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Curtis v. Extra Space Storage, Inc.

United States District Court, Ninth Circuit

December 27, 2013

TIFFANY CURTIS, on behalf of herself and all persons similarly situated, Plaintiff,
v.
EXTRA SPACE STORAGE, INC., a Maryland corporation, EXTRA SPACE MANAGEMENT, INC., a Utah corporation, and DOES 1 through 100, inclusive, Defendants.

ORDER DENYING MOTION TO INTERVENE AND VACATING HEARING

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this action for violations of the Self-Service Storage Facility Act, thirty of the storage facility's former tenants move to intervene pursuant to FRCP 24. For the following reasons, the motion to intervene is DENIED.

STATEMENT

The relevant facts have been explored in a prior order (Dkt. No. 109). The facts behind this motion can be summarized briefly. On August 15, 2013, the undersigned judge held that defendants must turn over to plaintiff the names and contact information of 1, 000 potential class members (Dkt. No. 57).

After the denial of class certification, thirty of defendants' former tenants, twenty-nine of whom were disclosed to plaintiff by defendants pursuant to the August 15 order, filed a motion to intervene in the instant action as either by right or by permission (Dkt. No. 111).

On December 2, defendants filed a letter brief alleging that plaintiff's counsel, Jeffery Wilens, had used the contact information obtained from defendants to solicit new clients (Dkt. No. 114). On December 3, the undersigned judge ordered the parties to attend a meet-and-confer concerning the foregoing dispute.

On December 6, the parties stipulated that plaintiff would return to defendants all documents containing the information produced pursuant to the August 15 order. Plaintiff's counsel was to cease-and-desist from using the contact information obtained from defendants. The stipulation did not apply to the thirty individuals on whose behalf plaintiff and her counsel had already filed a motion to intervene. Defendants reserved the right to challenge plaintiff counsel's use of the contact information in connection with the thirty putative interveners. The stipulation also called for in camera review of plaintiff counsel's correspondences with the putative interveners, however, the undersigned judge instead ordered plaintiff's counsel to tentatively file them under seal (Dkt. No. 118). In response, plaintiff's counsel filed exemplars under seal and they were reviewed by the undersigned judge (Dkt. No. 121).

This order addresses the motion to intervene filed on November 25, 2013, and follows full briefing.

ANALYSIS

1. INTERVENTION AS OF RIGHT.

Intervention as of right is appropriate, upon timely application, "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." FRCP 24(a). The Ninth Circuit has held that an applicant seeking intervention as of right must meet four requirements: "(1) it has a significant protectable interest' relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter impair or impede the applicant's ability to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant's interests." Donnelly v. Glickman, 159 F.3d 406, 409 (9th Cir. 1998) (internal citation omitted). FRCP 24(a)(2) is generally interpreted "broadly in favor of intervention." Ibid.

Intervenors cannot demonstrate intervention as of right pursuant to FRCP 24(a)(2) because their request is not timely. The April 4 case management scheduling order set May 31, 2013, as the deadline for adding new parties. Thus, this motion is nearly six months late. Plaintiff cites the Supreme Court decision of Crown, Cork & Seal Co., Inc. v. Parker for the proposition that class members cannot generally intervene prior to denial of class certification. 462 U.S. 345 (1983). Plaintiff argues that an "overly strict reading of the timeliness requirement of Rule 24 could place class members in a position where they are compelled to intervene prematurely in every class action" (Reply Br. 6). Plaintiff, however, misconstrues the Supreme Court's holding in Crown. There, the Court held that the filing of a class action tolls the statute of limitations. Id. at 345-46. ...


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