The opinion of the court was delivered by: Joyner, J.
Before this Court is a Motion to Intervene for All Purposes by Intervenor Plaintiffs by the Plaintiffs in Cortes v. Foot Locker, Inc., No. 06-cv-1046 (S.D.N.Y) (Doc. No. 120), and responses thereto (Doc. Nos. 123, 124).
Plaintiff, Francisco Pereira, on behalf of himself and others similarly situated, filed suit against Foot Locker, Inc., by filing a Complaint with this Court on May 25, 2007. Plaintiffs alleged violations of federal law pursuant to the Federal Fair Labor Standards Act of 1938, as amended, ("FLSA"), 29 U.S.C. § 201, et seq., as well as violations of state law, pursuant to the Pennsylvania Minimum Wage Act of 1968 ("PMWA"), as amended, 43 Pa.C.S.A. § 333.101, et seq., and the Pennsylvania Wage Payment and Collection Act ("PWPCA"), 43 Pa.C.S.A. § 260.1, et seq. Generally, Pereira seeks to recover unpaid wages and overtime compensation on behalf of himself and all current or former "Retail Employees" of Foot Locker nationwide who ultimately opt-in to the collective action pursuant to FLSA, 29 U.S.C. § 216(b), as well all current and former "Retail Employees" employed in the Commonwealth of Pennsylvania who do not affirmatively opt-out of the statewide class action pursuant to Federal Rule of Civil Procedure 23.
Plaintiffs in Cortes v. Foot Locker, Inc., filed suit on February 10, 2006, in the U.S. District Court of the Southern District of New York alleging New York state claims similar to the Pennsylvania state law claims alleged by Plaintiffs in the present action, as well as a starkly similar FLSA claim. The Cortes plaintiffs assert that they learned of the present action on December 10, 2008 from documents gathered in discovery from their case. On December 23, 2008, the Cortes plaintiffs filed this Motion to Intervene in Pereira's FLSA action as of right pursuant to Federal Rule of Civil Procedure 24(a)(2) and, in the alternative, permissively, pursuant to Rule 24(b) in order to object to Plaintiff's motion for collective certification to the extent that it sought to certify a collective action on behalf of all non-exempt employees of Foot Locker, including the Cortes putative collective action and class members. The Court granted Intervenor Plaintiffs' Motion on April 27, 2009 (Doc. No. 96) and allowed the Cortes plaintiffs to intervene for the purpose of objecting to Plaintiff's Motion.
Intervenor Plaintiffs are now moving to intervene in this action for all purposes pursuant to Federal Rule of Civil Procedure 24(a) or alternatively, pursuant to Rule 24(b).
I. Rule 24(a)(2): Intervention As of Right
The Cortes plaintiffs first argue that they are entitled to intervene as of right in the instant matter. Federal Rule of Civil Procedure 24(a)(2) states, (a) On timely motion, the court must permit anyone to intervene who: (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interests, unless existing parties adequately represent that interest.
The Third Circuit has held that to intervene as a matter of right, the intervenor must establish that: "(1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation." Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir. 1987). The burden is on the prospective intervenor to make the required showing of all four elements. U.S. v. Alcan Aluminum, 25 F.3d 1174, 1181 n.9 (3d Cir. 1994).
Timeliness is a not a purely temporal assessment of the time between plaintiff's filing and intervenor's motion. It is well established that timeliness is determined by the totality of the circumstances, not just by counting days. United States v. Alcan Aluminum, 25 F.3d 1174, 1181-1182 (3d Cir. 1994) (citing NAACP v. New York, 413 U.S. 345, 366 (1973)). Factors to consider in making the timeliness determination include "(1) [h]ow far the proceedings have gone when the movant seeks to intervene, (2) the prejudice which resultant delay might cause to other parties, and (3) the reason for the delay." Choike v. Slippery Rock Univ., 297 Fed. Appx. 138, 140 (3d Cir. 2008) (citing In re Fine Paper Antitrust Litig., 695 F.2d 494, 500 (3d Cir. 1982)). Further, "[w]here a party takes reasonable steps to protect its interest, its application should not fail on timeliness grounds." Id.
In the instant case, Pereira, extensive discovery has been done since its 2007 filing and the parties have submitted class notice to the Court to be approved; however, Intervenor Plaintiffs quickly moved to intervene for all purposes once they were encouraged to do so by the Cortes Court. Prior to this Court's conditional class certification, the Cortes plaintiffs had no reason to seek to intervene for all purposes as they thought that their case in the Southern District of New York would be sufficient to address their claims. However, Intervenor Plaintiffs quickly moved for intervention for all purposes after this Court's decision on the Motion for Conditional Collective Certification.
Currently, Foot Locker's Motion for Leave to Appeal the Grant of Conditional Collective Certification is pending before the Court. Additionally, the Court has stayed the joint motion by the parties in this case for approval of FLSA notice, and therefore, no notices have been mailed to any putative class members. Thus, the early stage of the Pereira action and the relative speed of the Cortes plaintiffs' response satisfy the requirement of timeliness in this matter. Although some delay in notice will result to ...