United States District Court, W.D. Pennsylvania
COMMUNITY VOCATIONAL SCHOOLS OF PITTSBURGH, INC., a corporation, individually and as the representative of a class of similarly situated persons, Plaintiff,
MILDON BUS LINES, INC., a Pennsylvania corporation, Defendant/Third Party Plaintiff,
CAROLINE ABRAHAM and JOEL ABRAHAM, Third Party Defendants.
Flowers Conti Chief United States District Judge
motion for leave to intervene (ECF No. 64), Erie Insurance
Exchange (“Erie”) calls upon the court to allow
it to intervene in this case pursuant to Federal Rule of
Civil Procedure 24 (“Rule 24”). This punitive
class action case seeks to advance claims under the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227. (ECF No. 1.) Community Vocational Schools of
Pittsburgh, Inc. (“plaintiff”) represents a class
of persons who allegedly received unlawful facsimile messages
from Mildon Bus Lines, Inc. (“Mildon Bus” or
“defendant”) in January 2006.
the insurance provider for Mildon Bus and is currently
providing representation to it subject to a reservation of
rights. (ECF No. 64 at 2.) Erie seeks to intervene in this
case for the limited purpose of submitting special jury
interrogatories. Erie's claimed purpose for intervention
is to determine whether it has a duty to indemnify defendant
against any judgment obtained by plaintiff. (Id. at
7.) Erie states that if the jury enters an award of general
damages, Erie will be unable to determine whether it has a
duty to indemnify Mildon Bus against the judgment.
(Id. at 8.) For the reasons set out in this opinion,
the court finds that Erie failed to satisfy the requirements
for intervention of right under Rule 24(a), and at this time
it is premature for the court to determine whether to allow
permissive intervention under Rule 24(b). Erie's motion
to intervene, therefore, is denied.
November 30, 2009, plaintiff filed a class action complaint
against defendant advancing a claim under the TCPA for
sending unlawful facsimile messages. (ECF No. 1.) On July 27,
2010, defendant filed for bankruptcy in the United States
Bankruptcy Court for the Western District of Pennsylvania.
In re Mildon Bus Lines, Ins., Civil Action No.
10-25312. On September 22, 2010, this court issued a stay
with respect to this case pending resolution of
defendant's bankruptcy proceedings. (ECF Nos. 26, 27.)
The bankruptcy court, in light of the insurance coverage,
lifted the automatic stay to permit this case to proceed to
the extent of the coverage. (Civil Action No. 10-25312, ECF
No. 79.) Erie filed a claim against defendant in the Court of
Common Pleas of Allegheny County concerning insurance
coverage (“coverage action”). Erie Ins. Exch.
v. Mildon Bus Lines, Inc. and Community Vocational Sch. of
Pittsburgh, Alleg. Cty. Ct. of Common Pleas, Civil
Action No. 10-003030. This court continued the stay of this
matter pending the resolution of summary judgment motions in
Erie's coverage action. (ECF No. 64 at 2.) On November
22, 2016, after being advised that summary judgment was not
granted in favor of Erie, this court held a status
conference, at which point it reopened the case and ordered
fact discovery to be completed on or before February 15,
2017. (ECF No. 49.) On January 30, 2017, this court granted
plaintiff's unopposed motion to extend fact discovery,
and ordered that discovery be completed on or before May 15,
2017. (ECF No. 62.) On February 2, 2017, Erie filed a motion
for leave to intervene pursuant to Federal Rule of Civil
Procedure 24 (“Rule 24”), accompanied by a
memorandum of law in support of its motion. (ECF No. 64.)
February 22, 2017, plaintiff filed a response to Erie's
motion for leave to intervene, accompanied by a memorandum of
law in support of its response. (ECF Nos. 67, 68.) On March
7, 2017, defendant filed a brief in reply to plaintiff's
response in opposition to Erie's motion to intervene.
(ECF No. 74.) On March 7, 2017, Erie filed a reply brief in
further support of its motion to intervene. (ECF No. 75.) A
hearing was held on the motion on March 27, 2017. Having been
fully briefed and argued, this motion is now ripe for
Rule 24(a) and Rule 24(b)
seeks to intervene in the underlying action for the limited
purpose of submitting special jury interrogatories. Erie
seeks “intervention of right” under Federal Rule
of Civil Procedure 24(a) (“Rule 24(a)”). Rule
24(a) states, in relevant part:
(a) Intervention of Right. 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.
Third Circuit Court of Appeals utilizes a four-factor test to
determine whether the intervening party has a right to
intervene under Rule 24(a). This test requires:
1) a timely application for leave to intervene, 2) a
sufficient interest in the underlying litigation, 3) a threat
that the interest will be impaired or affected by the
disposition of the underlying action, and 4) that the
existing parties to the action do not adequately represent
the prospective intervenor's interests.
Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d
216, 220 (3d Cir. 2005) (citing Kleissler v. United
States Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998)).
Each of the factors must be satisfied for intervention under
Rule 24(a) to be granted and the burden is on the party
seeking intervention. Mountain Top Condo. Ass'n v.
Dave Stabbert Master Builder, Inc., 72 F.3d
361, 366 (3d Cir. 1995).
intervening party does not meet its burden under Rule 24(a)
it may still be able to intervene under Rule 24(b). Rule
24(b), which provides for permissive intervention, provides
the court with discretion in determining whether intervention
is proper. Brody By & Through Sugzdinis v.
Spang, 957 F.2d 1108, 1124 (3d Cir. 1992)
(“Whether to grant permissive intervention under Rule
24(b), as the doctrine's name suggests, is within the
discretion of the district court.”). Rule 24(b)
provides, in relevant part:
(b) Permissive intervention. 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.
Fed.R.Civ.P. 24(b)(2). A district court may exercise its
discretion and allow a timely applicant to intervene under
Rule 24(b) if the original plaintiff and the intervenor share
a “question of law or fact in common.” McKay
v. Heyison, 614 F.2d 899, 906 (3d Cir. 1980). “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.”
Rule 24(c), Notice and Pleading Required
preliminary matter, the court will address plaintiff's
argument that Erie's motion should be dismissed for
failing to attach a pleading under Federal Rule of Civil
Procedure 24(c) (“Rule 24(c)”). Rule 24(c)
requires the party seeking intervention to serve a motion to
intervene and a proposed pleading on the opposing parties.
Fed.R.Civ.P. 24(c) (“motion must state the grounds for
intervention and be accompanied by a pleading that
sets out the claim or defense for which intervention is
sought.”) (emphasis added). Rule 24(c) is
“designed to ensure that parties have advance notice of
the claims that an intervenor plans to make.” SEC
v. Investors Sec. Leasing Corp., 610 F.2d 175, 178 (3d
Cir. 1979) (finding that court was without jurisdiction to
rule on intervening party's claims because applicant
failed to serve a motion to intervene on the other parties,
and consequently those parties had absolutely no way to know
the claims for intervention).
failure to comply with the requirements of Rule 24(c) will
result in the denial of a motion to intervene. Meridian
Financial Advisors, LTD v. Contract Purchase & Design,
Inc., 495 B.R. 274, 280 (Bankr. W.D. Pa. 2013); see
Township of S. Fayette v. Allegheny Cty Housing Auth.,
183 F.R.D. 451 (W.D. Pa. 1998) (motion to intervene dismissed
when movants did not submit the requisite proposed pleading).
Nonetheless, “despite the compulsory language of [Rule
24(c)], some federal circuits have held that whether
‘to permit a procedurally defective motion to intervene
is within the sound discretion of the district
court.'” United States ex rel. Frank M.
Sheesley Co. v. St. Paul Fire & Marine Ins. Co., 239
F.R.D. 404, 408 (W.D. Pa. 2006) (quoting Retired Chi.
Police Ass'n v. City of Chicago, 7 F.3d 584, 595
(7th Cir. 1993); see Providence Baptist Church v.
Hillandale Comm., Ltd., 425 F.3d 309, 313 (6th Cir.
2005); Beckman Indus., Inc., v. Int'l Ins. Co.,
966 F.2d 470, 474 (9th Cir. 1992). Although the requirements
under Rule 24(c) state that a party seeking intervention must
attach “a pleading ...