Michael J. FLYNN, Plaintiff, Appellee,
Lafayette Ronald HUBBARD a/k/a L. Ron Hubbard, Defendant, Appellee.
CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., Appeal of
Michael J. FLYNN, Plaintiff, Appellee,
Lafayette Ronald HUBBARD a/k/a L. Ron Hubbard, Defendant, Appellee.
Mary Sue HUBBARD, Appeal of
Nos. 85-1397, 85-1398.
United States Court of Appeals,
Argued Oct. 7, 1985.
Decided Feb. 7, 1986.
Intervention by joint tort-feasors was sought in tort action in which sole
defendant had chosen not to appear. The United States District Court for the
District of Massachusetts, John J. McNaught, J., denied intervention, and joint
tort-feasors appealed. The Court of Appeals, Bownes, Circuit Judge, held
that: (1) there could be no intervention as of right by joint tort-feasors
until and unless sole defendant appeared, and (2) refusal to permit permissive
intervention by joint tort-feasors was not abuse of discretion.
Coffin, Circuit Judge, filed concurring opinion.
 FEDERAL COURTS
Immediate appeal lies from denial of motion under Rule 24(a)(2) to intervene
as of right upon claim of interest relating to property or transaction which is
subject of action. Fed.Rules Civ.Proc.Rule 24(a)(2), 28 U.S.C.A.
United States Court of Appeals for the First Circuit took judicial notice that
science fiction book by defendant was published after oral argument in case and
received a favorable review in book review section of newspaper.
 FEDERAL CIVIL PROCEDURE
Under Rule 19, governing joinder of persons needed for just adjudication of
case, joint tort-feasors need not be joined as a party to an action, since each
is liable for entire amount of recovery. Fed.Rules Civ.Proc.Rule 19, 28
 FEDERAL CIVIL PROCEDURE
Under Rule 24(a)(2), governing intervention as of right upon claim of
interest relating to property or transaction which is subject of action, there
could be no intervention by joint tort-feasors until and unless sole defendant,
who had chosen not to appear in tort action, appeared. Fed.Rules
Civ.Proc.Rule 24(a)(2), 28 U.S.C.A.
 FEDERAL CIVIL PROCEDURE
Under Rule 24(b)(2), refusal to permit permissive intervention in favor of
joint tort-feasors was not abuse of discretion in tort action in which sole
defendant had chosen not to appear. Fed.Rules Civ.Proc.Rule 24(b)(2), 28
*1085 Leonard B. Boudin, New York City with whom Eric M. Lieberman, Edward
Copeland, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York
City, Roger Geller and Geller & Weinberg, Boston, Mass., were on brief for
appellant Church of Scientology of California, Inc.
Michael Lee Hertzberg, New York City with whom Roger Geller, and Geller &
Weinberg, Boston, Mass., were on brief for appellant Mary Sue Hubbard.
Michael A. Tabb, Boston, Mass., with whom Flynn & Joyce, David M. Bansah, and
Hollingsworth & Associates, Boston, Mass., were on brief for appellee.
Before COFFIN, Circuit Judge, TIMBERS, [FN*] Senior Circuit Judge, and BOWNES,
FN* Of the Second Circuit, sitting by designation.
BOWNES, Circuit Judge.
The question in this case is whether intervention under Federal Rule of
Civil Procedure 24(a)(2) or 24(b)(2) was properly denied where the sole
named defendant has, as yet, failed to appear. The plaintiff-appellee, Michael
J. Flynn, is a Massachusetts attorney who has sued various Churches of
Scientology and individual Scientologists over a number of years. L. Ron
Hubbard, the defendant, is the founder of Scientology. On September 7, 1983,
Flynn brought the complaint in this case naming Hubbard as the sole defendant
and alleging that Hubbard had caused a wide range of torts to be committed
The complaint alleges a written conspiracy by Hubbard and his individual and
organizational agents and employees "to destroy" Flynn. This conspiracy was
carried out, it is alleged, by various named Scientology organizations and
individuals over which Hubbard has absolute authority. The torts alleged to
have been committed at Hubbard's direction are: malicious abuse of process;
malicious prosecution; intentional infliction of emotional distress;
trespass; conversion; interference with contractual rights; invasion of
privacy; unfair or deceptive practices in violation of Mass.Gen.Laws Ann.
ch. 93A; assault and *1086 battery; and violations of the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. ss 1961-68.
There are no allegations in the complaint that Hubbard, acting by himself,
committed any torts against Flynn; all torts it is alleged were committed by
Hubbard's agents and/or employees.
The putative intervenors are the Church of Scientology of California (CSC) and
Mary Sue Hubbard, wife of the defendant. Both are named in the complaint as
coconspirators. In addition to filing motions to intervene, CSC and Mary Sue
Hubbard filed answers to the complaint. Mary Sue Hubbard also filed a
counterclaim for malicious prosecution, abuse of process and libel. We note in
passing that the tone, tenor, and language of the voluminous pleadings,
affidavits and exhibits filed in this case (over 1,500 pages) is, at times, so
accusatory, emotional and vitriolic as to make the reading of them a decidedly
CSC identified four "interests" that would be impaired or impeded unless
intervention was allowed:
1. an interest in preventing its own actions, many of which it claims are
protected under the first amendment or state law, from serving as a predicate
for a judgment against the founder of the church and its spiritual leader;
2. an interest in defending both its own reputation and that of its revered
3. an economic interest based on its fear that plaintiff will attempt to
enforce any judgment by levying on church property;
4. an interest in preventing plaintiff from making offensive collateral
estoppel use of a default judgment in the present action in other litigation
now pending elsewhere against the church.
We note that all of these interests are based on the assumption that the
defendant will not appear and there will be a default judgment against him.
Mrs. Hubbard asserted two interests that would be impaired unless she could
1. an economic interest based on the claim that she is wholly dependent on the
defendant for her support and that a depletion or diminution of his assets will
have an adverse effect on her and deprive her of her inheritance;
2. an interest in protecting her reputation which she claims is impugned by
the allegations in the complaint.
Her interests, as with those of CSC, are based on the assumption that
defendant will not appear and there will be a default judgment.
After a lengthy hearing on April 15, 1985, the district court, on April 22,
1985, denied the motions to intervene. No written opinion stating the reasons
for the decision issued. Plaintiff's motion for substituted service on
defendant was granted on May 31, 1985, and service was made accordingly.
 In this circuit, an immediate appeal lies from the denial of a motion to
intervene under Rule 24(a)(2). Kartell v. Blue Shield of Massachusetts,
Inc., 687 F.2d 543, 548 (1st Cir.1982). The parameters of appellate review
are, however, not so clear. We have held that "[t]he district court is to
exercise its discretion in determining timeliness, and its ruling will not be
disturbed on review unless there is an abuse of discretion." Chase
Manhattan Bank v. Corporacion Hotelera de Puerto Rico, 516 F.2d 1047, 1049 (1st
Cir.1975). The Second Circuit has applied the abuse of discretion standard to
all 24(a)(2) findings because of "the great variety of factual circumstances in
which intervention motions must be decided." United States v. Hooker
Chemicals & Plastics Corp., 749 F.2d 968, 991 (2d Cir.1984). But here, we are
faced with a question of law: Can intervention be granted when the only
defendant in the case has not appeared. This means that the standard of review
is whether the court committed legal error in denying intervention.
*1087 Both putative intervenors make it clear that it is the failure of
defendant to appear that has prompted their motions to intervene. They argue
that Hubbard will not appear, a default judgment will be entered against him
and they will be irreparably harmed if they cannot intervene. In her
counterclaim, Mary Sue Hubbard states: "8. Scientology Founder L. Ron Hubbard
went into seclusion in approximately March, 1980, and has not been seen by his
family, or by any Church office, since that date." Plaintiff, on the other
hand, asserts that Hubbard will appear to prevent a default judgment.
We are in no position to determine whether Hubbard will or will not appear.
We do know, however, that failure of a defendant to appear is a unique reason
for intervention. We have been unable to find any federal cases in which
intervention has been allowed or denied under Rule 24 because the defendant
has failed to appear. This does not, of course, automatically preclude
intervention; it does mean, however, that we must examine the law carefully to
determine if intervention is warranted.
Federal Rule of Civil Procedure 24(a)(2) provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted
to intervene in an action: ... (2) when the applicant claims an interest
relating to the property or transaction which is the subject of the action and
he is so situated that the disposition of the action may as a practical matter
impair or impede his ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
There is nothing in the Notes of The Advisory Committee on Rules adverting to
intervention when the defendant has failed to appear. The wording of the rule
itself suggests that it may only apply when the named defendant has appeared
and is protecting his or her interests. The last phrase, particularly,
referring to "existing parties" suggests a case cast in the traditional mold
with a viable dispute between plaintiff and defendant.
 We now turn to the case law to determine whether intervention should be
permitted when the sole defendant has by deliberate choice failed to appear.
[FN1] The seminal case on the scope and meaning of Rule 24 is Cascade
Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17
L.Ed.2d 814 (1967). In that case, the Court reversed the district court's
denial of intervention in a divestiture suit arising from violations of s 7 of
the Clayton Act. The Court explored the differences between the present rule
and its predecessor. It held that intervention should be granted because
Rule 24(a)(2) "recognizes as a proper element in intervention 'an interest'
in the 'transaction which is the subject of the action,' " id at 135, 87
S.Ct. at 936, and because the existing parties "have fallen far short of
representing ... [the intervenor's] interests." Id. at 136, 87 S.Ct. at
937. Giving Cascade the broadest possible reading, we do not think it
affords any basis for the proposition that if an individual has an interest in
a case, as defined by the rule, he or she can intervene absent a defendant.
The Court gave two reasons for allowing intervention, "an interest in the
transaction" and the failure of the "existing parties" to represent the
intervenor's interests. Here, Hubbard has not appeared to date; until or
unless he does, it cannot be determined whether he will or can represent
adequately the interests of the putative intervenors.
FN1. No suggestion has been made that defendant's physical or mental
condition has prevented his appearance. We take judicial notice that a
science fiction book by him, The Invaders Plan, was published after oral
argument and received a favorable review in the Sunday Book Review section
of the New York Times.
Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580
(1971), also focused on the scope and meaning of Rule 24(a)(2). Donaldson's
income tax returns were under investigation by the Internal Revenue Service. A
special agent of the IRS served summonses on the former corporate employer of
Donaldson and its *1088 accountant ordering them to testify and produce
records pertaining to Donaldson. Shortly prior to the issuance of the
summonses, the United States District Court, acting on petitions filed by
Donaldson, issued temporary restraining orders and then a preliminary
injunction restraining the corporation and its accountant from complying with
the summons until the court acted. The government and the IRS agent filed
petitions in the same district court for judicial enforcement of the
summonses. Id. at 518-20, 91 S.Ct. at 536-37. After a show cause order
issued, Donaldson sought to intervene in the enforcement proceedings pursuant
to Rule 24(a)(2). The district court denied the motion to intervene and
ordered that the summonses be enforced. Id. at 521-22, 91 S.Ct. at 537-38.
The Court held that a taxpayer may not intervene of right "simply because it is
his tax liability that is the subject of the summons." Id. at 530, 91 S.Ct.
at 542. After considering Donaldson's particular situation, the Court
concluded that he did not have an interest in the enforcement proceedings
within the meaning of Rule 24(a)(2). Id. at 531, 91 S.Ct. at 542.
Neither the holding nor reasoning of Donaldson is of help to the putative
Mrs. Hubbard relies on SEC v. Flight Transportation Corp., 699 F.2d 943
(8th Cir.1983), as authority for her right to intervene based on her economic
interest in the assets of her husband. In that case, the SEC commenced an
action against Flight Transportation Corp., two subsidiary corporations, and
William Rubin, President and Chairman of the Board of Directors and Chief
Executive Officer of the three corporations. Shortly thereafter, a class
action by Flight Transportation's securities holders was commenced. This was
followed by an involuntary bankruptcy petition against Flight Transportation.
A stay of the bankruptcy proceedings and all proceedings in any state or
federal court against the corporations and William Rubin was ordered. Joyce
Rubin, wife of William, had filed a state action for divorce. She moved to
intervene and for a modification of the stay order so that her divorce action
could proceed. The district court denied her motion to intervene. The court
of appeals reversed. It held that "Joyce Rubin may be unable, as a practical
matter, to protect her interests if she cannot intervene" and that "the
existing parties cannot be expected to represent Joyce Rubin's interests
adequately." Id. at 949. William Rubin was at all times one of the
That case may be good authority for the proposition that a wife who has
instituted a divorce action has a right to intervene to protect her economic
marital interests in a SEC action with bankruptcy overtones against her husband
and his corporations. It has no bearing, however, on a tort action like this,
where the husband has failed to appear.
As already noted, we have found no federal cases allowing or denying
intervention where the defendant has failed to appear. There is, however, one
state case directly on point. Not surprisingly, the defendant is the same
person as in the case before us, L. Ron Hubbard. In Samuels v. Hubbard, 71
Or.App. 481, 692 P.2d 700 (1984), the court held that the Church of Scientology
of California, Inc., and Church of Scientology, Mission of Davis, had no right,
under Oregon law, to intervene as of right in a tort action against Hubbard.
As here, the plaintiff in the Oregon case alleged that Hubbard directed and
controlled others to commit torts against him. The torts alleged are similar
to the ones alleged here: conversion, outrageous conduct, defamation and
fraud. And, as here, defendant failed to appear and the putative intervenors
asserted that he would not appear. The Oregon court was careful to point
out: "The record shows only that he [Hubbard] has not yet appeared." 692
P.2d at 703 n. 1.
 What CSC and Mrs. Hubbard really seek here is not intervention, but to
be substituted as defendants for the defendant plaintiff chose to sue. There
can be no question that plaintiff has stated a cause of *1089 action against
the defendant. Plaintiff could have sued both CSC and Mrs. Hubbard but
deliberately decided not to do so. If we were to allow intervention, despite
defendant's failure to appear, we would be forcing our choice of defendants on
plaintiff. We see no reason why, in a tort action, the plaintiff's choice of
defendant should be nullified by substituting under the guise of intervention
different joint tort-feasors than the one against whom the suit was brought.
Under Federal Rule of Civil Procedure 19, the companion to Rule 24, joint
tort-feasors need not be joined since each is liable for the entire amount of
the recovery. State of Maine v. United States Department of Labor, 669 F.2d
827, 832 (1st Cir.1982); 7 C. Wright & A. Miller, Federal Practice and
Procedure s 1623 at 241 (1972). The same reasoning applies to intervention
under Rule 24(a)(2).
 It would be premature to decide now whether the interests asserted by
CSC and Mrs. Hubbard meet the requirements of Rule 24. Although we disagree
with both intervenors as to the effect of a default judgment on them, [FN2] it
is the defendant's willful action in failing to appear that has subjected them
to whatever risks such a judgment may pose. There is and can be no suggestion
that this is a collusive suit between plaintiff and defendant in an attempt to
somehow indirectly impose liability on CSC and Mrs. Hubbard. Plaintiff has
made defendant the sole target of his action. Whatever carom effect may occur
is the direct result of defendant's failure to appear. We hold that because
the sole defendant has chosen not to appear in this tort action, there can be
no intervention by the joint tort-feasors under Rule 24(a)(2) until and
unless the defendant appears.
FN2. It is black letter law that those not a party to an action are not
bound by an adverse judgment against the named defendant.
 Intervention is also sought under Rule 24(b)(2). This allows
intervention "when an applicant's claim or defense and the main action have a
question of law or fact in common." The rule further states: "In exercising
its discretion the court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties."
Our opinion makes it clear that the district court did not abuse its discretion
in denying permissive intervention.
Affirmed. Costs to appellee.
COFFIN, Circuit Judge, (concurring).
I believe the court misapplies Federal Rule of Civil Procedure 24(a)(2) in
finding that intervention should not be granted when the only defendant in the
case has not appeared. The court holds that the rule can only be applied to
cases involving parties actually arguing in court because the rule refers to
"existing parties". The phrase "existing parties" appears in the rule's third
requirement: a party who satisfies the rule's first two requirements [FN1]
shall be permitted to intervene "unless the applicant's interest is adequately
represented by existing parties". My brothers claim that this requirement can
be satisfied only when the named defendant "has appeared and is protecting his
or her own interests". Until that time, they believe "it cannot be determined
whether he will or can represent adequately the interests of the putative
FN1. Under the first requirement (the interest requirement), the applicant
must claim an interest relating to the property or the transaction that is
the subject of the action. The second requirement (the impairment
requirement) is that the applicant must show that he or she is so situated
that the disposition of the action may as a practical matter impair or
impede his or her ability to protect that interest.
I believe this unique interpretation of Rule 24(a)(2) is unsupported by,
and is contrary to, the language of the rule, the rule's purpose, and the
relevant case law. But I concur in the judgment of the court because I find
that appellants fail to meet the rule's interest and impairment requirements.
The reading of "existing parties" as referring solely to named parties who
actually *1090 appear in court and protect their own interests does not
follow from the language of the rule. I think that the reasonable reading of
"existing" is that it modifies "parties" to distinguish such from parties not
formally in the litigation; that is, "existing parties" refers to the actual
parties named in a litigation, as opposed to the nonparties seeking to
intervene. See, e.g., Arkansas Power & Light Company v. Arkansas Public
Service Commission, 107 F.R.D. 335, 340 (E.D.Ark.1985) (interests asserted by
would-be intervenors are "adequately protected by those that are already
parties to this litigation ") (emphasis added). See also Woolworth v.
Miscellaneous Warehouseman's Union, 629 F.2d 1204, 1213 (7th Cir.1980).
The court's reading also fails to reconcile its interpretation with the
purpose behind the intervention rule. Rule 24(a)(2) is designed to allow
participation in a litigation by nonparties whose interests may be impaired.
[FN2] To avoid judicial inefficiency, however, the rule contains an adequacy
of representation requirement, which precludes intervention when a nonparty's
interests are already adequately represented by an existing party. [FN3]
Because this requirement may preclude parties from intervening even when they
have protectible interests, applicants need only make a minimal showing of
inadequate representation. Trbovich v. United Mine Workers, 404 U.S. 528,
538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). Intervention will
be granted, if the other conditions are satisfied, unless the court is
persuaded that the representation of the nonparty is in fact adequate.
Wright & Miller, Federal Practice and Procedure 519. [FN4] If the applicant
shows that the representation may be inadequate, see Trbovich, 404 U.S. at
538 n. 10, 92 S.Ct. at 636 n. 10, then the court is precluded from finding that
the interest is adequately represented. Note, Duke L.J. 117, 129 (1968).
FN2. See e.g., Hilliker, Rule 24: Effective Intervention, 7 Litigation
21, 21 (1981); Shapiro, Some Thoughts on Intervention Before Courts,
Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 726-27 (1968).
FN3. See e.g., Brunet, A Study in the Allocation of Scarce Judicial
Resources: The Efficiency of Federal Intervention Criteria, 12 Ga.L.Rev.
701, 733 (1978).
FN4. Under the former Rule 24(a)(2), one of the two conditions of
intervention was a showing by the applicant that his representation by the
existing parties "is or may be inadequate". This language was revised in
1966 so that if the other conditions of the rule are satisfied,
intervention is of right "unless the applicant's interest is adequately
represented by existing parties". Wright & Miller, supra, at 519. "It
seems entirely clear that the effect of this change is to shift the burden
of persuasion." Id.; See also SEC v. Dresser Industries, 628 F.2d
1368, 1390 (D.C.1980); Shapiro, supra, at 741 n. 91.
The court's decision to exclude from this rule's scope cases in which the
named defendant has chosen not to appear runs counter to the goal of protecting
those who are not otherwise represented. Indeed, if the other conditions are
satisfied, this type of situation presents the clearest need for permitting
intervention because the nonparties' interests will not be represented at all.
Wright & Miller, supra, at 524. "An interest that is not represented is
surely not adequately represented and intervention must be allowed." Id.
A denial of intervention might be justifiable if the named defendant was
likely to appear and might then adequately represent the interests of the
nonparty. That is neither my colleagues' position nor the posture of this
case. Here, the record supports appellants' assertion that Hubbard will not
appear, and it is that very fact on which the court bases its denial of
intervention. Yet it provides no justification for declining to decide whether
the lack of representation here constitutes "inadequate representation".
The court interprets the rule to apply only to "cases cast in the traditional
mold with a viable dispute between plaintiff and defendant". Regardless of
whether this type of litigation is traditional, it will adjudicate rights and
may impair interests of nonparties. The court would apply Rule 24(a)(2) if
the defendant appeared in court *1091 and defended merely by asserting that
the plaintiff's charges were false, but would not apply it if the defendant
stopped short of taking this small step. I fail to see any justification for
creating such a formalistic distinction, not required by the rule, when the
interests of nonparties may be equally impaired in either situation. [FN5]
FN5. In United States v. Hooker Chemical & Plastics, 749 F.2d 968 (2d
Cir.1984), Judge Friendly stated that "[a]dequacy of representation should
be applied so as to provide a functional test of a party's need to
intervene". Id. at 992 n. 21. He cautioned that courts should not
"import into the rule 'fetishes of form,' not required by the Rule's
language, that treat adequacy of representation from other than a practical
My brothers suggest that their position finds support from the only court,
federal or state, that has addressed intervention in this type of case. In
Samuels v. Hubbard, 71 Or.App. 481, 692 P.2d 700 (1984), the Oregon Court of
Appeals denied intervention as of right to CSC and others in a tort action
against Hubbard. I disagree with my brothers' suggestion for two reasons.
First, the court interpreted a state intervention rule, somewhat stricter than
Rule 24(a)(2). Id. at 704 & n. 5. According to the state court, a party
entitled to intervene as of right under the federal rules might only qualify
for "permissive intervention under Oregon law". Id. at 704 n. 5. Second,
the court did not find the intervention rule inapplicable to a situation where
the sole named defendant chooses not to appear, but denied intervention on the
ground that any interests the applicants had in the litigation would not be
impaired by a judgment against Hubbard. In a footnote, the state court
observed that the record did not seem to support the applicants' assertion that
Hubbard would not appear. [FN6] My brethren infer from that statement that the
state court denied intervention because Hubbard did not appear. To the
contrary, the state court determined that even if there was "inadequate
representation", either because Hubbard would not appear or would appear and
inadequately defend applicants' interests, those interests were insufficient to
require intervention. Id. at 705-06.
FN6. The court stated that "[i]ntervenors assert that Hubbard will not
appear. The record shows only that he has not yet appeared." Id. at
703 n. 1. As mentioned previously, the record in the instant case amply
supports the appellants' assertion that Hubbard will not appear.
Federal courts faced with a somewhat similar situation have not taken the
approach adopted by the court. These courts have addressed the situation where
the named party appears at trial, loses, and chooses not to bring an appeal.
An applicant has then sought to intervene for purposes of bringing the appeal.
Courts have routinely found that Rule 24(a)(2) applies to this situation,
even though the named defendant has not "appeared" for purposes of the appeal
and has not "protect(ed) his or her interests". Moreover, these courts have
found that the nonparty has satisfied the inadequacy of representation
requirement because there will be no representation by the existing party.
See, e.g., United States v. American Telephone and Telegraph Co., 642 F.2d
1285, 1293 (D.C.Cir.1980) (MCI was not adequately represented by the United
States in the decision not to appeal); County of Fresno v. Andrus, 622 F.2d
436, 439 (9th Cir.1980) (unwillingness to take appeal indicates that existing
party does not represent would-be intervenor fully).
For example, in Woolworth v. Miscellaneous Warehouseman's Union, 629 F.2d
1204 (7th Cir.1980), discharged employees sought to intervene as defendants in
a suit brought by their employer against their union seeking to vacate an
arbitration award ordering their reinstatement. The district court had granted
the employer's motion for summary judgment and had vacated the award. After
the union chose not to appeal the decision, the discharged employees moved to
intervene for purposes of bringing the appeal. The Seventh Circuit found that
the employees satisfied the interest and impairment requirements of Rule 24,
and then addressed the adequacy of representation requirement. It stated
*1092 that "since the Union has withdrawn from the case, the interests of
the employees would not be adequately represented by existing parties". 629
F.2d at 1213.
Cases such as Woolworth are characterized as situations where the named
party has been nonfeasant in its duty of representation. It is well-settled
that nonfeasance constitutes inadequate representation. Cascade National
Gas Corp. v. El Paso National Gas Co., 386 U.S. 129, 155, 87 S.Ct. 932, 947, 17
L.Ed.2d 814 (1967) (Stewart, J., dissenting) ("complete failure of
representation by existing parties"); British Airways Board v. Port
Authority of New York and New Jersey, 71 F.R.D. 583, 585 (S.D.N.Y.1976);
Moore's Federal Practice 24.07 (2d ed. 1985). In fact, according to
Professors Wright and Miller, "the easiest case is that in which the absentee
['s] ... interest is not represented at all." Wright & Miller, supra, at
519. A difficult question of adequacy of representation does not arise unless
the applicant is represented in the action. [FN7]
FN7. Id. Cases where the question of adequacy of representation is
more difficult include those where the party is adverse to the absentee,
where the interests of the absentee and of the party are different, though
perhaps similar, and where the interest of the absentee is identical with
that of one of the existing parties. Id.
Nonfeasance of representation also describes the circumstances of the instant
case, where the named party does not appear before the trial court. A party
who fails to appear for trial and thus receives a default judgment has failed
to represent the interests of the would-be intervenor. Thus, if the union
in Woolworth failed to appear before the district court to challenge the
employer's motion for summary judgment, the interests of the discharged
employees would be left inadequately represented. Where significantly
protectible interests of a putative party may be adversely affected in a
litigation and the sole defendant chooses not to appear, intervention is
My disagreement with the court's rather broad ruling, refusing to apply
Rule 24(a)(2) whenever a named party has not appeared, is heightened by my
conviction that it is quite unnecessary for the proper disposition of this
case. For I conclude that each interest claimed by CSC and Mary Sue Hubbard
falls short of the requirement that it be a direct, substantial, legally
protectible interest that may be impaired by the disposition of the suit.
Accordingly, I concur in the denial of intervention.
A. First Amendment Interest
CSC claims that it has a First Amendment speech interest in the subject matter
of the litigation. This interest comprises speaking out against Flynn and
others, filing bar complaints, or pursuing litigation, all acts upon which
plaintiff predicates Hubbard's liability. CSC argues that its ability to
protect that speech interest would be impaired or impeded if it did not
intervene, because CSC would be "chilled" from continuing to engage in this
presumptively protected activity once a default judgment issued against Flynn.
This chill would occur, CSC asserts, because it would not continue to speak
while parties obtained default judgments against Hubbard based on CSC's speech.
CSC has asserted a protectible interest, in that it identifies its First
Amendment right of expression. CSC failed to show, however, that this interest
would be impaired if CSC were not permitted to intervene. It may be that in
some cases a nonparty could successfully show that its exercise of its speech
right would be chilled by a default judgment against the named party in a
litigation. The nonparty would refrain from continuing to engage in certain
speech activities, if its speech were the basis for the named party's
liability. The nonparty would have to convince the court that its ability to
protect its speech right would be impaired or impeded by the default judgment.
In this case, no such showing was made. In its appellate brief, CSC stated
"[i]t would be impossible for the Church to sit back and watch unscrupulous
plaintiffs or lawyers take advantage of Mr. Hubbard's *1093 unavailability
to obtain huge default judgments based upon the purported acts of the Church,
and the unsupported allegations of a complaint." CSC did not make this
argument to the district court in its written motion to intervene, but rather
it did so orally in a one-sentence statement during the hearing. Moreover, CSC
did not present any evidence as to why it would refrain from future speech
activity if this default judgment issued against Hubbard.
Instead, CSC came forth with a purely conclusory statement. It offered no
affidavits to support its claim and no evidence at all that a default judgment
against Hubbard would have any effect upon CSC. Such conclusory allegations do
not entitle CSC to intervention as of right under Rule 24. To find
otherwise would suggest that all nonparties could intervene merely by claiming
that their special relationship with the named party would chill their speech
activities. Obviously, a court is entitled to a sufficiently strong factual
showing so that it is assured that the intervenor's speech would indeed be
B. Reputation Interests
CSC claims that it has a reputation interest in the litigation, because the
allegations of the plaintiff "clearly, directly, and substantially" affect the
reputation of the church. Moreover, CSC claims that it will suffer direct and
serious injury because its founder is accused of serious wrongdoing.
A default judgment against Hubbard is not an adjudication against CSC; such a
judgment does not mean that CSC took the actions that were alleged in
plaintiff's complaint. Additionally, a party's reputation interest has not
been found sufficient to require intervention as of right. In Edmondson v.
Nebraska, 383 F.2d 123, (8th Cir.1967), the state sued a prisoner who had
recovered a default judgment against a prison guard. The state claimed that
the default judgment was the result of fraud and collusion between the prisoner
and guard and thus the state sought a declaration that the judgment was void.
The guard sought to intervene under Rule 24, claiming that the state's
allegations of fraud adversely affected his reputation. The court stated that
the suit against the prisoner would not affect the guard's legal interest. It
"The mere fact that [the guard's] reputation is thereby injured is not
enough. [The guard's] representative has pointed to no legal detriment flowing
from this possible finding [of fraud] by the trial court, and we can find
none." Id. at 127.
In this case as well, CSC merely claims a generalized injury to reputation,
but identifies no legal detriment arising from a default judgment against
Hubbard. Mary Sue Hubbard also argues that her reputation interest is at stake
because the complaint names and implicates her as a key individual in the
actions against the plaintiff. Her claim fails for the same reason.
C. Economic Interests
CSC asserts that its economic interests are threatened because the plaintiff
will seek to enforce its judgment against Hubbard by levying on the assets of
the church. CSC also seems to be arguing that it has an interest in preventing
the plaintiff from obtaining a judgment in this case because plaintiff will use
offensive collateral estoppel in future actions against the church.
If intervention were denied, however, CSC would not be a party to this case.
Any action brought by the plaintiff to obtain assets belonging to the church
would necessarily provide the church with an opportunity to present its own
defense. Moreover, CSC will not be precluded by the default judgment from
making any arguments in future cases. None of the allegations proved against
Hubbard would be deemed proved against CSC.
Mary Sue Hubbard also claims that she has an interest in maintaining her
husband's assets, which provide support for her and will accrue to her upon his
death. She claims that this interest is identical to that which was found
sufficient in SEC v. Flight Transportation Corp., 699 F.2d 943 (8th
Cir.1983). In that case, a wife undergoing divorce proceedings was permitted
to intervene in the SEC's fraud action against the husband. The SEC action
would determine *1094 what property belonged to the husband's corporation,
as opposed to the husband himself. Additionally, the SEC sought a stay on all
other proceedings against the husband, including the divorce action, and a
court-appointed receiver to take control of the husband's assets. The court
found that this action would have directly affected what assets would be
available for distribution to his wife in the ongoing divorce proceedings.
Mary Sue Hubbard's monetary interests in her husband's assets are neither
identical, nor similar, to the interests of the wife in SEC. Here, her
husband's assets are not the subject of this suit, the court is not attempting
to take control of the assets, and she has no ongoing claim against the assets
of her husband. If intervention were permitted here, whenever one spouse was
displeased with the litigation strategy, the investment decisions, or the
charitable donations of his or her spouse, the displeased spouse would be
permitted to intervene as of right.
A review of the interests assertedly at stake in the underlying litigation
reveal that the district court correctly decided that CSC and Mary Sue Hubbard
are not entitled to intervene as of right pursuant to Rule 24(a)(2).
Appellants are asserting, then, either their interests as joint tortfeasors or
the interests of Hubbard. Both interests fail to satisfy the requirements of
Rule 24. This result explains my brothers' concern that what appellants
truly seek is not to intervene but to be substituted for the named defendant in
order to protect his interests. I agree. I arrive at that conclusion only
after a review of the appellants' interests showed that they failed to satisfy
the rule's interest and impairment requirements. Thus, the result we reach,
denying intervention, would be no different if Hubbard did appear but
inadequately represented the appellants. Whether appellants attempt to
substitute for an existing party or impose themselves in the litigation as a
second or third named party, Rule 24 still forbids their intervention.
Although the court correctly, in my view, recognizes that intervention should
not be granted, I do not accept its basis, i.e., the fact that the named
defendant will not appear precludes a nonparty's right to intervene. To the
contrary, that fact itself satisfies the rule's third requirement.
Intervention is inappropriate because of appellants' failure to show that they
have protectible interests that will be impaired by this litigation. Had
appellants made such a showing, I would find that they have a right to
intervene, even if the named defendant, for whatever reason, chose not to
present a defense.