United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
matter comes before the Court on objections (Doc. # 167) by
Joanna and John Burke (“the Burkes”) to the
Magistrate Judge's order denying the Burkes' motion
to intervene in this action. For the reasons set forth below,
the Court overrules the objections, and the
Burkes will not be permitted to intervene.
January 17, 2019, the Burkes, acting pro se, filed a motion
to intervene in this action pursuant to Fed.R.Civ.P. 24. By
Order of February 12, 2019, the Magistrate Judge denied the
motion. On February 26, 2019, the Burkes filed the instant
motion for “reconsideration” and
“appeal” of the Magistrate Judge's order
pursuant to Fed.R.Civ.P. 72. The motion became moot on March
1, 2019, when the Court dismissed this action in its
entirety, but the Court vacated that dismissal in part on May
21, 2019. Subsequently, the Court set deadlines for the
parties to respond to the Burkes' motion and for the
Burkes to file a reply brief. The matter is now fully briefed
and ripe for decision.
Authority of Magistrate Judge and Standard of
the Burkes refer to their present motion as seeking
“reconsideration”, it is clear that the motion is
addressed to the undersigned district judge, for several
reasons: the motion also seeks “appeal” of the
Magistrate Judge's order; the motion is made pursuant to
Rule 72, which addresses review of a magistrate judge's
orders; and the Burkes argue that the Magistrate Judge in
this case did not have the authority to decide the motion to
intervene. Thus, the Court considers the present motion as
one seeking review of the Magistrate Judge's order by the
U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72 allow a
magistrate judge to decide nondispositive matters and to
recommend dispositions of dispositive matters. The Burkes
argue that the Magistrate Judge should only have been
permitted to make a recommendation concerning their motion to
intervene. The Court concludes, however, that the Magistrate
Judge's order did not resolve any claim or defense, and
thus the motion presented only a nondispositive matter within
the Magistrate Judge's authority to decide. See Day
v. Sebelius, 227 F.R.D. 668, 671 (D. Kan. 2005)
(O'Hara, Mag. J.); Perles v. Kagy, 394 F.Supp.3d
68, 70 n.6 (D.D.C. 2005) (citing cases). The case cited by
the Burkes and the case cited therein for support are not
helpful here, as in each case the entire action had been
referred to the magistrate judge by consent, and the court
did not discuss whether a motion to intervene presented a
nondispositive issue. See Stackhouse v. McKnight,
168 Fed.Appx. 464, 466 (2d Cir. 2006) (citing New York
Chinese TV Programs, Inc. v. U.E. Enters.,
Inc., 996 F.2d 21, 25 (2d Cir. 1993)); see also
United States v. W.R. Grace & Co.-Conn., 185 F.R.D.
184, 187 n.2 (D.N.J. 1999) (distinguishing New York
Chinese TV on this basis).With respect to a magistrate
judge's order relating to nondispositive pretrial
matters, the district court does not conduct a de novo
review; rather, the court applies a more deferential standard
by which the moving party must show that the magistrate
judge's order is “clearly erroneous or contrary to
law.” See First Union Mortgage Corp. v. Smith,
229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil
Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th
Cir. 1988)); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a). The clearly erroneous standard “requires that
the reviewing court affirm unless it on the entire evidence
is left with the definite and firm conviction that a mistake
has been committed.” See Ocelot Oil, 847 F.2d
at 1464 (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)).
Magistrate Judge first addressed intervention of right
pursuant to Fed.R.Civ.P. 24(a). That rule allows intervention
by one 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.” See Id. (a)(2). The movant
“must have an interest that could be adversely affected
by the litigation.” See San Juan County, Utah v.
United States, 503 F.3d 1163, 1199 (10th Cir. 2007).
Magistrate Judge did not clearly err in concluding that the
Burkes did not identify a sufficient interest relating to the
property or transaction that is the subject of this action.
The subject of the present action is whether defendants
breached duties to their clients in representing them in the
underlying Syngenta action, which involved claims by farmers
and others in the grain industry against a seed manufacturer.
The Burkes have not identified any interest relating to that
subject. They are not farmers and did not assert any claim
against Syngenta. They do not dispute that they have not had
an attorney-client (or any other) relationship with these
defendants, whether in relation to the Syngenta case or any
other case. They argue only that their own separate
litigation in Texas, like the present case, involves
allegations of misconduct by attorneys, and they also state a
desire to help farmers. Thus, the Burkes have identified no
specific interest that could be affected by the resolution of
the particular claims asserted in this suit. Accordingly, the
Court overrules the Burkes' objection to the Magistrate
Judge's denial of intervention under Rule 24(a).
Magistrate Judge also addressed permissive intervention
pursuant to Fed.R.Civ.P. 24(b), which allows intervention by
one who “has a claim or defense that shares with the
main action a common question of law or fact.” See
Id. (b)(1)(B). Permissive intervention under this rule
is a matter within the district court's discretion.
See City of Stilwell, Okla. v. Ozarks Rural Elec. Co-op.
Corp., 79 F.3d 1038, 1943 (10th Cir. 1996).
Magistrate Judge did not clearly err in refusing to exercise
his discretion to allow permissive intervention here. Again,
at best the Burkes have identified only a topic common to
this case and their own litigation (attorney misconduct);
they have not identified a specific question of law or fact
common to the two cases. The Burkes also request that they at
least be permitted to intervene on a restricted basis so that
they may have access to documents produced in discovery. The
Court denies that request as well, however, as the Burkes
have not explained how any of the parties' documents are
directly related to their own claims against nonparties.
Accordingly, the Court overrules the Burkes' objection to
the Magistrate Judge's denial of intervention under Rule
24(b). The Burkes' objections are therefore overruled in
their entirety, and their motion to intervene remains denied.
THEREFORE ORDERED BY THE COURT THAT the objections (Doc. #
167) by Joanna and John Burke to the Magistrate Judge's
order are hereby overruled, and the ...