United States District Court, S.D. Texas, Houston Division
ORDER DENYING MOTION TO INTERVENE
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
10, 2019, the parties filed a notice of settlement informing
the court that they would dismiss the case in 30 days.
(Docket Entry No. 80). On May 13, Diogu Kalu Diogu, an
attorney of record for Experience Infusion Center, LLC, moved
to intervene based on an alleged contingency agreement with
Experience Infusion. (Docket Entry No. 82). Diogu also asked
the court to hold an expedited hearing on the motion. (Docket
Entry No. 86). Experience Infusion responded, and Diogu
replied. (Docket Entry Nos. 83, 85). For the reasons
explained below, the motion to intervene and request for a
hearing are denied. (Docket Entry Nos. 82, 86).
The Legal Standards
argues that intervention is proper under both Rules 24(a)(2)
and 24(b) of the Federal Rules of Civil Procedure.
(Id. at 1-3). Under Rule 24(a)(2), invention is of
right, or mandatory, if the movant satisfies four elements:
(1) the application for intervention must be timely; (2) the
applicant must have an interest relating to the property or
transaction which is the subject of the action; (3) the
applicant must be so situated that the disposition of the
action may, as a practical matter, impair his ability to
protect that interest; (4) the applicant's interest must
be inadequately represented by the existing parties to the
Sommers v. Bank of Am., N.A., 835 F.3d 509, 512 (5th
Cir. 2016) (quoting Texas v. United States, 805 F.3d
653, 657 (5th Cir. 2015)). By comparison, Rule 24(b)(2)
provides “that permissive intervention is appropriate
where ‘an applicant's claim or defense and the main
action have a question of law or fact in common.'”
Trans Chem. Ltd. v. China Nat'l Mach. Import &
Export Corp., 332 F.3d 815, 824 (5th Cir. 2003) (quoting
the Fifth Circuit “reviews de novo denials of
intervention of right, ” orders “denying
permissive intervention are reviewed for ‘clear abuse
of discretion' and will be reversed only if
‘extraordinary circumstances are shown.'”
Id. at 822 (quoting Edwards v. City of
Hous., 78 F.3d 983, 995 (5th Cir. 1996) (en banc)).
Valley Ranch Development Co., Ltd. v. Federal Deposit
Insurance Corporation, et al., 960 F.2d 550, 556 (5th
Cir. 1992), the Fifth Circuit recognized that while “a
discharged lawyer with a contingent fee agreement does have
an ‘interest' for purposes of intervention, ”
agency law prohibits him or her from “tak[ing] on the
role of co-plaintiff” during the attorney-client
relationship. Id. (citing Dow Chem. Co. v.
Benton, 357 S.W.2d 565, 568 (Tex. 1962)). The court
reasoned that “the refusal of intervention cannot, as a
matter of law, impair or impede [the lawyer's] ability to
protect his [or her] interest, ” because it “is
identical to the [client's] until the agency relationship
is broken.” Id. Diogu only has an
“interest” under Rule 24(a)(2) if he “can
show actual collusion between his clients and other parties
or an actual attempt to deny him his fee.” Id.
of right is improper because the record shows, and Diogu
concedes, that he has an attorney-client relationship with
Experience Infusion. Diogu filed a notice of appearance on
behalf of Experience Infusion in March 2017 and actively
represented the company until November 2017, when it hired a
new lawyer, Daniel W. Packard. (Docket Entry Nos. 12, 42).
Although Diogu has not been an active member of Experience
Infusion's legal team since, he has not moved to withdraw
and concedes that “he still appears as an attorney of
record, ” meaning that the agency relationship exists
and he continues to represent the company. (Docket Entry No.
85 at 2); see S.D. Tex. L. R. 83.2
(“[W]ithdrawal of counsel-in-charge may be effected by
motion and order, under conditions imposed by the
Court.”); Matter of Wynn, 889 F.2d 644, 646
(5th Cir. 1989) (“An attorney may withdraw from
representation only upon leave of the court and a showing of
good cause and reasonable notice to the client.”).
Although Diogu argues that Experience Infusion has frozen him
out of the “substance and amount of the settlement
agreement, ” he submits no evidence in support of that
assertion. (Docket Entry No. 85 at 2). He fails to make the
requisite showing of an “interest” under Rule
24(a)(2). Valley Ranch controls, and he may not
intervene. See also Staley v. Harris Cty., 160
Fed.Appx. 410, 414 (5th Cir. 2005) (affirming the denial of
intervention of right and permissive intervention based on
adequacy of representation).
motion is also untimely. The court considers four factors in
evaluating timeliness under Rules 24(a)(2) and 24(b)(2):
(1) The length of time during which the would-be intervenor
actually knew or reasonably should have known of its interest
in the case before it petitioned for leave to intervene; (2)
the extent of the prejudice that the existing parties to the
litigation may suffer as a result of the would-be
intervenor's failure to apply for intervention as soon as
it knew or reasonably should have known of its interest in
the case; (3) the extent of the prejudice that the would-be
intervenor may suffer if intervention is denied; and (4) the
existence of unusual circumstances militating either for or
against a determination that the application is timely.
St. Bernard Par. v. Lafarge N. Am., Inc., 914 F.3d
969, 974 (5th Cir. 2019) (“While the provisions cover
different situations, both prize punctuality.”). The
“timeliness of an intervention motion is reviewed for
abuse of discretion, so long as the district ...