United States District Court, D. Colorado
AIRQUIP, INC., KELLY DASILVA, and NICOLE GRAY, on behalf of themselves and all others similarly situated, Plaintiffs,
HOMEADVISOR, INC., IAC/INTERACTIVECORP, DOES 1 THROUGH 10, Defendants.
A. BRIMMER United States District Judge
matter is before the Court on Tim Davidson's Notice of
Intervention/ Brief [Docket No. 89], which the Court
construes as a motion to intervene. The Court has jurisdiction
pursuant to 28 U.S.C. § 1332.
19, 2016, plaintiff Airquip, Inc. filed its class action
complaint against defendants. On November 14, 2016,
plaintiffs filed an amended complaint adding Kelly DaSilva
and Nicole Gray as named plaintiffs. Docket No. 32.
Plaintiffs allege that defendants engaged in fraudulent
practices related to the sale of leads for business services.
Docket No. 32 at 4-13, ¶¶ 1-22. As a result of this
alleged conduct, plaintiffs present five claims against
defendants: racketeering, violations of the Colorado Consumer
Protection Act, fraud or fraudulent concealment, breach of
implied contract, and unjust enrichment or restitution.
Docket No. 32 at 108-123, ¶¶ 270-326. Tim Davidson
has filed a motion to intervene in this lawsuit pursuant to
Fed.R.Civ.P. 24. Docket No. 89.
provides, in pertinent part, that a “court must permit
anyone to intervene 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),  and that a “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.”
Fed.R.Civ.P. 24(b)(1)(B). In regard to intervention as of
right pursuant to Rule 24(a)(2), the Tenth Circuit has
summarized the requirements as: “(1) the application is
timely; (2) the applicant claims an interest relating to the
property or transaction which is the subject of the action;
(3) the applicant's interest may as a practical matter be
impaired or impeded; and (4) the applicant's interest is
not adequately represented by existing parties.”
United States v. Albert Inv. Co., Inc., 585 F.3d
1386, 1391 (10th Cir. 2009) (citations, quotation marks, and
alteration omitted). “[R]epresentation is adequate
‘when the objective of the applicant for intervention
is identical to that of one of the parties.'”
City of Stilwell, Okl. v. Ozarks Rural Elec. Coop.
Corp., 79 F.3d 1038, 1042 (10th Cir. 1996) (quoting
Bottoms v. Dresser Indus., Inc., 797 F.2d 869, 872
(10th Cir. 1986)).
Davidson states that he was sold 230 leads by defendant
HomeAdvisor from July, 2016 to March, 2017. Docket No. 89 at
1. There is no dispute that Mr. Davidson's motion for
intervention is timely and that he claims an interest related
to the same subject matter that forms the basis for the
pending class action. Docket No. 91 at 1-2. However, Mr.
Davidson does not allege that his interest in this matter may
be impaired or that the existing parties do not represent his
interests. Plaintiffs' counsel states that they
corresponded with Mr. Davidson several times and, after
conducting a routine intake, informed him that, based on the
nature of his dispute with HomeAdvisor, he should consider
retaining his own counsel to ensure that his interests are
not jeopardized. Docket No. 91-1 at 2-3, ¶ 6. The
correspondence also made clear that plaintiffs' counsel
did not represent Mr. Davidson. Id. Mr. Davidson
responded “It's no problem . . . . I will file
similar case [in Arkansas].” Id. at 3, ¶
Davidson does not explain why he is now unable to proceed
independent of the class action. While Mr. Davidson
conclusorily states that he is “So Situated, to be
Adversely Affected, ” Docket No. 89 at 2, he does not
explain how he will be prejudiced if the class action is
allowed to proceed. Mr. Davidson appears to be raising nearly
identical claims to those of the named plaintiffs, which
strongly suggests that the existing parties adequately
represent his interests. See City of Stilwell, 79
F.3d at 1042. In the event that a class is certified, Mr.
Davidson is free to opt out if he feels that his interests
are inadequately represented by the named plaintiffs.
Court finds that Mr. Davidson has not shown that his
interests will be impaired if he is not allowed to intervene
or that the named plaintiffs do not adequately represent his
interests. It is therefore
that Tim Davidson's Notice of Intervention/ Brief [Docket
No. 89], construed as a motion to intervene, is denied.
Because Mr. Davidson is proceeding
pro se, the Court construes his filings liberally.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
Although he relies upon Rule 24(a)(1),
Davidson fails to identify a federal statute that gives him
an “unconditional right to ...