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Brown v. United States Department of Labor

United States District Court, D. Colorado

July 13, 2017

BLAKE BROWN, et al., Plaintiffs,


          RAYMOND P. MOORE United States District Judge

         Pending before the Court is proposed intervenor Elsevier, Inc.'s (“Elsevier”) Motion to Intervene (“the motion to intervene”) (ECF No. 92), pursuant to Fed.R.Civ.P. 24(a) (“Rule 24(a)”). Plaintiffs have filed an objection to the motion to intervene (ECF No. 103), and Elsevier has filed a reply (ECF No. 105).[1] The Court makes the following findings.

         I. Legal Standard

         Rule 24(a) requires intervention as a matter of right when anyone “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). Any such request to intervene as a matter of right must be made on timely motion. Id. Timeliness is assessed based upon the totality of the circumstances, with three factors being “particularly important.” Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1232 (10th Cir. 2010). First, “the length of time since the movant knew of its interests in the case.” Second, “prejudice to the existing parties.” And third, “prejudice to the movant.” Id. (alterations and citations omitted). These factors are not exclusive, and a court “should also consider the existence of any unusual circumstances.” Id. (citation omitted).

         II. Discussion

         The Court addresses the timeliness of the motion to intervene first. Elsevier argues that its motion to intervene was timely filed because all factors weigh in its favor. (ECF No. 92 at 9.) First, Elsevier asserts that it moved promptly to intervene because it did not become aware of this case until September 2014, and nothing at that time suggested that defendants would not protect its interests. (Id. at 9-10.) Elsevier further asserts that entry of summary judgment did not alter matters as the judgment was favorable to Elsevier's interests and defendants vigorously defended those interests on appeal. (Id. at 10.) Elsevier asserts that only after this case was remanded did things change, as its issue of concern was remanded for discovery and trial. (Id.)

         The Court disagrees that Elsevier moved promptly to intervene. The Tenth Circuit Court of Appeals measures delay “from when the movant was on notice that its interests may not be protected by a party already in the case.” Edmondson, 619 F.3d at 1232 (citing Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994)). Contrary to plaintiff's argument, the letter dated September 22, 2014, provided plaintiff with notice that its interests may not be protected by a party to this case. Although the letter may not have informed plaintiff that cross motions for summary judgment had been filed, the letter clearly notifies plaintiff of this lawsuit. As Elsevier asserts, notice of a lawsuit alone is insufficient, see id., but, the purpose of that rule is to prevent premature intervention that wastes judicial resources, see Sierra Club, 18 F.3d at 1206. Here, as Elsevier observes, by the time the September 22, 2014 letter had been written, the cross motions for summary judgment (which purportedly contain the offending assumptions that Elsevier's database was an agency record and involuntarily submitted) had already been filed. It thus cannot be said that, at that time, Elsevier could legitimately believe that defendants would protect the interests asserted in the motion to intervene, when even a cursory review of the docket would have shown that the cross motions for summary judgment had been filed and the offending assumptions made. Otherwise, rather than encouraging premature intervention, the Court would be encouraging the art of burying one's head in the sand.

         Moreover, it is not as if the September 22, 2014 letter misled Elsevier into believing that defendants would adequately protect the specific interests Elsevier seeks to protect in the motion to intervene. See Edmondson, 619 F.3d at 1233 (explaining that the relevant interests are those pursued in the motion to intervene). The letter is utterly silent on how defendants are defending this lawsuit or the procedural state of this case.[2] Instead, the letter asks Elsevier to express its views on the lawsuits. (See ECF No. 93-4 at 3.) How Elsevier could do so without performing even a cursory review of this case's docket is beyond the Court.

         Even assuming that the September 22, 2014 letter did not provide notice to Elsevier that defendants were not adequately protecting its interests, the Court's entry of summary judgment on December 23, 2014 categorically did. Although Elsevier asserts that entry of summary judgment did not alter the state of affairs in this case (ECF No. 92 at 10), in reality, Elsevier does not reasonably contend otherwise. In fact, Elsevier acknowledges that the Order, granting summary judgment in defendants favor, operated under the assumption that Elsevier's submission of its information was involuntary and the information itself was an agency record. (See id at 2, 11-12.) Moreover, there is no assertion that Elsevier did not receive notice of the Court's December 23, 2014 Order. Instead, Elsevier asserts that it decided to “hold its fire” (id. at 10), even though it knew that the Order was premised upon assumptions, which, according to Elsevier, did not adequately protect its interests (id. at 11-15).[3] In other words, Elsevier decided to wait and see if the favorable result of the December 23, 2014 Order would persist. That is not the purpose of intervention. See S. Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966, 971 (10th Cir. 2008) (explaining that a motion to intervene must be timely “[o]therwise a proposed intervenor might simply wait and see if the trial's outcome leaves intervention desirable with its attendant risk of undoing what the trial court has already done.”) (quotation omitted).

         The Court also gives no weight to Elsevier's assertion that intervening in the appeal of the December 23, 2014 Order would have posed “inherent difficulties.” (See ECF No. 92 at 10.) Apart from the fact that Elsevier does not identify any of the purported inherent difficulties that would have arisen had it sought to intervene on appeal, just because an avenue may be difficult to cross does not excuse Elsevier's failure to even try. Otherwise, a party could pick and choose its occasion to intervene based upon the assumed ease of success. That cannot be the case. In addition, how can the Court take seriously Elsevier's assertions of great prejudice if it is not allowed to intervene, when Elsevier itself chose not to intervene? As such, the Court disagrees with Elsevier's assertion that it “reasonably” decided to hold its fire. (See id.) There was nothing reasonable about Elsevier's decision; it was purely a tactical manoeuver.

         Elsevier also asserts that the Tenth Circuit's remand order changed the state of this lawsuit. (ECF No. 92 at 10.) Again, the Court disagrees. Contrary to Elsevier's assertion, “the issue of concern” to it has not been remanded for discovery and trial. (See id.) Presumably, the “issue of concern” to Elsevier is the reason it gives for intervening-so it can argue that a “database licensed to a government agency by a party such as [Elsevier] is not an agency record subject to [the Freedom of Information Act], because it is not under agency control within the meaning of [the Act].” (See id. at 2.) That issue was certainly not remanded to this Court for discovery and trial. Instead, the only time that the Tenth Circuit arguably mentioned the issue was in a footnote, where the Circuit explained that, arguably, Elsevier's submission of data to defendants was voluntary, but, it was not necessary to reach that issue because the parties agreed that the submission was involuntary. (See ECF No. 87 at 10 n.4.)[4] Thus, rather than remanding the issue, the Tenth Circuit clearly explained that the issue was not reached. Put simply, the Tenth Circuit's remand has changed nothing in this case in terms of the legal issues before the Court, the only thing that has changed is that factual disputes exist preventing entry of summary judgment on those legal issues.

         In summary, because Elsevier has failed to provide an adequate explanation for why it failed to intervene after receiving the September 22, 2014 letter, and/or for why it chose to “hold its fire” after entry of the December 23, 2014 Order, and because nothing has changed in this case, the Court finds that the first factor of the timeliness inquiry weighs strongly against Elsevier.

         The second factor is prejudice to the existing parties. Elsevier asserts that allowing it to intervene will not cause prejudice to the existing parties because intervention will not disrupt any schedule or cause any additional expense, and discovery directed at Elsevier will be needed with or without its intervention. (ECF No. 92 at 10-11.) As Elsevier asserts, prejudice in this respect is prejudice caused by the movant's delay. Edmondson, 619 F.3d at 1236. In its reply, Elsevier points to the prejudice caused by its delay. Specifically, Elsevier concedes that, if allowed to intervene, this case would be in no different a place than if it had intervened in September 2014. (See ECF No. 105 at 2.) The problem for Elsevier is that it is not 2014 now. In other words, this case has proceeded far beyond where it was in September 2014; to return it to a procedural state that would otherwise have been completed is undoubtedly prejudice caused by Elsevier's delay.

         In that regard, the Court gives no weight to Elsevier's assertion that it is up to the Court whether Elsevier's new arguments will require further summary judgment practice or can proceed directly to trial. (See ECF No. 105 at 2-3.) Although the decision is very much the Court's, there is not really a decision to make. If the Court were to allow Elsevier's arguments to go directly to trial without being subject to the rigours of summary ...

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