United States District Court, E.D. California
ORDER DENYING MOTION FOR LEAVE TO INTERVENE AS OF
RIGHT (Doc. No. 164) ORDER DENYING MOTION FOR LEAVE TO
SUBSTITUTE CLASS REPRESENTATIVE (Doc. No. 156) ORDER DENYING
MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL (Doc No.
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
before the Court are a Motion for Leave to Intervene as of
Right filed by Jason Crowley, Juanita Garcia, and Janice
Teemer (the “Intervenors”), a Motion for Leave to
Substitute Class Representative filed by Plaintiff April
Lindblom (“Plaintiff”), and a Motion for
Certification of Interlocutory Appeal filed by Plaintiff.
(Doc. Nos. 156, 164, 177.) Defendant Santander Consumer USA, Inc.
(“Defendant”) opposed all three motions. (Doc.
Nos. 160, 175, 180.) The Intervenors submitted a reply in
support of the Motion for Leave to Intervene as of Right and
Plaintiff submitted a reply in support of the Motion for
Leave to Substitute Class Representative. (Doc. Nos. 162,
hearing on the Motion for Leave to Intervene as of Right was
held on September 6, 2019 before the Honorable Barbara A.
McAuliffe. (Doc. No. 178.) Counsel John Norris and Wesley
Barnett appeared by telephone on behalf of Intervenors.
(Id.) Counsel David Reidy appeared in person on
behalf of Defendant. (Id.) The Court deemed the
Motion for Leave to Substitute Class Representative suitable
for decision without oral argument pursuant to Local Rule
230(g). (Doc. No. 172.) The Court further finds the Motion
for Certification of Interlocutory Appeal suitable for
resolution without oral argument and the matter is deemed
submitted pursuant to Local Rule 230(g).
considered the motions, the oppositions, the replies, the
arguments of counsel, as well as the entire record in this
case, the Court DENIES the Motion for Leave to Intervene as
of Right, the Motion for Leave to Substitute Class
Representative, and the Motion for Certification of
FACTUAL AND PROCEDURAL BACKGROUND
action arises out of Plaintiffs April and Timothy
Lindblom’s loan for the purchase of a vehicle. (Doc.
No. 81.) The operative complaint alleges that they made
payments to Defendant, who serviced the loan, using Western
Union’s Speedpay service. (Id.) The Speedpay
service required a flat fee per transaction (the
“Speedpay Fee”) that was purportedly remitted to
Defendant in violation of California’s Rosenthal Fair
Debt Collections Act. (Id.)
initial putative class action complaint in this case was
filed on October 30, 2014, in the United States District
Court for the Northern District of Alabama. (Doc. No. 1.)
That complaint, styled Woods v. Santander Consumer USA
Inc., No. 2:14-cv-02104-MHH (N.D. Ala.), accused
Defendant and Western Union Business Solutions (USA), LLC
(“Western Union”) of illegally charging Speedpay
Fees in violation of the Fair Debt Collections Practices Act.
(Id.) On December 5, 2014, the initial plaintiffs
amended the complaint to add April Lindblom as a named
plaintiff. (Id.). On June 22, 2015, the Alabama
District Court severed Plaintiff’s suit and transferred
the matter to this Court. (Id.)
transfer, this Court granted Western Union’s motion to
dismiss with prejudice and denied Defendant’s motion
for judgment on the pleadings. (Doc. Nos. 42-43, 71.) The
Court subsequently entered a scheduling order and the suit
proceeded to class discovery on June 22, 2016. (Doc. No. 76.)
On August 30, 2016, the complaint was amended to name Timothy
Lindblom as a plaintiff. (Doc. No. 81.) After being continued
twice, the deadline for fact discovery closed on February 27,
2017. (Doc. Nos. 84, 87.)
October 13, 2017, Plaintiff moved to certify a class composed
of “[a]ll individuals in the state of California, who,
during the applicable limitations period, paid a convenience
fee through Western Union’s Speedpay service in
connection with any consumer loan held and/or serviced by
Santander.” (Doc. Nos. 87, 93, 105, 108.) Defendant
opposed certification in part by challenging
Plaintiff’s adequacy as a class representative, arguing
that she could not be a member of the defined class because
her claim fell outside of the applicable one-year statute of
limitations period. (Doc. No. 119.) Defendant additionally
moved for summary judgment on October 20, 2017. (Doc. No.
hearing on the motions for class certification and summary
judgment held on January 12, 2018, the Court expressed
concern that Plaintiff was not a member of the class because
she had not paid the Speedpay Fee within the applicable
limitations period. (Doc. No. 130.) Plaintiff’s counsel
acknowledged that he was “struggling to try to figure
out a way” for Plaintiff to represent class given the
applicable limitations period. (Id. at p. 25).
Plaintiff’s counsel further indicated that he intended
to file motions to allow other individuals to intervene and
be substituted as class representative. (Id. at p.
15.) Following the hearing and while the motion for class
certification was under submission, six individuals filed a
motion for permissive intervention in this matter as class
representatives. (Doc. No. 124.)
January 22, 2018, the Court denied Defendant’s motion
for summary judgment. (Doc. No. 131.) On January 26, 2018,
the Court also denied Plaintiff’s motion for class
certification, finding that Plaintiff was not an adequate
class representative and her claims were atypical of the
class. (Doc. No. 132.) On February 2, 2018, four additional
individuals filed a second motion to intervene. (Doc. No.
136). On June 6, 2018, while the two motions to intervene
were pending, the proposed intervenors filed a separate
action against Defendant known as Blakely et al. v.
Santander Consumer USA, Inc., No. 2:18-cv-01647-WBS-EFB.
On June 29, 2018, the Court entered an order denying both of
the prior proposed intervenors’ motions for
untimeliness. (Doc. No. 147, denying motions at Doc. 124,
127, 136.) Those proposed intervenors filed a notice of
appeal on July 19, 2018.
case was stayed pending resolution of the appeal. (Doc. Nos.
152, 163.) Nonetheless, on July 24, 2018, Plaintiff filed the
underlying Motion for Leave to Substitute Class
Representative. (Doc. No. 156.) On September 17, 2018, while
the matter was stayed, the Intervenors filed the underlying
Motion to Intervene as of Right pursuant to Federal Rule of
Civil Procedure 24(a). (Doc. No. 164.) On June 5, 2019, the
Ninth Circuit issued an opinion and memorandum affirming the
Court’s order denying the prior motions to intervene
permissively. (Doc. Nos. 166, 167.) Following mandate from
the Ninth Circuit, Defendant filed an opposition to the still
pending Motion to Intervene as of Right (Doc. No. 164) on
August 19, 2019, and the Intervenors filed their reply on
August 27, 2019. (Doc. Nos. 175, 176.) On September 9, 2019,
Plaintiff filed a Motion for Certification of Interlocutory
Appeal requesting that the Court certify any order denying
the Motion for Leave to Substitute Class Representative for
interlocutory appeal. (Doc. No. 177.) Defendant opposed the
Motion for Certification of Interlocutory Appeal on September
12, 2019. (Doc. No. 180.)
Court now turns to deciding the Motion for Leave to
Substitute Class Representative, Motion to Intervene as of
Right, and the Motion for Certification of Interlocutory
Appeal. (Doc. No. 156, 164, 177.)
Motion to Intervene as of Right
Rule of Civil Procedure 24(a) governs a request to intervene
as of right. Where an intervenor is not given an
unconditional right to intervene by a federal statute, a
putative intervenor must satisfy four elements to qualify for
(1) the applicant's motion must be timely; (2) the
applicant must assert an interest relating to the property or
transaction which is the subject of the action; (3) the
applicant must be so situated that without intervention the
disposition of the action may, as a practical matter, impair
or impede his ability to protect that interest; and (4) the
applicant's interest must be inadequately represented by
United States v. Oregon, 839 F.2d 635, 637 (9th Cir.
1988). Each of these four requirements must be met to
intervene as of right. Arakaki v. Cayetano, 324 F.3d
1078, 1083 (9th Cir. 2003.) The party seeking to intervene
bears the burden of showing those four elements are met,
although “the requirements of intervention are broadly
interpreted in favor of intervention.” Prete v.
Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (citation
application to intervene, whether as of right or permissive,
must be timely.” Cohorst v. BRE Properties,
Inc., 2011 WL 3475274, at *4 (S.D. Cal. Aug. 5, 2011.)
The determination of timeliness is left to the sound
discretion of the court. Yniguez v. Arizona, 939
F.2d 727, 731 (9th Cir. 1991). Timeliness is the
“threshold requirement” for intervention as of
right and if the motion is untimely the Court need not reach
any of the remaining elements of Rule 24(a). League of
United Latin American Citizens v. Wilson, 131 F.3d 1297,
1302 (9th Cir. 1997) (quoting United States v.
Oregon, 913 F.2d 576, 588 (9th Cir. 1990)). In
determining whether a motion for intervention is timely, the
court considers three factors: “(1) the stage of the
proceeding at which an applicant seeks to intervene; (2) the
prejudice to other parties; and (3) the reason for and length
of the delay.” Id. (quoting Orange County
v. Air California, 799 F.2d 535, 537 (9th Cir. 1986)).
“[A]ny substantial lapse of time weighs heavily against
intervention.” League of United Latin American
Citizens, 131 F.3d at 1302.
Stage of the Proceeding
first factor in determining timeliness is the stage of the
proceeding in which intervention is sought. “Although
delay can strongly weigh against intervention, the mere lapse
of time, without more, is not necessarily a bar to
intervention.” U.S. v. Alisal Water Corp., 370
F.3d 915, 922 (9th Cir. 2004). Thus, to be timely, an
applicant need not seek to intervene immediately.
“[C]ourts consider whether there have been actual
proceedings of substance on the merits in the underlying
action.” CEP Emery Tech Investors LLC v. JPMorgan
Chase Bank, N.A., 2010 WL 1460263, at *3 (N.D. Cal.
the initial lawsuit filed on October 30, 2014 (subsequently
transferred to this Court on June 29, 2015) and the
Intervenors’ motion, numerous important litigation
milestones have passed. Several motions to dismiss, a motion
for judgment on the pleadings, a motion for summary judgment,
a motion for class certification, and numerous motions to
intervene have been filed and extensively briefed by the
parties. (See Doc. Nos. 19, 31, 53, 76, 105, 108,
111, 124, 136). The parties attended private mediation while
the case was stayed, and the Court issued an amended
scheduling order when mediation was ultimately unsuccessful.
(Doc. Nos. 92, 94, 105). The parties conducted class
discovery for a full year and, after the discovery deadlines
were twice extended, class discovery closed on February 27,
2017. (Doc. No. 87). All other class related deadlines have
long since expired. Class certification has been denied, and,
importantly, this case now proceeds as an individual action.
See United Airlines, Inc. v. ...