Chaucer Corporate Capital, No. 2 Limited v. Azad

Filing 48

ORDER; 35 Opposed MOTION to Intervene is DENIED without prejudice to being re-filed within 14 days of the entry of this Order in full compliance with Federal Rule of Civil Procedure 24.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHAUCER CORPORATE CAPITAL,
NO. 2 LIMITED,

§
§
§
Plaintiff,
§
§
v.
§
§
HARDAM S. AZAD D/B/A
§
FIVE MILLION SQUARE FEET
§
COMPANIES; HOUSTON SHOPPING
§
CENTER MANAGERS, LP D/B/A
§
COM REALTY AND SOUTH VILLAGE
§
SHOPPING CENTER; CONTINENTAL
§
BALLROOMS, INC.; TRADING FAIR
§
IV, INC.; TRADING FAIR III,
§
INC.; TRADING FAIR HOUSTON,
§
INC.; THE TOMBALL CENTER, INC.; §
and WEBSTER/MARINAGATE, INC.
§
§
Defendants.
§

CIVIL ACTION NO. H-10-180

ORDER
Pending is MRCO, Inc. and Commercial Roof Consultants & Claims
Management, LLC’s Motion to Intervene and Request for Establishment
of Constructive Trust (Document No. 35). The motion will be denied
because MRCO, Inc. (“MRCO”) and Commercial Roof Consultants &
Claims

Management,

LLC

(“CRCCM,”

and

together,

the

“Proposed

Intervenors”) have provided no complaint in intervention, despite
Rule 24’s requirement that a motion to intervene “must state the
grounds for intervention and be accompanied by a pleading that sets
out the claim or defense for which intervention is sought.”
R. CIV. P. 24(c) (emphasis added).

FED .

“[T]he plain fact is that Rule

24(c) obligates a district judge to make an assessment of whether
the proposed intervenor’s complaint states a cause of action, at

least when the motion to intervene is opposed, and where, as here,
the complaint in intervention adds substantive claims that no other
party asserted.”

Pin v. Texaco, Inc., 793 F.2d 1448, 1450 (5th

Cir. 1986); see also 7C CHARLES ALAN WRIGHT

ET AL .,

FEDERAL PRACTICE

AND

PROCEDURE § 1914, at 523-24 (3d ed. 2007) (“The proposed pleading
must state a good claim for relief or a good defense.” (footnotes
omitted)).

It is not possible fairly to assess whether a proposed

intervenor’s complaint states a cause of action or adds new claims
when there is no complaint to assess.

Cf. Patridge v. J.K. Harris

Co., No. 05-2172, 2006 WL 1215189, at *3 (C.D. Ill. May 5, 2006)
(noting that, without “a pleading that sets forth [the proposed
intervenor’s] claims or defenses or the relief it seeks,” the court
“cannot consider whether intervention is proper” (citing Pin, 793
F.2d at 1450)).
Moreover, absent a complaint in intervention, the Court cannot
determine whether intervention is permissible in light of 28 U.S.C.
§ 1367(b), which precludes the exercise of supplemental jurisdiction over claims asserted by non-diverse parties “seeking to
intervene as plaintiffs under Rule 24” where, as here, the sole
basis for the Court’s jurisdiction over the original action is
diversity of citizenship.
(5th Cir. 2010).

This applies both to intervention of right and

permissive intervention.
supra, § 1917).

Griffin v. Lee, 621 F.3d 380, 384-87

Id. at 386 (quoting 7C WRIGHT

ET

AL .,

Thus, the Proposed Intervenors must additionally

2

demonstrate either an independent basis for the exercise of subject
matter jurisdiction over whatever claims they seek to assert, or
demonstrate that they should be aligned as defendants rather than
plaintiffs in this suit.

Cf. id. at 388 (noting that, where the

non-diverse intervenor was properly aligned as a plaintiff, section
1367(b) barred the exercise of supplemental jurisdiction over his
claims).
A

majority

of

circuits,

including

permissive interpretation” of Rule 24(c).

the

Fifth,

favor

“a

Liberty Surplus Ins.

Cos. v. Slick Willies of Am., Inc., No. H-07-0706, 2007 WL 2330294,
at *1-2 (S.D. Tex. Aug. 15, 2007) (Rosenthal, J.).1

Thus, the

rule’s requirements typically are excused where the motion to
intervene sufficiently “does put the parties on notice of [the
intervenor’s] grounds for intervention,” and the party challenging
intervention did “not contend that it would be prejudiced by the
intervention.” See, e.g., Liberty Surplus, 2007 WL 2330294, at *2;
cf. also 7C WRIGHT

ET

AL .,

supra, § 1914, at 521 (noting that,

“apparently without exception,” courts denying a motion to intervene due to “procedural mistakes” under Rule 24(c) also discuss
“reasons of substance why intervention should not be allowed,”
thereby suggesting “that a deserving applicant for intervention is

1

Judge Rosenthal in Liberty Surplus ably summarized the
permissive view toward compliance with Rule 24(c) taken in the
Fourth, Fifth, Sixth, Eleventh, and D.C. Circuits, as compared to
the “stricter approach” favored by the First, Second, and Seventh.
See id.
3

not likely to be turned away because of a procedural blunder of no
real significance” (emphasis added)). Here, however, the Purported
Intervenors in this case failed in their motion to state a claim
upon which they propose to intervene and further failed to allege
sufficient information from which subject matter jurisdiction over
their intervention can be ascertained, making their failure to
attach

a

complaint

in

intervention

substantial,

not

merely

technical.
Nevertheless, in light of the lenient practice under Rule
24(c), and the analogous practice in granting motions to dismiss
under Rule 12(b)(6)2 permitting a party ”at least one opportunity
to cure pleading deficiencies before dismissing a case,” Great
Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,
329 (5th Cir. 2002), the Court will deny the motion to intervene
without prejudice to its being reasserted within fourteen days in
full compliance with Rule 24.

Cf. Diehl v. United States, 438 F.2d

705, 711 (5th Cir. 1971) (although the intervenor failed to show
that she filed a claim for a tax refund, a statutory prerequisite
to filing a suit for a refund, the affirmance of the district
court’s dismissal of intervention was “without prejudice to the
right of [the intervenor], within thirty days of the receipt of the

2

See Pin, 793 F.2d at 1450 (“The determination of whether the
proposed intervenor’s complaint states a cause of action is
controlled by the general rules on testing a pleading . . . .”
(internal quotations and citation omitted)).
4

mandate in the District Court, to move for the reinstatement of the
intervention in her personal behalf if such a claim was, in fact,
filed”).

Accordingly, it is

ORDERED that MRCO, Inc. and Commercial Roof Consultants &
Claims Management, LLC’s Motion to Intervene and Request for
Establishment of Constructive Trust (Document No. 35) is DENIED
without prejudice to being re-filed within fourteen (14) days of
the entry of this Order in full compliance with Federal Rule of
Civil Procedure 24, “accompanied by a pleading that sets out the
claim or defense for which intervention is sought.”

FED . R. CIV . P.

24(c).
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this 8th day of September, 2011.

____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE

5