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Dalton v. Barrett

United States District Court, W.D. Missouri, Central Division

July 12, 2019

Randall Lee DALTON, et al., Plaintiffs,
Michael BARRETT, et al., Defendants.



         The 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.

         I. Background

         On 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.

         On 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 Appeal).

         While 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.

         After 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 appeal.

         On 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.

         On 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.

         On May 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.

         On May 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).

         II. Discussion

         A. Timeliness

         When a 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).

         It is 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.

         If the 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.[1] 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).

         To the 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.

         The 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).

         Further, 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 them.”).

         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 date”).

         Moreover, 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 ‚Äúproposed intervention [is] aimed at ...

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