Ewers v. Heron, 04-2620.
| Decision Date | 11 August 2005 |
| Docket Number | No. 04-2620.,04-2620. |
| Parties | Larry EWERS, Plaintiff, Appellee, Howard Eugene Liner; Creditors Committee of the Bankruptcy Estate of Christopher Patrick Heron; Ah Ping Ban; Flamecrest Enterprises Limited Trust; Balz Rudolph Wolfensberger Trust, Movants, Appellants, v. Christopher Patrick HERON; Corporation of the Bankhouse, Inc.; Societe Bankhouse; James F. Pomeroy, II, Defendants. |
| Court | U.S. Court of Appeals — First Circuit |
Alan M. Spiro with whom Edwards & Angell, LLP, was on brief, for Appellee.
Isaac H. Peres for Appellants.
Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.
A series of complicated litigations worldwide has several claimants seeking a sum of over $1.6 billion from Christopher Patrick Heron and his associated entities. Our issue can be stripped to its essence without recounting the details of the drama.
The district court denied a motion to intervene as of right brought by Liner and other claimants in a lawsuit which had been brought in Massachusetts federal court against Heron (and others) by another claimant, Ewers. The reason given for the purported intervention was that if Ewers received the funds he would pocket them and disappear, to the claimants' detriment. All of the claimants purport to have an interest in any money recovered from Heron (as does Ewers). One of the claimants, Liner, admitted he had at one point given Ewers a power of attorney to seek the funds on Liner's behalf, and Ewers argues that under a Compensation Agreement with Liner, Liner agreed to split 50/50 any recovery that Ewers made from Heron on Liner's behalf. But Liner has said he later cancelled these agreements when Ewers proved to be sneaky and untrustworthy. Ewers has equally unattractive things to say about Liner. As for the other claimants, they allege that Ewers entered into an agreement with Alexander Pladott, their representative, to distribute any money recovered from Heron amongst all of the claimants.
The claimants attempted to intervene, some seven months after Ewers had initiated the Massachusetts lawsuit. At that point, the defendant Heron had defaulted, but no final judgment had yet entered.
The district court held a hearing on the motion to intervene, and ascertained the claimants' interest in the case. The court was also told that there were two separate lawsuits pending in Texas, one testing the relative rights between Ewers and Liner under their agreements and the other testing the relative rights of Ewers and the other claimants, as represented by Pladott, to whatever money Ewers recovered from Heron.
Cutting to the chase, the court asked why, if Liner was "concerned that Ewers is going to somehow dissipate these assets, ... we can't deal with that ... by making an order that says that there needs to be prior approval of the court of any disbursements of anything that is recovered." To this eminently practical suggestion, the claimants responded in essence that they had a right to intervene under Fed.R.Civ.P. 24(a)(2) and that they were concerned that given what they described as Ewers' propensity to lie, he would secrete any money recovered. The court noted that the Massachusetts suit was virtually over. The claimants' response was that it would not do any harm to let them intervene.
Ewers, in turn, agreed to the proposed order, and said that the claimants were really trying to take over and free ride in the litigation, which he had fully funded. He also said that the claimants' motion was interfering with his effort to get a judgment. Ewers finally argued that the motion to intervene was not timely and that allowing intervention would prejudice him.
The court, noting that it seemed to be in the interests of the claimants and...
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R & G Mortg. Corp. v. Federal Home Loan Mortg.
...F.3d 104, 109 (1st Cir.1999). Moreover, a trial court's subsidiary findings as to raw facts are reviewed for clear error. Ewers v. Heron, 419 F.3d 1, 3 (1st Cir.2005). The Civil Rules contemplate two types of motions to intervene: intervention as of right, Fed.R.Civ.P. 24(a), and permissive......
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B. Fernández & Hnos. v. Kellogg Usa, Inc.
...of Rule 24(a)(2). A. Rule 24(a)(2) We review the denial of a Rule 24(a)(2) motion for abuse of discretion. See Ewers v. Heron, 419 F.3d 1, 2 (1st Cir.2005). But, because Rule 24(a)(2) provides explicit criteria for adjudicating a motion to intervene, the district court's discretion is more ......
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In re Redondo Construction Corporation, BAP NO. PR 07-051 (B.A.P. 1st Cir. 12/18/2007)
...of review is abuse of discretion which is applied more closely with Fed. R. Civ. P. 24(b)). According to the court in Ewers v. Heron, 419 F.3d 1 (1st Cir. 2005): One way to show such an abuse of discretion is to show that the district court ignored the four pertinent legal criteria that one......
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Pladott v. Ewers, CIV.A.05-10356-RWZ.
...to intervene as plaintiffs. The court denied the motion or intervention, and the First Circuit affirmed the denial. See Ewers v. Heron, 419 F.3d 1 (1st Cir.2005). In the meantime, Liner, although not a party to the action, filed with the court an unofficial notice of litigation between hims......