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Turner v. Efinancial, LLC

United States District Court, D. Colorado

September 5, 2018



          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,, 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 ...

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