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Gumm v. Jacobs

United States District Court, M.D. Georgia, Macon Division

May 10, 2019

TIMOTHY GUMM, et al., Plaintiffs,
RICK JACOBS, et al., Defendants.



         Jeffrey Bourassa moves to intervene as of right or, in the alternative, permissively. For the following reasons, that motion (Doc. 228) is DENIED.

         I. BACKGROUND

         Bourassa states that in April 2016 he was placed in the Tier III Program in the Special Management Unit (“SMU”) at the Georgia Diagnostic & Classification Prison (“GDCP”). Id. at 1. He was transferred out of Tier III and to a different prison in June 2016, and he was returned to the GDCP Tier III on March 6, 2018. Id. at 2, 5. On March 14, 2018, he was transferred to federal custody to await trial on a RICO charge. Id. at 4-5. He notes that although he “is a class member in that he is currently assigned to GDCP/SMU/Tier III” and claims he will be returning there, he has not been provided notice of the proposed Settlement Agreement. Id. at 6. Movant Bourassa therefore “objects to any proposed settlement agreement unless and until he is both served with proper notice” and a copy of the Settlement Agreement “and has an opportunity to be heard in response to said Settlement Agreement.” Id. at 7. However, Bourassa also admits that he “has since obtained access to the proposed Settlement Agreement.” Id. The Court also notes that it has certified a class of “all persons who are or in the future will be assigned to the facility currently known as the Special Management Unit at Georgia Diagnostic & Classification Prison, or who are or in the future will be assigned to the Tier III Program.” Doc. 256 at 28. Bourassa, who has been in federal custody for over a year but could conceivably return to the SMU, is a potential future class member. Doc. 248 at 6. Depending on the outcome of his federal trial, he may or may not return to the Georgia Diagnostic & Classification Prison; if he does return, he may or may not be assigned to Tier III. Doc. 252 at 14-15. Despite that attenuated and uncertain connection to the Tier III program, class counsel treat him as a class member for the purposes of this motion. Doc. 252 at 6.


         Rule 24(a) of the Federal Rules of Civil Procedure allows, in certain situations, for intervention as of right, and Rule 24(b) allows for permissive intervention in the Court’s discretion. Both Rule 24(a) and Rule 24(b) require that a motion to intervene be “timely,” so the Court addresses timeliness first. See NAACP v. New York, 413 U.S. 345, 365 (1973).

         A. Timeliness

         “A district court must consider four factors in assessing timeliness, namely (1) the length of time during which the would-be intervenor knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of prejudice to the existing parties as a result of the would-be intervenor's failure to apply as soon as he knew or reasonably should have known of his interest; (3) the extent of prejudice to the would-be intervenor if his petition is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely.” United States v. Jefferson Cty., 720 F.2d 1511, 1516 (11th Cir. 1983).

         As to the first factor, it is unclear when Bourassa knew or should have known of his interest in the case. He claims that he spent approximately two months in the SMU in April 2016 to June 2016 and approximately a week in the SMU in March 2018. Doc. 228 at 1-5. He claims he first learned of this case on February 26, 2019, and there is no indication that he should have known of his interest in the litigation before then. Doc. 228 at 9. He moved to intervene relatively promptly: the Court received his motion to intervene on March 25, 2019. Doc. 228 at 1. The first factor, therefore, supports a finding of timeliness. As to the second factor, Bourassa moved to intervene not long after learning of his interest in the litigation, so the existing parties would not be prejudiced by any delay in Bourassa’s moving to intervene. As to the third factor, there is minimal prejudice to Bourassa if his motion is denied, because he was able to file objections, which were fully considered by the Court. Docs. 227, 256 at 22-23. Also, as discussed in more detail below, the representative plaintiffs have an interest identical to Bourassa’s, and so he will not be prejudiced if his motion is denied. See Jefferson Cty., 720 F.2d at 1517 (noting that courts will “find no prejudice sufficient to give weight to the third factor” when a putative intervenor has interests identical to those of a party). As to the fourth factor, there are no unusual circumstances concerning the timing of Bourassa’s motion. Considering all the circumstances, Bourassa’s motion is timely.

         B. Intervention as of Right

         Rule 24(a)(1) allows intervention when the putative intervenor is “given an unconditional right to intervene by a federal statute,” but Bourassa has not pointed to any statute conferring an unconditional right to intervene in this case. Rule 24(a)(2) allows intervention as of right when the putative intervenor “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.”

         To intervene as of right, therefore, a movant must satisfy four requirements: “(1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is the subject of the action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.” Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996). As discussed above, Bourassa’s motion is timely. Further, although Bourassa’s connection to Tier III is attenuated and uncertain, the Court will assume, for the purposes of resolving this motion, that he satisfies the second and third requirements.[1]

         However, Bourassa cannot satisfy the fourth requirement for intervention as of right: demonstrating that his interest-that is, his speculation that he may return to Tier III-is inadequately represented by the existing parties. See Purcell, 85 F.3d at 1512. Generally, the intervenor will satisfy this requirement "unless it is clear that [the current parties] will provide adequate representation.” Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989). Although the movant’s burden to demonstrate inadequacy is “not onerous,” the movant still “must produce something more than speculation as to the purported inadequacy.” Aref v. Holder, 774 F. Supp. 2d 147, 172 (D.D.C. 2011) (quotation marks omitted) (citing Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610 F.2d 49, 54 (1st Cir.1979); Dimond v. Dist. of Columbia, 792 F.2d 179, 192 (D.C.Cir.1986)). On the other hand, “[w]hen the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the petitioner must demonstrate adversity of interest, collusion, or nonfeasance.” Int'l Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d 964, 967 (5th Cir. 1978).[2]

         Bourassa argues that class representation is inadequate because class counsel are sacrificing his speculative interests to further the interests of other class members. Specifically, he objects to Paragraph 44 of the Settlement Agreement, which allows the Defendants to keep an inmate in Tier III for longer than two years if, among other conditions, “(5) the inmate’s crime was so egregious that the person was placed in the Tier III Program immediately upon being placed in GDC custody; or (6) the inmate, due to his unique position of influence and authority over others, poses such an exceptional, credible, and articulable risk to the safe operation of the prison system or to the public that no facility other than the Tier III Program facility is sufficient to contain the ...

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