Eastern Potato Dealers
Dibble Miller

Not overruled or negatively treated on appealinfoCoverage
United States Court of Appeals, Second CircuitFeb 4, 2010
363 Fed. Appx. 819 (2d Cir. 2010)

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No. 09-2846-cv.

February 4, 2010.

Appeal from the United States District Court for the Western District of New York (Telesca, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the April 21, 2009 order of the United States District Court for the Western District of New York REVERSED and the case is REMANDED.

Gerald F. Norton (Craig D. Chartier, on the brief), Dibble Miller, P.C., Rochester, NY, for Appellant.

Bruce Levinson (Gregory Brown, on the brief), Law Offices of Bruce Levinson, New York, NY, for Appellees.

Present: PIERRE N. LEVAL, RICHARD C. WESLEY, Circuit Judges, and JOHN GLEESON, District Judge.

The Honorable John Gleeson, United States District Court for the Eastern District of New York, sitting by designation.


Plaintiffs-appellees brought this action pursuant to the Perishable Agricultural Commodities Act of 1930 ("PACA"), 7 U.S.C. § 499a et seq. Non-party appellant Dibble Miller, P.C. ("appellant") appeals from a decision denying its motion to intervene pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. We presume the parties' familiarity with the underlying allegations, the procedural history of the case, and the issues on appeal.

The denial of a motion to intervene is reviewed for abuse of discretion. E.g., MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d 377, 389 (2d Cir. 2006). The district court held that appellant's September 5, 2008 motion was untimely. The record suggests, however, that appellant did not receive notice that it may have an interest in this litigation until the district court endorsed the parties' stipulated settlement on July 15, 2008.

The stipulated settlement was signed by the parties on July 2, 2008, a mere six days after this action was commenced. The settlement provided that defendant-appellee Thomas Case's interest in a state court litigation, Case v. Case, Livingston County Index No. 297-2003, would be used to pay Case's debts to plaintiffs-appellees and to non-parties David Shults and Barbara Finch, notwithstanding that Case's interest in the state litigation was subject to appellant's attorney charging lien. The stipulation purported to defeat appellant's charging lien by characterizing Case's entire interest in the state court litigation as PACA trust property, which would give plaintiffs-appellees, who alleged that they were PACA creditors, priority over appellant's lien. However, the stipulation provided that the majority of the funds received as Case's interest in the state court litigation were to be used to pay non-parties, whose interest in the funds appears to be unrelated to the PACA debt that is the subject of this action.

After receiving notice of the parties' stipulated settlement when the district court endorsed it on July 15, 2008, appellant sent a July 17, 2008 letter to the court regarding its objection to the terms of the stipulation. The court responded that it was "not authorized to issue advisory opinions" and that appellant was "not a party to the . . . action." Appellant then pursued a negotiated resolution of its objection with the parties for several weeks. When it became clear that it would not get satisfaction by negotiation, appellant filed a motion to intervene in this action on September 5, 2008, to contest whether the funds referenced in the stipulation could be properly characterized as PACA funds, and whether the stipulation could be used to defeat its attorney charging lien. Based on this sequence of events, we find any prejudice to appellees that would result from permitting appellant to intervene to be wholly unpersuasive as a basis for denying the motion.

The wiser course would have been for appellant to immediately seek to intervene in the district court when it received notice of the stipulated settlement. However, no party was prejudiced by its failure to do so because a copy of appellant's July 17, 2008 letter to the district court was mailed to counsel for all parties, and appellant immediately undertook negotiations with the parties in an attempt to protect its interests.

Moreover, on August 26, 2008 — prior to appellant's motion to intervene, and while appellant was still negotiating with the parties — the district court wrote to the court-appointed receiver in the state court action regarding "whether the proceeds belonging to Thomas Case should be forwarded . . . to [appellant] or . . . the plaintiffs in the Federal Court action." The district court asserted to the receiver that the stipulated settlement in the federal action "clearly contemplated" that "the settlement proceeds [from the state court action] should be forwarded to" counsel for the plaintiffs in the federal action. This letter from the district court operated to the immediate detriment of appellant, as it hastened the remittance of the funds at issue in Case v. Case to appellees' counsel before appellant had taken formal action to protect its interest in either the state or federal case. At a minimum, the district court should have taken this conduct into account when analyzing the prejudice to appellant that would result from denying its motion to intervene.

Finally, although the decision below was reached solely on the basis of timeliness, appellees argue that the district court's decision should be affirmed for two alternative reasons: (1) appellant lacks a sufficient interest in this action to justify mandatory intervention; and (2) "[t]he monies in issue . . . are PACA trust funds and whatever rights [appellant] may have are subordinate to those of plaintiffs." Both of these contentions are premised on the assertion that the parties' stipulated settlement relates exclusively to funds held in a statutory trust pursuant to PACA. Not only is that precisely the factual assertion that appellant wishes to intervene in order to contest, but it is also belied to some extent by the terms of appellees' challenged stipulation. Indeed, the stipulation directs that the vast majority of the settlement amount be paid to Shults and Finch, who were not alleged to have been the beneficiaries of a PACA trust in the federal action. Consequently, these arguments are insufficient to warrant an affirmance of the district court's decision.

We have reviewed appellees' remaining arguments and find them to be without merit. Therefore, we hold that the district court abused its discretion because its conclusion "cannot be located within the range of permissible decisions." Patricia Hayes Assocs., Inc. v. Cammell Laird Holdings U.K., 339 F.3d 76, 80 (2d Cir. 2003) (internal quotation marks omitted). Accordingly, the April 21, 2009 order of the district court is REVERSED.

In an oral order issued at the argument of this appeal on January 27, 2010, we directed that all funds or property distributed pursuant to the stipulated settlement be paid to the Clerk of the district court for safekeeping, pending a determination of the parties' rights to the funds at issue. In a written order issued the next day, we memorialized that instruction and directed the district court to grant appellant's motion to intervene. The case is therefore REMANDED for further proceedings consistent with this order and our previous orders.