Tri-State Truck Insurance, LTD. et al v. First National Bank of Wamego, Kansas, No. 5:2009cv04158 - Document 132 (D. Kan. 2011)
Court Description: MEMORANDUM AND ORDER denying 114 Motion of Equitable Bank for leave to intervene. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 10/5/2011. (bmw)
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Tri-State Truck Insurance, LTD. et al v. First National Bank of Wamego, Kansas Doc. 132 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS TRI - STATE TRUCK I NSURANCE, LTD., TST, LTD., and ANDREW B. AUDET, Plaint iffs, v. No. 09- 4158- SAC FI RST NATI ONAL BANK OF WAMEGO, et al., Defendant s. MEMORANDUM AND ORDER This case com es before t he Court on t he post j udgm ent m ot ion for leave t o int ervene by Equit able Bank, a non- part y who part icipat ed in a loan at issue in t he present case. The m ot ion is brought pursuant t o Fed.R.Civ. Pro. 24( a) ( int ervent ion of right ) , and 24( b) ( perm issive int ervent ion) . Plaint iffs oppose t he m ot ion. The requirem ent s for int ervent ion as of right pursuant t o Fed.R.Civ.P. 24( a) ( 2) are well est ablished: On t im ely m ot ion, t he court m ust perm it anyone t o int ervene who: ... claim s an int erest relat ing t o t he propert y or t ransact ion t hat is t he subj ect of t he act ion, and is so sit uat ed t hat disposing of t he act ion m ay as a pract ical m at t er im pair or im pede t he m ovant 's abilit y t o prot ect it s int erest , unless exist ing part ies adequat ely represent t hat int erest . Thus, a m ovant m ay int ervene as a m at t er of right if " ( 1) t he [ m ot ion] is t im ely, ( 2) t he [ m ovant ] claim s an int erest relat ing t o t he propert y or t ransact ion which is t he subj ect of t he act ion, ( 3) t he [ m ovant 's] int erest m ay be im paired or im peded, and ( 4) t he [ m ovant 's] int erest is not adequat ely represent ed by exist ing part ies." Dockets.Justia.com Elliot t I ndus. Lt d. P'ship v. BP Am . Prod. Co., 407 F.3d 1091, 1103 ( 10t h Cir.2005) . Oklahom a ex rel. Edm ondson v. Tyson Foods, I nc., 619 F.3d 1223, 1231 ( 10t h Cir. 2010) . The requirem ent s of perm issive int ervent ion are less dem anding. Fed.R.Civ.P. 24( b) ( 1) provides t hat a court has discret ion t o perm it anyone t o int ervene who: ( 1) files a t im ely m ot ion, and ( 2) " has a claim or defense t hat shares wit h t he m ain act ion a com m on quest ion of law or fact ." Subsect ion ( b) ( 3) adds t hat " [ i] n exercising it s discret ion, t he court m ust consider whet her t he int ervent ion will unduly delay or prej udice t he adj udicat ion of t he original part ies' right s." Ru le 2 4 ( c) The Court first addresses Rule 24( c) because Equit able Bank has adm it t edly failed t o com ply wit h it s m andat e. Rule 24( c) st at es: A m ot ion t o int ervene m ust be served on t he part ies as provided in Rule 5. The m ot ion m ust st at e t he grounds for int ervent ion and be accom panied by a pleading t hat set s out t he claim or defense for which int ervent ion is sought . Equit able Bank adm it s t hat it has not com plied wit h t his “ pleading” dut y, and init ially offered no reason for t hat failure. I t s reply brief cont ends t hat because it s m ot ion is post j udgm ent , it need not com ply wit h t his rule. 1 The 1 Equit able Bank does not argue t hat it cannot com ply wit h t he rule’s pleading requirem ent . I nst ead, it proposes t hat it s briefs t o be filed lat er will adequat ely subst it ut e for such pleadings. 2 sole aut horit y offered for t hat proposit ion is a foot not e from a case in anot her j urisdict ion, which t he Court does find t o be precedent ial or persuasive. The definit ion of a " pleading" in Rule Fed.R.Civ.P. 7( a) is lim it ed t o one of seven specific docum ent s, 2 all of which are in t he nat ure of com plaint s or answers, and none of which is filed aft er a pret rial order is ent ered. The draft ers of t he rule apparent ly did not ant icipat e t he filing of post j udgm ent m ot ions t o int ervene, as no such m ot ion can m eet t he requirem ent t hat it be accom panied by “ a pleading t hat set s out t he claim or defense for which int ervent ion is sought .” The language of t he rule t hus suggest s t he draft er’s belief t hat m ot ions t o int ervene m ay be filed only during t he pleading st age of lit igat ion. This Court does not t ake t hat approach since it is not consist ent wit h Tent h Circuit law, but acknowledges t hat som e creat ive int erpret at ion is required if t he rule’s " pleading" requirem ent is t o be applied t o lat e m ot ions t o int ervene, as here. Equit able Bank st at es only t hat it seeks leave t o int ervene for “ t he purpose of seeking post - j udgm ent relief,” and t hat it s “ briefing in support of t hat relief, including it s briefing on appeal, will const it ut e it s pleading.” ( Doc. 115, p. 6) . No specificat ion is m ade of what briefs it seeks t o file, 2 These are a com plaint ; an answer t o a com plaint ; an answer t o a count erclaim designat ed as a count erclaim ; an answer t o a crossclaim ; a t hird- part y com plaint ; an answer t o a t hird- part y com plaint ; and if t he court orders one, a reply t o an answer. 3 which issues it seeks t o raise, and what posit ions it int ends t o t ake on t hose issues. This put t ing of t he cart before t he horse defeat s t he purpose of t his Rule, which is, in large part , t o give t he Court a basis for det erm ining what int erest s t he pot ent ial int ervenor seeks t o prot ect , whet her such int erest s are im peded, and whet her such int erest s are already adequat ely represent ed by t he part ies. The purpose of t he rule requiring t he m ot ion t o st at e t he reasons t herefor and accom panying t he m ot ion wit h a pleading set t ing fort h t he claim or defense is t o enable t he court t o det erm ine whet her t he applicant has t he right t o int ervene, and, if not , whet her perm issive int ervent ion should be grant ed. Miam i Count y Nat . Bank of Paola, Kan. v. Bancroft , 121 F.2d 921, 926 ( 10t h Cir. 1941) ( affirm ing denial of int ervent ion where no pleading was filed wit h t he applicat ion, as required by Rule 24( c) .) . See I n re Pot t er, 292 B.R. 711, 711, 53 Fed.R.Serv.3d 1387, 1387 ( 10t h Cir. BAP 2002) ; Sears Roebuck And Co. v. I PofA Salina Cent ral Mall, LLC, 2009 WL 1664614 ( D.Kan. 2009) ( " Failing t o at t ach such a pleading com plicat es t he court 's t ask of evaluat ing t he m ovant 's legal posit ion. Therefore, t he court could properly deny t he inst ant m ot ion on procedural grounds." ) The rule is addit ionally designed t o put t he part ies on not ice of t he pot ent ial claim s, so t hat t hey m ay be heard before int ervent ion is considered by t he Court . The purpose of t he rule is not only t o inform t he court of t he grounds 4 upon which int ervent ion is sought , but also t o inform part ies against whom som e right is assert ed or relief sought , so t hey m ay be heard before t he court passes upon t he applicat ion. I nt ernat ional Brot h. of Team st ers, Chauffeurs, St ablem en and Helpers of Am erica, Local Union No. 523, of Tulsa, Okl. v. Keyst one Freight Lines, 123 F.2d 326, 328 ( 10t h Cir. 1941) . Equit able Bank's flout ing of t his pleading requirem ent prej udices t he part ies t o t he case because t hey are left t o guess at t he nat ure of Equit able Bank's claim s in t heir response. Equit able Bank cont ends t hat t his requirem ent should not apply t o post j udgm ent m ot ions t o int ervene. But t he language of t he rule is unam biguous and m akes no such except ion. Furt her, specificit y is part icularly im port ant where, as here, a m ot ion t o int ervene is filed aft er a final j udgm ent is ent ered. Where pet it ioners seek t o int ervene aft er final j udgm ent , specificit y m ay be part icularly im port ant . For even if pet it ioners have a prot ect able int erest in cert ain aspect s of t he decision, t hey m ay not have st anding t o challenge t he whole of it on appeal. Specificit y is required so t he court can det erm ine in which part s of it s decree t he pet it ioners have such an int erest . Hobson v. Hansen, 44 F.R.D. 18, 25 ( D.D.C. 1968) . Equit able Bank’s m ot ion not only fails t o st at e wit h specificit y which issues it seeks t o appeal, but also fails t o st at e t he nat ure of t he m ot ions it int ends t o file under Rule 59( e) or Rule 60. I t s vague references t o “ post j udgm ent relief” and it s assert ion t hat it s “ pleading” will consist of it s " briefing in support of t hat relief, including it s briefing on appeal,” indicat e t hat it cont em plat es m ore 5 t han j ust an appeal. Equit able Bank’s m em oranda on t his issue do not provide t he requisit e specificit y. Because proper analysis of t he m ot ion t o int ervene is hindered by Equit able Bank’s failure t o at t ach it s pleadings, t he m ot ion t o int ervene warrant s denial. See Miam i Count y, 121 F.2d 921 ( affirm ing denial of int ervent ion where m ot ion was lat e, failed t o st at e t he grounds t herefor, and was not accom panied by a pleading set t ing fort h t he claim s or defense upon which int ervent ion was sought ) . Equit able Banks' failure t o com ply wit h t he dict at es of t he rule cannot be excused as a non- prej udicial t echnical defect in t his case. I n t he Tent h Circuit , as in several ot her j urisdict ions, 3 such an om ission can be fat ally defect ive. See Miam i Count y, 121 F.2d at 926; I n re S.E.C., 253 Fed.Appx. 752, 755, 2007 WL 3253342, 3 ( 10t h Cir. 2007) ( failure t o at t ach t he 24( c) pleading m ay warrant denying t he m ot ion as procedurally inadequat e) ; Shell v. Henderson, 2010 WL 2802651, at * 1 ( D.Colo. July 15, 2010) ; cf, Alvarado v. J.C. Penney Co., I nc., 997 F.2d 803 ( 10t h Cir. 1993) ( discussing not ice purpose of t he requirem ent ) . This is t he 3 See e.g., Public Service Co. of New Ham pshire v. Pat ch, 136 F.3d 197, 205, n. 6 ( 1st Cir. 1998) ( failure t o accom pany m ot ion t o int ervene wit h a pleading set t ing fort h a claim or defense “ ordinarily would warrant dism issal” of t he m ot ion) ; Abram son v. Pennwood I nv. Corp., 392 F.2d 759, 761 ( 2nd Cir. 1968) ( “ appellant 's reference in his m ot ion papers t o t he allegat ions of t he original com plaint was insufficient t o com ply wit h t he requirem ent s of Rule 24( c) ” ) ; Shevlin v. Schewe, 809 F.2d 447, 450 ( 7t h Cir. 1987) ( “ Federal Rule of Civil Procedure 24( c) is unam biguous in defining t he procedure for an int ervenor,” and requires a pleading t o accom pany t he m ot ion t o int ervene) . 6 case here because t he m ot ion fails t o adequat ely inform t he Court of t he fact ors necessary t o j ust ify Equit able Bank’s int ervent ion, and fails t o inform t he plaint iffs of t he grounds on which it seeks t o int ervene sufficient ly t o enable t hem t o respond. Tim e lin e ss Alt ernat ively, t he fact s which Equit able Bank has included in it s m ot ion do not show t he t im eliness of int ervent ion. Bot h int ervent ion as of right and perm issive int ervent ion require t hat a m ot ion t o int ervene be t im ely. See Fed.R.Civ.P. 24( a) ( 2) ; 24( b) ( 1) ; Edm ondson, 619 F.3d at 1231. Equit able Bank assert s t hat it s post j udgm ent m ot ion is t im ely, based solely on t he fact t hat it was filed wit hin t he t im e for t he part ies t o file an appeal. I t s reply brief reveals t hat t his assert ion is based on Unit ed Airlines, I nc. v. McDonald, 432 U.S. 385 ( 1977) . There, a post - j udgm ent m ot ion t o int ervene for t he purpose of appealing t he dist rict court 's denial of class act ion cert ificat ion was found t im ely since it was filed wit hin t he appeal deadline and t he nam ed plaint iffs did not int end t o file an appeal challenging t he denial of class cert ificat ion. Equit able Bank assert s t hat t he t im eliness of post j udgm ent m ot ions t o int ervene is m easured solely by t he t im e for appeal, but t he t im eliness of earlier m ot ions t o int ervene is m easured by a different st andard which considers all t he circum st ances of a case. This Court disagrees, finding t he t ot alit y of t he circum st ances cont rols t his post j udgm ent m ot ion, as well. First , Unit ed Airlines does not est ablish a 7 bright - line rule t hat a post j udgm ent m ot ion t o int ervene is t im ely if filed wit hin t he appeal deadline. I nst ead, t he Court considered all t he circum st ances, st at ing: The crit ical fact here is t hat once t he ent ry of final j udgm ent m ade t he adverse class det erm inat ion appealable, t he respondent quickly sought t o ent er t he lit igat ion. I n short , as soon as it becam e clear t o t he respondent t hat t he int erest s of t he unnam ed class m em bers would no longer be prot ect ed by t he nam ed class represent at ives, she prom pt ly m oved t o int ervene t o prot ect t hose int erest s. Unit ed Airlines, 432 U.S. at 394. Secondly, t he Tent h Circuit has dist inguished Unit ed Airlines, finding t hat a “ m erit s appeal is wholly unlike t he appeal from t he denial of class cert ificat ion.” Sout hern Ut ah Wilderness Alliance v. Kem pt horne, 525 F.3d 966, 971 n.1, n. 5 ( 10t h Cir. 2008) ( denying int ervent ion for purpose of a m erit s appeal; finding int ervent ion for t he purpose of filing post j udgm ent m ot ions unt im ely even t hough m ot ion was filed before t he appeal t im e ran.) Equit able Bank seeks t o int ervene in a m erit s appeal, not in an appeal from t he denial of class cert ificat ion. Here, as in Sout hern Ut ah Wilderness Alliance, t he proposed int ervenor’s “ reliance on Unit ed Airlines t o suggest t heir post j udgm ent m ot ion t o int ervene was t im ely is m isplaced.” 525 F.3d at 971, n. 5. Post j udgm ent m ot ions t o int ervene are generally disfavored because t heir lat eness is prej udicial t o t he part ies and disrupt ive t o t he court . Post - j udgm ent int ervent ions are generally disfavored because of t he assum pt ion t hat t hey will ( 1) prej udice t he right s of exist ing 8 part ies, and ( 2) int erfere wit h t he orderly processes of t he court . St allwort h v. Monsant o, supra, 558 F.2d at 266; Unit ed St at es v. Unit ed St at es St eel, 548 F.2d 1232, 1235 ( 5t h Cir. 1977) ; Fox Hill Surgery Clinic v. Cit y of Overland Park, supra. However, if neit her of t hese fact ors is evident , t here is no st rong reason t o deny t he m ot ion t o int ervene m erely because it is m ade aft er j udgm ent has been rendered. Brown v. Board of Ed. of Topeka, Shawnee Count y, Kansas, 84 F.R.D. 383 ( D.Kan. 1979) ( not ing cases in which int ervent ion has been allowed even aft er j udgm ent ) . Thus post j udgm ent m ot ions t o int ervene are not per se unt im ely. “ [ D] elay in it self does not m ake a request for int ervent ion unt im ely.” Edm ondson, 619 F.3d at 1235. “ The requirem ent of t im eliness is not a t ool of ret ribut ion t o punish t he t ardy would- be- int ervenor....” Ut ah Ass'n of Count ies v. Clint on, 255 F.3d 1246, 1250 ( 10t h Cir. 2001) ( int ernal quot at ion m arks om it t ed) . The t im eliness requirem ent precludes a proposed int ervenor from sim ply “ wait [ ing t o] see if t he t rial's out com e leaves int ervent ion desirable wit h it s at t endant risk of undoing what t he t rial court has already done.” Sout hern Ut ah Wilderness Alliance, 525 F.3d at 971, quot ing Plain v. Murphy Fam ily Farm s, 296 F.3d 975, 980- 81 ( 10t h Cir. 2002) . Cont rary t o Equit able Bank’s posit ion, t he Tent h Circuit , even aft er Unit ed Airlines, has not applied any bright - line rule in det erm ining t he t im eliness of post j udgm ent m ot ions t o int ervene. I nst ead, it looks at all of t he circum st ances of t he case, as it does wit h prej udgm ent m ot ions t o int ervene. See Sout hern Ut ah Wilderness Alliance, 525 F.3d at 971 ( finding 9 post j udgm ent m ot ion t o int ervene unt im ely) ; Elliot t I ndust ries Lt d. Part nership v. BP Am erica Product ion Co., 407 F.3d 1091, 1103 - 1104 ( 10t h Cir. 2005) ( finding post j udgm ent m ot ion t o int ervene t im ely, assessing t im eliness “ in light of all t he circum st ances.” ) . Accordingly, t his Court applies t hat st andard, using t he Unit ed Airlines rule t o supplem ent rat her t han t o supplant t he t radit ional considerat ions of t im eliness. 4 I n reviewing t he t ot alit y of t he circum st ances, t he Tent h Circuit exam ines several non- exclusive fact ors: The t im eliness of a m ot ion t o int ervene is det erm ined " in light of all of t he circum st ances." Sanguine, Lt d. v. U.S. Dep't of I nt erior, 736 F.2d 1416, 1418 ( 10t h Cir. 1984) . We have recognized t hree fact ors as part icularly im port ant : " [ ( 1) ] t he lengt h of t im e since t he [ m ovant ] knew of [ it s] int erest s in t he case; [ ( 2) ] prej udice t o t he exist ing part ies; [ and ( 3) ] prej udice t o t he [ m ovant ] ." I d. But t hese considerat ion are not exclusive and t he t rial court should also consider " t he exist ence of any unusual circum st ances." I d. Edm ondson, 619 F.3d at 1232. See Elliot t I ndust ries Lt d. Part nership, 407 F.3d at 1103; Ut ah Ass'n of Count ies v. Clint on, 255 F.3d 1246, 1250 ( 10t h Cir. 2001) . The Tent h Circuit recognizes t hat “ ‘[ w] hen t he applicant appears t o 4 " [ U] sing t he rule enunciat ed in Unit ed Airlines t o supplem ent , rat her t han supplant , t he four considerat ions of t im eliness is m ore in keeping wit h t he general rule, as it allows t he t rial court t o look at t he m erit s of t he proposed int ervent ion. A cont rary int erpret at ion would m ake lit t le sense, because it would discourage a proposed int ervenor from filing a m ot ion during a pending act ion, when it would be scrut inized, in favor of filing prom pt ly aft er j udgm ent , when it would m echanically be found t im ely." Dow Jones & Co., I nc. v. U.S. Dept . of Just ice, 161 F.R.D. 247, 251- 52 ( S.D.N.Y. 1995) . 10 have been aware of t he lit igat ion but has delayed unduly seeking t o int ervene, court s generally have been reluct ant t o allow int ervent ion.’ 7C Charles A. Wright , Art hur R. Miller & Mary Kay Kane, Federal Pract ice & Procedure § 1916, at 539- 40 ( 3d ed. 2007) .” Edm ondson, 619 F.3d at 1232. While " [ c] ourt s are norm ally reluct ant t o grant a m ot ion t o int ervene at a lat e st age in t he proceedings or aft er ent ry of j udgm ent [ ,] " t he fact s of a case m ay dict at e ot herwise. Sanguine, Lt d. v. U.S. Dept . of I nt erior, 736 F.2d 1416, 1419 ( 10t h Cir. 1984) . Equit able Bank was apparent ly aware of t his lit igat ion at least by t he dat e t hat FNBW filed it s answer and count erclaim on January 26, 2010, on behalf of it self “ and t he ot her Part icipat ing Lenders,” if not before ( Doc. 3, p. 20) , yet has not present ed any explanat ion for it s delay in filing t his m ot ion. One of t he relevant circum st ances in assessing t im eliness of t he m ot ion is t he lengt h of t im e t he applicant knew or should have known it s int erest could diverge from t he part ies’ int erest s before m aking t he m ot ion. See Edm ondson, 619 F.3d at 1233 ( “ The relevant circum st ance here for det erm ining t im eliness is when t he int ervenor becam e aware t hat it s int erest would no longer be prot ect ed adequat ely by t he part ies.” ) . Com pare Sout hern Ut ah Wilderness Alliance, 525 F.3d at 971 ( finding post j udgm ent int ervent ion unt im ely based in part on adequat e represent at ion of int erest ) ; Unit ed St at es v. Yonkers Bd. of Educ., 801 F.2d 593, 596- 97 ( 2d Cir. 1986) ( finding post - j udgm ent m ot ion t o int ervene unt im ely when proposed 11 int ervenor should have known court would consider issue affect ing it s int erest t hree m ont hs before j udgm ent issued) . An assessm ent of t he part ies’ and proposed int ervenor’s int erest s is t hus relevant t o t he det erm inat ion of t im eliness. But as not ed above, Equit able Bank has failed t o show t he Court t hat it s int erest is not adequat ely represent ed by exist ing part ies. FNBW has already filed a not ice of appeal, indicat ing it s int ent t o prot ect it s int erest s and t hose of t he ot her part icipat ing lenders. No conflict of int erest has been alleged bet ween FNBW and Equit able Bank, and t hey are represent ed by t he sam e counsel. Nor is any collusion alleged bet ween FNBW and t he plaint iffs. Equit able Bank concedes t hat it and FNBW bot h seek t o enforce t heir int erest s as t hird- part y beneficiaries, but assert s t hat FNBW m ay not pursue t his t heory on appeal since FNBW has addit ional legal t heories it could raise. The Court finds t he assert ion t hat FNBW m ay abandon it s t hird- part y beneficiary argum ent on appeal t o be speculat ive and unrealist ic. There is no reason t o believe t hat FNBW would abandon an essent ial, if not it s prim ary, legal t heory on appeal, part icularly when FNBW’s recent ly- filed post j udgm ent m ot ions largely focus on t hat t heory. Equit able Bank has not shown any reason t o believe t hat FNBW’s st rat egy on appeal will not fully prot ect it s int erest s. Furt her, a disagreem ent wit h defendant s’ lit igat ion st rat egy is not a genuine concern about inadequat e represent at ion. See Bum garner v. Ut e I ndian Tribe of Uint ah & Ouray Res., 417 F.2d 1305, 1308 12 ( 10t h Cir. 1969) ; San Juan Count y, Ut ah v. Unit ed St at es, 503 F.3d 1163, 1206 ( 10t h Cir. 2007) ( cit ing wit h approval First Circuit opinion denying int ervent ion even t hough pot ent ial int ervenors m ight present an argum ent t hat t he current part y was unlikely t o m ake) ; Public Service Co. of Colorado v. Board of Count y Com m 'r of San Miguel Count y, 2005 WL 2293650, ( D. Colo, Sept . 19, 2005) ( “ I f disagreem ent wit h an exist ing part y over t rial st rat egy qualified as inadequat e represent at ion, t he requirem ent of Rule 24 would have no m eaning.” ) ( quot ing Jones v. Prince George’s Count y, Md., 348 F.3d 1014, 1020 ( D.C. Cir. 2003) ) . Equit able Bank addit ionally assert s t hat FNBW has legal t heories it could raise on appeal in addit ion t o t he t hird- part y beneficiary claim , ( e.g., assignee, adm inist rat or) which Equit able Bank could not raise and which m ay not benefit Equit able Bank. That FNBW m ay raise legal argum ent s in addit ion t o t hose which would prot ect Equit able Bank is insufficient t o show t hat FNBW will not adequat ely represent Equit able Bank’s int erest s on appeal. FNBW’s posit ion on t he t hird- part y beneficiary claim is not dilut ed by it s pot ent ial raising of ot her claim s t hat seek t o achieve t he sam e obj ect ive it shares wit h Equit able Bank - t o enforce t he loan( s) . Equit able Bank addit ionally cont ends t hat FNBW, in it s capacit y as servicer of t he loans, cannot prot ect Equit able Bank's int erest s generally, as a part icipant . But t o t he ext ent t his m ay be t rue, t his fact has exist ed t hroughout t he life of t his lit igat ion, and is unalt ered by t he ent ry of 13 j udgm ent . I f Equit able Bank were t ruly concerned t hat FNBW would not prot ect it s int erest s as a m ere part icipant , it s m ot ion t o int ervene should have been filed long ago, not aft er j udgm ent has been ent ered. Equit able Bank assert s in it s reply brief t hat it did not know unt il it saw t he exact language in t he ent ry of j udgm ent t hat it s securit y int erest in collat eral securing t he loan could be im paired by t his act ion. But Equit able Bank knew or should have known of t hat very language and of all ot her specific ram ificat ions of t he pot ent ial j udgm ent in t his case no lat er t han Novem ber 3, 2010, when plaint iffs filed t heir m ot ion for sum m ary j udgm ent which expressly sought t he j udgm ent which t he Court lat er grant ed, verbat im . See Doc. 74, p. 27- 28. Addit ionally, Equit able Bank ignores t he fact t hat Gibson Fam ily Lim it ed Part nership has also filed a not ice of appeal. ( Doc. 117) . Gibson Fam ily Lim it ed Part nership is in t he sam e posit ion as Equit able Bank in t hat bot h are m ere part icipant s t o t he loan( s) - neit her claim s t o be a servicer or an adm inist rat or of t he loan( s) or an assignee of any int erest of Alerit as. Bot h have t he sam e lit igat ion obj ect ive - t o enforce t he loan agreem ent ( s) as t o m ere part icipat ing lenders. The Tent h Circuit applies a general presum pt ion t hat “ represent at ion is adequat e ‘when t he obj ect ive of t he applicant for int ervent ion is ident ical t o t hat of one of t he part ies.’ ” Cit y of St ilwell, Okl. v. Ozarks Rural Elec. Co- op. Corp., 79 F.3d 1038, 1042 ( 10t h Cir. 1996) ( quot ing Bot t om s v. Dresser I ndus., I nc., 797 F.2d 869, 872 14 ( 10t h Cir.1986) ) . See San Juan Count y, 503 F.3d at 1204. This presum pt ion applies here and has not been rebut t ed. I n sum , Equit able Bank has failed t o show t hat it s int erest s, alt hough prot ect ed by exist ing part ies before t he j udgm ent was ent ered, will not be adequat ely prot ect ed by t hose sam e part ies who have appealed. Equit able Bank has not shown t hat it will be prej udiced in t he event it s m ot ion t o int ervene is denied. The Court addit ionally finds t hat grant ing Equit able Bank’s m ot ion would int erfere wit h t he orderly processes of t he court and prej udice t he exist ing part ies. Alt hough Equit able Bank has failed in it s dut y t o specify each of t he issues it seeks t o raise “ post - j udgm ent ,” or on appeal, it not es t hat one m ay be “ whet her Plaint iffs should be est opped from challenging t he validit y of t he agreem ent s governing t heir loan, given t hat t hey knew it had been sold t o part icipat ing lenders in January, 2009.” Doc. 115, p. 5. This issue is one which could have been raised, but was not raised, by t he part ies on sum m ary j udgm ent . 5 Accordingly, Equit able Bank int ends t o add t o t he fact ual record already before t he Court , 6 requiring t he Court and t he part ies t o re- t ry t he case, prej udicing t he exist ing part ies by t he requisit e delay and 5 The sole est oppel argum ent m ade by any part y relat ed t o anot her issue. 6 Plaint iffs respond t hat t hey int end t o conduct " full discovery" if t he m ot ion t o int ervene is grant ed on cert ain grounds. See Doc. 123, p. 6. 15 int erfering wit h t he Court ’s int erest in t he adm inist rat ion of j ust ice. See Minnesot a Milk Producers Ass'n v. Glickm an, 153 F.3d 632, 646 ( 8t h Cir. 1998) ( finding post j udgm ent m ot ion t o int ervene unt im ely because it was filed at last opport unit y and would cause exist ing part y t o respond t o argum ent s) , cert . denied, 526 U.S. 1130 ( 1999) . Had Equit able Bank wished t o raise t his or ot her issues not raised on sum m ary j udgm ent by t he part ies, it should have m oved t o do so soon aft er t he sum m ary j udgm ent briefs were filed, long before t he Court ’s ent ry of j udgm ent . Doing so now is unt im ely. See Flying J, I nc. v. Van Hollen, 578 F.3d 569, 572 ( 7t h Cir. 2009) ( st at ing post j udgm ent m ot ion t o int ervene would be “ indeed unt im ely” if it sought t o present evidence) . Gibson Fam ily Lim it ed Part nership’s int ervent ion illust rat es t he cont rast . I t was perm it t ed t o int ervene lat e in t he day - aft er sum m ary j udgm ent m ot ions had been briefed - but it s int ervent ion caused no disrupt ion of t he proceedings because it agreed t o adopt and incorporat e FNBW’s answer and sum m ary j udgm ent briefs. No addit ional briefing or revisit ing of fact s by t he part ies or t he Court was required. Perm it t ing Equit able Bank t o int ervene now could cause subst ant ial delay of anot her sort , for t here would be no reason for t he Court not t o perm it all of t he ot her 17 or so part icipat ing lenders t o sequent ially int ervene, raising what ever ot her new “ post j udgm ent ” issues t hey desire. This would perm it t he part ies t o supplem ent t he record and brief all t he new issues, and 16 perhaps t he old issues as well, unreasonably delaying t he finalit y of j udgm ent . The Court t hus finds t he m ot ion t o int ervene unt im ely because it will prej udice t he right s of exist ing part ies and int erfere wit h t he orderly processes of t he court . For t he reasons st at ed above, t he Court denies t he m ot ion t o int ervene for it s non- com pliance wit h Rule 24( c) and, independent ly, for it s unt im eliness. Alt ernat ively, even if t he Court excused Equit able Bank’s noncom pliance wit h Rule 24( c) and assum ed t he t im eliness of it s m ot ion, t he Court finds, for t he reasons set fort h above, t hat Equit able Bank has failed t o show t hat it s int erest is not adequat ely represent ed by exist ing part ies, and also finds t hat t he int ervent ion will unduly delay or prej udice t he original part ies' right s and int erfere wit h t he orderly processes of t he court . I T I S THEREFORE ORDERED t hat Equit able Bank’s m ot ion for leave t o int ervene ( Doc. 114) is denied. Dat ed t his 5 t h day of Oct ober, 2011. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 17
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