United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGERL UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Crowfield Plantation Community
Services Association, Inc.'s ("Crowfield")
motion to intervene. For the reasons set forth below, the
Court grants the motion.
Candis Aubrey owns a home in the Crowfield Development in
Goose Creek, South Carolina. Her property is subject to
recorded declarations of covenants, conditions, and
restrictions that require her to pay annual assessments to
Crowfield and to pay assessed fines for violations of use
restrictions. Crowfield retained Defendant McCabe Trotter
& Beverly, P.C. ("MTB") to collect past due
assessments. MTB filed a foreclosure complaint against
Plaintiff in the Berkley County Court of Common Pleas on
January 25, 2016, alleging Plaintiff owed assessments, fines,
and other charges under the covenants and Crowfield governing
Aubrey filed the present action on January 12, 2017 in the
Berkley County Court of Common Pleas, asserting MTB's
debt collection efforts violated the federal Fair Debt
Collections Act ("FDCPA"), 15 U.S.C. 1692. In her
motion for summary judgment and opposition to MTB's
motion for summary judgment, Plaintiff asserts the debt
collection efforts were illegal for several reasons,
including, inter alia, (1) the relevant documents do
not authorize attorney's fees prior to a judgment, (2)
the relevant documents do not authorize a lien for fines, and
(3) the Crowfield board failed to follow required procedure
when impose fines. On June 13, 2018, non-party Crowfield
filed a brief opposing Plaintiffs motion for summary judgment
and supporting MTB's motion for summary judgment. (Dkt.
No. 33.) Plaintiff moved to strike as Crowfield is not a
party to this action and had previously appeared only to
litigate a subpoena served on Crowfield by Plaintiff. The
Court ordered that Crowfield must move to intervene if it
wishes to file briefs on dispositive motions. Crowfield has
now so moved and Plaintiff has filed her opposition to
of the Federal Rules of Civil Procedure provides for two
types of intervention. "Intervention of Right"
requires the court to permit anyone to intervene upon timely
motion who "claims an interest relating to the property
or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
that interest." Fed.R.Civ.P. 24(a)(2). Thus, to
intervene as of right, a movant must show: (1) timely
application; (2) an interest in the subject matter of the
underlying action; (3) that a denial of the motion for leave
to intervene would impair or impede the movant's ability
to protect its interest; and (4) that the movant's
interest is not adequately represented by the existing
parties to the litigation. Houston Gen. Ins. Co. v.
Moore, 193 F.3d 838, 839 (4th Cir. 1999). "A party
moving for intervention under 24(a) bears the burden of
establishing a right to intervene, and must do so by
satisfying all four requirements." U.S. ex rel. MP A
Constr., Inc. v. XL Specialty Ins. Co., 349 F.Supp.2d
934, 937 (D. Md. 2004). Failure to satisfy even one of these
requirements is sufficient to warrant denial of a motion for
leave to intervene as a matter of right. See NAACP v. New
York, 413 U.S. 345, 369 (1973).
Intervention," on the other hand, allows the court, in
its discretion, to permit anyone to intervene upon timely
motion who "has a claim or defense that shares with the
main action a common question of law or fact."
Fed.R.Civ.P. 24(b)(1)(B). In exercising discretion under Rule
24(b), "the court shall consider whether the
intervention will unduly delay or prejudice the application
of the rights of the original parties." Fed.R.Civ.P.
may be limited to certain purposes. See Newport News
Shipbuilding & Drydock Co. v. Peninsula Shipbuilders'
Ass'n, 646 F.2d 117, 122 (4th Cir. 1981) ("Even
intervention of right may properly be made conditional by the
exigencies of the particular case."); see also,
e.g., Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir.
1988) (permitting intervention for the limited purpose of
challenging a sealing order); Diagnostic Devices, Inc. v.
Taidoc Tech. Corp., 257 F.R.D. 96, 98 (W.D. N.C. 2009)
(permitting intervention for the limited purpose of opposing
a motion for temporary restraining order).
motion to intervene must be accompanied by a proposed
pleading that sets out the claim or defense for which
intervention is sought. Fed.R.Civ.P. 24(c). Courts however
may decline to require strict compliance with Rule 24(c)
where the intervention is for a limited purpose fully set
forth in motion memoranda. E.g., Sch. Bd. of City of
Newport News v. T.R. Driscoll, Inc., No. 4:11CV79, 2011
WL 3809216, at *3 n.2 (E.D. Va. July 29, 2011), report
and recommendation adopted, No. 4:11CV79, 2011 WL
3702421 (E.D. Va. Aug. 22, 2011); Diagnostic
Devices, 257 F.R.D. at 101.
of right requires (1) timely application; (2) an interest in
the subject matter of the underlying action; (3) that a
denial of the motion for leave to intervene would impair or
impede the movant's ability to protect its interest; and
(4) that the movant's interest is not adequately
represented by the existing parties to the litigation.
Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839
(4th Cir. 1999). Crowfield argues it satisfies those
requirements. The Court agrees.
seeks, among other things, a judicial determination of
Crowfield rights has under its governing documents and
community property covenants. Crowfield's interest in
that subject is obvious. Crowfield's ability to protect
its interest plainly would be impaired if the Court denied
Crowfield an opportunity to respond to Plaintiffs assertions.
Crowfield's interest is not adequately represented by a
law firm defendant hired merely as its debt collector.
"A presumption of adequacy arises when the applicant and
an existing party have the same interest or ultimate
objectives in the litigation." Nish & Goodwill
Servs., Inc. v. Cohen, 191 F.R.D. 94, 97 (E.D. Va.
2000). Crowfield's interest in the rights and duties
created under its own governing documents is not identical
with MTB's interest in defending itself from an FDCPA
does not argue against the above. Plaintiff instead argues
the intervention is untimely and will cause delay prejudicial
to Plaintiff. The sole issue then is whether the motion to
intervene is timely. "Rule 24 is silent as to what
constitutes a timely application and the question must
therefore be answered in each case by the exercise of the
sound discretion of the court." Black v. Cent. Motor
Lines, Inc.,500 F.2d 407, 408 (4th Cir. 1974).
Crowfield argues its motion to intervene is timely because it
was filed at the same time as MTB's timely reply to
Plaintiffs opposition to MTB's motion for summary
judgment. Plaintiff argues the motion to intervene is not
timely because it has been filed after the close of ...