ALD-142 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-4414
___________
THE ISLAMIC SOCIETY OF BASKING RIDGE;
MOHAMMAD ALI CHAUDRY
v.
TOWNSHIP OF BERNARDS; BERNARDS TOWNSHIP PLANNING BOARD;
BERNARDS TOWNSHIP COMMITTEE; BARBARA KLEINERT, in her official
capacity; JEFFREY PLAZA, in his official capacity; JIM BALDASSARE, in his official
capacity; JODI ALPER, in her official capacity; JOHN MALAY, in his official capacity;
KATHLEEN “KIPPY” PIEDICI, in her official capacity; LEON HARRIS, in his official
capacity; PAULA AXT, in her official capacity; RANDY SANTORO, in his official
capacity; RICH MOSCHELLO, in his official capacity; SCOTT ROSS, in his official
capacity; CAROL BIANCHI, in her official capacity; CAROLYN GAZIANO, in her
official capacity; THOMAS S. RUSSO, JR.; JOHN CARPENTER, in his official
capacity
*Michael S. Barth, Appellant
(*Pursuant to Rule 12(a), Fed. R. App. P.)
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3-16-cv-01369)
District Judge: Honorable Michael A. Shipp
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 23, 2017
Before: MCKEE, JORDAN and RESTREPO, Circuit Judges
(Opinion filed: March 8, 2017)
_________
OPINION*
_________
PER CURIAM
Michael S. Barth, proceeding pro se, appeals from an order of the United States
District Court for the District of New Jersey denying his motion to intervene in an action
filed by the Islamic Society of Basking Ridge and Mohammad Ali Chaudry (collectively,
“Plaintiffs”) against Bernard Township and entities and individuals associated with the
Township (collectively, “Township”). Because the appeal does not present a substantial
question, we will grant the Plaintiffs’ motion to summarily affirm the order of the District
Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
In March 2016, the Plaintiffs filed an action alleging that the Township violated
federal and state laws in connection with the denial of an application to build a mosque.
According to the Plaintiffs, Barth, as a member of the public, objected to the mosque
application at numerous hearings. Although Barth was not named as a defendant, the
Plaintiffs served him with a subpoena, seeking documents related to his participation in
the application process. In response, Barth, citing Rule 24 of the Federal Rules of Civil
Procedure, filed a motion to intervene for the “limited purpose” of filing “a motion to
dismiss Plaintiffs’ complaint as lacking standing under” the Religious Land Use and
Institutionalized Persons Act (RLUIPA). While Barth’s motion to intervene was
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pending, the Plaintiffs withdrew the subpoena. The District Court denied intervention as
of right and permissive intervention, holding that Barth failed to establish (1) a sufficient
interest in the litigation, (2) that his interests were not adequately represented by the
Township, and (3) that his claim that shared a common question of law or fact with the
main action. Barth appealed.1
We have jurisdiction under 28 U.S.C. § 1291. See Carlough v. Amchem Prods.,
Inc., 5 F.3d 707, 712 (3d Cir. 1993) (“There is no doubt that an outsider denied
intervention claimed to be of right may take an immediate appeal. Such a proposed
intervenor’s future involvement in the lawsuit . . . is foreclosed entirely by the denial of
intervention, and the order of denial thus has the requisite finality for appellate review.”)
(citation omitted). “This Court reviews a district court’s denial of permissive
intervention and intervention of right for abuse of discretion but applies a more stringent
standard to denials of intervention of right.” Benjamin ex rel. Yock v. Dep’t of Pub.
Welfare of Pa., 701 F.3d 938, 947 (3d Cir. 2012) (internal quotation marks omitted).
Under this more stringent standard, we will not disturb a District Court’s decision unless
that court “applied an improper legal standard” or reached a decision that we are
“confident is incorrect.” In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 349 n.26 (3d
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
We note that the District Court has granted the Plaintiffs’ motion for partial judgment
on the pleadings. See Islamic Soc’y of Basking Ridge v. Twp. of Bernards, -- F. Supp.
3d --, 2016 WL 7496661 (D.N.J. Dec. 31, 2016).
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Cir. 2010) (quoting United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir.
1994)).
A litigant seeking to intervene pursuant to Rule 24(a)(2) must establish: “(1) a
timely application for leave to intervene, (2) a sufficient interest in the underlying
litigation, (3) a threat that the interest will be impaired or affected by the disposition of
the underlying action, and (4) that the existing parties to the action do not adequately
represent the prospective intervenor’s interests.” Liberty Mut. Ins. Co. v. Treesdale, Inc.,
419 F.3d 216, 220 (3d Cir. 2005) (citing Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969
(3d Cir. 1998)). Each requirement “must be met to intervene as of right.” Mountain Top
Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995)
(citation omitted).
Barth failed to demonstrate that his interest was sufficient to warrant intervention
as of right. Fed. R. Civ. P. 24(a). We have stated that “the legal interest asserted must be
a cognizable legal interest, and not simply an interest ‘of a general and indefinite
character.’” Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1116 (3d Cir. 1992)
(quoting Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987)). Barth’s interest in the
litigation was based on the subpoena that was served upon him. But that interest
disappeared when the Plaintiffs withdrew the subpoena. Barth asserted that his interest
remained valid because the Plaintiffs withdrew the subpoena “without prejudice.” We
agree with the District Court, however, that the Plaintiffs’ ability to serve Barth with
another subpoena in the future does not preserve his interest in the underlying litigation.
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See Ungar v. Arafat, 634 F.3d 46, 51-52 (1st Cir. 2011) (“An interest that is too
contingent or speculative – let alone an interest that is wholly nonexistent – cannot
furnish a basis for intervention as of right.”). To the extent that Barth, as a member of the
public, has a general interest in the litigation, his interests are adequately represented by
the Township, the “government entity charged by law with representing” him. Brody,
957 F.2d at 1123. Therefore, we conclude that the District Court did not abuse its
discretion in holding that Barth failed to meet the requirements for intervention as of
right.
We also agree with the District Court’s denial of Barth’s application for
permissive intervention. Fed. R. Civ. P. 24(b). Permissive intervention is available when
an applicant “has a claim or defense that shares with the main action a common question
of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). As noted above, we are “more reluctant to
intrude into the highly discretionary decision of whether to grant permissive
intervention.” Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 227 (3d Cir. 2005).
Barth’s now-extinguished interest in challenging the subpoena does not share any
questions of law or fact with the question whether the Township violated the Plaintiffs’
constitutional rights. Accordingly, we conclude that the record provides no basis upon
which to disturb the District Court’s determination that permissive intervention was not
warranted.
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For the foregoing reasons, no substantial question is presented, and we grant the
Plaintiffs’ motion to summarily affirm the District Court’s order. See 3d Cir. L.A.R 27.4;
I.O.P. 10.6.
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