United States District Court, D. Nebraska
AUTOMATIC EQUIPMENT MANUFACTURING COMPANY, d/b/a BLUE OX, a Nebraska company, Plaintiff/Counter Defendant,
DANKO MANUFACTURING, LLC, a Colorado limited liability company, Defendant/Counter Claimant.
MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Motion to Intervene as
Intervenor Counter-Defendant (Filing No. 26) filed by
Creed-Monarch, Inc. Creed-Monarch manufactures and sells the
Patriot 3 braking system that is the subject of this action.
(Filing No. 27 at pp. 7-8). Creed-Monarch requests leave to
intervene in this matter to protect its interests as the
manufacturer of the product at issue and to fulfill its duty
to defend and enforce its warranty under U.C.C. § 2-312.
(Filing No. 27). Creed-Monarch attached a copy of its Answer
and Affirmative Defenses (Filing No. 26 at p. 5) it intends
to file to Danko Manufacturing's Counterclaims. See
Fed.R.Civ.P. 24(c) (“The motion [to intervene] must
state the grounds for intervention and be accompanied by a
pleading that sets out the claim or defense for which
intervention is sought.”). No party filed a brief in
opposition to Creed-Monarch's motion in the time
permitted by this district's local rules. See NECivR
review of the materials submitted in support of
Creed-Monarch's motion, the Court finds that
Creed-Monarch has demonstrated that it should be granted
leave to intervene in this action as a matter of right
pursuant to Rule 24(a)(2) of the Federal Rules of Civil
Procedure. See Fed.R.Civ.P. 24(a)(2)(“On timely motion,
the court must permit anyone to intervene who . . . claims an
interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of
the action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing
parties adequately represent that interest.”). The
Court should grant a timely motion to intervene as of right
under Fed.R.Civ.P. 24(a)(2) where: “1) the proposed
intervenor has an interest in the subject matter of the
action; 2) the interest may be impaired; and 3) the interest
is not adequately represented by an existing party to the
action.” Sierra Club v. Robertson, 960 F.2d
83, 85 (8th Cir. 1992). “Rule 24 should be liberally
construed with all doubts resolved in favor of the proposed
intervenor.” Tweedle v. State Farm Fire
& Cas. Co., 527 F.3d 664, 671 (8th Cir. 2008)
(quoting South Dakota ex rel. Barnett v. U.S. Dep't
of Interior, 317 F.3d 783, 785 (8th Cir. 2003)).
Creed-Monarch's motion is timely. See United States
v. Union Elec. Co., 64 F.3d 1152, 1158-59 (8th Cir.
1995) (citing Mille Lacs Band of Chippewa
Indians v. Minnesota, 989 F.2d 994, 998 (8th Cir.
1993) (“Whether a motion to intervene is timely is
determined by considering all the circumstances of the
case.”). This case is still in the early stages of
progression; the Court only recently entered the progression
order governing the first phase of discovery on August 21,
2019, (Filing No. 19), and the instant motion to intervene
was filed the next day. (Filing No. 26). Besides the initial
mandatory disclosure deadline, no other case deadline has
passed, and Creed-Monarch has stated it will comply with the
deadlines imposed in this case. No party will be prejudiced
by the addition of Creed-Monarch at this time (nor did any
party object to Creed-Monarch's motion).
Creed-Monarch clearly established that it has an interest in
this patent infringement action that may be impaired. The
Patriot 3 braking system at issue in this case is
manufactured by Creed-Monarch and is exclusively sold to
Automatic Equipment Manufacturing Company. As such, the
patent claim construction of Danko Manufacturing's patent
clearly will affect Creed-Monarch's right to manufacture
and sell the Patriot 3 braking system.
Creed-Monarch has demonstrated that its interests may not be
adequately represented by Automatic Equipment Manufacturing
Company to this action. Although Creed-Monarch and Automatic
Equipment share the same legal goal, Creed-Monarch has
additional interests that it is in the best position to
defend itself, such as its legal duty to Automatic Equipment
to warrant its product from infringement claims. See
Sierra Club, 960 F.2d at 86 (citing Planned
Parenthood ofMinnesota, Inc. v. Citizens for Cmty.
Action, 558 F.2d 861, 870 (8th Cir. 1977) (Adequacy of
representation is determined by “comparing the
interests of the proposed intervenor with the interests of
the current parties to the action.” Intervention is
appropriate if these interests are “disparate, ”
even if they share the same “legal goal.”).
Accordingly, IT IS ORDERED that the Motion
to Intervene as Intervenor Counter-Defendant (Filing No. 26)
filed by Creed-Monarch, Inc. is ...