NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-5066
JOHN R. SAND & GRAVEL COMPANY,
Plaintiff-Appellee,
v.
BRUNSWICK CORPORATION, DAIMLER CHRYSLER CORPORATION,
FOAMSEAL, INC., FORD MOTOR COMPANY, GENERAL MOTORS CORPORATION,
THE GLIDDEN COMPANY d/b/a ICI PAINTS,
JOHNSON CONTROLS, INC./UNIVERSAL DIE CAST,
LAPEER METAL PRODUCTS COMPANY, MERCURY PAINT COMPANY,
REICHHOLD, INC., SEIBERT-OXIDERMO, INC. n/k/a S.O. REALTY, INC.,
and UNITED TECHNOLOGIES CORPORATION FOR INMONT CORPORATION
n/k/a BASF CORPORATION,
Movants-Appellants,
v.
UNITED STATES,
Defendant.
__________________________
DECIDED: July 22, 2005
__________________________
Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.
NEWMAN, Circuit Judge.
The movants-appellants (collectively the "Metamora Group") have moved to
intervene in an action brought by John R. Sand & Gravel Company ("S&G") against the
United States for compensation for a taking that allegedly resulted from acts of members of
the Metamora Group. The Court of Federal Claims denied the motion to intervene, on the
ground that it was untimely filed.1 We affirm the denial.
OPINION
The Metamora Group is comprised of manufacturing industries that had contributed
waste to a landfill in Metamora Township, Michigan. The landfill was leased to and
operated by S&G. By Consent Decree following suit by the United States Environmental
Protection Agency, reported at United States v. BASF-Inmont Corp., 819 F. Supp. 601
(E.D. Mich. 1993), the Metamora Group agreed to clean up the landfill and to hold the
United States harmless from any claims arising from the cleanup. Various disputes
involving S&G arose, and on May 21, 2002 S&G filed suit against the United States in the
Court of Federal Claims. The United States notified the Metamora Group, stating that any
judgment against the United States would be passed on to the Metamora Group in
accordance with the Consent Decree. The United States duly answered the complaint,
filed reports in accordance with the Rules and orders of the Court of Federal Claims,
entered a scheduling order, and filed a motion for summary judgment on December 13,
2002, arguing that the relevant statute of limitations had expired. The court set June 6,
2003 as the deadline for the filing of dispositive motions, and set a trial date of March 23,
2004.
The Court of Federal Claims denied the government's motion for summary judgment
in substantial part on June 27, 2003. Proceedings were then stayed to October 17, 2003,
1 John R. Sand & Gravel Co. v. United States, 59 Fed. Cl. 645 (2003).
04-5066 2
for settlement negotiations in which S&G, the United States, and the Metamora Group
participated. No settlement was achieved, and the stay was lifted on October 22, 2003.
On October 24, 2003 the Metamora Group filed a motion to intervene as party defendants
(the motion was refiled on November 7, 2003). S&G opposed, stating that it would be
prejudiced by this tardy intervention. The Court of Federal Claims denied the motion, ruling
that the motion was not timely, and that the Metamora Group did not meet the requirements
for intervention either as of right or permissively.
Rule 24 of the Court of Federal Claims requires that application for either
intervention of right (Rule 24(a)) or permissive intervention (Rule 24(b)) must be timely
filed:
RCFC 24(a). Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action . . . when the applicant claims an interest
relating to the property or transaction which is the subject of the action and
the applicant is so situated that the disposition of the action may as a
practical matter impair or impede the applicant's ability to protect that interest,
unless the applicant's interest is adequately represented by existing parties.
RCFC 24(b). Permissive Intervention. Upon timely application anyone may
be permitted to intervene in an action...when an applicant's claim or defense
and the main action have a question of law or fact in common. In exercising
its discretion the court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties.
Timeliness in requesting intervention is "to be determined by the court in the exercise of its
sound discretion." NAACP v. New York, 413 U.S. 345, 366 (1973) (interpreting Fed. R.
Civ. P. 24); see Amer. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1560 & n.4 (Fed.
Cir. 1989) (relying on cases interpreting Fed. R. Civ. P. 24(a) to interpret RCFC 24(a)).
The Court of Federal Claims evaluated the timeliness of the Metamora Group's motion on
three factors drawn from precedent:
04-5066 3
(1) the length of time during which the would-be intervenors actually knew or
reasonably should have known of [their] rights . . . ;
(2) whether the prejudice to the rights of existing parties by allowing
intervention outweighs the prejudice to the would-be intervenors by denying
intervention;
(3) existence of unusual circumstances militating either for or against a
determination that the application is timely.
Belton Indus. v. United States, 6 F.3d 756, 762 (Fed. Cir. 1993) (quoting Sumitomo Metal
Indus. v. Babcock & Wilcox Co., 669 F.2d 703, 707 (CCPA 1982)). The Metamora Group
states that it delayed requesting formal intervention in the belief that the case was likely to
be resolved without coming to trial, either based on the statute of limitations, or by the
settlement discussions in which the Group participated. The Group states that its delay
conserved the resources of all concerned, including judicial resources, and was reasonable
under the circumstances.
The Court of Federal Claims reasoned that the Metamora Group was fully informed
of the compressed trial schedule set by the court, yet waited sixteen months after receiving
notice of the suit, before moving to intervene. By then the deadline for filing dispositive
motions had passed, the court had received and decided a summary judgment motion, the
parties had engaged in settlement negotiations, a scheduling order had issued, some
discovery had been taken, and only five months remained before trial. The court ruled that
the case had proceeded well beyond a preliminary stage, and that the request for
intervention was untimely. While we recognize the substantial interest of the Metamora
Group in this litigation, we conclude that the trial court's denial of intervention, for the
reasons given by the court, was within the permissible scope of the court's discretion. See
NAACP, 413 U.S. at 366.
04-5066 4
This affirmance is without prejudice to the application of the Metamora Group to
participate as amicus curiae in any appeal to this court of the decision on the merits in
Appeal No. 05-5033.
No costs.
04-5066 5