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Clear-View Technologies, Inc. v. Rasnick

United States District Court, N.D. California, San Jose Division

April 28, 2015

JOHN H. RASNICK, et al., Defendants.



Proposed intervenor Stroz Friedberg seeks to intervene in the above-captioned dispute, scheduled to begin trial on June 8, 2015. Defendants oppose. Plaintiff has filed a conditional non-opposition, stating that it does not oppose intervention so long as it would not delay trial. Because the Court finds that Stroz Friedberg does not meet the conditions for permissive intervention, the Court DENIES the motion.


On September 9, 2014, Magistrate Judge Paul Grewal granted Plaintiff's motion to compel further discovery responses to Plaintiff's interrogatories and requests for admission and an independent inspection of Defendants' electronic databases and media. See ECF 76; cf. ECF 62 at 13-18. The parties were instructed to meet and confer on a plan to retain an independent consultant to perform a limited forensic collection and analysis of Defendants' electronic media. See id. The parties were unable to reach agreement between two forensic analysts - LogicForce Consulting, LLC and Stroz Friedberg. See, e.g., ECF 100, 101 (discovery dispute letters). Defendants preferred LogicForce because they submitted a lower estimate for the examination. ECF 100 at 1-2. The court ultimately ordered the parties to engage Stroz Friedberg to undertake the independent inspection, the cost of which would be borne by Defendants. See ECF 103.

Stroz Friedberg quoted Defendants high and low cost estimates for the examination, with a low estimate of $52, 375 and a high estimate of $108, 000. See ECF 100; see also Mot., ECF 155 at 2-3. Defendants paid Stroz Friedberg a retainer of $25, 000. See Haimovici Decl. Exh. D at 1. Stroz Friedberg contends that Defendants obstructed and delayed the investigation, resulting in a total cost of over $214, 000, nearly double its high estimate. Defendants counter that they promptly provided all media to Stroz Freidberg. Stroz Friedberg states that Defendants refused to pay the amount due on January 22, 2015. See Mot. at 5 (citing Haimovici Decl. Exh. E).

On April 2, 2015, Stroz Friedberg moved to intervene in this action pursuant to Federal Rule of Civil Procedure 24(b)(1), and moved to shorten time in which the motion could be heard. See ECF 169. The Court denied the motion to shorten time, but submitted the underlying motion to intervene without oral argument upon the filing of Stroz Friedberg's Reply on April 23, 2015. See ECF 172 at 2 (citing Civil L.R. 7-1(b)).


Rule 24(b) governs permissive intervention. A court may grant permissive intervention if three conditions are met: (1) the movant must show an independent ground for jurisdiction; (2) the motion must be timely; and (3) the movant's claim or defense and the main action must have a question of law or fact in common. See Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir. 1989). The existence of a common question or law or fact "does not automatically entitle an applicant to intervene." Id. at 530. Rather, Rule 24(b) "vests discretion in the district court to determine the fairest and most efficient method of handling the case." Id. (citing SEC v. Everest Mgmt. Corp., 475 F.32d 1236, 1240 (2d Cir. 1972)). This means that the court must determine whether intervention will "unduly prejudice the adjudication of the rights of the original parties" to the underlying suit. Fed.R.Civ.P. 24(b). The proposed intervenor bears the burden to show that all conditions for intervention are satisfied. See, e.g., Citizens for a Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011) (noting, however, that the "review is guided primarily by practical considerations, not technical distinctions").


Defendants do not challenge Stroz Friedberg's assertion that diversity jurisdiction exists over the proposed action. See generally Opp. The Court therefore looks to the remaining two conditions that Stroz Friedberg must show in order to intervene, timeliness and common questions of law or fact. The Court finds that neither is met here, for the reasons outlined below.

A. Timeliness

Rule 24(b)'s timeliness inquiry concerns three factors: (1) the stage of the proceedings at which intervention is sought, (2) the reason for and length of delay in seeking intervention, and (3) the prejudice that would be suffered by other parties were intervention to be granted. See, e.g., State of Alaska v. Suburban Propane Gas Corp., 123 F.3d 1317, 1320 (9th Cir. 1997).

As to the first and third factors, the motion to intervene was filed just two months before trial is scheduled to begin in this action, and over two months after the close of fact discovery. Stroz Friedberg contends that its motion is timely because it was filed "at the first opportunity once it became clear that Defendants would not pay what they owe." Mot. at 5. Though Stroz Friedberg filed its motion just over two months after Defendants indicated they disputed the amount owed, even this delay is significant when trial is rapidly approaching. The late stage of the litigation, and the pleadings, motions, and discovery necessary to position Stroz Friedberg's claims for trial counsel against permitting intervention due to the third Rule 24(b) factor, prejudice to the original parties to the litigation.

Courts have repeatedly held that prejudice to the parties is the "most important factor in determining the timeliness of a motion to intervene." Petrol Stops Nw. v. Continental Oil Co., 647 F.2d 1005, 1010 (9th Cir. 1981). It is clear to the Court that Stroz Friedberg's intervention would necessitate a delay in trial, prejudicing all original parties. Though Stroz Friedberg claims that it would need only "limited discovery" and that it "does not seek to modify the current trial date, " see Mot. at 5, the Court finds these assertions untenable. Stroz Friedberg would first need to file a Complaint, which would be subject to a responsive pleading or motion(s) from Defendants; it would then need to formulate a discovery plan, adjudicate any disputes over discovery, and engage in depositions and document production. Plainly, even setting the pleadings would take more time than is available prior to the scheduled first day of trial. The "limited discovery" Stroz Friedberg seeks to take could itself require substantial time.[1] Further, even attempting to fit the entirety of a new case ...

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