The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Mark R. Abel
Richard Cooey, a state prisoner sentenced to death by the State of Ohio, is the original plaintiff in a civil rights action pending before this Court that challenges multiple facets of the lethal injection protocol used by the State of Ohio. On November 23, 2005, John R. Hicks was permitted to intervene in the action.*fn1 (Doc. # 26.) On January 9, 2006, Jeffrey D. Hill was permitted to intervene in the action. (Doc. # 35.) This matter is before the Court on motions to intervene in this action filed by Johnnie Baston and Arthur Tyler (Docs. # 46, 48).*fn2
Baston and Tyler seek to intervene in this case as of right pursuant to Fed. R. Civ. P. 24(a)(2), and in the alternative, for permissive intervention under Fed. R. Civ. P. 24(b)(2). Rule 24(a)(2) governing intervention of right provides in relevant part:
Upon timely application anyone shall be permitted to intervene in an action: ...
(2) 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.
Fed. R. Civ. P. 24(a)(2). Rule 24(b)(2) governing permissive intervention provides in relevant part:
Upon timely application anyone may be permitted to intervene in an action: ...
(2) when an applicant's claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Fed. R. Civ. P. 24(b)(2). Because the Court decides, as it did with respect to John Hicks and Jeffrey Hill, that Baston and Tyler have demonstrated that permissive intervention is warranted, it is unnecessary for the Court to determine whether either or both have demonstrated that they are entitled to intervention of right under Fed. R. Civ. P. 24(a)(2). See Secretary of Department of Labor v. King, 775 F.2d 666, 668 (6th Cir. 1985) ("Since we hold that the District Court did not abuse its discretion in allowing the Bank to intervene under Fed. R. Civ. P. 24(b)(2), we need not consider whether Fed. R. Civ. P. 24(a)(2) gave the Bank the right to intervene.").
The first determination to be made by the Court is whether the applications to intervene are timely. In addressing timeliness, the Court must consider:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.
United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).
Pursuant to the reasoning set forth in this Court's March 28, 2005 (Doc. # 14), the statute of limitations on the § 1983 claims of Baston and Hill did not begin to run until their executions became imminent (i.e., when the United States Supreme Court declined to review their habeas corpus cases) and when they knew or had reason to know of the facts giving rise to their claims. The United States Supreme Court denied certiorari in Baston's case on May 22, 2006; he filed his motion to intervene on May 26, 2006. The United States Supreme Court denied certiorari in Tyler's case on April 17, 2006. Tyler v. Anderson, 126 S.Ct. 1774 (2006). He filed his motion to intervene on May 26, 2006 and filed a corrected motion on May 30, 2006. By the time the Supreme Court declined to review Baston's and Tyler's habeas corpus actions, this Court had already stayed the instant action in an April 13, 2005 Order granting an interlocutory appeal. (Doc. # 21.) This litigation thus remains in its early stages. The parties, for example, had not even reached the discovery deadline when the Court granted an interlocutory appeal and consequent stay. The ...