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Lewis v. First American Title Insurance Co.

August 5, 2010

DEBORAH LEWIS, PLAINTIFF,
v.
FIRST AMERICAN TITLE INSURANCE COMPANY, DEFENDANTS



The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge

REPORT AND RECOMMENDATION

Currently before the Court is Plaintiff's and Proposed Intervenors' Motion to Intervene (Docket No. 88). Therein, pursuant to Federal Rule of Civil Procedure 24, the proposed intervenors seek to be named as additional named plaintiffs on behalf of a potential subclass of Washington state residents. Having carefully reviewed the record and heard oral arguments of counsel for the parties,, the Court enters the following report and recommendation.

REPORT

Plaintiff Deborah Lewis and proposed interveners, Thomas and Carol Boucher ("Bouchers," or, collectively, "Plaintiffs"), request that the Bouchers be joined as additional named plaintiffs on behalf of a potential subclass of Washington state plaintiffs. Plaintiffs acknowledge that this is an attempt to expand the putative class beyond what was previously certified by the Court, that being, a sub-class of Idaho-only plaintiffs.

Previously. the Bouchers were named Plaintiffs representing a class of Washington state Plaintiffs in the United States District Court for the Eastern District of Michigan. That action was also brought against Defendant First American Title Company ("First American"). See Boucher v. First American Title Insurance Co., No. 2:07-cv-12123-GER-VEM (E.D. Mich). However, after the named Michigan plaintiff voluntarily dismissed his claims, First American moved to transfer that action to Washington state. On February 1, 2010, the Bouchers' case was transferred to the Western District of Washington. See Boucher v. First American Title Insurance Co., 2:10-cv-199 (W.D. Wash.). The pending Washington state case concerns the same September 2005 refinance transaction for which the Bouchers seek redress as named plaintiffs of a putative class here.

Plaintiffs characterize their motion to intervene as routine, noting specifically, "[t]here is no question that the... motion for intervention meets all the threshold requirements set by Rule 24." Memo. In Support of Motion, 6 (Docket No. 88-2). Plaintiffs further argue that intervention "is mandated because it would strengthen the representation of a larger overall plaintiff class and thereby promote increased fairness and judicial economy." Id. Finally, Plaintiffs reason it is an "inarguable conclusion" that the Boucher's intervention would cause "no prejudice or delay of adjudication relative to the rights of any present parities." Id. at 11.

Conversely, First American paints Plaintiffs arguments as inapposite. Specifically, it takes issue with the timeliness of the motion, which is being made over three years after this action was commenced by Lewis. First American argues that the Boucher's delay is unjustified, characterizing it further as "futile" and "forum shopping," considering the current action is pending in the District Court for the Western District of Washington. First American also argues that intervention "would frustrate judicial economy, prejudice First American, and Endorse the Bouchers' conduct." Beyond undue delay and prejudice, which represents the thrust of First American's response, it also argues that permitting intervention would be futile because this court already concluded that there are "materially different legal standards" between the laws of Idaho and Washington state. Finally, First American points to Plaintiff's failure to challenge this Court's March 2, 2009, Report and Recommendation, which specifically recommended denying certification of a sub-class of Washington residents.

DISCUSSION

A. Standard

Rule 24 provides two grounds for intervention in federal court: intervention as of right and permissive intervention. See Fed. R. Civ. P. 24. Rule 24(a)(2) governs applications for intervention as of right; Applicants do not aver that they qualify as intervenors as of right. Rather, Plaintiffs seek permissive intervention under Rule 24(b), which provides, in pertinent part:

(1) On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact....

(3) In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the ...


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