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Malcolm v. Reynolds Polymer Technology, Inc.

United States District Court, D. Colorado

December 20, 2018

STEVEN MALCOLM, Plaintiff,
v.
REYNOLDS POLYMER TECHNOLOGY, INC., a foreign company, Defendant.

          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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