[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-11124 ELEVENTH CIRCUIT
April 4, 2008
________________________
D. C. Docket No. 03-03620-CV-JTC-1 THOMAS K. KAHN
CLERK
ANGEL FLIGHT OF GEORGIA, INC.,
Plaintiff-Appellee,
versus
ANGEL FLIGHT AMERICA, INC.,
Intervenor-Defendant,
ANGEL FLIGHT SOUTHEAST, INC.,
Defendant,
ANGEL FLIGHT MID-ATLANTIC,
ANGEL FLIGHT SOUTH CENTRAL,
Intervenors-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 4, 2008)
Before ANDERSON, BLACK and HILL, Circuit Judges.
PER CURIAM:
Intervenors-appellants Angel Flight Mid-Atlantic (AF Mid-Atlantic) and
Angel Flight South Central (AF South Central), members of the national Angel
Flight America network, appeal the denial of their motion to intervene and the
scope of the permanent injunction issued in companion case Angel Flight of
Georgia v. Angel Flight America, Case No. 07-11460, — F.3d — (11th Cir. 2008),
decided in a separate opinion issued today. The facts are recounted in detail in the
companion case; we need only recite the basics here.
In November 2003, Angel Flight of Georgia (AFGA), a private pilot
organization dedicated to transporting donated organs and needy patients to
hospitals around the country, sued Angel Flight America (AFA), a national
organization of volunteer pilots, and one of AFA’s members, Angel Flight
Southeast (AFSE). AFGA asserted claims for common law trademark
infringement and various related violations of state and federal law.
Throughout the trial court proceedings, certain members of AFA’s board
participated in depositions and produced documents during discovery. These AFA
board members also served as representatives of AFA member organizations AF
Mid-Atlantic and AF South Central. At no time before trial did AF Mid-Atlantic
or AF South Central move to intervene in the lawsuit.
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The case proceeded to trial, and following a five-day bench trial in June
2006, the court issued a verdict in favor of AFGA on all claims in November
2006. Then, on January 16, 2007, AF Mid-Atlantic and AF South Central moved
to intervene “for the special purpose of proposing an injunction that [would]
account[] for their interests and without conceding that the Court ha[d] personal
jurisdiction” over them. The district court denied the motion, ruling it was
untimely, coming seven months after trial and several years after the would-be
intervenors “kn[ew] (or should have known) about their interest in th[e] case. . . .”
Dist. Ct. Order dated Feb. 12, 2007, at 3. Despite the untimeliness of the motion,
the court permitted AF Mid-Atlantic and AF South Central to participate in the
injunction hearing as amici curiae.
After considering the arguments of the parties and the amici, the district
court issued a permanent injunction prohibiting AFA and its members (including
AF Mid-Atlantic and AF South Central) from using the Angel Flight mark in
Georgia, Alabama, Mississippi, Tennessee, North Carolina, or South Carolina for
the purpose of soliciting donations, advertising, promoting their services, or
recruiting volunteers.
The first (and dispositive) question presented by AF Mid-Atlantic and AF
South Central’s appeal is whether this Court has jurisdiction to hear their
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challenges, since they are not parties to the lawsuit. Under this Circuit’s
anomalous rule, when a would-be intervenor challenges a decision to deny
intervention under Fed. R. Civ. P. 24(a), this Court has jurisdiction to determine
whether the denial of intervention was proper. Davis v. Butts, 290 F.3d 1297,
1299 (11th Cir. 2002). If the denial was proper, “this court’s jurisdiction
evaporates and we must dismiss the appeal for want of jurisdiction.” F.T.C. v. Am.
Legal Distribs., Inc., 890 F.2d 363, 364 (11th Cir. 1989). However, if the district
court erred in denying the motion, this Court retains jurisdiction over the appeal.
Id.
In order for a party to intervene as a matter of right under Rule 24(a), it must
establish (1) the application to intervene is timely; (2) the party has an interest
relating to the property or transaction which is the subject of the action; (3) the
party is situated so that disposition of the action, as a practical matter, may impede
or impair its ability to protect that interest; and (4) the party’s interest is
represented inadequately by the existing parties to the suit. Davis, 290 F.3d at
1300. Before turning to other relevant factors, we must first determine whether
the motion was timely. NAACP v. New York, 413 U.S. 345, 365, 93 S. Ct. 2591,
2603 (1973) (“If [a motion to intervene] is untimely, intervention must be denied.
Thus, the court where the action is pending must first be satisfied as to
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timeliness.”). We review the denial of a motion to intervene under Rule 24(a) de
novo, Georgia v. United States Army Corps of Eng’rs, 302 F.3d 1242, 1249 (11th
Cir. 2002), but review a court’s decision regarding the timeliness of the motion for
abuse of discretion, Meek v. Metropolitan Dade County, Fla., 985 F.2d 1471, 1477
(11th Cir. 1993), abrogated on other grounds by Lance v. Coffman, — U.S. —,
127 S. Ct. 1194 (2007).1
When assessing the timeliness of a motion brought under Rule 24(a), a
district court must consider four factors, namely, (1) the length of time during
which the would-be intervenor knew or reasonably should have known of his
interest in the case before he petitioned for leave to intervene; (2) the extent of
prejudice to the existing parties as a result of the would-be intervenor’s failure to
apply as soon as he knew or reasonably should have known of his interest; (3) the
extent of prejudice to the would-be intervenor if his petition is denied; and (4) the
existence of unusual circumstances militating either for or against a determination
1
As the district court noted in its opinion, the brief of appellants-intervenors in support
of their motion to intervene discussed permissive intervention (governed by Fed. R. Civ. P.
24(b)), but cited Rule 24(a), which governs intervention by right. The district court treated the
motion as arising under Rule 24(a), and we will do the same. We note, however, that timeliness
is a factor in deciding whether to permit intervention under both Rule 24(a) and Rule 24(b);
therefore, to the extent appellant intended to move for intervention under Rule 24(b), the district
court’s analysis, and our review of it, would be the same. Cf. Meek, 985 F.2d at 1477 (“[O]ur
review of the district court’s determination of timeliness under both rule 24(a) and 24(b) is
conducted under the abuse of discretion standard.”).
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that the application is timely. United States v. Jefferson County, 720 F.2d 1511,
1516 (11th Cir. 1983).
Appellants contend their motion was timely because, although they were
aware of AFGA’s lawsuit against AFA and AFSE, they had no reason to suspect
their interests would be affected by the suit until after the trial judge ruled in
AFGA’s favor. Citing Stallworth v. Monsanto Co., 558 F.2d 257, 267 (5th Cir.
1977), they contend their motion should be considered timely because the
complexity of the case justified their delay in moving to intervene. Monsanto
involved a Title VII suit in which black employees of a large corporation alleged
their equal protection rights had been violated by the manner in which their
company made promotion decisions and executed layoffs. Id. at 260. After the
employees won their suit, white employees at the plant moved to intervene, having
discovered that the black employees’ remedy—a change in the companies’
promotional and layoff systems—led to the demotion and layoff of white
employees who would have had no reason to believe earlier that the lawsuit
affected their interests. Id. at 261-62. The difference between that case and this
one is clear.
In this case, AFGA sued AFSE and AFA over the use of the same Angel
Flight mark used by AF Mid-Atlantic and AF South Central. The district court
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found AF Mid-Atlantic and AF South Central were well aware of the proceedings
and officers of both organizations had participated in depositions throughout the
course of discovery, and had even testified at trial. For that reason, the court
found AF Mid-Atlantic and AF South Central knew or should have known their
interests in the suit well in advance of their motion to intervene. Moreover, the
court found the parties’ interests had been well-represented throughout the
proceedings by AFA, an organization of which both would-be intervenors were
members. The court concluded permitting intervention after summary judgment
and trial would prejudice AFGA unfairly, and found that no special circumstances
militated in favor of permitting the motion to intervene seven months after trial.
Weighing the relevant factors, the court held the motion was untimely and denied
it on that ground. The district court considered the proper factors and made a
reasoned decision. It did not abuse its discretion by denying the motion to
intervene.2
Moreover, the district court deserves credit for permitting the proposed
intervenors to participate as amici in the permanent injunction proceedings despite
2
Even if the motion had been timely, the district court noted properly that this Court’s
decision in In Re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233, 1248 (11th Cir. 2006),
suggests strongly that a party may not intervene for any purpose without conceding personal
jurisdiction. See also County Sec. Agency v. Ohio Dep’t of Commerce, 296 F.3d 477, 483 (6th
Cir. 2002) (“[A] motion to intervene is fundamentally incompatible with an objection to personal
jurisdiction.”).
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the untimeliness of their attempt to intervene. Having asked to intervene “for the
special purpose of proposing an injunction that [would] account[] for their
interests,” appellants were provided with the opportunity to do just that when the
district court permitted them to participate in the proceedings as amici. Having
received the substance of what they requested, appellants cannot reasonably
challenge the district court’s thoughtful response to their untimely request.
AFFIRMED.
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