The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING EX PARTE APPLICATION FOR LEAVE TO FILE A COMPLAINT IN INTERVENTION [Docket Number 232]
Presently before the court is an Ex Parte Application for Leave to File a Complaint in Intervention, filed by plaintiffs ("Derivative Plaintiffs") in a derivative action related to this matter.
On April 9, 2012, Plaintiff in this action moved for preliminary approval of a class action settlement. (Dkt. No. 190). The court granted preliminary approval on May 21, 2012. (Dkt. No. 195). While Derivative Plaintiffs were not aware of the substance of the settlement discussions in this case prior to Plaintiffs' motion for preliminary approval, that motion revealed to Derivative Plaintiffs the nature of the assets in issue in this case. (Application at 7-8.)
On August 15, 2012, Plaintiffs moved for final approval of a class action settlement and for attorney's fees. (Dkt. No. 198.) By stipulation of the parties, that motion was set for a hearing on December 17, 2012. (Dkt. Nos. 204, 206.)
On November 19, 2012, over three months after Plaintiffs filed their motion for final settlement approval, Derivative Plaintiffs, who were and remain non-parties to this case, attempted to file a Motion for Attorney Fees. (Dkt. No. 216.) Derivative Plaintiff's counsel was able to electronically file the motion only by improperly and inaccurately listing named Plaintiff Susan Hufnagle as the filer. In any event, the motion was filed incorrectly, and stricken.
The non-party Derivative Plaintiffs subsequently filed several more documents in this case, including another motion for attorney fees, an ex parte application for relief from the court's order striking Derivative Plaintiff's first improper filing, an ex parte application to shorten time, and supporting declarations. Derivative Plaintiffs did not file a motion to intervene in this case. Thus, on December 11, 2012, the court vacated Derivative Plaintiffs' pending motions, explicitly noting that Derivative Plaintiffs' counsel is not counsel of record in this case.
On December 13, 2012, two business days before the hearing on
Plaintiffs' Motion for Final Settlement Approval, Derivative Plaintiffs filed the instant Ex Parte Application for Leave to File a Complaint in Intervention.
Ex parte relief is generally disfavored when relief may be had through a regularly noticed motion. It will be granted only upon an adequate showing of good cause or irreparable injury to the party seeking relief. Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F.Supp. 488, 492 (C.D. Cal. 1995). As an initial matter, the court notes that Derivative Plaintiffs here were aware of the nature of the proposed settlement as early as April 2012, and no later than November 19, 2012. Derivative Plaintiffs have made no showing of good cause why they did not file a regularly noticed motion to intervene.*fn1
As to the merits of Derivative Plaintiffs' application, courts will grant a motion to intervene as of right where (1) the motion is timely, (2) the applicant asserts "an interest relating to the property or transaction which is the subject of the action," (3) the disposition may impair the applicant's ability to protect her interest, and (4) "the applicant's interest is not adequately represented by the existing parties." McGough v. Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992); Fed. R. Civ. P. 24(a).
Whether a motion to intervene is timely depends on (1) the stage of the underlying proceeding, (2) the prejudice to other parties, and (3) "the ...