United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE
removed action arising from an investment in precious stones,
the instant motions require the court to decide whether a
party may intervene to assert her interest as a judgment
creditor in another lawsuit in funds that were paid into the
state court registry in this case, and whether to confirm or
vacate an arbitration award. It must also decide whether to
take judicial notice of an arbitration award or state court
injunction. For the reasons explained, the court grants a
limited intervention; takes judicial notice of the existence
of a state court injunction; grants in part and denies in
part the motion to confirm the arbitration award, enter final
judgment, and release funds; and denies the motion to vacate
the arbitration award.
this case is the subject of two prior memorandum opinions and
orders, see Brendel v. Meyrowitz, 2016 WL 1721312,
at *1 (N.D. Tex. Apr. 29, 2016) (Fitzwater, J.)
(“Brendel II”); Brendel v.
Meyrowitz, 2016 WL 302282, at *1 (N.D. Tex. Jan. 25,
2016) (Fitzwater, J.), the court will recount only the
background facts and procedural history that are pertinent to
Greg Brendel (“Brendel”) sued Scott Meyrowitz
(“Scott”), Mary Meyrowitz (“Mary”),
and SSB International, LLC (“SSB”) in connection
with an investment in precious stones. Brendel alleges
that he entered into an agreement with Scott under which, in
exchange for the sum of $250, 000, Brendel was to receive 50%
of the profits, after full reimbursement of his $250, 000
payment, from proceeds received from the sale of certain
precious stones. Brendel asserts that he wired the sum of
$250, 000 to Scott's account at Wells Fargo Bank, held in
the name of SSB, but, instead of using the funds as agreed,
Scott converted them to his personal use and refused to
return the $250, 000 payment or deliver the precious stones.
originally brought suit in Texas state court, but it was
removed based on diversity of citizenship. Before the case
was removed, the state court ordered that $250, 000 be taken
from an account controlled by Scott and Mary and deposited
into the court registry, to remain there until entry of final
judgment. The state court's order remains in effect until
this court modifies or abrogates it, which it has not done,
or until a final judgment is entered. See Brendel
II, 2016 WL 1721312, at *4.
the case was removed, this court granted Scott and SSB's
motion to compel arbitration. Brendel's evidence at the
ensuing arbitration included defendants' financial
records. Brendel won an arbitration award of $1, 018, 254.22
(the “Arbitration Award”). Brendel moves to
confirm the Arbitration Award, enter judgment in his favor,
and release to him the funds held in the state court
registry. Brendel also asks the court to take judicial notice
of the Arbitration Award and the state court injunction.
Scott and SSB move to vacate the Arbitration Award.
from Brendel's claims against Scott and SSB, which were
arbitrated, he also alleges claims against Mary that were not
subject to arbitration, and remain pending in this lawsuit.
days after Brendel moved to confirm the Arbitration Award,
Sarah Pappas (“Pappas”) moved to intervene in
this case as a defendant and intervenor-counterplaintiff.
Pappas alleges that she was a victim of a similar scheme to
the one that Brendel alleges in this case, and she claims an
interest in the funds that were paid into the state court
registry. Pappas maintains that she is entitled to some or
all of the registry funds because she has an Arizona state
court default judgment against Scott, Mary, and SSB; the
registry funds are traceable to an unrepaid loan from Pappas
to Scott, Mary, and SSB; and she has obtained a writ of
execution that was levied on the registry funds. Brendel
opposes the motion to intervene.
from Pappas' motion to intervene, Brendel also asks the
court to take judicial notice of the Arbitration Award and
the state court injunction; Brendel moves the court to
confirm the Arbitration Award, enter final judgment, and
release funds to him; and Scott and SSB move the court to
vacate the Arbitration Award.
requests that the court take judicial notice of the state
court injunction and the Arbitration Award. The other parties
have not responded to this request.
court may judicially notice a fact that is not subject to
reasonable dispute because it . . . can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201. A judicial
act in state court falls within the category of sources
“whose accuracy cannot reasonably be questioned,
” and may be judicially noticed. See Colonial
Leasing Co. of New Eng. v. Logistics Control Grp.
Int'l, 762 F.2d 454, 459 (5th Cir. 1985); 21B
Charles Alan Wright & Kenneth W. Graham, Federal
Practice and Procedure § 5106.4, at 240 (2d ed.
2005 and Supp. 2016).
the court takes judicial notice of the state court
injunction, but only for its existence, not for the
correctness of any facts found. See Gray ex rel. Rudd v.
Beverly Enters.-Miss., Inc., 390 F.3d 400, 407 n.7 (5th
Cir. 2004) (“Although we cannot take judicial notice of
findings of fact of other courts, the fact that a judicial
action was taken is indisputable and is therefore amenable to
judicial notice.”). The court declines, however, to
take judicial notice of the Arbitration Award at this time.
Brendel cites no authority to support judicial notice in
these circumstances, and he does not explain the reason for
his request. The court therefore limits its decision to the
question whether to confirm the Arbitration Award, as set out
court now turns to Pappas' motion to intervene. Pappas
moves to intervene as of right, or, alternatively, to
is entitled to an intervention as of right under Rule
24(a)(2) if (1) the motion to intervene is timely, (2) the
interest asserted by the potential intervenor is related to
the action, (3) the interest may be impaired or impeded by
the action, and (4) the interest is not adequately
represented by the existing parties. See, e.g.,
In re Lease Oil Antitrust Litig., 570 F.3d 244, 247
(5th Cir. 2009); Sierra Club v. Espy, 18 F.3d 1202,
1204-05 (5th Cir. 1994) (citing New Orleans Pub. Serv.,
Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th
Cir. 1984) (en banc) (“NOPSI”)).
first element-timeliness-is determined by examining (1) the
length of time between the potential intervenor's
learning that its interest is no longer protected by the
existing parties and its motion to intervene, (2) the extent
of prejudice to the existing parties from allowing late
intervention, (3) the extent of prejudice to the potential
intervenor if the motion ...