United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
Missouri Attorney General moves to intervene as a defendant
in this action. Doc. 222. For the following reasons, the
Attorney General's motion to intervene is denied.
March 9, 2017, Plaintiffs initiated this case in state court
as a putative class action against the State of Missouri and
the Governor (the “State Defendants”) as well as
the Director and Commissioners of the Missouri State Public
Defenders (the “MSPD Defendants”). Doc. 1-2
(Petition). Plaintiffs allege that Missouri “has failed
to meet its constitutional obligation to provide indigent
defendants with meaningful representation, ” largely
because the MSPD is underfunded and overworked. Id.
at p. 2. Plaintiffs seek declaratory and injunctive relief
that provides “indigent criminal defendants and
juvenile respondents with constitutionally adequate legal
representation.” Id. at 52.
April 7, 2017, the State Defendants, through the Attorney
General of the State of Missouri, removed the case to federal
court. Doc. 1 (Notice of Removal). On removal, the case was
included in the Western District of Missouri's Mediation
and Assessment Program (“MAP”) and assigned to an
outside mediator. Doc. 4 (Notice of Inclusion for MAP); Doc.
48 (Amended Notice of Inclusion for MAP). The Court set a
discovery deadline of December 15, 2017, and trial was set
for May 14, 2018. Doc. 35 (Scheduling Order). Shortly after
removal, however, the State Defendants-both represented by
the Attorney General-filed a motion to dismiss arguing that
the State and Governor are shielded by sovereign immunity.
Doc. 18 (State Defendants' Motion to Dismiss). The Court
denied the motion. Doc. 69 (Order on Motion to Dismiss). The
State Defendants filed a notice of appeal. Doc. 70 (Notice of
the appeal was pending, the Court extended the discovery
deadline, and the parties conducted substantial discovery.
The parties, including the State Defendants, who were
represented by the Attorney General, also participated in
mediation. Doc. 225-2 (Letter Scheduling Mediation). Trial
was rescheduled for May 29, 2018. Doc. 86.
discovery was complete, the State Defendants, through the
Attorney General, moved to stay the case pending appeal and
to realign the MSPD Defendants with Plaintiffs. Doc. 133
(Motion to Stay); Doc. 134 (Motion to Realign MSPD Defendants
as Plaintiffs). The MSPD Defendants and Plaintiffs opposed
the motion to realign, citing divergent interests and the
untimeliness of the motion. Doc. 140 (MSPD Defendants'
Suggestions in Opposition to Motion to Realign); Doc. 143
(Plaintiffs' Suggestions in Opposition to Motion to
Realign). The motion was denied without prejudice; the trial
was twice continued, and later struck entirely pending the
January 10, 2019, the Eighth Circuit reversed the Court's
decision on sovereign immunity. See Doc. 206;
Church v. Missouri, 913 F.3d 736 (8th Cir. 2019).
After the mandate was issued, the Court dismissed the State
Defendants, Doc. 211, and denied Plaintiffs' motion for
class certification, Doc. 212. On March 1, 2019, the
remaining parties-Plaintiffs and the MSPD Defendants-were
ordered to proceed to mediation within 30 days, and to submit
a proposed scheduling order. The parties proceeded to the
Court-ordered mediation on March 15, 2019, and trial was set
for August 19, 2019.
March 27, 2019, while mediation efforts were underway, the
MSPD Defendants wrote to the Attorney General to request
coverage by the state legal expense fund. See 225-3,
p. 1. In response, the Attorney General sought information
concerning the MSPD Defendants' “plans regarding
defense of the case, trial plan, etc., ” but the MSPD
Defendants, citing the State Defendants' motion to
realign (which had asserted the existence of a conflict
between the State Defendants and the MSPD Defendants) and the
confidential nature of the mediation, declined to share such
details. Id. at pp. 3-6.
13, 2019, the parties filed a joint motion for entry of a
consent judgment. Doc. 221. The proposed consent judgment
states that Plaintiffs would likely succeed on the merits
based on “overwhelming admissible evidence”
showing that MSPD is “grossly overburdened, and that
the burden under which [MSPD] operates routinely and
systematically harms indigent criminal defendants by
depriving them of competent counsel.” Exhibit 1
(Proposed Consent Judgment), § III(j). The proposed
consent judgment requires that the MSPD take certain actions
to ensure constitutionally adequate representation for
Plaintiffs and other indigent defendants. Id. at
§§ IV- XVI. It also provides for the appointment of
a monitor with reporting obligations, establishes a rubric by
which the MSPD would determine when an individual public
defender has reached capacity, and requires the MSPD to
ensure that public defenders do not exceed the workload
capacity established by the proposed consent judgment.
Id. at §§ XVII-XIX. Finally, it provides a
mechanism for dispute resolution, id. at § XX,
and permits enforcement by a defined group of third-party
beneficiaries. Id. at § XXI.
14, 2019, the day after the parties moved for entry of the
proposed consent judgment, the Attorney General filed a
motion to intervene, Doc. 222 (Attorney General's Motion
to Intervene), and a motion to stay the case pending
resolution of the motion to intervene, Doc. 224 (Attorney
General's Motion to Stay).
party seeks to intervene-whether as of right or
otherwise-“the motion must be timely.” ACLU
of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1093
(8th Cir. 2011). Timeliness is “determined by
considering all the circumstances of the case, ”
Mille Lacs Band of Chippewa Indians v. Minnesota,
989 F.2d 994, 998 (8th Cir. 1993), including: (1) how far the
litigation has progressed at the time of the motion for
intervention; (2) the prospective intervenor's prior
knowledge of the pending action; (3) the reason for the delay
in seeking intervention; and (4) whether the delay in seeking
intervention may prejudice the existing parties, U.S.
Bank Nat'l Ass'n v. State Farm Fire & Cas.
Co., 765 F.3d 867, 869 (8th Cir. 2014).
undisputed that the Attorney General has known of this suit
since at least April 2017, when, on behalf of the State
Defendants, he removed the case from state court to federal
court. Doc. 1. Thereafter, the Attorney General actively
litigated this case for nearly two years as counsel for the
State Defendants. On April 21, 2017, the Attorney General
moved for dismissal of both State Defendants, and on February
26, 2019, he succeeded. The Attorney General was fully aware
that the dismissal would leave the MSPD Defendants-whom the
Attorney General had characterized as having legal interests
that “mirror those of the Plaintiffs”, Doc. 134,
p. 1-as the sole defendants in this case.
Attorney General wanted the State to have an active role in
opposing the Plaintiffs' claims and any settlement
between the Plaintiffs and the MSPD Defendants, he should not
have sought immediate dismissal of the State as a defendant.
See In re Living Hope Sw. Med. Servs., LLC,
No. 13-04055, 2014 WL 3368191, at *4 (W.D. Ark. July 10,
2014) (“If [defendant] believed that his interests
would be implicated in the proceeding such that he should be
allowed to litigate those interests, he should not have
agreed to be dismissed as a defendant.”),
aff'd, 598 Fed.Appx. 467 (8th Cir. 2015).
Further, given that the Attorney General knew from the outset
the nature of the relief sought and had previously expressed
concern that the MSPD Defendants did not share the
State's interests, he should have sought to intervene to
protect the State's interests, at the latest, right after
securing dismissal of the State Defendants in late February
2019. See Chamness v. Bowen, 722 F.3d
1110, 1121-22 (9th Cir. 2013) (affirming denial of
intervention as untimely when movant had two to four
weeks' prior notice of potential impairment and
litigation was near its end); R & G Mortg. Corp. v.
Fed. Home Loan Mortg. Corp., 584 F.3d 1, 8-9 (1st Cir.
2009) (affirming finding that two-and-a-half-month delay made
motion to intervene untimely, especially when parties had
reached a settlement).
extent that the Attorney General seeks to intervene in his
individual capacity, to protect interests unique to the
Attorney General and his office, the Attorney General was in
a position to move to intervene at an even earlier date-at
the outset of this case in 2017; following the Court's
denial of the motion to realign the MSPD Defendants with
Plaintiffs on April 17, 2018, Doc. 190; shortly after
dismissal of the State Defendants on February 26, 2019, Doc.
211; or following referral of the case to mediation on March
1, 2019, Doc. 213.
Attorney General did not, however, seek to intervene until a
day after the motion for entry of the consent judgment was
filed, on May 14, 2019. Doc. 222. The Attorney General argues
that he did not intervene sooner because he did not know
until he saw the proposed consent judgment that the parties
would enter into a settlement agreement that would be adverse
to the State and its Attorney General. But the relevant
question is when he would have been on notice that there was
a risk that his interests would not be adequately protected
by the MSPD Defendants. See Floyd v. City of New
York, 770 F.3d 1051, 1059 (2d Cir. 2014) (reasoning that
notice of potential resolution did not justify prior delay
when movant “should have known that [its]
‘interests might not be adequately
represented' far in advance of any indication that the
[parties] might settle the dispute” (citation
omitted)); see also Harris v. Pernsley, 113 F.R.D.
615, 619-20 (E.D. Pa. 1986) (finding that “the [DA] was
not entitled to wait for ‘official notice' of a
proposed settlement to attempt to intervene” but
rather, “was required to move to intervene as soon as
he knew or should have known that his interests were no
longer adequately protected”), aff'd, 820
F.2d 592 (3d Cir. 1987).
if the Attorney General felt that he was entitled to a seat
at the table during mediation in order to protect his
interests or the interests of the State generally, he was at
liberty to move to intervene shortly after the Court ordered
the parties to proceed to mediation on March 1, 2019. Doc.
213. See Sokaogon Chippewa Cmty. v. Babbitt, 214
F.3d 941, 948 (7th Cir. 2000) (“[I]f [the movant] was
concerned about settlement negotiations not taking its
interests into account, it should have moved to intervene at
such a time when it would have been able to participate in
short, given the Attorney General's knowledge of the case
for a “significant period of time, ” prior
involvement in mediation and resultant familiarity with the
relief sought by Plaintiffs, and early concern (dating back
to January 2018) that its interests may not adequately be
represented by the MSPD Defendants, the Attorney
General's delay in seeking to intervene is unjustified.
See In re Wholesale Grocery Prods. Antitrust Litig.,
849 F.3d 761, 767 (8th Cir. 2017) (noting that would-be
intervenor's knowledge of the litigation “often
weighs heavily in cases where the would-be intervenor was
aware of the litigation for a significant period of time
before attempting to intervene”); Arrow v.
Gambler's Supply, Inc., 55 F.3d 407, 409 (8th Cir.
1995) (affirming denial of motion to intervene as untimely
when movant “monitored [the] suit . . . for nearly two
years and then moved to join the litigation when the parties
reached a settlement agreement one month before the trial
the parties would be prejudiced by the Attorney General's
late intervention in this case. The parties have engaged in
extensive written discovery, conducted more than fifteen
depositions, disclosed three experts along with their written
reports, engaged in time-consuming settlement discussions,
and ultimately, through the MAP, reached an agreement that is
satisfactory to each party. The parties have invested
significant work to avoid the uncertainties of trial. To
permit the Attorney General to enter the case as a party at
this late juncture would be a substantial burden on the
parties that did their work in a timely fashion as ordered by
the Court. See U.S. Bank Nat. Ass'n, 765 F.3d at
870 (concluding “[i]t was reasonable for the [district]
court to think the parties could be prejudiced by having to
cover the same ground again”); R & G Mortg.
Corp., 584 F.3d at 9 (reasoning that when
“proposed intervention [is] aimed at ...