September 25, 2017 § 2 Comments
The Smiths, paternal grandparents of 3-year-old Zach, want to hire you to get custody of of him from his parents, who have been jailed over some meth charges. The Smiths just discovered that the Johnsons, the maternal grandparents, have already filed an action in chancery court to do that very thing, and the case is set for hearing in a week. What to do?
Your first thought is to file a counterclaim for the Smiths, seeking custody. But, after re-reading R13, you realize that counterclaims are between parties, and the Smiths are not parties.
You think then that maybe you should simply file a separate suit and ask the chancellor to consolidate them. That sounds kind of cumbersome, and leaves you and your clients out of the loop as to what is going on in the Johnsons’ original suit unless and until consolidation is granted.
Frustrated and on the verge of tears, wondering why you ever though law school was a good idea in the first place, you pace the floor of your office until an intern says, “Why don’t you file to intervene via Rule 24?” You scoff and dismiss the intern to go get the mail … and then you look at R24.
Voila! Intervention. It’s right there in the MRCP!
The first step in intervention is to file a motion to intervene in the action. The rule requires a “timely application.” The motion must state the grounds for the motion and must be accompanied by a proposed pleading setting forth the claim or defenses for which the intervention is sought.
Any party may intervene in an action:
- By right when a statute confers an unconditional right to intervene. So, obviously, the statutory right would be the ground for the motion; or
- By right when the applicant claims an interest in the subject matter of the suit and his ability to protect that interest may be impaired, unless existing parties can adequately protect that interest; or
- By permission when a statute confers a conditional right to intervene; or
- By permission when an applicant’ claim or defense and the main action have common questions of fact or law.
It is within the court’s discretion whether to allow the intervention. The court must consider whether the intervention will unduly delay or prejudice the rights of the original parties.
The Advisory Committee Notes cite authority to the effect that: (1) if one of the criteria for intervention by right are met, and there is a timely application, the court should grant intervention; (2) even if one or more of the criteria for permissive intervention are met, it is discretionary with the court whether to grant it; (3) any application to intervene must be timely, and the note cites the criteria the court must consider to determine timeliness; and (4) the determination of timeliness is in the trial court’s discretion and will not be overturned absent abuse of discretion.
Bottom line: You can’t just leap into the middle of an ongoing lawsuit without following R24.