United States District Court, N.D. California, San Jose Division
DONNA J. FORSYTH, et al., Plaintiffs,
HP INC., et al., Defendants.
ORDER DENYING BRYANT FONSECA'S MOTION TO
INTERVENE AS A PLAINTIFF RE: DKT. NO. 346
J. DAVILA UNITED STATES DISTRICT JUDGE.
August 18, 2016, Plaintiffs filed a putative class action
alleging that Defendants violated the Age Discrimination in
Employment Act (“ADEA”), California Fair
Employment and Housing Act (“FEHA”), and other
California laws. Complaint ¶ 4, Dkt. 1. Bryant Fonseca
(“Fonseca”) seeks to intervene in this action.
Notice and Motion for Intervention as Plaintiff and
Memorandum of Points and Authorities (“Mot.”),
Dkt. 346. Both Plaintiffs and Defendants oppose Fonseca's
motion to intervene. The Court finds this motion suitable for
consideration without oral argument. See N.D. Cal.
Civ. L.R. 7-1(b). Having considered the Parties' papers,
Fonseca's motion to intervene is DENIED.
October 2013, HP's Chief Executive Officer
(“CEO”) Meg Whitman stated during a Securities
Analyst Meeting that HP planned to “recalibrate and
reshape” the workforce by “replacing”
existing workers with “a whole host of young
people.” Second Amended Complaint (“SAC”)
¶ 3, Dkt. 168; see also Declaration of Erik A.
Dos Santos in Support of Motion for Intervention of Plaintiff
(“Santos Decl.”), Ex. A (First Amended Complaint
in Fonseca Action) ¶ 22, Dkt. 346-1. Plaintiffs
filed this action alleging that HP's Workforce Reduction
Plan (“WFR”) caused age discrimination in
violation of the ADEA, FEHA, and other California laws.
See SAC ¶¶ 162-94. Plaintiffs'
original Complaint and the operative pleading, the SAC, both
plead facts arguing that Defendants are liable under
disparate treatment and disparate impact (two commonly
accepted age discrimination theories). Id.
¶¶ 146, 152, 160, 170-71.
8, 2017, Fonseca was terminated from his employment with HP
pursuant to the WFR. Santos Decl., Ex. A at ¶ 42. On
November 29, 2017, Fonseca filed an action against Defendants
Hewlett-Packard Company, HP, Inc., and HP Enterprise
Services, LLC, in which he alleged, similar to Plaintiffs,
that Defendants violated FEHA, ADEA, and other California
laws. See Santos Decl. ¶ 2; Id., Ex.
A. On January 12, 2018, Defendants removed the Fonseca action
to federal court. Id. ¶ 13. On September 5,
2018, the federal court remanded Fonseca's action.
Id. ¶ 16. Defendants filed a motion to stay the
Fonseca action pending the final resolution of this
action. Declaration of Richard W. Black in Support of
Defendants' Opposition (“Black Decl.”) ¶
9, Dkt. 348-1. On April 12, 2019, the state court stayed the
age discrimination claims because of the “clear
overlap” between Fonseca's action and this case.
Id., Ex. 7 at 4. The Fonseca action
includes antitrust claims, which are currently being
litigated in federal court, and are irrelevant to this
action. Mot. at 4 n.1.
April 22 to July 20, 2019, Fonseca states that his counsel
met and conferred with Forsyth's counsel about mediations
and possible intervention. Declaration of Tyler J. Belong in
Support of Motion for Intervention as Plaintiff
(“Belong Decl.”) ¶¶ 3-7. On July 23,
2019, Fonseca filed his Motion to Intervene. On November 18,
2019, Defendants filed their Opposition. Defendants'
Opposition to Bryant Fonseca's Motion for Intervention as
Plaintiff (“D Opp.”), Dkt. 348. Plaintiffs also
filed an Opposition on November 18, 2019. Plaintiffs'
Response to Fonseca Motion for Intervention (“P
Opp.”), Dkt. 349. On November 26, 2019, Fonseca filed
two Reply briefs: (1) Proposed Intervenor's Reply to
Defendants' Opposition to Motion to Intervene (“D
Reply”), Dkt. 351 and (2) Proposed Intervenor's
Reply to Plaintiffs' Response to Motion to Intervention
(“P Reply”), Dkt. 352.
must permit a nonparty to intervene in a pending lawsuit and
gain party status if a federal statute confers an
unconditional right to intervene. Fed.R.Civ.P. 24(a)(1).
Where, as here, the nonparty does not claim a right to
intervene by a federal statute, the party must show that:
(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 interest.
Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir.
1998) (citation and quotation marks omitted); see
also Fed. R. Civ. P. 24(a)(2); U.S. ex rel. McGough
v. Covington Techs. Co., 967 F.2d 1391
(“Generally, Rule 24(a)(2) is construed broadly in
favor of proposed intervenors and ‘we are guided
primarily by practical considerations.'” (quoting
United States v. Stringfellow, 783 F.2d 821, 826
(9th Cir. 1986))).
party cannot meet the standard to intervene as of right, the
Court may still allow permissive intervention. See
Fed. R. Civ. P. 24(b)(1)(B) (allowing intervention if the
party has a claim or defense that shares with the main action
a common question of law or fact). An applicant who seeks
permissive intervention must prove that it meets three
threshold requirements: “(1) it shares a common
question of law or fact with the main action; (2) its motion
is timely; and (3) the court has an independent basis for
jurisdiction over the applicant's claims.”
Donnelly, 159 F.3d at 412. Even if an applicant
satisfies those threshold requirements, the court retains
discretion to deny intervention. See Orange Cty. v. Air
Cal., 799 F.2d 535, 539 (9th Cir. 1986)
(“Permissive intervention is committed to the broad
discretion of the district court . . . .”).