Flynn v. Hubbard, s. 85-1397

Decision Date07 February 1986
Docket Number85-1398,Nos. 85-1397,s. 85-1397
Citation782 F.2d 1084
PartiesMichael J. FLYNN, Plaintiff, Appellee, v. Lafayette Ronald HUBBARD a/k/a L. Ron Hubbard, Defendant, Appellee. CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., Appeal of Michael J. FLYNN, Plaintiff, Appellee, v. Lafayette Ronald HUBBARD a/k/a L. Ron Hubbard, Defendant, Appellee. Mary Sue HUBBARD, Appeal of
CourtU.S. Court of Appeals — First Circuit

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, * Senior Circuit Judge, and BOWNES, Circuit Judge.

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 against him.

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 battery; and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 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 unpleasant chore.

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 founder;

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 intervene:

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.

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. 1 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 Sec. 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.

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 accountant ordering them to testify and produce records pertaining to Donaldson. Shortly prior to...

To continue reading

Request your trial
22 cases
  • Tutein v. Daley, CIV.A. 98-11034-MLW.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 17, 1999
    ...interest, applicants fell "short of the `practical impairment' requirement of Rule 24(a)(2)," citing Flynn v. Hubbard, 782 F.2d 1084, 1092-1093 (1st Cir.1986) (concurring opinion)), aff'd, 136 F.3d 197 (1st Cir.1998). On balance, NAS therefore fails to make a satisfactory showing with respe......
  • State v. Mohapatra, 2004-21-C.A.
    • United States
    • United States State Supreme Court of Rhode Island
    • July 25, 2005
    ...endangering the health, safety or morals of the public generally was a matter of common knowledge."); see also Flynn v. Hubbard, 782 F.2d 1084, 1087 n. 1 (1st Cir.1986); Fischer v. McGowan, 585 F.Supp. 978, 985 (D.R.I.1984); Hospital Service Corp. of Rhode Island v. Pennsylvania Insurance C......
  • Travelers Indem. Co. v. Dingwell, s. 88-1953
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 8, 1989
    ...Products, Inc., 725 F.2d 871, 874 (2d Cir.1984); 3B Moore's Federal Practice p 24.07, at 24-59; see also Flynn v. Hubbard, 782 F.2d 1084, 1092 (1st Cir.1986) (Coffin, J., concurring) (noting that interest must be "direct, substantial, and legally The problem with the first potential interes......
  • Floyd v. City of N.Y.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 30, 2014
    ...adequate description of the nature of the interests, making a meaningful Rule 24 analysis by the Court impossible. See Flynn v. Hubbard, 782 F.2d 1084, 1093 (1st Cir. 1986) ("[C]onclusory allegations do not entitle [a movant] to intervention as of right under Rule 24.") (Coffin, J. concurri......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT