DEMARCO et al v. AVALON COMMUNITIES, INC. et al, No. 2:2015cv00628 - Document 117 (D.N.J. 2016)

Court Description: OPINION. Signed by Magistrate Judge Joseph A. Dickson on 10/12/16. (cm )

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DEMARCO et al v. AVALON COMMUNITIES, INC. et al Doc. 117 NOT FOR PUBLICATION UNIT~ STATES DISTRICT COURT DISTRICT OF NEW JERSEY ALESSANDRO DEMARCO et lil., Plaintiffs, Civil Action No. 15-628 kJLL) (J1'.D) , . v. AVALONBAY COMMUNITIES, INC., ABC CORPORATIONS 1-10, and JOHN DOES 1-10, ' . QPINIONi Defendants. ~--------------------------------------------------------------------1'-------------------------- JOSEPH A. DICKSON, U.S.M.J. ; , , . I , ' This matter comes before th~ Court upon Proposed Intervenots' Motion ~o Intervene i):i this action pursuant to Federal Rule of Civil Procedure 24(a)or, in the alternative, ~ursuant toiFtderal Rule of Civil Procedure 24(b). Pursuant to Rule 78 ofthe Federal:Rules of Qivil Procedure, no I ' ' i , ' ' oral argument was heard. Upon qareful consideration of the parties' submiSsions, and f~r .the ' . , : reasons stated below, the Proposedlintervenors' Motion is DENIED. To address other issues raised by the Proposed Ititervenors, however, t~y may file ~brief as Amicus Curiae in the pending "µnopposed Motion for Preliminary Appro~l of Class Action i Settlement" within ten days of the I. ~pinion ' and Order. BACKGROUND. A fire occurred at Avalonijay Conununity Inc. 's ("Avalonbay") apartment community, Avalon at Edgewater ("Avalon"), on January 21, 2015. (Am. Compl., ECF Nq. 26, ii 1). A¥alon ; ; ~ I was comprised of two adjacent apartment buildings: the Russell chmplex, wlich bumell ' t and the River Mews complex, which remained intact following the fire. (Id. : ' ~own, i at!~il 2, 3). Dockets.Justia.com i ! l a. The DeMarco f\ction On January 29, 2015, Plai~tiffs Alessandro DeMarco and ~.manda B~yer, husband and wife, brought a putative class action Complaint against A valonBay f'on behalfjof themselv~ and all other similarly situated tenants $nd residents that were displacedJor otherwUe impacted ~y the January 21, 2015 fire", in order to,"recover ... all property <lama~[] and forfreimbursdm~nt of ' i individual losses sustained by Plaintiffs, as a result of Defendant's conduct." (Compl., - ~ ecF No. 1, iii! 1, 2). 1 On March 17, 2015, the Ho(lorable Jose L. Linares, U.S.D.J. consolid~ this maitef With : ; ~ .! Digna Gutierrez v. AvalonBay Communities Inc., et al., Civil Action!No. 15-cv·~ 069 (JLL) qAD), •, and Robert Loposky v. AvalonBay Communities Inc., et al., Civil Action No .. 15-cv-1353 (JLL) (JAD) (collectively "the DeMarco action"). (ECF No. 18). On May 22, 2015, ~valonBay fJ.led a I Motion to Consolidate the consolidated DeMarco action with the ~ recent!~ remove~ i f f , . abtion, 1 f t Voronov v. AvalonBay Communities, Inc., Civil Action No. 15-cv-i740 (JLL)j(JAD). (!Cf No. 25). On June 8, 2015, the Plaill.tiffs in the DeMarco action fil~d a Motion to Certify Class ; j j : ; t ' pursuant to Federal Rule of Civil Procedure 23. (ECF No. 28). On J"(lne 12, 201!5, this CoQ.rttioted > that Plaintiffs' application was p~emature ' : " and terminated PlaintitEs• MotioJ to Certify ,: ~lass without prejudice to Plaintiffs' right to re-file their application at a tr¥lre appropriate time and with leave of Court. (ECF No. 32). Following an in-person status cqnference 'tith the C0uitt, ,the , f Yoronov action was consolidated ftith the DeMarco action and thd parties f • l I , a~eed that Pla~tiffs ' . . ,, r t v -j ' " would move for class certification with respect to both the Russell lhaintiffs add the Riv¢r ¥ews Plaintiffs. (See ECF No. 58). The parties further stipulated to condlllct discovety in connection to . f ; ; ; l ' class certification issues. Id. This ~ourt then set a briefing schedule: with regard to the M~ti~n for 2 Class Certification, which set the date for re-filing of the fully briefet! motion for January 22 2016. f ' . (ECF No. 61). b. The State Couft Action r j t Pending in the Superior Court of New Jersey, Law Di'ision, Bergen County, ds the consolidated matter Jacobo v. Avplon Bay, bearing docket number BER-L-W83-15 (the ''State . . Court Action"). The State Court Attion "is comprised of twenty ind~vidual law$uits filed ~n behalf . ; ' f ' i i ' 1 of fifty-three apartments in the Russell Building against· ... Avalon~ay ... and several iridi}'idual AvalonBay employees whose conduct" caused the fire at issue. (ECF No. 1011, at 1). Pl~ntiffs ' in the State Court Action allege the January 21, 2015 fire was cauS<!d by AvalonBay's rtegligent . : ' : / i i ; ; t ~ ; ' ~ ; • ' ' ' construction and maintenance of A,'valon. (See Epstein Cert., Ex. A,!ECF No. tp2-3). Th~ Epstein Law Firm, P.A., are attorneys fo~ forty-seven of the fifty-three apartments 'n the State ~ourt ~ ! Action, and are designated lead co•nsel. Id. c. Motions to Intervene On November 10, 2015, The Epstein Law Firm, P.A., filed a Motion to ~tervene dn l>ehalf ! ~ ! of the plaintiffs in the State Coufi Action ("Proposed Intervenotis") "for t~ sole PUfP1se of addressing plaintiffs' Motion for Glass Certification." (ECF No. 61-6-, at 4). bn June 14, hot6, this Court denied the motion as moot because the parties reached a settlement.t(ECF No. 99). On ' ; ~ r ' 1 i July 8, 2016, after three settlementtconferences with this Court, the Plaintiffs ~led an Unbppqsed ' ' . Motion for Preliminary Approval <)f Class Action Settl~ent. (ECif No. 100).!0n July "t E ~ l n, !2016, " " i the State Court Plaintiffs filed the instant Motion to Intervene. (RCF No. 102). The Proposed Intervenors move to intervene to "s~feguard their interests and the interests of other former R~ssell ' . . ; Building leaseholders and occuparl.ts who have elected. to forego 3 ' r. t~e l>utativd Class Actio~ and I I ensuring that this Court considers the existence, true n~ure, scope, land signiacance on I t fud State ' Court Action" in connection with tpe proposed settlement. (ECF 102-1, at 5). II. LEGALSTANDA)ID Rule 24 of the Federal Rules of Civil Procedure g,bvems motions to imeiivene. ( ! Intervention can be granted as of fight under Rule 24(a)(2), or pepnissively knder Rule ~4(b). I Subsection (a)(2) provides in part: (a) On timely motion, the cburt must permit anyone to inte~ene who: (2) claims an interest re~ting to the property or transactidn that is th' subject of the action, and is so situated that disposing of the acti~n may as la practical matter impair or impede the movant's ability to protect its inteiiest, unless l existing parties adequately represent that interest. Fed. R. Civ. P. 24 (a)(2). Rule 24 allows for "an absentee [to] be joined so that he may protect hi~ interest irhich as > ' a practical matter may be substantially impaired by the disposition of the actionJ.]" Fed. : ' Ri. ~iv. P. 24, Advisory Committee Notes, 1966. Pursuant to Rule 24(a)(2), to intervene as a matter ofright, the proposed intervenor must demonstrate: "(l) the application for intervention is timely; (f) the i 1 : I applicant has a sufficient interest in the litigation; (3) the interest maybe affected by the digpoSition , f ' of the action; and (4) the interest is not adequately represented by an existing party r tP 'the litigation." In re Cmty. Bank of Ni Va. & Guar. Nat'l Bank of Tallahassee Second Mortg.:Loan !': f Litig., 418 F.3d 277, 315 (3d Cir.i2005), 418 F.3d 277, 315 (3d Cir. 2005) (quoting H:attris v. Pemsley, 820 F.2d 592, (3d Cir. 19$7)). The Proposed Intervenors bJarthe bur~ of proving t$ch f > ' ' element "and failure to prove any one of the criteria is sufficient $founds to tleny the mohon." Worthington v. Bayer Healthcare LLC, No. 11-2793 (ES) (CLW), 2011 W1L 6303999, ~t *2 f (D.N.J. Dec. 15, 2011). 4 I I i ~ ; ' : ; . ; If the court finds that the movant did not establish intervention as of rjght, the applicant may move for permissive intervention pursuant to Federal Rule of Civil Proc~ure 24(b). Under Fed. R. Civ. P. 24(b), "[ o]n a timely motion, the court may permit $.nyone to ibtervene who: (A) ; ~ t ~ ~ :; is given a conditional right to interJene by federal statute; or (B) has la claim or .efense that $ares 1 ; ' with the main action a common question of law or fact." Fed. R. Civ. P. 24(b). "Pennfssive . . intervention has universally been left to the sound discretion of the district court." Cont'l Cai Co. . I v. SSM Group, Inc., 1995 WL 422780, at *5 (E.D. Pa. July 13, 19,95) (citingiNational Wildlife ' i ; ( ' ! 1 ' Fed'n v. Rucklehaus, 99 F.R.D. 558 (D.N.J. 1983)). "In exercisingiits discretibn, the cohrt1must ' consider whether the intervention will unduly delay or prejudice th¢ adjudication of the 'original r >. parties' rights." Fed. R. Civ. P. 24(b)(3). Moreover, "[t]he Court is not undeii' any obligatbn to ' ' , ; t permit intervention simply becausct there are questions of law or f4ct in common." Nichoja$ v. '. \ Saul Stone & Co. LLC, No. 97-860 (AET), 1997 U.S. Dist. LEXIS ~3821, at *i9 (D.N.J. 04t. 11, : ,, 1997) (citing Wolfv. Procter & Gamble Co., 555 F. Supp. 613, 627{D.N.J. 1982)). III. DISCUSSION . : ~ . I ~ For the reasons stated below, this Court finds that the Proptjsed Intervqnors have:nqt met ' ; ' " ; their burden of demonstrating thft they are entitled to intervenfion as a ipatter of ~~t or permissively. a. Intervention asiof Right t ! t The Proposed Intervenors argue that they are entitled to interi.rene as ofiti,ght under Fctderal Rule of Civil Procedure 24(a)(2) because their applicati(m satisfies the require• standard, ''irhich . ' is 'liberally construed in favor of'intervention."' (ECF No. 102-l, at 6) (qqoting N.L.RJB. v. Frazier, 144 F.R.D. 650, 655 (D.N.J. 1992)). 5 i. Timeliness ~ i ; i ; ~ ' ~ < t ~ Timeliness for purposes of '1 motion to intervene· is determi~d by the cburt in an ex~rcise t of its sound discretion and "is not j~st a function of counting days; [tather] it is !determinetl by the totality of the circumstances." United States v. Alcan Aluminum, Ing., 25 F.3d t174, 1181 (3d Cir. l t : '. ' f ·: 1994). While the progression of thq case is one factor tolconsider, itjis not disp4>sitive. N<f'l f..§s'n ' l ! k fpr Advancement of Colored Peopfo v. New York, 413 U.S. 345, 3(')6 (1973). Notably, ''.wtiete a ; 1 party takes reasonable steps to prQtect its interest, its application ~hould ~ : ! ' not 1fail on timeliness grounds." Alcan Aluminum, 25 F .3d at 1182. In considering whether a mot~n to intetv¢ne is I ~ t ' ! timely, courts typically consider: "Cl) the stage of the prdceeding; (2) the preju<$ce that delaj may ; ! : t ; • : : : 1 cause the parties; and (3) the reasJ:m for the delay." Princeton Bi+chemicalsi Inc. v. ~e#an t ~ j Coulter, Inc., 223 F.R.D. 326, 328j(D.N.J. 2004) (quoting Mountajn Top cori<Io. Ass'n \r. pave Stabbert Master Builder, Inc., 72 F3d 361, 369 (3d Cir.1995)). ~ ' ~ t The DeMarco Plaintiffs and Defendants ("the Parties") arghe that thel instant M'.ot~n to Intervene is untimely. (ECF No. 10!7, at 4-5). First, the Parties argue~hat the Pntposed Intervbrtors ! ; had multiple opportunities to partiqipate in the settlement proceedings, but cho~e not to do ~- Id. Thus, the Parties believe that because the Proposed Intervenors did not taktt advantage C)f the ~ ' chance to be involved in the settl~ment : . i ~ ( : : . discussions, a request to /participatel now is uhtiµiely. f l Second, the Parties argue "discov~ry was well-advanced in this itiatter befdre settlemlen~ was achieved." Id. at 5. Case law cited: by the Proposed Intervenors an~ the Parties supports t~at an advanced stage of discovery in a civil action may cause a motion to dntervene tp be untimely. See 0¥ 23, 2007) (motion to intervene timely where "[ d]iscovery has not yet clmenced, nor has therJ ~en Ip re Flash Memory Antitrust Litig., No. 07-0086, 2001WL3119d12, at *1 cN.D. Cal. J > , an initial case management confetence"); SEC v. Mutuals.com, Inc., No. OS-2912, 2004 WL 6 f '. ) ! t· 1629929, at *1 (N.D. Tex. July 20; 2004) (where motion to interve*e was file41 before d•scf>very ' commenced, the action was not "pending long enough so that the gbvemment"s intervention will prejudice the parties"). The Proposed Intervenors argue that their application is dmely becaUse they ~sdek to ! l ( participate in the Unopposed Moti0n for Preliminary Approval of th~ Class Action Settlemeit and ; ) f any subsequent proceedings concerning the proposed settlement ... [and] [g]iJen the limitep and ' ' specific purpose of the requested intervention, the fact that plaintiffs filed their motion [] ~riday ' : i , ~ July 8, 2016 and it is still pending, and that no party will be prejudicedl by the r~q~ested > ! 1 intervention, the instant motion" is(timely. (ECF No. 102-1, at 6-7). The Court agrees that the motion was timely considering th~ limited arid specific ptlrpose i ' of the requested intervention. The :Proposed Intervenors acted prorhptly after the Plaintiff~ filed i ~ their "Unopposed Motion for Preliminary Approval of the Class ,i\ction Settlbnent". (ECf No. 100). ii. Sufficient Iiterest in the Underlying Action ' f ' ; Proposed Intervenors' application also demonstrated a "sigrlificantly pfotectable'; itjte:rest ; : ! ' ' in the underlying action. Proposed lntervenors have a suki.cient inter~st in a civil action oniy ~here ' ' ' 1 ' the interest is "significantly protedable." Donaldson v. United Statb, 400 U.S. 517, 53 l d971). The Third Circuit has held that an Interest is sufficient to intervene as of right where it is "a legal ' l ' : } < ; t interest as distinguished from int~rests of a general and indefinite characttJ." Moun!ait Top , Condo, 72 F.3d at 366 (3d Cir. tp95) (quoting Harris.v. Pemsley., 820 F.2d{592, 601 < '. ' t ;(3~ Cir. c ; i 1987)). But it is also important to note that an economic interest in the outcomJ of the litigation is ' insufficient to support a motion to,intervene. See Alcan Aluminurri, 25 F.3d mere fact that a lawsuit may impe~e a third party's ability to ; 7 * ' ' 1185. "'Ollis, the ' recov~r in a sepakate suit otdiharily j : !' tl does not give the third party a right to intervene." Mout;i.tain Top Cpngo, 72 F;3d at 366 (3~ Cir. ' , 1995). I t The Proposed Intervenors (argue they have an interest in fparticipatitg in the pehding ''Unopposed Motion for Preliminatly Approval of the Class Action Settlement'i because thet ''are potential members of the proposed settlement class, and are, thu$, subject t+ the terms qf the proposed settlement." (ECF No. 102-1, at 8). The Parties argue that t~e Propose~ Intervenor~"true , ' t i ' > ,: " 1 interest is in safeguarding their int~rests in their separate cases" an4 is not sufficient to iitetvene ~ here. (ECF No. 107, at 6). Whether or not the Parties arc correct as to the true motives of the Proposed Intetv~nors, ' '.· i t i they have demonstrated that they ihave a specific intetest in the underlying \action. ' : , ~ f I~roposed f ! ' Iptervenors are members of the proposed class. Furthermore, if the Ptoposed In~rvenors declde to I participate and object to the class action settlement agreement, they would belbound to th~ final settlement agreement. iii. Impairment of the Interest ' t . I When determining wheth~r there is an impairment, "oourts look to the 'pr*tical . . consequences' of denying intervenhon." Forest Cty. Potawatomi Ctpty. v. United States, Nb. 15105, 2016 WL 1465324, at *3 (D.b.c. Apr. 14, 2016). ''The Third ~ircuit ins*1-ucts that, "[p]nce . I , ' . an applicant for intervention has e~tablished that he or she possesstis a suffici~t legal iQt:etfest in , ' '' : . i ~ '. ~ ' the underlying dispute, the applicant must also show that this claim ~sin jeopaitiy in the la'4tiit." ; ; ' Little-King v. Hayt Hayt & Landau, No. 11-5621 (MAH), 2013 U~S. Dist. LEXIS 129581, *59 (D.N.J. Sept. 10, 2013) (quoting, IJiberty Mut. Ins. Co. v. Treesdalg, Inc., 419iF.3d i t ' 216,2~{3d : •• l Cir. 2005)). "The applicant must demonstrate that there is a tangib11 threat to allegally cogn1zable interest to have the right to intervene." Harris, 820 F.2d at 601 (3d <±ir. 1987). ; . ; 8 ' . In Little-King, a class ac:fion matter, objectors brought a motion to i intervene! after preliminary approval of the settleJent agreement, inter alia, to "[p]reserve thJir rights . ' ob ~ehalf ' of themselves and other class members to pursue claims for violations of the Fair Debt Coll¢ction Act ("FDCP A") against the Defendants which have not been asserted by the cl$s represetit'1tives, ~ / ! : ' + but which may be released by th~ proposed settlement." Id. at *SS. 1 The dourt held ·th~t'the i objector's arguments were without merit. "Although: approval of the sett1lement i af~cls the Objectors, the Courts decision regarding the intervention motion will not fin~ly dispose df any right or claim that they might havddifferently than if they were all~ed to int4fVene." Id. J•60. i i (citing Marino v. Ortiz, 484 U.S. 484 (1988)). The Little-King ' Cou~ went fu+er and fem+ that i the objector's claims were "fully preserved" without intervention. Jd. at *59.i Finally, the!court . noted that "the Supreme Court has held that the right to appeal is not restricted ~o named parpes to ; 1 j the litigation." Id. at *60. (citing Qevlin v. Scardelletti, 536 U.S. l, ; 7 (2002)}. "Unnamedf class ! l ~ members who are parties may apphl the approval of a settlement.'~ Id. at. *6tj. (citing i'Jaqno v. I !; j ' • 1 .~ I ~ ·~ Ortiz, 484 U.S. 484 (1988)), thus, ihiplicating another ldvel of protehtion. The Proposed Intervenors argue that the proposed settlement will ilmpair their tights ' \. ,( ' because the "Unopposed Motion f<t Preliminary Approval of the Cl.ss Action $ettlementl' ~ould, ~ } : ! . l f ~ f inter alia, require them to "releas~ all claims that relate to the sub~ect matterrof this lit1g'*i6n." i (ECF No. 111, at 10). They further argue that the parties' reliance! on Little-rpng is unavailing. Id. Proposed Intervenors argue, "['1]nlike the objectors in Little-Kipg, the Propcsed Interv¢nors' 1 ~led ·Unlike the matter at hand, the objectors a motion to intervene after the couft granted prJiminary cerlifi4ation of the class and approval of the settlement Id. at *4. "[T]he parties provided noti4e of the actiqo and settleltleqt to potential class members, informing them Of their rights to be part of the class, to J>e excluded ffom the class, Of tO object. The Court received four objections and a motion to intervene by three of the Objectors.1 .. "Id. at *4. Here, the motion for intervention is brought during the pendency of the motion for prel'1tinary apprdval of the settlei.ment. The Proposed Intervenors have two oppotJunities to argue their positions. The fir$t opportuni~ is through theif attorney, when they file an amicus curiae brief in the pending proceeding. The se,ond opportlituty is if settlenteQt is finally approved. ! · 9 ,l . . interests are in direct conflict witn those of class counsel, the named class ~embers, and iother . . class members whose harms and losses are presumably fully address¢d by the ptoposed settl~ment ' . and can be resolved through particiJmtion in the proposed claims pr~cess." Id. First, nowhere is this confli~t explained. The implication is d1at class co~nsel and th~ class members are not interested in maximizing the settlement. This implication has 'no factual basis in the record. But more importantly,; the Proposed Intervenors have \the same ~hoices that ~very - l i . : ' ; t putative class member has to consil!ler. The Stipulation to Class Act~on Settlerrtent and the ijotice '. State that the class members have the option of either participating, bbjecting : or opting-oµt pf the Class Action Settlement. (ECF No. 101-1, at 27-31, ECF No. 101-2,:at 1). As it\ Little-Killg,~ifthe Proposed Intervenors object to the Class Action Settlement Agreement, they will have an f } ' opportunity to prepare a written o&jection and be heard at the final approval ~earing. (~CF No. l ' 101-1, at 29-30, ECF No. 101-2, :at 10). In other words, Proposed Interven~rs' rights ale not . ' . impaired as they have all the rights of all class members. Their rights are no different and np less l than all other class members. As . ~ matter of fact, they have an adqitional option. The fyoposed . . i ; : i f ' :' ; Intervenors may choose to opt out:of the Class Action Settlement and procee4 with the pepding suit in State court. In that regard, it can be argued that they are more protected than all othet class members. The Proposed Intervenors have failed to demonstrate that, if they are prevented' from intervening, their claims will be i:rnpaired. iv. Adequate Jt:presentation , ' I The burden "is on the appliciant for intervention to show that 1:Hs interestsiare not adeql'iately represented by the existing parties!' Hoots v. Pennsylvania, 672 F.2d 1133, 1~35 (3d Cir. 1982). ' ; " ''To overcome the presumption of adequate representation, the propo$ed interve.or must otdibarily demonstrate adversity of interest, qollusion, or nonfeasance on the part of a pJrty to the su4t." In 10 re Cmty. Bank of N. Va. & Guar. Nat'l Bank of Tallahassee Second;Mortg. Lo~ Litig., 41 SF.3d 277, 315 (3d Cir. 2005). , The Proposed Intervenors argue that their interests are not ~dequately tepresenteCi tiy the Putative Class Action litigants. (ECF No. 102-1, at 8). They argue that the "J!'laintiffs and their counsel are ostensibly seeking to Settle the claims of the proposed ~lass as a 1vhole where•s the t proposed intervenors ... are seeki:nB to maximize the recovery of eafh and everly individual pased on their respective claims." (Id. at B-9). The Proposed Intervenors also argue that they cannot be adequately represented because they "seek to recover damages beyQnd those a¢counted for in the proposed settlement, including, inter alia, emotional distress da.1,nages, futJ loss of prdperty :_ l ~ ; interests, full displacement costs, full attorneys' fees. treble da.nlages undtt the New Jersey i Consumer Fraud Act, breach of cdntract and punitive damages baSed on reckless or willftU and Wanton conduct." (Id. at 9). The Parties argue that the 'Proposed Intervenors "ca1mot dvercome tle presmnptibn of . ' ~ adequate representation." (ECF No: 107, at 7). They assert that because both th~ Plaintiffs J.d'the ; • ; f Proposed Intervenors "assert the same type of economic injury claims in their r¢;pective lawsuits" the Proposed Intervenors' interests;are adequately represented. Id. This Court finds that because the existing Plaintiffs are seekidg to maxinlize their e<:o1fomic > ( ' t . recovery in the same way as the potential intervenors, there is no adversity of tnterest. Ahyrparty who is concerned about maintaining claims beyond those in this case, like the personal injury claims in the State court, may choose to opt-out of' the settlement. Indee~, these Proposed Intervenors have already initiated their own lawsuits. The existing piµties adeqUately represtlltthe applicants' interests. 2 The Proposed Intervenors' argument that they seek to "maximize the recovery df each and e~ry individual based on their respective claims" is an argumenrl usually advanced by defendants in cla$ action suitsiseeking to defe!at. 2 11 r l b. Permissive Intervention - ' . Under Federal Rule of Civil Procedure 24(b), the court maY, grant permissive leave ;if the intervenor (1) acts timely and (2) shares a claim or defense to that qf the case. jFed. R. Civ. [P. 24 . l ' ; (b). It is within the court's discr¢tion to grant permissive intervelntion. Brofy By & ±N"ough l ' f ' Sugzdinis v. Spang, 957 F.2d 1108, 1124 (3d Cir. 1992). The Third Circuii has held; tbkt "if intervention as of right is not available, the same reasoning would indicate that!it would riot be an abuse of discretion to deny permisSive intervention as well." Id. This Court finds that interv•ntion is not appropriate here. Th~ applicaticin to intel"Ven~ was . t timely and the applicants' claims a.rlse from the same nucleus of oper~tive fact aS Plaintiff's daiins. However, intervention is unnecessary, for all the reasons set forth above. c. Notice to Propgsed Intervenors In its reply, Counsel for Prdposed Intervenors argued that faflure to int~ene at t:tiislsfilge f would "allow the parties to circuntvent the rules of prQfessional cbnduct by providing ald legal notices to the Proposed Intervenor$ directly as opposed to providing the notice to their attorneys as their designated representatives/' (ECF No. 111, at 10). This is?not a reas4n for intervention . ! f ~ ; • ~ ! ; and not the appropriate forum for this issue. I note that the notice linforms l j ; th~ Settlemetit lclass ' : . 1' members that they may respond thr~ugh counsel. (ECFNo. 101-2, at'.10). Finally, at oral a~ent, Counsel for Plaintiffs informed the'· Court that notice to the class members would be provi~d by , . ; I a claims administrator, not counsel;for the parties. (ECF·No. 116, at [21). In anylevent, this i~ue is ' ? ~ l one to be decided in connection with the Motion for Preliminaryl Approval !of the Settl#nt. . ·: ~ I Accordingly, the Proposed Intervetp.ors shall be permittetl to file an Junicus cutiae brief.. he~ tY}Jic~ity). certification because the Plaintiff cannot qieet the standards of Fed. . R. Civ. P. 23 commotjality and To individualize the claims would fly in t)le face of the purpose of~ class action. •ntervention.,n this basissetfves no legitimate purpose. , 12 . ' i i ! t IV. CONCLUSION. For the reasons set forth abo~e, the Proposed Intervenors' M~ion to Intetvene is DENIED. ~ . ' 1 Proposed Intervenors may file a brief as an Amicus Curiae in the perlding "Unopposed M<l>ti~n for Preliminary Approval of Class Action Settlement" within ten days of the Opinibn and Order. j . SOORDEREQ Cc: Honorable Jose L. Linares U.S.D.J. ., 13

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