Xstar Financial v. Money & More et al

Filing 256

ORDER denying 250 Motion to Intervene. Signed by Magistrate Judge Brooke C. Wells on 10/25/11 (alt)

_____________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
_____________________________________________________________________

APG ENTERPRISES, INC., et. al.,

:
Civil No. 2:08-cv-00951

Plaintiffs,

:
RULING & ORDER

vs.

:
JUDGE TENA CAMPBELL

MONEY & MORE, INC., et. al.,
Defendants.

:
MAGISTRATE JUDGE BROOKE C.
WELLS

_____________________________________________________________________

This matter is before the court on proposed defendant-intervenor Heidi Benson,
Heidi J. Benson Family Trust, Evelyn H. Bosh and the Bosh Family Trust’s “Motion To
Intervene”.1 Proposed intervenors argue that they have an interest in the underlying
action and are therefore entitled to either intervention of right2 or permissive
intervention3.

1

Document Number 250.

2

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

3

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

Intervention Of Right
Under Rule 24(a) of the Federal Rules of Civil Procedure,4 a potential intervenor
seeking an intervention of right must:
(1) make a timely application, (2) have an interest in the subject matter
of the action, (3) be so situated that without intervention the disposition
of the action may, as a practical matter, impair or impede the
applicant’s ability to protect his interest, and (4) have an interest not
adequately protected by the existing parties.5
If one or more of the stated criteria are not met, “a party will not qualify for
intervention of right.”6 Further, a “party seeking to intervene must act as soon as he
knows or has reason to know that his interests might be adversely affected by the out
outcome of the litigation.”7 The Tenth Circuit has set forth factors relevant to the issue
of timeliness including, “the length of time since the applicant knew of his interest in the
case, prejudice to the existing parties, prejudice to the applicant, and the existence of
any unusual circumstances.”8

Federal Rule of Civil Procedure 24(a) states: “On timely motion, the court must
permit anyone to intervene who: (1) is given an unconditional right to intervene by a
federal statute; or (2) claim 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 impeded the movant’s ability to protect its interest, unless existing
parties adequately represent that interest.”
4

5

United States v. Mid-State Disposal, Inc., 131 F.R.D. 573, 576 (W.D. Wis.

6

Utah v. Kennecott Corp., 232 F.R.D. 392, 295 (D. Utah 2005).

1990).

Kennecott Corp., 232 F.R.D. at 396 (citing, United States v. Oregon, 913 F.2d
576, 588 (9th Cir. 1990)).
7

Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001)(quoting,
Sanguine, Ltd. v. United States Dep’t of Interior, 763 F.2d 1416, 1418 (10th Cir. 1984)).
8

2

In this case, proposed intervenors were signatories to the Settlement Agreement
related to this action on January 30, 2010.9 Thus, while intervenors argue that there
has been no delay in filing their application, this court disagrees. It has been well over
a year and a half since the proposed intervenors signed the Settlement Agreement.
During that time the parties have continued to litigate the case, and therefore an
intervention at this juncture would result in prejudice the existing parties.10 Furthermore,
proposed intervenors have not outlined any “unusual circumstances” explaining or
excusing the untimeliness of their current application.11
For these reasons, proposed intervenors’ Motion To Intervene as of right is
denied.
Permissive Intervention
Federal Rule of Civil Procedure 24(b)12 allows for permissive intervention if a
party does not qualify for an intervention of right under Rule 24(a). The court, in its
discretion, may allow for intervention where the proposed intervenor, “(1) makes a
timely application, (2) has a separate claim or defense that has a common question of

Document Number 250; “Proposed Defendant-Intervenors’ Motion To Intervene”
Statement of Facts, pg. 5.
9

See, Kennecott Corp., 232 F.R.D. at 396 (citing United States v. State of
Oregon, 913 F.2d 589 (9th Cir. 1990)(“[o]ne of the ‘most important’ factors in
determining timeliness is prejudice to the existing parties”)).
10

11

See, Kennecott Corp., at 397.

Federal Rule of Civil Procedure 24(b) states: “On timely motion, the court may
permit 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.
12

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law or fact with the main action, and (3) does not unduly delay or prejudice the rights of
the original parties.”13 As addressed above, the court finds intervenors’ application to
be untimely. If granted, the parties’ intervention could unduly delay or prejudice the
rights of the original parties.
Accordingly, proposed intervenors’ request for permissive intervention is hereby
denied.
Jurisdiction
Finally, as noted by plaintiffs, intervenors seek intervention into this litigation
based solely on their interest in the Settlement Agreement.14 However, the Settlement
Agreement at issue was negotiated between private litigants and is not an agreement
entered into as part of a court judgment or decree. In Judge Campbell’s prior Order
she noted that this Court lacks jurisdiction to decide whether or not the Settlement
Agreement has been violated or whether any parties may be released from the
Agreement itself.15 Given such jurisdictional limitations, the proposed intervenors
request to intervene based upon an interest in the Settlement Agreement must be
denied.
Order
For the reasons now stated herein, proposed intervenors’ Motion To Intervene is
DENIED.

13

Kennecott Corp., 232 F.R.D. at 398 (referencing Fed. R. Civ. P. 24(b)).

Document Number 253, “Memorandum In Opposition To Motion To Intervene”
pg. 12-13.
14

15

Document Number 249; Order.
4

DATED this 25th day of October, 2011.

BY THE COURT:

______________________
Brooke C. Wells
United States Magistrate Judge

5