Opinion
Civil Action No. 03-CV-05700.
February 28, 2004
ORDER
NOW, this 28th day of February, 2004, upon consideration of Defendant, Lehigh Valley Ice Arena, Inc.'s Motion to Dismiss filed October 23, 2003; upon consideration of the Answer of Plaintiff, United States Fidelity and Guaranty Company, to Defendant's Motion to Dismiss filed November 3, 2003; upon consideration of Defendant's Reply Brief filed November 12, 2003; upon consideration of the Sur-Reply Brief of Plaintiff, United States Fidelity and Guaranty Company, in Opposition to Defendant's Motion to Dismiss filed November 19, 2003; upon consideration of the Motion of John M. Fox to Intervene filed January 13, 2004; upon consideration of the Brief in Support of John M. Fox's Motion to Intervene filed January 13, 2004; upon consideration of the Petition to Intervene of Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner filed January 13, 2004; upon consideration of the Answer of Plaintiff, United States Fidelity and Guaranty Company, to the Motion to Intervene of John M. Fox filed January 16, 2004; upon consideration of the Answer of Plaintiff, United States Fidelity and Guaranty Company to the Motions to Intervene of Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner filed January 16, 2004; upon consideration of the Brief of United States Fidelity and Guaranty Company in Opposition to the Motion to Intervene of Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner and the Motion to Intervene of John M. Fox filed January 16, 2004; upon consideration of the Motion of Interveners for Leave to File Answer to Complaint of United States Fidelity Guaranty Company filed by Interveners Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner on February 10, 2004; upon consideration of Intervenor John M. Fox's Petition to Amend Motion to Intervene filed February 17, 2004; upon consideration of the Answer of Plaintiff, United State Fidelity and Guaranty Company, to Motion for Leave to File Answer to Complaint of Proposed "Intervenors" filed February 19, 2004; upon consideration of the Brief of Plaintiff, United State Fidelity and Guaranty Company in Response to the Motion of John Fox for Leave to Amend His Petition to Intervene and in Response to the Motion of the Proposed "Intervenors" for Leave to File an Answer to Complaint filed February 19, 2004; upon consideration of the Answer of Plaintiff, United States Fidelity and Guaranty Company to John M. Fox's Petition to Amend His Motion to Intervene filed February 19, 2004; it appearing that the proposed intervenors present questions of fact related to plaintiff's Complaint sufficient to permit permissive intervention pursuant to Rule 24(b) of the Federal Rules of Civil Procedure; it further appearing that the proposed intervenors are diverse from plaintiff and permits the court to assert jurisdiction based upon the diversity of citizenship of the parties; it further appearing that the proposed intervenors' motions are timely; it further appearing that the intervention by the proposed intervenors will not prejudice the rights or interests of the parties,
Proposed Intervenors Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner were required by Rule 24(c) of the Federal Rules of Civil Procedure to submit a pleading setting forth their claims or defenses with their petition to intervene. Despite failing to do so, these proposed intervenors subsequently filed this motion in which they seek to file such a pleading. For ease of disposition, we will construe this motion as a motion to supplement the Petition to Intervene of Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner. See Fed.R.Civ.P. 1.
See 28 U.S.C. § 1332.
IT IS ORDERED that the Motion of Interveners for Leave to File Answer to Complaint of United States Fidelity Guaranty Company filed by Intervenors Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner, which motion is construed as a motion to supplement the Petition to Intervene of Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner, is granted. IT IS FURTHER ORDERED that Intervenor John M. Fox's Petition to Amend Motion to Intervene is granted.
IT IS FURTHER ORDERED that the Petition to Intervene of Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner is granted. IT IS FURTHER ORDERED that the Motion of John M. Fox to Intervene is granted. IT IS FURTHER ORDERED that intervenors Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz, Philip Wagoner and John M. Fox shall have until March 1, 2004 in which to file a pleading responsive to plaintiff's Complaint. IT IS FURTHER ORDERED that Defendant, Lehigh Valley Ice Arena, Inc.'s Motion to Dismiss, to the extent that the motion seeks to dismiss plaintiff's Complaint for failure to join a necessary party, is denied as moot.
Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz and Philip Wagoner are permitted to intervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure.
In determining whether to permit the proposed intervention, we must evaluate whether the proposed intervenors have raised a claim or defense that is common with the civil action before the court and whether permitting the intervention would cause undue delay or prejudice to the rights of the parties. Fed.R.Civ.P. 24(b); See Stingfellow v. Concerned Neighbors in Action, 480 U.S. 370, 380, 107 S.Ct. 1177, 1184, 94 L.Ed.2d 389, 401 (1987). In application, Rule 24 requires elasticity and pragmatism.Kleissler v. United States Forest Service, 157 F.3d 964, 970 (3d Cir. 1998). We do not construe Rule 24 as "a comprehensive inventory of the allowable instances for intervention," and note that we may consider the public interest when determining if intervention is appropriate. Missouri-Kansas Pipe Line Company v. United States, 312 U.S. 502, 505, 61 S.Ct. 666, 667, 85 L.Ed. 975, 980 (1941). Moreover, we recognize that permitting the intervention is committed to our discretion. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780 n. 6 (3d Cir. 1994).
In the within civil action, plaintiff seeks a declaratory judgment to establish whether its insurance contract with defendant requires it to defend and indemnify defendant in an underlying state court action. The proposed intervenors are the plaintiffs in the underlying state court action. For purposes of the within action, the interests of the intervenors and defendant are similar. The intervenors ask for no remedy independent of that sought by defendant. However, without the underlying state action there would be no case or controversy presented to the court. Moreover, the intervenors state court Complaint is an integral part of the record before the court. Accordingly, we conclude the intervenors present a issue of fact common to the within action.
In evaluating whether the intervention would cause undue delay or prejudice to the parties, we engage in a cost-benefit analysis. The indisputable result of permitting the intervention is an increase in filings with the court. If the intervenors fail to raise issues distinct from defendant, then there is a needless cost incurred by plaintiff when responding. However, we conclude that this cost is minimal because such a response does not require additional legal analysis, but rather only a recitation of previous arguments. Alternatively, if the intervenors present novel and salient issues to the court, then the interests of justice are served by considering the issues despite some expense to plaintiff.
In the instant matter, the intervenors allege serious medical harm caused by the negligence of the defendants in the underlying state action. We recognize that the intervenors' interest in this litigation is to ensure that there is a pocket deep enough to fund any potential verdict they may win in the underlying action. Nevertheless, their interests are not taken lightly, and, in conjunction with the low cost associated with permitting intervention, we conclude that intervention is appropriate.
Because we conclude that we have the discretion to permit the intervention in this action and because we exercise that discretion and permit the intervention, we need not address the proposed intervenors' contention that they may intervene as a matter of right under Rule 24(a) of the Federal Rules of Civil Procedure.
For the reasons expressed in Footnote 3, the Motion of John M. Fox to Intervene is granted.
In its motion to dismiss, defendant argues that plaintiff's Complaint must be dismissed because of plaintiff's failure to join the following parties: Andrew Koch, Benjamin Westermann, William Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe, Daniel Reinert, Domenico Galati, Edward Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith, Maximilliam Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul Getz, Philip Wagoner and John M. Fox. Because these parties have now been added to this action as intervenors, defendant's motion, to the extent that it raises this issue, is moot.