Cook v. Pan American World Airways, Inc.

• Citation: 636 F. Supp. 693
• Decision Date: 09 May 1986
• Docket Number: 84 Civ. No. 1651(RWS).
• Parties: John C. COOK, et al., Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., Air Line Pilots Association, International, Air Line Pilots Association, Pan Am Chapter, Flight Engineers International Association, Flight Engineers International Association, Pan Am Chapter, Defendants. and Charles P. Caudle and Vincent Wynne, individually, and as Representatives of all similarly situated pilots of Pan American World Airway, Inc., formerly in the employ of National Airlines, Inc., Proposed Defendants-Intervenors.
• Court: U.S. District Court — Southern District of New York

636 F. Supp. 693

John C. COOK, et al., Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., Air Line Pilots Association, International, Air Line Pilots Association, Pan Am Chapter, Flight Engineers International Association, Flight Engineers International Association, Pan Am Chapter, Defendants. and Charles P. Caudle and Vincent Wynne, individually, and as Representatives of all similarly situated pilots of Pan American World Airway, Inc., formerly in the employ of National Airlines, Inc., Proposed Defendants-Intervenors.

84 Civ. No. 1651(RWS).

United States District Court, S.D. New York.

May 9, 1986.

Butler & Binion, Houston, Tex., for plaintiffs; Jeffrey C. Londa, of counsel.

Pan American World Airways, Inc., New York City, for defendant Pan American World Airways, Inc.; Richard Schoolman, of counsel.

Air Line Pilots Ass'n, Intern., Washington, D.C., for defendant Air Line Pilots Ass'n, Intern.; John Cohn, of counsel.

O'Donnell & Schwartz, New York City, for defendant Flight Engineers Intern. Ass'n; Asher Schwartz, of counsel.

Cotton, Watt, Jones & King, Chicago, Ill., Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, New York City, for movants-proposed intervenors; Jeffrey P. Englander, of counsel.

SWEET, District Judge.

Charles P. Caudle and Vincent Wynne ("movants"), individually and as representatives of all similarly situated Pan American World Airways, Inc. ("Pan Am") pilots formerly in the employ of National Airlines, Inc. ("National"), bring this motion pursuant to Rule 24, Fed.R.Civ.P. to intervene as party defendants in the above-captioned case. For the reasons discussed below, the motion is denied.

I. Facts and Prior Proceedings

Following the merger of National into Pan Am, the pilots of the new airline company were also merged into a single bargaining unit. As part of the merger proceedings, arbitrator Lewis M. Gill issued a decision consolidating the seniority lists of Pan Am and National (the "Gill Award"). The Gill Award served as the blueprint for Pan Am's current pilot seniority system. Pilots formerly employed by Pan Am ("plaintiffs") filed this action against their unions (collectively referred to as "ALPA") and Pan Am alleging that the current seniority system violates the Age Discrimination in Employment Act of 1967, as amended. 29 U.S.C. §§ 621-634 ("ADEA"). Specifically, plaintiffs claim that the merged seniority system wrongfully placed them below younger less experienced former National pilots. The complaint also alleges a breach of duty of fair representation in connection with the negotiation and implementation of the Gill Award by ALPA.

Essentially, movants argue that they represent the only party subject to injury in this litigation. That is, if plaintiffs prevail, the current seniority system would be voided or changed, and the plaintiffs would be reinstated to their "rightful" position in the seniority system. This upward placement of the plaintiffs would necessarily cause the former National pilots to be relatively lower on the seniority totem pole.

II. Discussion

Rule 24 of the Fed.R.Civ.P. governs motions to intervene. In relevant parts, the rule states:

(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.

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action ... (2) when an applicant's claim or defense and the main action have a question of law or fact in common.

* * * * * *

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.

Movants alternatively request intervention of right and permissive intervention. Intervention of right is denied because defendants adequately represent any protectable interest. Permissive intervention is denied for failure to allege an independent ground of jurisdiction.

A. Intervention of Right

In Restor-A-Dent Dental Laboratories v. Certified Alloy Products, 725 F.2d 871 (2d Cir.1984), the Second Circuit distilled a four part test from Rule 24(a):

An intervenor must show that: (1) the application is timely; (2) "the applicant claims an interest relating to the property, or transaction which is the subject matter of the action ..."; (3) the protection of the interest may as a practical matter be impaired by the disposition of the action; and (4) the interest is not adequately protected by an existing party.

725 F.2d at 874. Although the application is arguably timely, movants can neither claim a direct "interest" nor inadequate representation by existing defendants.

1. Timeliness

In their opposition papers, plaintiffs argue that the intervention motion is not timely. Since movants filed the motion five months after the underlying case was remanded to this court and discovery has already begun, plaintiffs assert that permitting intervention would cause serious, possibly prejudicial, delay. In response, movants attempt to explain their delay by reference to proceedings in another civil suit and represent that they will not interrupt or delay the on-going discovery process.

In determining the timeliness of a motion to intervene, courts have considered the stage of the proceedings, possible prejudice to other parties, reasons for the delay, the length of time the applicants knew of and "slept on" their rights, and an examination of the merits of the motion. Officers For Justice v. Civil Service Commission, 473 F.Supp. 801, 827 (N.D.Cal.1979), aff'd, 688 F.2d 615 (9th Cir.1982). See Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977). Although a court may deny a motion to intervene for failure adequately to explain delay, Bossier City Medical Suite v. City of Bossier, 483 F.Supp. 633 (W.D.La.1980), the concept of timeliness is a flexible one. McDonald v. E.J. Lavino, Co., 430 F.2d 1065, 1074 (5th Cir.1970). Movants' five month delay has not been adequately explained since the other action which they rely upon to explain their delay would not alter their status as intervenors in this action. However, there is no indication that intervention would be prejudicial to the other parties. Given the leniency with which this court has treated the requirement of timeliness, e.g., Cook v. Bates, 92 F.R.D. 119, 122 (S.D.N.Y.1981), the movants' delay does not warrant denial of the motion.

2. Movants' Interest

A clear definition of the "interest relating to the property or transaction which is the subject of the action" has not yet been established by the courts. Wright & Miller, Federal Practice and Procedure. Before the 1966 amendment, Rule 24 allowed intervention of right only when the applicant "is or may be bound by a judgment in the action." The 1966 Amendment to this Rule expanded the right to intervene, but it does not include any interest. A valid interest must be direct, as opposed to remote or contingent, see In re Penn Central Commercial Paper Litigation, 62 F.R.D. 341, 346-47 (S.D.N.Y.1974), aff'd, 515 F.2d 505 (2d Cir.1975), and must be "significantly protectable." Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 542-43, 27 L.Ed.2d 580 (1971).

The interest claimed by the movants is their desire not to be moved down the seniority list in the event of a judgment for the plaintiffs. Movants claim a plaintiffs' verdict and subsequent shuffling of the seniority list would deprive them of certain seniority entitlements defined by the Gill Award. Movants state that "such entitlements clearly create enforceable contract rights," and intervention should be permitted to protect those rights.

The Ninth Circuit has found that the desire to protect other employees' seniority rights is not within those interests which provide a right to intervention. See Dilks v. Aloha Airlines, Inc., 642 F.2d 1155, 1157 (9th Cir.1981) (holding that while junior pilots will be affected by a former pilot's suit for reinstatement, "the juniors have no legally protectable right to benefit from an invalid discharge"). As the movants note, this holding assumes the validity of the plaintiffs' claims and is therefore premised on a tautology that prejudges the merits of the suit. While the individual employees do not have a direct responsibility in the discrimination suit because they are not charged with the defendants' alleged discriminatory conduct, they have rights based on the collective bargaining agreement between ALPA and Pan Am which might be affected by a finding of discrimination.

The Fifth Circuit has held that employees which have a contractual right to seniority possess a "significantly protectable interest" under Rule 24(a)(2). Stallworth v. Monsanto Co., 558 F.2d 257, 268-69 (5th Cir.1977). As explained by that court, "although seniority advantages are not indefeasibly vested rights, and cannot bar the way to effective Title VII relief to members of a class affected by racial discrimination, they nonetheless represent an expectancy whose significance is difficult to overemphasize, and which should not be lightly or blindly swept aside." Id. at 269 (citations omitted). In this Circuit, courts have also concluded that individuals whose employment rights would be affected by a discrimination suit had a sufficient interest for the purposes of intervention. See Underwood v. New York Office of Court Administration, 20 Empl.Prac.Dec. (CCH) ¶ 30,157 (S.D.N.Y.1979). See also Kirkland v. New York State Department of Corrections, 520 F.2d 420 (2nd Cir.1975) (without discussion of intervention issue, circuit court noted intervention of individual employees as defendants). In accordance with these...