Deutsche Bank Trust Company Americas, as Trustee For The Registered Holders of UBS Commerical Mortgage Trust 2012-C1, Commerical Mortgage Pass-Through Certificates, Series 2012-C1 v. Mountain West Hospitality, LLC
Filing
72
MEMORANDUM OPINION IN SUPPORT OF ORDER GRANTING MOTION TO INTERVENE DKT. NO. 67 . For the reasons discussed, because the State carried its burden to establish entitlement to intervene of right or on a permissive basis, the Court GRANTED the States Motion to Intervene in this case Dkt. No. 36 .It is so ORDERED. Signed by Senior Judge Irene M. Keeley on 12/15/2017. (copy counsel of record)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TRUSTEE FOR THE REGISTERED HOLDERS
OF UBS COMMERCIAL MORTGAGE TRUST 2012-C1,
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2012-C1,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:17CV75
(Judge Keeley)
MOUNTAIN WEST HOSPITALITY, LLC,
Defendant.
and
WEST VIRGINIA STATE TAX DEPARTMENT,
Intervenor-Plaintiff,
v.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TRUSTEE FOR THE REGISTERED HOLDERS
OF UBS COMMERCIAL MORTGAGE TRUST 2012-C1,
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2012-C1; and
MOUNTAIN WEST HOSPITALITY, LLC,
Intervenor-Defendants.
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
During an evidentiary hearing on November 28, 2017, the Court
GRANTED the Motion to Intervene filed by the West Virginia State
Tax Department (“the State”). As indicated in its November 30,
2017, Order Granting Motion to Intervene, this written opinion sets
forth the Court’s reasoning in support of that decision.
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
I. BACKGROUND
A.
Procedural Background
On May 10, 2017, the plaintiff, Deutsche Bank Trust Company
Americas, as Trustee for the Registered Holders of UBS Commercial
Mortgage
Trust
2012-C1,
Commercial
Mortgage
Pass-Through
Certificates, Series 2012-C1 (“Deutsche Bank”),1 filed a complaint
against the defendant, Mountain West Hospitality, LLC (“Mountain
West”) (Dkt. No. 1). Deutsche Bank alleged breaches of contract
related to a $19,630,000 loan made to Mountain West, which is
secured by deeds of trust covering the Hilton Garden Inn at 606
Emily
Drive,
Clarksburg,
West
Virginia
(“Hilton
Garden
Inn
Clarksburg”), and the Hampton Inn at 480 Plantation Drive, Elkins,
West
Virginia
Property”).
(“Hampton
According
to
Inn
Elkins”)
Deutsche
Bank,
(collectively,
Mountain
West
“the
has
mismanaged the Property in a variety of way. As relevant to the
loan documents, however, Mountain West allegedly triggered “Events
of Default” by defaulting under its franchise agreements and
failing to pay taxes to the City of Clarksburg. Id. at 7.
1
Although the plaintiff contends that Deutsche Bank’s
successor-in-interest, RSS UBSCM2012C1-WV MWH, LLC, is now
directing this litigation, there has been no motion for
substitution, and the Court will continue to reference the
plaintiff as “Deutsche Bank.”
2
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
After a brief stay due to Mountain West’s unsuccessful pursuit
of bankruptcy proceedings (Dkt. Nos. 12; 14), on August 2, 2017,
the Court appointed receivers to manage both the Hilton Garden Inn
Clarksburg and the Hampton Inn Elkins pending Deutsche Bank’s
intent to schedule a non-judicial sale of the Property (Dkt. Nos.
25; 26). The substitute trustee initially scheduled sales of the
Property on November 8, 2017, but the sales were later postponed to
November 30, 2017 (Dkt. No. 52 at 4). On November 27, 2017, three
days prior to the scheduled sales, Mountain West moved for a
temporary restraining order (“TRO”), as well as a temporary and
permanent
injunction,
to
prevent
the
substitute
trustee
from
carrying out the sales (Dkt. No. 45).2
The Court promptly denied Mountain West’s motion for a TRO and
scheduled an evidentiary hearing on the remaining request for
injunctive relief (Dkt. No. 47). The parties presented evidence,
and the Court heard argument on the motion on November 28, 2017,
after which it denied Mountain West’s motion for injunctive relief,
concluding that Mountain West had failed to meet its burden to
2
According to Mountain West’s attorney, the defendant waited
to seek injunctive relief because it had been seeking to file for
bankruptcy - and take advantage of the concomitant stay - prior to
the expiration of a six-month prohibition on doing so that was
imposed by the United States Bankruptcy Court for the Middle
District of Florida on July 31, 2017.
3
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
clearly
and
convincingly
satisfy
all
four
of
the
factors
articulated in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7
(2008), and Real Truth About Obama, Inc. v. Federal Election Com’n,
575
F.3d
342
(4th
Cir.
2009),
vacated
on
other
grounds
and
remanded, 559 U.S. 1089 (2010), standard reaffirmed in 607 F.3d 355
(4th Cir. 2010) (Dkt. No. 54).
On
November
29,
2017,
again
arguing
that
it
would
be
irreparably harmed by such a sale, Mountain West noticed its
interlocutory appeal from this decision (Dkt. No. 57), and moved
the Court to stay the case and enjoin the sale of the Property
pending appeal (Dkt. No. 55). The Court denied Mountain West’s
motion “for the reasons it denied Mountain West’s motion for a
temporary and permanent injunction” (Dkt. No. 62). The Court of
Appeals
for
the
Fourth
Circuit
then
denied
Mountain
West’s
“emergency motion for injunction pursuant to Rule 8 of the Federal
Rules of Appellate Procedure” (Dkt. No. 66).
B.
Motion to Intervene
Between the Court’s appointment of receivers to manage the
Property and Mountain West’s attempt to prevent non-judicial sale
of the Property, the State moved to intervene in this case on
November 6, 2017 (Dkt. No. 36). In its motion, the State alleges
4
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
that,
“[s]ince
[Mountain
2015
West]
until
collected
the
appointment
state
consumer
of
the
sales
receivers,
tax
from
its
customers but failed to remit them to the State as required by
law.” Under West Virginia law, such taxes are “deemed to be money
held in trust for the state of West Virginia.” Id. at 2 (quoting W.
Va. Code § 11-10-5j (West 2017)). The State therefore believes that
Mountain
West
“converted
at
least
$720,000
in
collected
but
unremitted trust taxes,” or that Deutsche Bank “may have converted
or may still be holding some or all of these trust funds either by
or through an account or accounts under its exclusive control.” Id.
The State sought leave to file a one-count complaint alleging a
cause of action for conversion against both Deutsche Bank and
Mountain West (Dkt. No. 36-1).
Although Mountain West did not respond, Deutsche Bank opposed
the State’s motion. It argued that intervention is inappropriate
because the State essentially seeks to intervene as a creditor to
collect pre-receivership taxes (Dkt. No. 41 at 1). According to
Deutsche Bank, “[t]he State does not have a property interest in
Plaintiff’s
case
to
support
intervention,
and
the
State’s
collection opportunities are not hindered or impaired in any way if
intervention is disallowed.” Id. at 2. Nonetheless, the Court
granted the State’s motion on November 28, 2017 (Dkt. No. 67).
5
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
II. DISCUSSION
The
Fourth
Circuit
favors
“‘liberal
intervention’
and
preventing the ‘problem of absent interested parties.’” Friend v.
REMAC Am., Inc., No. 3:12cv17, 2014 WL 2440438, at *1 (N.D.W.Va.
May 30, 2014) (quoting Feller v. Brock, 802 F.3d 722, 729 (4th Cir.
1986)). “Prospective intervenors bear the burden of demonstrating
their right to intervene.” In re Monitronics Int’l, Inc., MDL No.
1:13MD2493, 2015 WL 12748330, at *1 (N.D.W.Va. June 3, 2015)
(citing Richman v. First Woman’s Bank, 104 F.3d 654, 658 (4th Cir.
1997)). Under Fed. R. Civ. P. 24, the Court has discretion to allow
intervention either as a matter of right or on a permissive basis.
Stuart v. Huff, 706 F.3d 345, 349 (4th Cir. 2013). For the
following reasons, the Court finds that the State is entitled to
intervene under either standard.
A.
Intervention as of Right
The Court must grant a timely motion to intervene if the
movant “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).
6
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
In other words, to intervene as a matter of right, the movant must
satisfy four requirements:
(1) the application must be timely; (2) the applicant
must have an interest in the subject matter sufficient to
merit intervention; (3) the denial of intervention would
impair or impede the applicant's ability to protect its
interest; and (4) the applicant's interest is not
adequately represented by the existing parties to the
litigation.
Scardelletti v. Debarr, 265 F.3d 195, 202 (4th Cir. 2001) (quoting
United States v. S. Bend Cmty. Sch. Corp., 710 F.2d 394, 396 (7th
Cir. 1983)), rev’d on other grounds, Devlin v. Scardelletti, 536
U.S. 1 (2002). The Court will address each of these elements in
turn.
1.
Timeliness
As a threshold matter, “the application must be timely.” Id.
The timeliness inquiry is governed by the following factors: “how
far the suit has progressed, the prejudice that delay might cause
other parties, and the reason for the tardiness in moving to
intervene.” Id. at 203 (citing Gould v. Alleco, Inc., 883 F.2d 282,
286 (4th Cir. 1989)). The most important factor is whether any
delay
will
prejudice
the
existing
parties.
United
Exxonmobil Corp., 264 F.R.D. 242, 248 (N.D.W.Va. 2010).
7
States
v.
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
Here, Deutsche Bank does not contest that the State’s motion
to intervene is timely (Dkt. No. 41 at 5), and the Court finds that
there is no risk of prejudice to the existing parties. The State
moved to intervene in the early stages of this proceeding, and less
than six months after the case was originally filed. Because the
Court has not yet entered a scheduling order, the claims asserted
by the State will be governed by the same dates and deadlines
applicable to Deutsche Bank’s claims. Permitting intervention thus
will not “derail [the] lawsuit within sight of the terminal.”
Scardelletti, 265 F.3d at 202 (quoting United States v. S. Bend
Cmty. Sch. Corp., 710 F.2d 394, 396 (7th Cir. 1983)).
2.
Interest in the Subject Matter
Next, the State must establish that it has “an interest in the
subject matter sufficient to merit intervention.” Id. A movant’s
interest in the subject matter of the litigation must be “a
significantly protectable interest.” Teague v. Bakker, 931 F.2d
259, 261 (4th Cir. 1991) (quoting Donaldson v. United States, 400
U.S.
517,
531
(1971)).
For
instance,
“[a]n
applicant
has
a
significantly protectable interest in an action if it ‘stand[s] to
gain or lose by the direct legal operation’ of a judgment in that
8
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
action.” Ohio Valley Envtl. Coal., Inc. v. McCarthy, 313 F.R.D. 10,
18 (S.D.W.Va. 2015) (quoting Teague, 931 F.2d at 261).
But “[s]tanding to gain or lose by direct operation of a
judgment may not be a necessary condition for an interest to be
significantly protectable.” Id. This Court has observed that “it
requires only that [the movant] show that the disposition of the
action
‘may
as
a
practical
matter’
impair
their
interests.”
Exxonmobil, 264 F.R.D. at 245 (quoting Little Rock Sch. Dist. v.
Pulaski Cty. Special Sch. Dist., 738 F.2d 82, 84 (8th Cir. 1994));
see also JLS, Inc. v. Pub. Serv. Comm’n of W. Va., 321 F. App’x
286, 290 (4th Cir. 2009) (unpublished decision) (“Although Movants
have no property rights at stake, the result of this suit will
determine the level of competition that Movants will have, and
hence, the amount of income they can expect to earn.”).
Here, although Deutsche Bank argues that the receivers were
not appointed by this Court to handle “pre-receivership claims”
such as those levied by the State (Dkt. No. 41 at 3), the subject
matter of Deutsche Bank’s complaint is not limited solely to the
appointment and operation of a receiver. Rather, the allegation
that triggered the receivership was Deutsche Bank’s contention that
Mountain West breached the loan agreement by failing to pay its
franchise fees and tax obligations (Dkt. No. 1 at 6-9).
9
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
Pursuant to the loan agreement, Mountain West was required to
“deliver irrevocable written instructions to each of the credit
card companies . . . to deliver all receipts payable” to an account
“under the sole dominion and control of Lender,” which in turn was
transferred to a cash management account (Dkt. No. 1-1 at 41).
Mountain West could pay its obligations only when withdrawals were
tendered for that purpose from the cash management account “under
the
sole
dominion
and
control
of
Lender.”
Id.
at
42.
Funds
deposited in the cash management account were distributed only when
“no Event of Default shall have occurred and remain outstanding.”
Id. Funds collected for the benefit of the State thus flowed
through
both
Deutsche
Bank
and
Mountain
West’s
possession.
Moreover, at the time it moved to intervene, the State had a
statutory lien in all of Mountain West’s property, W. Va. Code
§ 11-10-12, and had filed a number of notices of tax liens against
it in both Harrison and Marion Counties (Dkt. No. 46 at 4 n.3).
Therefore, the State has a significant interest in the subject
matter of this litigation, which warrants intervention. As the
State contends, it “not only has a direct interest in Defendant’s
putative ‘property,’ but also in the ‘transaction’ between the
Defendant
and
the
Plaintiff-Creditor
underlying
the
latter’s
contract claims” (Dkt. No. 46 at 4). The disposition of this action
10
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
will, as a practical matter, affect the State’s interest because it
will determine who holds the funds that the State now seeks to
recover. See Exxonmobil, 264 F.R.D. at 245.
3.
Impairment of Ability to Protect Interest
Even
though
the
State
has
established
a
significantly
protectable interest, it must still demonstrate that “the denial of
intervention would impair or impede the applicant's ability to
protect its interest.” Scardelletti, 265 F.3d at 202. This is a
practical analysis that focuses on whether “(1) disposition of the
action would put the movant at a ‘practical disadvantage’ in
protecting its interest, or (2) the stare decisis effect of a
judgment
would
protecting
its
legally
preclude
interests
later.”
the
would-be
McCarthy,
intervenor
313
F.R.D.
from
at
26
(quoting Francis v. Chamber of Commerce of U.S., 481 F.2d 192, 195
n.8 (4th Cir. 1973)). Notably, the mere “practical disadvantage of
filing a separate suit . . . is not sufficient to satisfy the
impairment prong.” Id.; see also Comm’n of Va. v. Westinghouse
Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976) (reasoning that a
movant’s concern that it would be disadvantaged if left out of
settlement negotiations is insufficient).
11
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
Here, the State certainly could bring another lawsuit seeking
to hold Mountain West and Deutsche Bank liable for conversion, and
the availability of such a forum militates against finding that the
State would be disadvantaged by exclusion from the instant action.
See
S.E.C.
v.
Homa,
17
F.
App’x
441,
445
(7th
Cir.
2001).
Nonetheless, the State is unlike other creditors because collected
sales taxes are, by statute, considered to be held in trust for the
State. Schmehl v. Helton, 662 S.E.2d 697, 702 (W. Va. 2008)
(quoting Rock v. Dept. of Taxes, 742 A.2d 1211, 1213 (Vt. 1999))
(“[T]axes like sales taxes are ‘commonly termed “trust taxes”
because the business withholds or collects the taxes on behalf of
the state from a third party and holds them in trust until
remittance to the state is due.”). As a practical matter then, the
disposition of the Property or the payment of a money judgment in
this case will affect who holds those funds that not only are due
to the State but actually are owned by it. The State will be unable
to protect that interest absent intervention.
4.
Adequacy of Representation
Finally, the State must establish that its interests are not
adequately represented by the existing parties. Scardelletti, 265
F.3d at 202. The “burden of showing inadequacy of representation is
12
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
minimal.” Westinghouse Elec. Corp., 542 F.2d at 216; see also
Stuart v. Huff, 706 F.3d 345, 351 (4th Cir. 2013) (imposing a
higher burden “where the proposed intervenor shares the same
objective
as
a
government
party”).
“When
the
party
seeking
intervention has the same ultimate objective as a party to the
suit, a presumption arises that its interests are adequately
represented, against which the [movant] must demonstrate adversity
of interest, collusion, or nonfeasence.” Id.
The
State
convincingly
argues
that
its
interest
is
inadequately represented by the existing parties. As an initial
matter, no presumption of adequacy obtains here because neither of
the original parties has the same ultimate objective as the State.
Deutsche Bank seeks to prove that Mountain West breached the
parties’ contract, thus triggering events of default that entitle
the plaintiff to the appointment of receivers and eventually a
money judgment pursuant to the loan documents. Mountain West must
defend against this claim. Moreover, the receivers in this case
were
appointed
to
manage
the
Property
“for
the
benefit
and
protection of the rights and interests of Plaintiff,” not the State
(Dkt. Nos. 25 at 2; 26 at 2).
The State, on the other hand, seeks to make a conversion claim
against both Deutsche Bank and Mountain West to recover funds that,
13
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
by statute, belong solely to the State. Deutsche Bank and Mountain
West simply do not share the State’s interest in the proper
disposition
of
collected
tax
funds.3
At
best,
each
might
be
expected to minimize its own liability for the delinquent sales tax
amount. Therefore, the State has met its “minimal” burden to
demonstrate that its interests are not adequately represented, and
it may intervene as of right.
B.
Permissive Intervention
In the alternative, the Court would exercise its discretion
and allow the State to intervene on a permissive basis. Fed. R.
Civ. P. 24(b)(1) provides that, “[o]n timely motion, the court may
permit anyone to intervene who . . . has a claim or defense that
shares with the main action a common question of law or fact.”
Although whether to allow permissive intervention is within the
sound discretion of the district court, Smith v. Pennington, 352
F.3d 884, 892 (4th Cir. 2003), it must “consider whether the
intervention will unduly delay or prejudice the adjudication of the
original
parties’
rights.”
Fed.
3
R.
Civ.
P.
24(b)(3).
“[B]ut
Tellingly,
Deutsche
Bank
does
not
contest
this
straightforward fact. It argues only that it need not protect the
State’s interest because the State does not have a protectable
interest in the litigation (Dkt. No. 41 at 7-8). As set forth
above, the latter contention is incorrect.
14
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
findings on those factors are not determinative of or sufficient to
decide a permissive intervention motion.” McHenry v. C.I.R., 677
F.3d 214, 222 (4th Cir. 2012).
Therefore, the Court has discretion to permit a party’s
intervention upon consideration of whether (1) the motion is
timely, (2) there are common questions of law or fact, and (3)
intervention will unduly delay or prejudice adjudication of the
original parties’s rights. Each of these factors weighs in favor of
the State’s permissive intervention.
1.
Timeliness
For the reasons discussed with regard to intervention as a
matter of right, the State’s motion for permissive intervention
also is timely. See Gould, 883 F.2d at 286 (“Both intervention of
right and permissive intervention require timely application.”).
2.
Common Questions of Law or Fact
There is but one critical question of fact from the State’s
perspective: Is either Deutsche Bank or Mountain West responsible
for converting or otherwise holding the sales tax collected by
Mountain West but unremitted to the State?4 As discussed, the loan
4
At the hearing on this matter, the State indicated that it
does not know the answer to this question, but seeks targeted
discovery to determine where sales tax due to it is being held.
15
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
documents require Mountain West to maintain a cash management
account committed to “the sole dominion and control of Lender”
(Dkt. No. 1-1 at 42). Deutsche Bank contends that it faithfully
released funds to pay Mountain West’s tax obligations both pursuant
to the loan agreement and the recent bankruptcy proceedings (Dkt.
No. 41 at 6 n.2), but Mountain West has consistently defended
against
its
alleged
defaults
by
blaming
Deutsche
Bank
for
inappropriately withholding funds kept in the cash management
account.
The
nature
of
the
original
parties’
contractual
relationship, including who held the State’s funds at various
times,
will
undoubtedly
be
developed
in
the
course
of
this
litigation. Therefore, common questions of fact underlie both the
original dispute and the State’s claims in intervention.
3.
Undue Delay or Prejudice
Finally, the State easily establishes that there is no risk of
undue delay or prejudice with regard to the original parties. The
adjudication of the original parties’ rights simply will not be
affected by the State’s intervention because the State’s claims
will be governed by the same schedule imposed on Deutsche Bank and
Mountain West. Accord Students for Fair Admissions Inc. v. Univ. of
N.C., No. 1:14cv954, 2017 WL 213940, at *4-*6 (M.D.N.C. Jan. 13,
16
DEUTSCHE BANK V. MOUNTAIN WEST
1:17CV75
MEMORANDUM OPINION IN SUPPORT OF ORDER
GRANTING MOTION TO INTERVENE [DKT. NO. 67]
2017) (requiring that an intervenor comply with the existing
scheduling
factors,
order).
the
Therefore,
Court
concludes
after
that
considering
permissive
the
relevant
intervention
is
warranted under the circumstances of this case.5
III. CONCLUSION
For the reasons discussed, because the State carried its
burden to establish entitlement to intervene of right or on a
permissive basis, the Court GRANTED the State’s Motion to Intervene
in this case (Dkt. No. 36).
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED: December 15, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
5
It is worth noting that Deutsche Bank makes a fleeting
argument that the State’s proposed complaint in intervention does
not sufficiently allege diversity jurisdiction (Dkt. No. 41 at 910). Indeed, courts require “that there exists an independent
ground of subject matter jurisdiction” before granting leave for
permissive intervention, see Shanghai Meihao Elec., Inc. v. Leviton
Mfg. Co., Inc., 223 F.R.D. 386, 387 (D. Md. 2004), and 18 U.S.C.
§ 1367 divests the Court of supplemental jurisdiction over
intervenor claims unless the intervenor also can establish
diversity jurisdiction. Critically, however, Deutsche Bank does not
contend that the Court actually lacks subject matter jurisdiction,
as the State is diverse from both original parties.
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?