Farmland Irrigation Company v. Dopplmaier, 13659.
| Decision Date | 08 March 1955 |
| Docket Number | No. 13659.,13659. |
| Citation | 220 F.2d 247 |
| Parties | FARMLAND IRRIGATION COMPANY, Inc., a corporation, Appellant, v. George DOPPLMAIER, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Naylor & Lassagne, San Francisco, Cal., Theodore H. Lassagne, L. R. Geisler, Portland, Or., for appellant.
Maguire, Shields, Morrison & Bailey, Portland, Or., Lippincott & Smith, San Francisco, Cal., for appellee.
Before POPE and CHAMBERS, Circuit Judges, and BYRNE, District Judge.
Darrel C. Mansur entered into a license agreement with Stout Irrigation, Inc., an Oregon corporation, granting the latter the right to manufacture and sell certain irrigation apparatus. Appellee George Dopplmaier of Rio Linda, California, is the assignee of the rights of Darrel C. Mansur under that license agreement. A dispute having arisen between Dopplmaier and Stout Irrigation, Inc., as to the amount of royalties due under the license agreement, Dopplmaier, on June 6, 1951, filed a complaint for an accounting in the United States District Court for the District of Oregon. On October 8, 1951, the defendant Stout Irrigation, Inc. filed its answer.
Thereafter, on May 22, 1952, the appellant Farmland Irrigation Company, Inc. filed a "Motion to Intervene as a Defendant", supported by an affidavit of its vice-president, setting forth that on February 1, 1952, Farmland Irrigation Company, Inc., by contract, acquired all of the assets and bound itself contractually to assume all of the liabilities of Stout Irrigation, Inc., including any liability which might be adjudged against Stout Irrigation, Inc. in this action. It was further alleged that the representation of the interest of Farmland Irrigation Company, Inc. by the existing defendant Stout Irrigation, Inc. would be inadequate; that Farmland Irrigation Company, Inc. was a corporation duly organized and existing under the laws of California and duly qualified to do business in the State of Oregon.
A "Motion of Intervening Defendant to Dismiss" was filed in behalf of Farmland Irrigation Company, Inc. concurrently with its motion to intervene. The motion to dismiss was based on the ground that it was an indispensable party to the action and that its intervention as a defendant would destroy the previously existing diversity of citizenship, causing the court to lose jurisdiction to proceed in the action and requiring a dismissal. This motion was properly treated by the District Court as contingent upon allowance of the motion to intervene and as becoming moot with its denial. By an order entered November 10, 1952, the District Court denied the motion to intervene. This appeal is from that order.
Where intervention is sought as a matter of right, an order denying the motion to intervene is appealable. People of State of California v. United States, 9 Cir., 1950, 180 F.2d 596.
The applicable provisions of Fed.Rules Civ.Proc. rule 24(a), 28 U.S.C.A. provide: "Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action."
Essential to an absolute right of intervention in accordance with Rule 24 (a) is a showing by the applicant for intervention of the existence of both the conditions stated by the Rule, i. e. Inadequate representation by existing parties and a judgment that is or may be binding in the action. A showing that an applicant for intervention will be bound by a judgment in the action is not in itself sufficient to confer upon such applicant a right to intervene; it must also be shown that representation of the applicant's interest by existing parties is or may be inadequate. MacDonald v. United States, 9 Cir., 1941, 119 F.2d 821, 827; Tachna v. Insuranshares Corporation of Delaware, D.C.Mass.1938, 25 F. Supp. 541, 542.
Farmland assumed the liabilities of Stout and therefore Stout will have a right of action over against Farmland to recover the amount of any judgment...
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Farmland Irr. Co. v. Dopplmaier
...represented on the accounting issue, and that the issue made by the counter-claim was not involved in the action. Farmland Irrigation Co. v. Dopplmaier, 9 Cir., 220 F.2d 247. Plaintiff then commenced the present action. A motion by defendant for a stay of proceedings pending final judgment ......
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...38-39; 2 Barron & Holtzoff, Federal Practice and Procedure (Wright Revision), § 597, pp. 381-82. See also Farmland Irrigation Co. v. Dopplmaier, 9 Cir., 1955, 220 F.2d 247, 248-249; Bisanz Bros. Inc. v. Chicago-Milwaukee-St. Paul & P. R. R., D.Minn., 1957, 20 F.R.D. 353, 354, vacated on oth......
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