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Susquenita School District v. G.W. By and Through His Parents

April 13, 2012


The opinion of the court was delivered by: (Chief Judge Kane)


Currently pending before the Court are Yvonne Husic's and Reisman Carolla Gran LLP's ("RCG") motion to intervene (Doc. No. 53) and their amended motion to intervene (Doc. No. 54). For the reasons stated more fully herein, the motion to intervene will be denied as moot and the amended motion to intervene will be denied without prejudice to Ms. Husic's and RCG's right to file an independent cause of action to pursue whatever relief to which they believe they are entitled.


On June 25, 2009, G.W. and his parents requested a special education due process hearing alleging that the Susquentia School District failed to provide G.W. with a free appropriate public education. On June 12, 2010, the administrative hearing officer granted G.W. partial relief. On September 10, 2010, Susquentia School District filed suit challenging that administrative determination, which was docketed with this Court at Doc. No. 10-cv-1897. On the same day, G.W. filed an action challenging that same decision, which was docketed with this Court at Doc. No. 10-cv-1900. On November 16, 2010, G.W. filed an unopposed motion to consolidate the cases, which this Court granted on December 9, 2010. (Doc. No. 7.)

On May 10, 2011, counsel for Defendants G.W., R.P., and A.P.,*fn1 Yvonne Husic and Catherine Reisman, filed a motion to withdraw as counsel for G.W. and his parents. (Doc. No. 39.) The Court granted the motion (Doc. No. 43), and for the remainder of this litigation G.W. and his parents proceeded pro se. Following Ms. Husic's and Ms. Reisman's departure from this action the parties engaged in extensive mediation, which culminated in a settlement agreement. Accordingly, the Court entered an order on October 11, 2011, dismissing this action without prejudice, upon good cause shown within sixty days to reinstate the action if settlement is not consummated. (Doc. No. 52.) On November 7, 2011, Ms. Husic and RCG filed a motion to intervene in this matter. (Doc. No. 53.) They filed an amended motion on November 11, 2011. (Doc. No. 54.) And they filed a brief in support on November 25, 2011. (Doc. No. 55.) Susquenita and G.W. and his parents filed briefs in opposition to the motion to intervene. (Doc. Nos. 58, 59.) On December 12, 2011, G.W. and his parents filed a motion to reinstate the action. (Doc. No. 60.) Ms. Husic and RCG filed a reply brief on December 20, 2011. (Doc. No. 62.)


Pursuant to Rule 24 of the Federal Rules of Civil Procedure, intervention as of right is permitted only if:

(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.

Mt. Top Condo. Ass'n v. Dave Stabbert Master Builder, 72 F.3d 361, 366 (3d Cir. 1995) (quoting Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir.1987)). A court may only permit intervention as of right where each of these factors is satisfied. Id. Upon a review of the motion, the Court is unconvinced that Ms. Husic and RCG satisfy any of the factors identified by the Third Circuit.

A. Timeliness

First, the Court considers the timeliness of Ms. Husic's and RCG's motion. In weighing the timeliness of a motion the Court must consider: (1) the stage of the proceedings reached when the movant seeks to intervene; (2) the prejudice that the resulting delay might cause to other parties; and (3) the reason for the delay. Choike v. Slippery Rock Univ., 297 F. App'x 138, 140 (3d Cir. 2008). Notably, "a motion to intervene after entry of a decree should be denied except in extraordinary circumstance." In re Fine Paper Antitrust Litig., 695 F.2d 494, 500 (3d Cir. 1982) (noting that where the motion to intervene was filed after settlement, the timeliness factor weighed heavily against intervention).

Each factor weighs in favor of finding the motion untimely. The Court entered an order dismissing this case on October 11, 2011. (Doc. No. 52.) Ms. Husic and RCG did not file the present motion to intervene until November 11, 2011, one month after the case had closed.*fn2

(Doc. No. 54.) Moreover, the prejudice to the parties in permitting the intervention is obvious: the parties will be forced to reopen and attempt to renegotiate a settlement, further delaying G.W.'s receipt of compensatory education. Finally, the Court notes that Ms. Husic's and RCG's purported reason for the delay in their intervention rings hollow. They allege, without any factual support, that they discovered collusion between Susquenita and G.W. and his parents after the settlement had been consummated, and thus did not think intervention was necessary until that date. However, Ms. Husic and RCG were well aware of this litigation, having served as counsel of record at the administrative due process hearing and before this Court prior to electing to withdraw their representation and having "monitored the docket" following their withdrawal (Doc. No. 55 at 7). They were aware that attempts at mediation were ongoing, as each docket entry following their withdrawal refers to attempts at mediation. Further, given the terms on which Ms. Husic and RCG withdrew from this matter,*fn3 the Court would expect that they would have been more proactive in protecting their rights.

The Seventh Circuit has explained that the timeliness requirement of Rule 24(a) is intended "to prevent a tardy intervenor from derailing a lawsuit within sight of the terminal." Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 949 (7th Cir. 2000). By Ms. Husic and RCG's own admission, they waited, monitoring the docket, until after the lawsuit had left the proverbial terminal -- that is after the parties settled and the Court entered an order of dismissal -- before seeking to intervene. They have provided no convincing reason for their delay, and they have provided no reason for the Court to disregard the serious prejudice to the ...

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