Aubrey v. McCabe Trotter & Beverly PC
Filing
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ORDER AND OPINION The Court GRANTS Crowfield's motion to intervene (Dkt. No. 36 ). The Court FURTHER ORDERS that Crowfield's intervention is limited to briefing motions for summary judgment filed by Plaintiff and De fendant. Plaintiff's motion to strike (Dkt. No. 34 ) is DENIED. Plaintiff may respond to Crowfield's response in opposition to Plaintiff's motion for summary judgment (Dkt. No. 33) by July 9, 2017. No other briefing may be filed without leave of the Court. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 6/26/2018.(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Candis Leann Aubrey,
Plaintiff,
V.
McCabe Trotter & Beverly, P.C.,
Defendant.
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Civil Action No. 2:17-656-RMG
ORDER AND OPINION
This matter is before the Court on Crowfield Plantation Community Services Association,
Inc. ' s ("Crowfield") motion to intervene. For the reasons set forth below, the Court grants the
motion.
I.
Background
Plaintiff Candis Aubrey owns a home in the Crowfield Development in Goose Creek,
South Carolina. Her property is subject to recorded declarations of covenants, conditions, and
restrictions that require her to pay annual assessments to Crowfield and to pay assessed fines for
violations of use restrictions. Crowfield retained Defendant McCabe Trotter & Beverly, P.C.
("MTB") to collect past due assessments. MTB filed a foreclosure complaint against Plaintiff in
the Berkley County Court of Common Pleas on January 25, 2016, alleging Plaintiff owed
assessments, fines , and other charges under the covenants and Crowfield governing documents.
Ms. Aubrey filed the present action on January 12, 2017 in the Berkley County Court of
Common Pleas, asserting MTB's debt collection efforts violated the federal Fair Debt Collections
Act ("FDCPA"), 15 U.S.C. 1692. In her motion for summary judgment and opposition to MTB ' s
motion for summary judgment, Plaintiff asserts the debt collection efforts were illegal for several
reasons, including, inter alia, (I) the relevant documents do not authorize attorney ' s fees prior to
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a judgment, (2) the relevant documents do not authorize a lien for fines, and (3) the Crowfield
board failed to follow required procedure when impose fines.
On June 13, 2018, non-party
Crowfield filed a brief opposing Plaintiffs motion for summary judgment and supporting MTB's
motion for summary judgment. (Dkt. No. 33.) Plaintiff moved to strike as Crowfield is not a party
to this action and had previously appeared only to litigate a subpoena served on Crowfield by
Plaintiff. The Court ordered that Crowfield must move to intervene if it wishes to file briefs on
dispositive motions.
Crowfield has now so moved and Plaintiff has filed her opposition to
intervention.
II.
Legal Standard
Rule 24 of the Federal Rules of Civil Procedure provides for two types of intervention.
"Intervention of Right" requires the court to permit anyone to intervene upon timely motion who
"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). Thus, to intervene as ofright, a movant must show: (1) timely application; (2) an interest
in the subject matter of the underlying action; (3) that a denial of the motion for leave to intervene
would impair or impede the movant's ability to protect its interest; and (4) that the movant's
interest is not adequately represented by the existing parties to the litigation. Houston Gen. Ins.
Co. v. Moore , 193 F.3d 838, 839 (4th Cir. 1999). "A party moving for intervention under 24(a)
bears the burden of establishing a right to intervene, and must do so by satisfying all four
requirements." U.S. ex rel. MPA Constr., Inc. v. XL Specialty Ins. Co., 349 F. Supp. 2d 934, 937
(D. Md. 2004). Failure to satisfy even one of these requirements is sufficient to warrant denial of
a motion for leave to intervene as a matter ofright. See NAACP v. New York, 413 U.S. 345, 369
(1973).
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"Permissive Intervention," on the other hand, allows the court, in its discretion, to permit
anyone to intervene upon timely motion who "has a claim or defense that shares with the main
action a common question of law or fact." Fed. R. Civ. P. 24(b)(l)(B). In exercising discretion
under Rule 24(b ), "the court shall consider whether the intervention will unduly delay or prejudice
the application of the rights of the original parties." Fed. R. Civ. P. 24(b)(3).
Intervention may be limited to certain purposes.
See Newport News Shipbuilding &
Drydock Co. v. Peninsula Shipbuilders' Ass 'n, 646 F .2d 117, 122 (4th Cir. 1981) ("Even
intervention of right may properly be made conditional by the exigencies of the particular case.");
see also, e.g., Stone v. Univ. ofMd., 855 F.2d 178, 180 (4th Cir. 1988) (permitting intervention for
the limited purpose of challenging a sealing order); Diagnostic Devices, Inc. v. Taidoc Tech. Corp.,
257 F.R.D. 96, 98 (W.D.N.C. 2009) (permitting intervention for the limited purpose of opposing
a motion for temporary restraining order).
A motion to intervene must be accompanied by a proposed pleading that sets out the claim
or defense for which intervention is sought. Fed. R. Civ. P. 24(c). Courts however may decline
to require strict compliance with Rule 24( c) where the intervention is for a limited purpose fully
set forth in motion memoranda. E.g., Sch. Bd. of City of Newport News v. TR. Driscoll, Inc., No.
4:11CV79, 2011 WL 3809216, at *3 n.2 (E.D. Va. July 29, 201 l), report and recommendation
adopted, No. 4:11CV79, 2011 WL 3702421 (E.D. Va. Aug. 22, 2011); Diagnostic Devices, 257
F.R.D. at 101.
III.
Discussion
Intervention ofright requires (1) timely application; (2) an interest in the subject matter of
the underlying action; (3) that a denial of the motion for leave to intervene would impair or impede
the movant' s ability to protect its interest; and (4) that the movant' s interest is not adequately
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represented by the existing parties to the litigation. Houston Gen. Ins. Co. v. Moore , 193 F .3d 83 8,
839 (4th Cir. 1999). Crowfield argues it satisfies those requirements. The Court agrees.
Plaintiff seeks, among other things, a judicial determination of Crowfield rights has under
its governing documents and community property covenants. Crowfield' s interest in that subject
is obvious. Crowfield' s ability to protect its interest plainly would be impaired if the Court denied
Crowfield an opportunity to respond to Plaintiffs assertions.
Crowfield' s interest is not
adequately represented by a law firm defendant hired merely as its debt collector. "A presumption
of adequacy arises when the applicant and an existing party have the same interest or ultimate
objectives in the litigation." Nish & Goodwill Servs., Inc. v. Cohen, 191 F.R.D. 94, 97 (E.D. Va.
2000). Crowfield' s interest in the rights and duties created under its own governing documents is
not identical with MTB ' s interest in defending itself from an FDCP A claim.
Plaintiff does not argue against the above. Plaintiff instead argues the intervention is
untimely and will cause delay prejudicial to Plaintiff. The sole issue then is whether the motion
to intervene is timely. "Rule 24 is silent as to what constitutes a timely application and the question
must therefore be answered in each case by the exercise of the sound discretion of the court."
Black v. Cent. Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974). Crowfield argues its motion
to intervene is timely because it was filed at the same time as MTB ' s timely reply to Plaintiffs
opposition to MTB ' s motion for summary judgment. Plaintiff argues the motion to intervene is
not timely because it has been filed after the close of discovery and the filing of dispositive
motions, even though Crowfield was put on notice of this litigation no later than the September 1,
2017 service of Plaintiffs subpoena on Crowfield.
Certainly, it might be problematic if Crowfield now were to move to reopen discovery or
to file new pleadings. "Generally speaking, an intervenor is held to take the case as he finds it. ... "
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Newport News Shipbuilding & Drydock, 646 F.2d at 122. But Crowfield moves to intervene only
for the limited purpose of supporting MTB's motion for summary judgment and opposing
Plaintiffs motion for summary judgment. (See Dkt. No. 36 at 1, 5.) The Court finds a motion for
intervention for that limited purpose is timely when filed within the deadlines for briefing those
summary judgment motions.
Plaintiff argues that if intervention is granted, "discovery would need to reopen and
Crowfield would need to provide answers to discovery, identify witnesses and allow depositions
of its witnesses, etc." (Dkt. No. 37 at 6.) That argument is without merit because Crowfield's
intervention is for the limited purpose of briefing currently pending motions for summary
judgment. Crowfield's brief attaches no documents other than an "Amendment to Declaration of
Covenants, Conditions, Restrictions, Charges, and Liens for Crowfield Plantation Community and
Supplementary Declarations Thereto." (Dkt. No. 33-1.) The Court is confident Plaintiff has had
the benefit of full discovery of Crowfield's covenants and amendments thereto. Further, Plaintiff
has deposed Crowfield's Rule 30(b)(6) representative. The Court thus sees no reason why Plaintiff
should need further discovery to respond to Crowfield's brief.
IV.
Conclusion
For the foregoing reasons, the Court GRANTS Crowfield's motion to intervene (Dkt. No.
36). The Court FURTHER ORDERS that Crowfield's intervention is limited to briefing motions
for summary judgment filed by Plaintiff and Defendant. Plaintiffs motion to strike (Dkt. No. 34)
is DENIED. Plaintiff may respond to Crowfield's response in opposition to Plaintiffs motion for
summary judgment (Dkt. No. 33) by July 9, 2017. No other briefing may be filed without leave
of the Court.
AND IT IS SO ORDERED.
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llich~G~
United States District Court Judge
June ยท~, 2018
Charleston, South Carolina
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