Opinion
Civil Action No. 3:02-CV-1009-D
August 2, 2002
MEMORANDUM OPINION AND ORDER
Humberto Acunu, Hugh Banos, Frank Casillas, Manuel Castillo, Jose Delgadillo, Norma Velasquez, Yong Kim, and Linda Truong ("Sureties") move under Fed.R.Civ.P. 24(a)(2) for leave to intervene as of right in this lawsuit as parties-plaintiff. Plaintiffs Grancisco Obregon Jr. ("Obregon") and Wilfredo Matute ("Matute") and defendants oppose the motion. For the reasons that follow, the court denies the motion, but without prejudice to Sureties' later renewing their motion for leave to intervene as of right or moving for leave to intervene permissively under Rule 24(b)(2).
Although Sureties state at one point in their motion that they seek to intervene under Rule 24, without specifying whether they seek intervention as of right or permissively, see Is. Mot. Int. at 1, they elsewhere make clear that they are moving under Rule 24(a)(2) to intervene as of right, see id. at 2.
I
After plaintiffs Obregon and Matute were arrested in Dallas County, they posted $500 cash bail bonds to secure their release and did not employ the services of a surety. They maintain in this putative class action that defendants are liable for retaining cash bonds during the period 1970 to 2002 that were discharged and should have been returned to the individual who posted the bond. Plaintiffs also aver that defendants acted illegally by returning cash bonds to the third parties who deposited the cash rather than to the person arrested and charged as a defendant. They contend that defendants are legally obligated under Tex. Code Crim. Proc. Ann. art. 17.02 (Vernon 1977), to return the cash to the defendant on whose behalf the cash bond was posted. Plaintiffs allege claims for breach of statutory duty, unjust enrichment, breach of contract, and unlawful taking of property (remediable under 42 U.S.C. § 1983), seeking actual and punitive damages, a declaratory judgment, and attorney's fees. They request certification of a class of tens of thousands of individuals who have been arrested and released with a cash bond.
Sureties move for leave to intervene as of right under Rule 24(a)(2). They contend they seek to represent a class of sureties who paid cash deposits to the Dallas County Sheriff in reliance on the Sheriff's statements, in accordance with Texas law, that the cash deposits would be refundable to them, and not to criminal defendants, at the time the related bail bonds were discharged by operation of law or court order. Sureties argue that they are seeking in this lawsuit to establish their rights to the same deposits that plaintiffs are claiming. Defendants and plaintiffs oppose intervention, asserting that Sureties cannot show that their interest will be inadequately represented by defendants.
Rule 24(a)(2) provides:
Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Defendants also contend Sureties' motion should be stricken because it does not contain a certificate of conference or brief The court declines to deny the motion on this basis. Failure to comply with a local civil rule of this court is to be carefully avoided and should not be repeated. The absence of a document denominated as a "brief' is immaterial, however, where, as here, Sureties included their argument in their motion and clearly denominated it as argument. And the failure to file a certificate of conference presents no basis to deny the motion where, as here, it is clear that the motion is opposed and that a conference would neither have eliminated nor narrowed the parties' dispute.
Plaintiffs move to strike Sureties' motion to intervene on the ground that Sureties did not properly serve them with the motion. Noncompliance with a Federal Rule of Civil Procedure is also to be carefully avoided. Because plaintiffs have had a fair opportunity to respond to the motion, however, the court denies the motion to strike. Plaintiffs also complain that the motion (a copy of which they received through defendants' counsel) does not contain a certificate of conference. The court concludes, for the reason stated above, that Sureties' motion should not be rejected on this basis.
II A
Intervention as of right requires that each of four requirements be met: "(1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair his ability to protect that interest; (4) the applicant's interest must be inadequately represented by the existing parties to the suit." Taylor Communications Group, Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999) (footnote omitted); Rigco, Inc. v. Rauscher Pierce Refsnes, Inc., 110 F.R.D. 180, 182 (N.D. Tex. 1986) (Fitzwater, J.) (citation omitted). Failure to satisfy' any one of the four elements is fatal to intervention as of right. E.g., Rigco, 110 F.R.D. at 182. Defendants and plaintiffs do not contest for purposes of Sureties' motion that they can meet the first three elements. Defendants argue that Sureties cannot establish that they will be inadequately represented because defendants' position is parallel, if not identical, to that which Sureties assert; thus there is no adversity between defendants and Sureties. Plaintiffs likewise contend that defendants can adequately represent Sureties' position.The burden of establishing inadequate representation is on Sureties as the parties seeking leave to intervene. Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir. 1996) (en banc). "Although the applicant's burden of showing inadequate representation is minimal, `it cannot be treated as so minimal as to write the requirement completely out of the rule.'" Edwards, 78 F.3d at 1005 (citing Cajun Elec. Power Coop., Inc. v. Gulf States Utils., Inc., 940 F.2d 117, 120 (5th Cir. 1991) (quoting Bush v. Viterna, 740 F.2d 350, 355 (5th Cir. 1984))). "`The potential intervenor need only show that the representation may be inadequate.'" John Doe #1 v. Glickman, 256 F.3d 371, 380 (5th Cir. 2001) (quoting Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n. 10 (1972)).
It is notable that the cases virtually juxtapose the requirement that an applicant's interest must be inadequately represented with the conclusion that the application need only show that representation of that interest may be inadequate. See, e.g., Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir. 1994).
In the Fifth Circuit, there are two presumptions of adequate representation. Edwards, 78 F.3d at 1005. One arises "when the putative representative is a governmental body or officer charged by law with representing the interests of the absentee, a presumption of adequate representation arises whether the would-be intervenor is a citizen or subdivision of the governmental entity." Id. "To overcome this presumption, the applicant must show `that its interest is in fact different from that of the [governmental entity] and that the interest will not be represented by [it].'" Id (citing Hopwood v. Texas, 21 F.3d 603, 605 (5th Cir. 1994) (quoting Envtl. Def Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C. Cir. 1979). "This presumption, and the heightened showing required to overcome it, is restricted, however, to those suits involving matters of sovereign interest." Id (citing Hopwood, 21 F.3d at 605).
The other presumption comes into play "when the would-be intervenor has the same ultimate objective as a party to the lawsuit." Id. To rebut this presumption, "the applicant for intervention must show adversity of interest, collusion, or nonfeasance on the part of the existing party." Id. (citation omitted).
B
The court holds the Sureties have rebutted the public official presumption. Although defendants are government officials, plaintiffs sue them both officially and individually. Defendants acknowledge in their response to Sureties' motion to intervene that they "are parties with a very definite interest in this action, that is, an interest in not having compensatory damages, punitive damages or attorneys' fees assessed against them personally or in any representative capacity." Ds. Resp. at 4 (second emphasis added). Defendants can therefore be expected to represent, not only the position that Sureties assert, but their own individual interests as well. As Edwards notes, this presumption is restricted to suits involving matters of sovereign interest. Defendants' interests are not limited to those of the sovereign.
Sureties have failed, however, to rebut the presumption that arises when would-be intervenors have the same ultimate objective as do existing parties to the lawsuit. Defendants make clear in their response to Sureties' motion that they intend in this lawsuit to take "a position that is identical to if not parallel to that taken by the Sureties." Ds. Resp. at 4. They aver that they, and particularly defendants Jim Hamlin and Earl Bullock (the District and County Clerk, respectively), "construe their statutory responsibilities with respect to the refund of cash bonds identical[ly] to the interests that the Sureties seek to protect by intervention." Id. In other words, defendants intend to maintain in this suit that the position Sureties assert — i.e., the third party who posts a cash bond, not the defendant charged with the offense, is entitled to receive the refunds of a discharged cash bond — is correct. Sureties have not filed a reply brief in opposition to defendants' response and so have failed to controvert defendants' characterization of their position vis-a-vis Sureties.
They have made no effort to establish collusion or nonfeasance.
Although Sureties have not replied, the court notes that they allege in their proposed complaint that the Dallas County District Attorney has taken a position contrary to their contention and the position defendants now take. See Is. Prop. Compl. ¶ 12. They aver that, in a county court proceeding conducted April 15, 2002, the District Attorney objected to motions to refund cash deposits to Sureties (and others who would be members of their class) solely on the ground that Texas law requires that all such deposits be refunded to the criminal defendants who were released on bail instead of the sureties who deposited funds with Dallas County. Id. Sureties assert that, in doing so, the District Attorney acted without legal authority and in opposition to the long-established practice of Dallas County judges and officials. Id. They also maintain that he did so after being admonished that he was inviting a lawsuit from persons who paid the cash deposits, and in doing so changed the law at the expense of Dallas County taxpayers. Id. These allegations relate, however, not to a defendant who is a party to this lawsuit but to the District Attorney, whom plaintiffs have not sued and whom Sureties do not intend to sue if allowed to intervene.
Accordingly, the court holds that Sureties have not met the four requirements of Rule 24(a)(2). Failure to meet any one requirement results in denial of the motion. See Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).
III
The court's denial of Sureties' motion is without prejudice to their later renewing their motion for leave to intervene as of right or moving for permissive intervention under Rule 24(b)(2). "District courts are given broad discretion in granting motions to intervene under Rule 24(b)(2)." League of United Latin Am. Citizens, Council No. 4434 v. Clements, 884 F.2d 185, 189 (5th Cir. 1989) (footnote omitted). "Rule 24(b)(2) provides for permissive intervention when (1) timely application is made by the intervenor, (2) the intervenor's claim or defense and the main action have a question of law or fact in common, and (3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties." Id. at 189 n. 2. Because it is possible that future developments in this case will reveal that defendants' position on the merits is not virtually identical to Sureties' — for example, if defendants later argue in support of a qualified immunity defense that the law was unclear during the relevant time period rather than as clearly established as Sureties and defendants now contend — and show that they do not have the same ultimate objective, the court declines to rule out the possibility that Sureties will be allowed at that time to intervene as of right or permissively.
Rule 24(b)(2) provides:
Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
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Accordingly, the court denies Sureties' June 7, 2002 motion to intervene as parties-plaintiff.
SO ORDERED.