Beckman Industries, Inc. v. International Ins. Co.
Decision Date | 04 February 1992 |
Docket Number | Nos. 90-55859,90-55871,s. 90-55859 |
Citation | 966 F.2d 470 |
Parties | BECKMAN INDUSTRIES, INC.; Smithkline Beckman, Plaintiffs-Appellees, and Stauffer Chemical Company, Intervenors-Appellees, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Appellant. BECKMAN INDUSTRIES, INC.; Smithkline Beckman, Plaintiffs-Appellees, and Monsanto Company; Reichhold Limited; FMC Corporation; Bridgestone/Firestone, Intervenors-Appellees, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Kathryn Doi, Orrick, Herrington & Sutcliffe, Los Angeles, Cal., for defendant-appellant.
Andrew Lundberg, Latham & Watkins, Los Angeles, Cal., for plaintiffs-appellees.
Jeffrey B. Maletta, Kirkpatrick & Lockhart, Washington, D.C., for intervenor Stauffer Chemical Co.
Karen L. Bush, Anderson, Kill, Olick & Oshinsky, Washington, D.C., and David W. Steuber, Hill Wynne Troop & Meisinger, Los Angeles, Cal., for intervenors Monsanto Co., Reichhold Limited, FMC Corp. and Bridgestone-Firestone, Inc.
Appeal from the United States District Court for the Central District of California.
Before: WALLACE, Chief Judge, BROWNING and FERGUSON, Circuit Judges.
International Insurance Company ("International") appeals orders of the district court granting motions of the intervenors to (1) intervene under Fed.R.Civ.P. 24(b) and (2) modify a protective order to permit the intervenors access to six deposition transcripts taken in an earlier action. International contends that the intervenors failed both to satisfy the requirements for intervention and to justify modification of the protective order. We affirm.
The main action between Beckman Industries (Beckman), plaintiff, and International, defendant, was settled and dismissed in 1988. At issue was whether environmental impairment liability (EIL) insurance policies issued by International to Beckman provided coverage for certain environmental liabilities. Discovery included the depositions of six International employees involved in the development and administration of the EIL policies sold to policy holders around the country. As part of the Beckman action the district court, pursuant to a stipulation, issued a blanket protective order in 1986 keeping all discovery confidential.
Stauffer Chemical Company, Monsanto Company, Reichhold Limited, FMC Corporation and Bridgestone/Firestone, Inc. ("intervenors") are currently involved in litigation in state courts in which the scope of coverage of International's EIL policies is at issue. Stauffer and International are parties in two consolidated cases pending in Los Angeles County Superior Court. In April 1990 Stauffer filed a motion to intervene in the Beckman action for the purpose of moving to modify the protective order to gain access to the six deposition transcripts. The other intervenors filed a joint motion based on the same grounds and seeking the same relief as Stauffer. Beckman did not object to the modification, and the intervenors agreed to use the six deposition transcripts in accordance with protective orders in the pending state actions.
Intervenors claimed the six transcripts (1) will provide relevant information regarding the drafting, interpretation, underwriting and administration of the standard EIL insurance policies; (2) may contain admissions against interest as to policy interpretation; and (3) may contain inconsistent statements. The district court granted the intervenors' motions. International appeals.
The underlying order is appealable either as a final order under 28 U.S.C. § 1291 or as a collateral order. United Nuclear Corp. v. Cranford Insurance Co., 905 F.2d 1424, 1426 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). See also Wilk v. American Medical Ass'n, 635 F.2d 1295, 1298 (7th Cir.1980) ( ); Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 293-94 (2nd Cir.1979) ( ).
Intervenors propose that the proper standard of review is abuse of discretion, while International urges de novo review.
We review a decision whether to grant permissive intervention under an abuse of discretion standard. Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir.1989), aff'd, 495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990). However, the initial questions before us are legal ones, concerning the coverage and interpretation of the Federal Rules of Civil Procedure. Review is therefore de novo as to whether Rule 24(b) permits intervention for the purpose of seeking a modification of a protective order after the conclusion of the underlying action. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (, )cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
The court reviews the grant of a protective order for abuse of discretion, Roat v. C.I.R., 847 F.2d 1379, 1382 (9th Cir.1988), as well as a request to modify a protective order. United Nuclear Corp. v. Cranford Insurance Co., 905 F.2d 1424, 1427 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989).
Fed.R.Civ.P. 24(b)(2) allows intervention in an action Fed.R.Civ.P. 24(b)(2).
International argues that Rule 24(b) only permits intervention for the purpose of litigating a claim on the merits in a pending action, in order to dispose of related controversies together. International is correct that the primary focus of Rule 24(b) is intervention for the purpose of litigating a claim on the merits. Nevertheless, there is ample support for intervenor's argument that courts also recognize Rule 24(b) intervention as a proper method to modify a protective order. See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783-784 (1st Cir.1988) (, )cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989); Meyer Goldberg, Inc. of Lorain v. Fisher Foods, 823 F.2d 159, 162 (6th Cir.1987) ( ); Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 294 (2nd Cir.1979) ( ); In re Beef Industry Antitrust Litigation, 589 F.2d 786, 789 (5th Cir.1979) (same).
The Tenth Circuit recently adopted this view in a case directly on point involving the same defendant, International. United Nuclear Corp. v. Cranford Insurance Co., 905 F.2d 1424, 1427 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). There, the intervenors, litigants in state and federal courts, sought determinations of the scope of coverage of policies issued by International. International had also been a defendant in an earlier action brought by United Nuclear Corporation in which a protective order had been issued. As in this case, the intervenors sought modification of the protective order in the earlier action to get access to depositions. The Tenth Circuit found intervention proper under Rule 24(b). It found that the request was timely, there was no prejudice to the existing parties, and the interpretation of the EIL policy was a sufficient common issue between the underlying suit and the intervenors' suits. United Nuclear, 905 F.2d at 1427.
Thus, contrary to International's contention, there is wide approval of Rule 24(b) intervention as a method for seeking to modify a protective order. We join these circuits in recognizing that Rule 24(b) permits limited intervention for the purpose of challenging a protective order. We next address whether the requirements of Rule 24(b) intervention for the purpose of litigating a claim on the merits are applicable to the limited type of intervention at issue here.
Permissive intervention to litigate a claim on the merits under Rule 24(b) requires (1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between the movant's claim or defense and the main action. Garza v. County of Los Angeles, 918 F.2d 763, 777 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). Fed.R.Civ.P. 24(c) requires that a person seeking to intervene under Rule 24 file a motion "accompanied by a pleading setting forth the claim or defense for which intervention is sought." Fed.R.Civ.P. 24(c). International claims that all these requirements are applicable where, as here, limited intervention is sought, and that the intervenors failed to satisfy them.
Permissive intervention ordinarily requires independent jurisdictional grounds. 7C Charles A. Wright, Arthur R. Miller, Mary K. Kane, Federal Practice and Procedure § 1917 at 466 (2nd ed. 1986); see also Blake v. Pallan, 554 F.2d 947, 955-56 (9th Cir.1977). Here, however, an independent jurisdictional basis is not required because intervenors do not seek to litigate a claim on the merits. The district court retained the power to modify the protective order. United Nuclear Corp., 905 F.2d at 1427 ( ); Public Citizen, 858 F.2d at 782-83 (...
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