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McWhorter v. Elsea

December 6, 2006


The opinion of the court was delivered by: Judge Smith



This matter is before the Court on a motion to intervene filed by American Modern Home Insurance Company ("American Modern"). The case was referred to the Magistrate Judge for full disposition pursuant to 28 U.S.C. §636(c). However, the proposed intervenor, American Modern, has not consented to the jurisdiction of the Magistrate Judge. There are conflicting decisions about whether the Magistrate Judge may deny a motion to intervene in a consent case. See, e.g., New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 996 F.2d 21 (2d Cir.1993)(express consent from proposed intervenors needed for magistrate judge to deny motion to intervene); but see People Who Care v. Rockford Bd. of Ed., 171 F.3d 1083, 1089 (7th Cir.1999)("[T]he power to rule on motions to intervene is a necessary and proper incident of the magistrate judge's power to decide the underlying case"). The Court of Appeals for the Sixth Circuit has not addressed the issue. Consequently, the District Judge originally assigned to this case will make the ruling on the motion to intervene. For the following reasons, the motion to intervene will be denied.


The plaintiffs brought this class action against defendants ELSEA, Inc., ELSEA Insurance, Inc. and ELSEA Financial Services, Inc. d/b/a Mid-Ohio Financial Services (collectively known as "defendants") alleging, inter alia, violations of the Fair Debt Collections Practices Act, 15 U.S.C. §§1607, et seq., the Equal Credit Opportunity Act, 15 U.S.C. §§1691, et seq., and the Magnuson-Moss Warranty Act, 15 U.S.C. §§2301, et seq. On July 16, 2001, the defendants moved for partial summary judgment, and on September 11, 2003, the Court granted in part and denied in part that motion. Discovery has been closed since early 2003, and the claims remaining after summary judgment are set for trial on March 12, 2007.

On September 21, 2006, American Modern filed a motion to intervene in this case pursuant to Fed.R.Civ.P. 24. In the motion, American Modern seeks a declaratory judgment on the issue of whether the actions of the defendants as alleged in the complaint are covered under their American Modern insurance policy. Further, American Modern requests the Court to allow it to submit jury interrogatories to help determine whether the American Modern insurance policies are implicated by any judgment the jury would render. (Mem. in Supp. of American Modern's Mot. to Intervene at p. 1.) American Modern's motion to intervene is opposed by both the plaintiffs and the defendants.


Rule 24 states, in pertinent part:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action ... 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.

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action ... 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. In determining whether an application for intervention is "timely" within the meaning of Rule 24, a court must consider (a) the point to which the case has progressed; (b) the purpose for which the intervention is sought; (c) the length of time preceding the application for intervention during which the proposed-intervenor knew or should have known of its interest in the case; (d) prejudice to the original parties; and (e) any unusual circumstances. Linton by Arnold v. Comm. of Health and Environment, State of Tennessee, 973 F.2d 1311, 1317 (6th Cir.1992).

In American Modern's motion to intervene, it argues that if intervention is denied, its ability to protect its interest will be impaired. American Modern contends,

[a]s a preliminary matter ... [American Modern] may not be able to timely address its declaratory judgment action in a separate state court action. Moreover, if the trier of fact returns a general verdict in this case, both Plaintiffs and Defendants will undoubtedly argue that such general damages are covered by the [American Modern] Policies. Under such circumstances, [American Modern] could be precluded from trying to differentiate between covered (if any) and uncovered damages. *** Simply put, if [American Modern] is not permitted to intervene, there is no way ...

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