United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
matter is before the court pursuant to Joseph E.
Wojcicki's (“Movant”) pro se Motion
to Intervene seeking permissive intervention under Rule
24(b)(1)(B) of the Federal Rules of Civil Procedure. (ECF No.
71 at 1.) For the reasons set out below, the court
DENIES the Motion.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
29, 2018, SCE&G filed a Verified Complaint for
Declaratory Judgment and Temporary, Preliminary, and
Permanent Injunctive Relief alleging constitutional claims
pursuant to 42 U.S.C. § 1983 against the following
Defendants in their official capacities as Commissioners of
the South Carolina Public Service Commission
(“PSC”): Swain E. Whitfield, Comer H. Randall,
John E. Howard, Elliot F. Elam, Jr., Elizabeth B. Fleming,
Robert T. Bockman, and G. O'Neal Hamilton (collectively,
“Defendants”). (ECF No. 1.) On July 2, 2018, SCE&G
filed a Motion for Preliminary Injunction. (ECF No. 5.) On
July 3, 2018, South Carolina House of Representatives Speaker
Jay Lucas (“Speaker Lucas”) and South Carolina
Senate President Pro Tempore Hugh K. Leatherman, Sr.
(“President Leatherman”) (together
“Intervenor Defendants”) filed Motions to
Intervene (ECF Nos. 7, 8), which the court granted on July
18, 2018 (ECF No. 41). On July 5, 2018, South Carolina
Attorney General Alan Wilson filed a Motion for Leave to File
an Amicus Brief, which was granted based on the consent of
the parties on July 12, 2018. (ECF No. 27.) On July 6, 2018,
Richard Lightsey, LeBrian Cleckley, and Phillip Cooper
(collectively, “Intervenor Customers”), customers
of SCE&G, filed a Motion to Intervene on behalf of
themselves and all others similarly situated. (ECF No. 13.)
The court found that Intervenor Customers, for the purposes
of this lawsuit, had neither an interest in the subject
matter of the litigation, as required for intervention as a
matter of right, nor a common question of law or fact, as
required for permissive intervention, and as a result, the
court denied the Intervenor Customer's Motion. (ECF No.
light of the Motion for Preliminary Injunction, the court
entered an Order setting an expedited schedule for this case.
(ECF No. 21.) Pursuant to the expedited scheduling order,
“any motions to dismiss must be filed by all parties by
July 20, 2018.” (Id.) Defendants and
Intervenor Defendants all filed Motions to
Dismiss. (ECF Nos. 48, 50, 52.) On July 26, 2018,
the court granted in part and denied in part the Motions to
Dismiss and granted SCE&G leave until 3:00 p.m. on July
27, 2018, to file an amended complaint. (ECF No. 67.)
27, 2018, SCE&G filed its Amended Verified Complaint for
Declaratory Judgment and Temporary, Preliminary, and
Permanent Injunctive Relief against Defendants Cromer H.
Randall, Swain E. Whitfield, John E. Howard, Elliot F. Elam,
Jr., G. Hamilton O'Neal, and Thomas J. Ervin, Jr.,
commissioners of the PSC. (ECF No. 68.) SCE&G challenges
the constitutionality of both Act 287 and Resolution 285,
asserting that the elimination of the rate increases violates
SCE&G's constitutional rights and
“impermissibly interfere[s] with interstate
commerce.” (Id. at 2 ¶ 2.) On July 27,
2018, Movant filed this Motion to Intervene. (ECF No. 71.)
to Rule 24(b)(1)(B), the court may grant permissive
intervention to anyone 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). “Permissive
intervention is left to the broad discretion of the Court and
should be construed liberally in favor of
intervention.” Savannah Riverkeeper v. U.S. Army
Corps of Eng'rs, No. CV 9:12-610-RMG, 2012 WL
13008326, at *2 (D.S.C. Aug. 14, 2012). “Among the
factors a Court should consider in passing upon a motion for
permissive intervention includes (1) the timeliness of the
motion; (2) the presence of a common question of law or fact;
and (3) whether the intervention will unduly delay or
prejudice the original parties.” Id. (citing
Backus v. S.C., No. 3:11-cv-03120-HFF-MBS-PMD, 2012
WL 406860, at *2 (D.S.C. Feb. 8, 2012)); but see S.C.
Coastal Conservation League v. Pruitt, No.
18-CV-330-DCN, 2018 WL 2184395, at *3 (D.S.C. May 11, 2018)
(adding a fourth prong that “there must be an
independent ground of subject matter jurisdiction.”)
(citing Shanghai Meihao Elec., Inc. v. Leviton Mfg.
Co., 223 F.R.D. 386, 387 (D. Md. 2004)).
order to properly determine whether a motion to intervene in
a civil action is sufficiently timely, a trial court in [the
Fourth Circuit] is obliged to assess three factors: first,
how far the underlying suit has progressed; second, the
prejudice any resulting delay might cause the other parties;
and third, why the movant was tardy in filing its
motion.” Alt v. U.S. E.P.A., 758 F.3d 588, 591
(4th Cir. 2014) (citing Gould v. Alleco, Inc., 883
F.2d 281, 286 (4th Cir. 1989)).
is a pro se litigant, so the court is required to
liberally construe his arguments. Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978); see also Haines v.
Kerner, 404 U.S. 519, 520 (1972) (pro se
plaintiff's “inartful pleadings” may be
sufficient enough to provide the opportunity to offer
stated above, whether a party is allowed to permissively
intervene is left to the discretion of the court. See
Savannah Riverkeeper, 2012 WL 13008326, at *2. Taking
into consideration the factors for permissive intervention,
the court finds that Movant will not be allowed to
permissively intervene in this case.
threshold matter, Movant's Motion to Intervene (ECF No.
13) is not 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)
(citing Roberts v. Kimbrough, 206 F.2d 257 (4th Cir.
1953); Simms v. Andrews, 118 F.2d 803 (10th Cir.
1941); 2 W. Barron & A. Holtzoff, Federal Practice and
Procedure § 594, at 364-65 (1961); 3B J. Moore,
Federal Practice P24.13, at 24-521 (2d ed. 1974);
Wright & Miller, Federal Practice and Procedure:
Civil 1916 (1972)). While a relatively short period of time
has elapsed since the commencement of this suit, the suit has
progressed significantly in that time. The court has already
heard and ruled on Defendants and Intervenor Defendants'
Motions to Dismiss. (See ECF No. 67.)
Movant does not satisfy the remaining elements for permissive
intervention. Permissive intervention is appropriate when an
intervenor “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). Movant has asserted extensive
knowledge of the case, but Movant has not alleged any claims
or defenses which have a common question of law or fact with
the original litigation. (ECF No. 68.) The original
litigation surrounds the constitutionality of Act 287 and
Resolution 285, but none of Movant's allegations address
the constitutionality of the legislation. (ECF No. 71.)
Additionally, Movant's intervention in this suit would
cause “unduly delay or prejudice the adjudication of
the original parties' rights.” Fed.R.Civ.P.
24(b)(3). SCE&G filed a Motion for Preliminary Injunction
(ECF No. 5), and the court granted an expedited schedule in
this case (ECF No. 21). Movant filed his Motion on the Friday
before the preliminary injunction hearing. Allowing Movant to
intervene now would require the court to delay its
proceedings and would unduly delay and prejudice the
adjudication of the original parties' rights. Therefore,
the court will not allow Movant to intervene under Rule