United States District Court, D. Colorado
ORDER GRANTING PROPOSED INTERVENOR'S MOTION TO
INTERVENE
William J. Martínez United States District Judge.
In this
action, Plaintiff Steven Malcolm (“Plaintiff”)
brings negligence and strict liability claims against
Defendant Reynolds Polymer Technology, Inc.
(“Defendant”). (ECF No. 29 at 3-5.) Before the
Court is Acrylic Tank Manufacturing, Inc.'s
(“ATM”) Motion to Intervene (“Motion”
or “Motion to Intervene”; ECF No. 33) and
Unopposed Request for Oral Argument in regard to the Motion
(“Motion for Oral Argument”; ECF No. 48). For the
reasons set forth below, the Motion to Intervene is granted
and the Motion for Oral Argument is denied as moot.
I.
BACKGROUND
On
September 6, 2007, Plaintiff hired ATM to design, build, and
install a 25, 000 gallon custom, state-of-the-art marine
aquarium (the “Aquarium”) for his home in
Scotland. (ECF Nos. 29 at 2 & 33-2 at 3.) ATM
subsequently retained Defendant to manufacture the Aquarium
according to ATM's specifications. (ECF No. 29 at 2.)
Defendant manufactured the Aquarium and shipped it from its
factory in Colorado directly to Scotland, where it was
installed by ATM in 2010. (Id.)
ATM
alleges that after it had installed the Aquarium, Plaintiff,
without ATM's knowledge or approval, substantially
modified the tank by connecting it to the roof of the house.
(ECF No. 33 at 4.)[1] In addition, ATM claims that
representatives from Defendant inspected the Aquarium in 2013
and observed the roofing modification but did not notify ATM
of the alterations. (Id. at 5.) On November 30,
2015, the Aquarium suddenly collapsed, allegedly causing
significant damage to Plaintiff's home. (ECF No. 29 at
3.)
On
April 21, 2017, Plaintiff filed suit against ATM and
Defendant in the United States District Court for the
District of Nevada (“Nevada lawsuit” or
“Nevada action”), seeking damages relating to the
collapse of the Aquarium. (ECF No. 33 at 5.) Defendant
subsequently filed a motion to dismiss Plaintiff's claims
against it for lack of personal jurisdiction. (Id.)
The motion was granted on July 6, 2017, and Defendant was
dismissed from the Nevada lawsuit. (Id.) On November
14, 2017, ATM filed a third party complaint against Defendant
in the Nevada action, seeking contribution and
indemnification for the damages sought by Plaintiff in regard
to the collapse of the Aquarium. (Id. at 5-6.)
After
Defendant was dismissed from the Nevada lawsuit, Plaintiff
filed the instant action against Defendant on November 27,
2017. (ECF No. 1.) Plaintiff amended his complaint on March
1, 2018, but neither the original complaint nor the amended
complaint included ATM as a defendant. (See ECF Nos.
1 & 29.) On February 7, 2018, Defendant filed a motion in
the Nevada action to dismiss ATM's third party complaint
against it for lack of personal jurisdiction over Defendant.
(ECF No. 38-4 at 6.)
While
Defendant's motion to dismiss was still pending before
the Nevada court, ATM filed the instant Motion to Intervene
on June 13, 2018. (ECF No. 33.) ATM states its reason for
wanting to intervene as follows:
Until recently, the parties believed that the jurisdictional
issues in Nevada would be resolved by now, eliminating the
need to litigate this case in Colorado. When it became clear
that the Nevada court might not resolve the jurisdictional
issues before this case became active, however, ATM promptly
filed its motion to intervene.
(ECF No. 39 at 3.) On August 21, 2018, the Nevada court
granted Defendant's motion to dismiss ATM's third
party complaint against it for lack of personal jurisdiction.
(ECF No. 41.) Thus, Defendant is no longer a party in the
Nevada lawsuit. On November 14, 2018, ATM filed an Unopposed
Request for Oral Argument in regard to its Motion to
Intervene. (ECF No. 48.)
II.
LEGAL STANDARD
A.
Intervention by Right
Federal
Rule of Civil Procedure 24(a)(2) provides that, on timely
motion, the court must permit intervention as of right to
anyone who:
[C]laims 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.
Under
Tenth Circuit law interpreting this rule, “an applicant
may intervene as a matter of right if (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 be impaired or impeded,
and (4) the applicant's interest is not adequately
represented by existing parties.” Elliott Indus.
P'ship v. B.P. Am. Prod. Co., 407 F.3d 1091, 1103
(10th Cir. 2005). “The Tenth Circuit generally follows
a liberal view in allowing intervention under Rule
24(a).” Id.
B.
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