insurance
policy to Dublin Green Condominium Owners’ Association, Inc., and
that the two remaining Defendants were “insureds” under that
policy. Nationwide seeks to intervene in order to obtain a
declaration of the respective rights of the parties under the
policy.
II.
In its motion, Nationwide seeks to intervene of right under
Rule 24(a) or permissively under Rule 24(b) of the Federal Rules
of Civil Procedure. Intervention of right is authorized by Fed.
R. Civ. P. 24(a), which provides, in pertinent part:
On timely motion, the court must permit anyone to
intervene who:
(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 as a
practical matter may impair or impede the movant’s
ability to protect its interest, unless existing
parties adequately represent that interest.
The Sixth Circuit applies a four-part test to motions made
pursuant to Fed. R. Civ. P. 24(a)(2). This test requires the
moving party to establish: (1) that the motion was filed timely,
(2) that a substantial legal interest is involved, (3) that an
interest will be impaired without intervention, and (4)
inadequate representation by the current parties. Blount-Hill v.
Zelman, 636 F.3d 278, 283 (6th Cir. 2011); see also Michigan
State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997).
Because the Court finds that Nationwide’s motion should be
granted as of right under Fed. R. Civ. P. 24(a)(2), there is no
need for a discussion of permissive intervention under Fed. R.
Civ. P. 24(b).
III.
The first element in deciding a motion for intervention of
right under Fed. R. Civ. P. 24(a)(2) is whether the motion was
timely filed.
Blount-Hill, 636 F.3d at 283.
timeliness, courts use a five-factor test.
To determine
Id. at 284 (citing
Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)).
The first factor is “the point to which the suit has
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progressed.” Id.
Here, Nationwide filed its motion just over a
week after answers were required, and the case is still in its
early stages.
Another court in this district granted a motion to
intervene in a substantially similar case where the only other
significant proceeding in the case was another motion to
intervene that was later withdrawn.
Patel Family Trust v. AMCO
Ins. Co., No. 2:11-cv-1003, 2012 U.S. Dist. LEXIS 54326, *5 (S.D.
Ohio Apr. 17, 2012).
The second factor is “the purpose for which intervention is
sought.”
Jansen, 904 F.2d at 340.
“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,” which does not apply here.
Stupak-Thrall v. Glickman, 226 F.3d 467, 479 n.15 (6th Cir. 2000)
(emphasis in original).
The third factor is “the length of time preceding the
application during which the proposed intervenors knew... of
their interest in the case.”
Jansen, 904 F.2d at 340.
Nationwide alleges that it learned of the case on February 10,
2014.
It filed its motion to intervene on May 1, 2014, a time
span of approximately two and a half months, which, in light of
the other factors, is not unduly long.
The fourth factor is “the prejudice to the original parties
due to the proposed intervenors’ failure to promptly intervene
after they knew... of their interest in the case.”
Id.
Here,
Nationwide’s motion is unopposed and its intervention at this
time will not prejudice the original parties.
The final factor is “the existence of unusual circumstances
militating against or in favor of intervention.”
Id.
Here, the
parties have not identified, nor is the Court aware of, any
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unusual circumstances.
When all the factors are considered,
Nationwide’s motion was timely filed.
The second element in deciding a motion under Fed. R. Civ.
P. 24(a)(2) is whether the intervenor possesses a substantial
legal interest in the case.
Blount-Hill, 636 F.3d at 283.
Fed.
R. Civ. P. 24(a)(2) permits anyone to intervene that is claiming
an “interest relating to the property or transaction that is the
subject of the action.”
Close cases should be resolved in favor
of recognizing a Fed. R. Civ. P 24(a)(2) interest.
F.3d at 1247.
Miller, 103
The Court of Appeals recognizes “a rather
expansive notion of the interest sufficient to invoke
intervention of right.”
Id. at 1245.
Here, Nationwide claims that if Ms. Vasandani prevails in
her claims against Defendants, Nationwide could be liable to
indemnify Defendants.
Also, Nationwide points out that, unless
it intervenes, it could be collaterally estopped from relitigating facts decided in this case in a state court action.
Howell v. Richardson, 45 Ohio St.3d 365 (1989).
In a similar
case, another court in this district stated that “the defendants'
insurance company[] has a substantial legal interest in the
outcome of this litigation.
If plaintiffs win this case, [the
insurer] could be responsible for indemnifying the defendants.”
McWhorter v. Elsea, No.2:00-cv-473, 2006 U.S. Dist. LEXIS 88273,
*7 (S.D. Ohio Dec. 6, 2006) (motion to intervene denied on
grounds that it was untimely).
Therefore, Nationwide does have a
substantial legal interest under Fed. R. Civ. P. 24(a)(2).
The third element in deciding a motion under Fed. R. Civ. P.
24(a)(2) is whether the intervenor’s ability to protect its
interest will be impaired without intervention.
F.3d at 283.
Blount-Hill, 636
Here, Nationwide could be collaterally estopped
from protecting its interest if it does not intervene.
45 Ohio St.3d 365.
Howell,
Collateral estoppel “does not apply merely to
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those who were parties to the proceeding.
It applies likewise to
those in privity with the litigants and to those who could have
entered the proceeding but did not avail themselves of the
opportunity.”
Id. at 367.
Therefore, Nationwide’s ability to
protect its interest in this case could be impaired without
intervention.
The fourth element in deciding a motion under Fed. R. Civ.
P. 24(a)(2) is whether the existing parties will fail to
adequately represent the intervenor’s interest without
intervention.
Blount-Hill, 636 F.3d at 283.
The “court must
permit anyone to intervene who ... is so situated that disposing
of the action may as a practical matter impair or impede the
movant's ability to protect its interest.”
24(a)(2).
Fed. R. Civ. P.
“[I]t may be enough to show that the existing party
who purports to seek the same outcome will not make all of the
prospective intervenor's arguments.”
Miller, 103 F.3d at 1247.
Here, only Nationwide has an interest in demonstrating that some
or all of Ms. Vasandani’s claims are not covered by the policy.
Ms. Vasandani pleads alternatively that Defendants’ conduct was
negligent, reckless, or intentional.
Ms. Vasandani and
Defendants have an incentive to demonstrate that Defendants’
conduct was negligent to increase the likelihood of coverage by
the policy.
Therefore, Nationwide’s interest is not adequately
represented by the existing parties.
IV.
Based upon the foregoing, Nationwide’s motion to intervene
(Doc. 14) is granted.
The Clerk shall detach and file the
complaint attached to the motion to intervene.
V.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
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28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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