United States District Court, E.D. Michigan, Southern Division
KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC. Plaintiff,
LOWERY CORPORATION, et al., Defendants,
Honorable Victoria A. Roberts, Judge
REPORT AND RECOMMENDATION TO DENY MOTION TO INTERVENE
[ECF NO. 221]
ELIZABETH A. STAFFORD, UNITED STATES MAGISTRATE JUDGE
three years after Plaintiff Konica Minolta Business Solutions
U.S.A., Inc., filed it complaint against Defendant Lowery
Corporation and seven of Konica's former employees,
Philadelphia Indemnity Insurance Company (PIIC) filed a
motion to intervene. [ECF Nos. 1, 9, 221]. In its motion,
PIIC stated that it wished to intervene “for the
purpose of permitting it to participate in discovery, to
monitor and participate in motion practice as needed, and to
submit special verdict questions addressing possible coverage
defenses.” [ECF No. 221, PageID 3978]. It stated that,
if permitted to intervene, it would “file a motion to
bifurcate and stay, requesting that its coverage defenses be
determined after a judgment on Plaintiff's claims,
” and that it would abide by the currently existing
scheduling order. [Id.].
reply, PIIC “clarifies” that it seeks only to
attend discovery proceedings and receive discovery documents.
[ECF No. 231, PageID 4206, n. 2]. And at the hearing held on
April 20, 2018, PIIC stated that it only wished to monitor
discovery, and did not anticipate filing any motions,
although it might seek leave to do so. [ECF Nos. 227, 231].
reasons that follow, the Court recommends that PIIC's
motion to intervene be denied.
Scope of Referral Authority
Honorable Victoria A. Roberts referred the motion to the
undersigned for hearing and determination under 28 U.S.C.
636(b)(1)(A). [ECF No. 224]. Consistent with this referral,
two courts have in published opinions treated motions to
intervene as nondispositive. United States v. Marsten
Apartments, Inc., 175 F.R.D. 265, 267-69, n. 1 (E.D.
Mich. 1997); Oakland Cty. v. Fed. Nat. Mortg.
Ass'n, 276 F.R.D. 491, 493, n. 1 (E.D. Mich. 2011).
The applicable local rule also does not identify a motion to
intervene as being dispositive. E.D. Mich. L.R. 7.1(e).
some courts have regarded the denial of motions to
intervene as being functionally equivalent to the dispositive
motions identified under Section 636(b)(1)(A) as requiring a
magistrate judge to issue a report and recommendation,
allowing for de novo review by the assigned district
judge. See, e.g., Meeks v. Schofield, No.
3:12-CV-545, 2013 WL 1826438, at *2 (M.D. Tenn. Apr. 30,
2013); Washington Mut. Bank v. Chiapetta, No.
1:07CV00683, 2011 WL 1743389, at *1 (N.D. Ohio May 6, 2011).
These courts reasoned that the denial to intervene is
dispositive for the party seeking to intervene. Id. This
reasoning applies here; the denial of the motion to intervene
will be dispositive for PIIC. The Court will therefore issue
a report and recommendation, allowing PIIC to seek de
novo review by Judge Roberts.
Rule of Civil Procedure 24 authorizes interventions of right
and permissive interventions. “Rule 24 should be
broadly construed in favor of potential intervenors . . . .
But this does not mean that Rule 24 poses no barrier to
intervention at all.” Stupak-Thrall v.
Glickman, 226 F.3d 467, 472 (6th Cir. 2000) (citation
and internal quotation marks omitted). PIIC's motion does
not meet the requirements of an intervention of right, and
its request for permissive intervention should be denied
because it is without merit, is untimely, and would unduly
has a right to intervene under Rule 24(a)(2), which applies
to a party who “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 interest, unless existing parties adequately
represent that interest.” PIIC must establish four
elements in order to establish that it has a right to
(1) that the motion to intervene was timely; (2) that the
intervenor has a substantial legal interest in the subject
matter of the case; (3) that its ability to protect that
interest may be impaired in the absence of intervention; and
(4) that the parties already before the court may not
adequately represent its interest.
Northland Family Planning Clinic, Inc. v. Cox, 487
F.3d 323, 343 (6th Cir. 2007). For the reasons that follow,
the Court finds that PIIC's motion is untimely and that
it does not have a substantial legal interest in the subject
matter of this action. PIIC has thus failed to meet the first
two elements for an intervention of right, rendering