Opinion
No. 3:03-CV-364-H
April 17, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is the Texas Attorney General's Motion to Intervene, filed March 5, 2003, and Plaintiff's Response, filed March 25, 2003. The Texas Attorney General also filed a Reply on April 7, 2003. Under the Court's Order of March 5, 2003, any Reply should have been filed no later than noon, April 4, 2003. The Court does, however, consider the Attorney General's Reply.
I. Background
The above-captioned lawsuit was filed in this Court on February 19, 2003. Plaintiff brings claims under ERISA as well as for state-law breach of contract, and negligent misrepresentation. The Texas Attorney General seeks to intervene in this lawsuit as of right under Federal Rule 24(a) or in the alternative to intervene permissively under Rule 24(b). The Attorney General asserts that § 123.002 of the Texas Property Code, as well as state common law, gives him the right to intervene in any matter involving a charitable trust. Plaintiff opposes the Attorney General's Intervention.
II. Analysis
Under Federal rule 24(a)(2), intervention as of right is based on four requirements: (1) the applicant must file a timely application; (2) the applicant must claim an interest in the subject matter of the action; (3) the applicant must show that disposition of the action might impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by existing parties to the litigation. Heaton v. Monogram Credit Card Bank of Georgia, 297 F.3d 416, 422 (5th Cir. 2002). "Federal Courts should allow intervention where no one would be hurt and the greater justice could be obtained." Id. ( quoting John Doe No. 1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001). The Court will address each of these factors in turn.
A. Timeliness
There is no argument here that the Attorney General's Motion to Intervene is untimely. Plaintiff filed this lawsuit on February 19, 2003 and the Attorney General moved to intervene on March 5, 2003. The motion is timely.
B. Interest of the Applicant The Effect of this Action on the Applicant's Interest
The Attorney General must also show that he has a sufficient interest in this case to support intervention and that the disposition of this action may impair or impede his ability to protect that interest. In Ozee v. American Council on Gift Annuities, Inc., the Fifth Circuit relied on Texas Property Code section 123.001-005 in reaching its conclusion that the Texas Attorney General's status "as the public protector of charities and charitable trusts satisfies these requirements." 110 F.3d 1082, 1096 (5th Cir. 1997) (vacated on other grounds sub nom American Bible Soc. v. Richie, 522 U.S. 1011 (1997), on remand Ozee v. American Council on Gift Annuities, Inc., 143 F.3d 937 (1998). The same holds true for this case.
C. Whether existing parties adequately represent the Applicant's Interests
Applicants for intervention have only a minimal burden as to inadequate representation. Heaton v. Monogram Credit Card Bank of Georgia, 297 F.3d 416, 425 (5th Cir. 2002). All the Attorney General needs to show is that representation by the current Defendant may be inadequate. Id. Since the Attorney General represents the interests of the citizens of Texas, whereas the current Defendant represents only its own commercial interests, this prong is met.
III. Conclusion
The Texas Attorney General's Motion to Intervene under Rule 24(a) is GRANTED.
SO ORDERED.