United States District Court, D. Colorado
ORDER GRANTING ALL WEBS'S MOTION TO INTERVENE
(ECF #27)
Gordon
P. Gallagher, United States Magistrate Judge
This
matter comes before the Court on All Web's motion to
intervene (ECF #27)[1], (which was referred to this Magistrate
Judge (ECF #33))[2], Efinancial's notice of nonopposition
(ECF #35), Plaintiff's response (ECF #44), and All
Web's reply (ECF #50). The Court has reviewed each of the
aforementioned documents and any attachments. The Court has
also considered the entire case file, the applicable law, and
is sufficiently advised in the premises. Oral argument is not
necessary to resolve this discrete issue. For the following
reasons, I GRANT the motion.
Plaintiff
Turner filed suit alleging a claim for violation of the
Telephone Consumer Protection Act (TCPA) 47 U.S.C. § 227
(complaint (ECF #1)). Plaintiff claims that between August
14, 2017 and November 2, 2017, she received five (5) text
messages on her mobile phone from Efinancial with regard to a
life insurance request (ECF #1, pp. 4-5). Plaintiff states
that “[d]espite what the text messages suggest,
Plaintiff did not request information on life insurance from
Efinancial. Plaintiff explicitly denies she in any way sought
information from Efinancial” (ECF #1, p. 5, para. 22).
Plaintiff further states that she “had no relationship
with Defendant and did not know why she received a message
purporting to be from Defendant. Plaintiff had not provided
her number to Defendant” (ECF #1, p. 5, para. 28).
Additionally, Plaintiff states “Defendant did not make
the requisite disclosures to Plaintiff regarding the use of
an ATDS and did not obtain Plaintiff's prior express
written consent to receive text messages for any
purpose” (ECF #1, pa. 5, para. 29).
All Web
Leads, Inc. is a corporation which “sells insurance
leads to insurance providers” (motion to intervene (ECF
#27, p. 2, para. 1). A consumer visits All Web's website,
www.insurancequaotes.com, provides contact
information which includes a telephone number, agrees to the
future contact from unnamed but solicited insurance
companies, and agrees to arbitration (ECF #27, pp. 2-3,
paras. 2-7). According to All Web, Plaintiff visited the
aforementioned website, consented to contact, agreed to
arbitration, and provided her contact information (ECF #27,
p. 4, paras. 8-10). It is on this basis that All Web now
seeks to intervene. Plaintiff opposes.
I.
Non-dispositive motion:
I
determine that this is a non-dispositive order as I equate
granting a motion to intervene to granting a motion to amend.
The jurisdiction and powers of magistrate judges are governed
by 28 U.S.C. § 636, and limited by the Constitution.
U.S. Const. Art. III, § 1. 28 U.S.C. § 636(b)
establishes that magistrate judges may hear and determine any
pretrial matters pending before the court, save for eight
excepted, dispositive motions. Magistrate judges may issue
orders as to non-dispositive pretrial matters. District
courts review such orders under a “clearly erroneous or
contrary to law” standard of review. 28 U.S.C. §
636(b)(1)(A).
While
magistrate judges may hear dispositive motions, they may only
make proposed findings of fact and recommendations, and
district courts must make de novo determinations as
to those matters if a party objects to the magistrate's
recommendations. Id. § 636(b)(1)(B) & (C).
*3 The Tenth Circuit Court of Appeals has provided guidance
for determining whether a motion is dispositive or
non-dispositive. In Ocelot Oil Corp. v. Sparrow
Industries, the Tenth Circuit determined that the
magistrate judge's order that imposed Rule 37 sanctions
aimed at striking plaintiff's pleadings was dispositive,
rather than non-dispositive. 847 F.2d 1458, 1461-63
(10thCir. 1988). The court reasoned that although
discovery is a pretrial matter, and magistrate judges have
general authority to order discovery sanctions, they may not
do so if those sanctions fall within the eight dispositive
motions excepted. Id. The court considered the
res judicata effect of the magistrate's order,
and concluded that the involuntary dismissal of
plaintiff's pleadings with prejudice effectively
dismissed plaintiff's action. Thus, the court concluded
that the magistrate judge's order constituted the
involuntary dismissal of plaintiff's action within
section 636(b)(1)(A), and was beyond the power of
the magistrate judge. Id.
Here,
granting All Web's motion to intervene does not remove
any claim or defense. Therefore, the motion to intervene is
non-dispositive, and the court issues the following order in
accordance with this finding. See, e.g., id.; see also,
Rhodes v. Ohse, 1998 WL 809510, *1 (N.D.N.Y.1998)
(noting that § 636(b)(1)(A) does not list
motions to intervene as dispositive; therefore, a motion to
intervene is non-dispositive); U.S. v. W.R. Grace &
Co.-Conn., 185 F.R.D. 184 (D.N.J., 1999) (noting that in
the Third Circuit, a magistrate judge may hear and determine
a motion to intervene, as a non-dispositive, pretrial motion,
even without consent of parties); U.S. v. Brooks, 163
F.R.D. 601 (D.Or., 1995) (treating a motion to intervene
as a non-dispositive pretrial ruling, reviewable under
clearly erroneous or contrary to law standard); Cuenca v.
Univ. of Kansas, 205 F.Supp.2d 1226, 1228 (D.Kan.2002)
(ruling on a motion to amend is a non-dispositive decision,
particularly when the Magistrate judge grants the motion).
“Orders granting leave to amend are non-dispositive as
they do not remove claims or defenses of a party.”
Stetz v. Reeher Enterp., Inc., 70 F.Supp.2d 119, 120
(N.D.N.Y. 1999).
II.
Legal standard for intervention-as of right:
Federal
Rule of Civil Procedure 24 governs the intervention of
non-parties. Under Rule 24(a)(2), non-parties may intervene
in a pending lawsuit as of right if:
(1) the application is timely; (2) the applicants claim an
interest relating to the property or transaction which is the
subject of the action; (3) the applicants' interest may
as a practical matter be impaired or impeded; and (4) the
applicants' interest is not adequately represented by
existing parties.
Western Energy Alliance v. Zinke, 877 F.3d 1157,
1164 (10th Cir. 2017) (brackets omitted).4 “Failure to
satisfy even one of these requirements is sufficient to
warrant denial of a motion to intervene as of right.”
Maynard v. Colo. Supreme Court Office of Attorney
Regulation Counsel, No. 09-cv-02052-WYD-KMT, 2010 WL
2775569, at *3 (D. Colo. July 14, 2010) (quoting
Commodity Futures Trading Comm'n v. Heritage Capital
Advisory Servs., Ltd., 736 F.2d 384, 386 (7th Cir.
1984)).
1.
Timeliness:
“The
timeliness of a motion to intervene is assessed in light of
all the circumstances, 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.” Utah
Ass'n of Counties v. Clinton, 255 F.3d 1246, 1250
(10th Cir. 2001). In assessing prejudice, courts look ...