The opinion of the court was delivered by: Gerard E. Lynch, District Judge.
Adrianne Cronas, a former employee of defendants, moves to intervene in this action pursuant to Federal Rule of Civil Procedure 24. Included in her motion to intervene are requests to re-open discovery and expand the class period, a request for access to all confidential materials in the litigation, and a request that she and her attorney be appointed class representative and co-class counsel, respectively. The motion will be denied.
The factual background of this long-running employment discrimination action can be found in numerous prior decisions of the Court. See Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476 (S.D.N.Y. 2005); see also Hnot v. Willis Group Holdings Ltd., 01 Civ. 6558 (GEL), 2006 WL 2381869 (S.D.N.Y. Aug. 17, 2006); Hnot v. Willis Group Holdings Ltd., 01 Civ. 6558 (GEL), 2006 WL 2079326 (S.D.N.Y. July 24, 2006); Hnot v. Willis Group Holdings Ltd., 01 Civ. 6558 (GEL), 2005 WL 831665 (S.D.N.Y. Apr. 8, 2005); Hnot v. Willis Group Holdings Ltd., 01 Civ. 6558 (GEL), 2005 WL 831664 (S.D.N.Y. Apr. 8, 2005); Hnot v. Willis Group Holding Ltd., 01 Civ. 6558 (GEL), 2004 WL 1794493 (S.D.N.Y. Aug. 10, 2004). The present Opinion recites only certain details relevant to the motion to intervene.
Adrianne Cronas was employed by defendants as a Vice President, Senior Vice President and Executive Vice President from September 1996 until June 2004. During this time, she alleges, defendants subjected her and other high-level female employees to discrimination in compensation, assignments, promotions, and other terms and conditions of employment. (See Proposed Complaint in Intervention ("Proposed Compl.") ¶ 19.) Cronas also alleges that defendants retaliated against women who complained internally or externally about defendants' treatment of women. (Id.) She was terminated in June 2004 and allegedly replaced by a less-experienced male who earned a substantially higher salary. (Id. ¶ 15.)
Cronas's intervention papers do not disclose when she learned of Hnot and Scheller's class action lawsuit, which was filed on July 19, 2001. Cronas concedes, however, that she learned of this Court's class certification order in May 2005, that is, about eleven months after she was terminated. (Cronas Mem. in Support of Mot. to Intervene ("Cronas Mem.") at 6; Proposed Compl. ¶ 47.) The certification order, dated March 21, 2005, had certified a class of "all current and former female employees who have been employed by the defendants in positions eligible for the award of officer titles between 1998 and 2001." Hnot, 228 F.R.D. at 480 (citation and internal quotation marks omitted)).
After the Court certified the class, plaintiffs moved for modification of the class definition to encompass employees who had worked for defendants after 2001. On or about July 17, 2006, that is, about seven months after the motion to expand the class definition had been fully briefed but before the Court had issued a decision, Cronas's attorney sent a letter to chambers, notifying the Court of Cronas's intention to seek intervention and requesting that the Court allow briefing of the intervention issue before deciding whether to expand the class period. A formal motion to intervene was filed on August 1, 2006.
The Court denied plaintiffs' motion to expand the class period on August 17, 2006, before acting on Cronas's motion. See Hnot, 2006 WL 2381869. In denying the motion, the Court observed that plaintiffs were effectively asking the Court to re-open fact discovery, which had closed in February 2004 pursuant to a case management plan signed by the parties and approved by the Court in November 2003. Id. at *2-*3. Because plaintiffs' motion did not show good cause to modify the case management order, the Court rejected the request to re-open discovery. Id. at *3-*5. Because plaintiffs had expressly made their motion to expand the class period contingent on a re-opening of discovery, the Court denied the class period expansion request as well. Id. at *6.
Cronas's motion to intervene was fully briefed on September 21, 2006. The purpose of the motion, she explains, is "to ensure that her rights and those of similarly situated women who were employed [by defendants] after 2001 are adequately protected." (Cronas Mem. at 5 (emphasis added).) Because the litigation she wishes to join currently includes only women employed during the 1998-2001 period, the Court interprets Cronas's motion to intervene as including a request that the Court re-open discovery and expand the class period.
Federal Rule of Civil Procedure 24(a), which provides for "intervention of right," requires that the proposed intervenor "(1) file a timely motion; (2) show an interest in the litigation; (3) show that its interest may be impaired by the disposition of the action; and (4) show that its interest is not adequately protected by the parties to the action." D'Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001) (citation and internal quotation marks omitted). All four of these requirements must be met to justify intervention. See id. Where the proposed intervenor is not permitted to intervene as of right, the Court may grant "[p]ermissive [i]ntervention" pursuant to Rule 24(b). Permissive intervention is appropriate, upon timely application, "(1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common." Fed. R. Civ. P. 24(b). "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." Id.; see also In re Bank of New York Derivative Litig., 320 F.3d 291, 300 n.5 (2d Cir. 2003). Permissive intervention is never mandatory. See id.
Though timeliness of a motion to intervene under Rule 24(a) or (b) is not determined strictly by chronology, the length of an applicant's delay in seeking intervention is "[a]mong the most important factors" to consider in a timeliness decision. Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996); see United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994). Other factors to consider include the point to which a suit has progressed, prejudice to the existing parties from the applicant's delay, prejudice to the applicant if the motion is denied, and any "unusual circumstances militating either for or against a finding of timeliness." Id.; see NAACP v. New York, 413 U.S. 345, 365-66 (1973).
Cronas's motion papers do not disclose when she first learned of her interest in the class action suit she now seeks to join, instead revealing only the month when she learned of the class certification. The omission is no mere oversight; defendants' memorandum in opposition to intervention specifically notes that Cronas's motion does not reveal the date when she first learned of the suit (D. Mem. in Opp. to Cronas Mot. to Intervene at 5 n.4), and Cronas fails to correct the omission in her reply brief. Instead, she argues that the date on which she learned of the litigation is irrelevant. "The critical question," Cronas argues, "is not when the intervenor became aware of the litigation, but rather when she knew or reasonably should have known that her interests were not being adequately protected." (Cronas Reply at 5.)
Though Cronas's position finds some support in the case law, see, e.g.,In re the Application of Akron Beacon Journal, 94 Civ. 1402 (CSH), 1995 WL 234710, at *7 (S.D.N.Y. Apr. 20, 1995) ("'[T]he appropriate inquiry is when the intervenor became aware that its interest in the case would no longer be adequately protected by the parties,'" quoting Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 785 (1st Cir. 1988)), the Second Circuit has repeatedly explained that the date on which the proposed intervenor learns of his or her interest in the litigation is of primary importance in the timeliness inquiry. See, e.g., In re Bank of New York Derivative Litig., 320 F.3d at 300; In re Holocaust Victim Assets Litig., 225 F.3d 191, 198 (2d Cir. 2000);Catanzano, 103 F.3d at 232; Pitney Bowes, Inc., 25 F.3d at 70. Even if ...