Perez-Colon v. Millenium Institute for Advanced Nursing Care, Inc. et al

Filing 109

OPINION AND ORDER denying 95 Motion to Intervene. Signed by Judge Jose A Fuste on 08/25/2011. (dv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JUAN FELIX PEREZ COLON,
Plaintiff
v.
CIVIL NO. 10-1387 (JAF/JP)
MILLENIUM INSTITUTE FOR ADVANCED
NURSING CARE, INC., et al.,
Defendants

OPINION AND ORDER
Before the Court is Felix Perez-Colon and Francisco Diez-Perez’s
(“Putative Intervenors”) motion to intervene (No. 95) and Plaintiff
Juan Felix Perez Colon’s opposition thereto (No. 96). For the reasons
stated herein, said motion is hereby DENIED.
I.
INTRODUCTION
On May 11, 2010, Plaintiff filed the instant complaint against
Defendants Millenium Institute for Advanced Nursing Care, Inc.,
SIMED, and Triple-S Propiedad. Plaintiff is the son of Juan Perez
Muniz (the “deceased”). Plaintiff alleged that the deceased passed
away because of the negligence of Defendants. Plaintiff brought the
instant action pursuant to diversity of jurisdiction requesting
damages for his pain and suffering, and for the mental anguish of the
deceased.

On

June

14,

2011,

Plaintiff

settled

the

case

with

Defendants (No. 89) and the Court entered judgment accordingly
(No. 90).

CIVIL NO. 10-1387 (JAF/JP)

-2-

On June 28, 2011, Putative Intervenors filed the instant motion
requesting intervention as a matter of right. Putative Intervenors,
like Plaintiff, are members of the estate of the deceased. They argue
that they should be allowed to intervene because they have interest
in the settlement since part of the settlement allegedly involves the
claims for the mental anguish of the deceased.
II.
MOTION TO INTERVENE AS OF RIGHT
In the instant case, Putative Intervenors move to intervene as
matter of right under Fed. R. Civ. P. 24(a)(2). The Court will now
consider the parties’ arguments.
A.

Intervention as of Right under Rule 24(a)(2)
To intervene as a matter of right under Rule 24(a)(2), “a

putative intervenor must establish (i) the timeliness of its motion
to intervene; (ii) the existence of an interest relating to the
property or transaction that forms the basis of the pending action;
(iii) a realistic threat that the disposition of the action will
impede its ability to protect that interest; and (iv) the lack of
adequate representation of its position by any existing party.” R &
G Mortgage Corp. v. Federal Home Loan Mortgage Corp., 584 F.3d 1, 7
(1st Cir. 2009). Failure to meet any one of these requirements will
doom the attempt at intervention. Id.

CIVIL NO. 10-1387 (JAF/JP)
1.

-3-

Timeliness

Timeliness is an issue that is fact-sensitive and depends on the
totality of the circumstances. Banco Popular de Puerto Rico v.
Greenblatt, 964 F.2d 1227, 1230-31 (1st Cir. 1992). Of high relevance
in said timeliness inquiry is the status of the litigation at the
time of the request. Id. at 1231. As the litigation approaches its
conclusion, the scrutiny attached to the request for intervention
intensifies.
timeliness

Id.

Generally,

inquiry:

(i)

the

four

factors

length

of

are

time

involved
that

the

in

“the

putative

intervenor knew or reasonably should have known that his interests
were at risk before he moved to intervene; (ii) the prejudice to
existing parties should intervention be allowed; (iii) the prejudice
to the putative intervenor should intervention be denied; and (iv)
any special circumstances militating for or against intervention.”
R & G Mortgage Corp., 584 F.3d at 7.
After considering the arguments, the Court finds that the
Putative Intervenors’ argument fails. At the time the instant motion
was filed, judgment had already been entered. As such, the level of
scrutiny

attached

to

the

request

for

intervention

is

greatly

heightened. Greenblatt, 964 F.2d at 1231 (citing Garrity v. Gallen,
697 F.2d 452, 455 n.6 (1st Cir. 1983)).
The length of time that Putative Intervenors were aware of their
interest in the action cuts against allowing intervention. Putative
Intervenors were aware from the very beginning about their interest

CIVIL NO. 10-1387 (JAF/JP)

-4-

in this case. From the original complaint filed on May 11, 2010, it
was obvious that Plaintiff was requesting damages for the mental
anguish

suffered

by

the

deceased

(No.

1).

However,

Putative

Intervenors waited over a year and until after judgment was entered
to request intervention.
Furthermore,

the

balance

of

harms

similarly

cuts

against

allowing intervention. By the time Putative Intervenors moved to
intervene, the original parties had settled the dispute. Since the
intervention is aimed at reducing the amount of funds to be received
by Plaintiff, intervention would cause great prejudice to Plaintiff.
“One of the core purposes of the timeliness requirement is to prevent
disruptive, late-stage intervention that could have been avoided by
the exercise of reasonable diligence.” R & G Mortgage Corp., 584 F.3d
at 9 (citing United Nuclear Corp. v. Cannon, 696 F.2d 141, 143 (1st
Cir. 1982)).
Putative Intervenors’ claim that they would suffer prejudice is
unconvincing. They would suffer no prejudice since they have their
own claims pending in the Puerto Rico local courts. Also, even if
Putative

Intervenors

did

suffer

some

form

of

prejudice,

said

prejudice would be nothing more than “a self-imposed wound.” Id. If
Putative Intervenors had acted responsibly and sought intervention
earlier, they would not be in this position. Also, there are no
special circumstances militating for intervention.

CIVIL NO. 10-1387 (JAF/JP)

-5-

As such, the Court finds that Putative Intervenors’ motion is
untimely. Since Putative Intervenors have failed to meet one of the
requirements to intervene as a matter of right, their motion to
intervene fails. Id. at 7.
2.

Fed. R. Civ. P. 24(c)

The Court also notes that the motion to intervene would also
fail for failing to comply with Fed. R. Civ. P. 24(c). Fed. R. Civ.
P. 24(c) states:
[a] motion to intervene must be served on the parties as
provided in Rule 5. The motion must state the grounds for
intervention and be accompanied by a pleading that sets
out the claim or defense for which intervention is sought.
(emphasis added).
In the instant case, Putative Intervenors have failed to provide
any pleading setting forth a claim or defense against any of the
parties. As such, their motion to intervene would also fail on these
grounds. Brown v. Colegio de Abogados de Puerto Rico, 2011 WL 830725,
at *5-6 (D.P.R. Mar. 8, 2011) (Fuste, J.).1

1.

The Court must note that the attempt at intervention here appears to create an
ethical issue for attorney Liana Colon Valentin (“Colon”) under the ABA Model
Rules of Professional Conduct. ABA Model Rule 1.9(a) provides that “[a] lawyer
who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which
that person’s interests are materially adverse to the interests of the former
client unless the former client gives informed consent, confirmed in writing.”
Here, Colon represented Plaintiff in this case at one point in time (No. 26).
After withdrawing from her representation of Plaintiff (Nos. 50 and 51), Colon
is now attempting to represent the Putative Intervenors in this case (No. 95).
Without a doubt, the representation of Putative Intervenors is materially
adverse to the interests of Colon’s former client, Plaintiff, as Putative
Intervenors are attempting to take a part of the settlement funds belonging to
Plaintiff. Unless Plaintiff provided informed consent confirmed in writing, it
would appear that Colon is acting against the mandates of ABA Model Rule
1.9(a).

CIVIL NO. 10-1387 (JAF/JP)

-6IV.
CONCLUSION

Thus, the Court hereby DENIES the motion to intervene filed by
the Putative Intervenors.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 25th day of August, 2011.
S/JOSE ANTONIO FUSTE
JOSÉ ANTONIO FUSTÉ
UNITED STATES DISTRICT JUDGE