The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
In 2003, Plaintiff Disability Advocates, Inc. ("DAI") brought this action on behalf of individuals with mental illness residing in, or at risk of entry into, "impacted adult homes" in New York City.*fn1 (See Compl. (Docket Entry #1).) Adult homes are for-profit residential adult care facilities licensed by the State of New York (the "State"). Following six years of litigation and a five-week bench trial, the court found that Defendants "denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs," and that these actions constitute discrimination in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 791 et seq. (Mem. and Order dated Sept. 8, 2009 (Docket Entry #341) ("Sept. 8 Order"), at 3.) The court assumes familiarity with that Order. Although the court found that Plaintiff is entitled to some form of declaratory and injunctive relief, it directed briefing from the parties regarding the particular injunctive remedy to be imposed. (Id. at 208.)
Following the court's liability finding, three non-parties moved to intervene in the action: the United States, the Empire State Association of Assisted Living ("ESAAL"), and the New York Coalition for Quality Assisted Living ("NYCQAL").*fn2 In an Order dated November 23, 2009 ("U.S. Order"), the court granted permissive intervention to the United States. (See Docket Entry #384.) While the other motions to intervene were still pending, the court permitted ESAAL and NYCQAL to submit amicus curiae briefs regarding their views as to the appropriate remedy. (See Order (Docket Entry #389).) For the reasons that follow, the court now denies the ESAAL Motion (Docket Entry #361) and the NYCQAL Motion (Docket Entry #362).
ESAAL and NYCQAL are non-profit trade associations that represent the interests of assisted living residences and adult homes throughout New York State. (See Affidavit of Lisa Newcomb (Docket Entry #361) ("Newcomb Aff.") ¶ 2; Affidavit of Francesca Sommer (Docket Entry #362) ("Sommer Aff.") ¶ 2.) Of the twenty-eight adult homes at issue in this litigation, eight are members of ESAAL and fourteen are members of NYCQAL. (Newcomb Aff. ¶ 5; Sommer Aff. ¶ 4.)
Although they are not parties, ESAAL and NYCQAL are no strangers to this litigation. During the several years of discovery in this case, the litigants were in frequent contact with the attorneys for the adult homes. The adult homes "actually facilitated the parties' discovery proceedings" and their attorneys negotiated stipulations with Plaintiff's counsel.*fn3 When the parties and their expert witnesses sought to visit the adult homes, ESAAL and NYCQAL's attorneys arranged the scheduling and terms of the visits,*fn4 and even accompanied the parties on their tours of the homes.*fn5 These attorneys attended depositions of adult home staff,*fn6 responded to subpoenas for documents in their possession,*fn7 and sat in on portions of the five-week bench trial in this case. In short, they have been active participants in this case for years.
Suddenly discontent with participating from the sidelines, ESAAL and NYCQAL have now decided that the time is right to enter the fray. In support of their motions to intervene, they assert several interests relating to the action. Chief among these is a concern over the economic ramifications for the adult homes of any remedy that might be imposed. In particular, the adult homes point to the possibility that, in implementing the remedy, the State might eliminate adult home grant programs, reduce or reallocate public funding for adult homes, revoke operating certificates for certain adult homes, or interfere with the homes' private contracts with their residents. (See ESAAL Motion 11; NYCQAL Motion 14-15.) They also contend that Plaintiff's requested relief -- moving qualified adult home residents into supported housing -- threatens the business model and continued viability of the affected homes. (See ESAAL Motion 11; NYCQAL Motion 10.)
Beyond these economic interests, the adult homes assert two other interests in the action. The first concerns the welfare of Plaintiff's constituents: the adult homes claim an interest in ensuring that residents are "properly assessed for their mental and physical readiness" before being moved into supported housing. (ESAAL Motion 11.) Second, the adult homes claim an interest in fashioning a remedy because certain implementation measures could occur in adult homes or require coordination with adult home operators. On the strength of these purported interests in the litigation, both ESAAL and NYCQAL have moved to intervene as of right or, in the alternative, permissively.
Intervention as of right under Federal Rule of Civil Procedure 24(a) requires that an applicant satisfy four criteria: the would-be intervenor must "(1) file a timely motion; (2) claim an interest relating to the property or transaction that is the subject of the action; (3) be so situated that without intervention the disposition of the action may impair that interest; and (4) show that the interest is not already adequately represented by existing parties." Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 176 (2d Cir. 2001). Failure to satisfy even one of the four requirements will defeat a claim to intervention as of right. Id. Therefore, an untimely motion to intervene must be denied.
The requirement of timeliness "defies precise definition, although it certainly is not confined strictly to chronology." United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994). Courts evaluating timeliness consider the totality of the circumstances, focusing on a variety of factors: "(1) the length of time the applicant knew or should have known of his interest before making the motion; (2) prejudice to existing parties resulting from the applicant's delay; (3) prejudice to the applicant if the motion is denied; and (4) the presence of unusual circumstances militating for or against a finding of timeliness." Farmland Dairies v. Comm'r of N.Y. Dep't of Agric. & Mkts., 847 F.2d 1038, 1044 (2d Cir. 1988). As an additional consideration, intervention after the liability phase of litigation "resembles post-judgment intervention, which is generally disfavored." United States v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986).
The first factor to consider is the length of time the adult homes knew or should have known of their interest in this action. As discussed previously, the present motions to intervene come at a very late stage in this litigation: six years after the filing of the Complaint, three years after the close of discovery, two years after the parties' motions for summary judgment, and four months after a five-week bench trial. Yet, according to ESAAL and NYCQAL, they did not know of their interest until approximately two months before they sought intervention. For the adult homes, the moment of clarity arrived only when the court issued its September 8, 2009 Memorandum and Order, which found for the Plaintiff and ordered briefing on the appropriate injunctive relief. (See ESAAL Motion 6-7; NYCQAL Motion 7-8.) That Order, they argue, was the first indication that a remedy in this case might impair their interests. And only then did the adult homes perceive that their interests might diverge from Defendants' interests. (Id.)
Contrary to the adult homes' assertions, the possibility of a remedy that could adversely affect their interests arose not when the court issued the September Order, but when this action was filed. Plaintiff's requested relief is clearly set forth in the 2003 Complaint. The Complaint makes clear that Plaintiff has always sought to allow current and future residents of impacted adult homes to move to more integrated settings.*fn8 It explicitly references "the need for alternative, more integrated settings for current and future residents of large adult homes," and states in no uncertain terms that the "relief here sought is directed exclusively at impacted adult homes with over 120 beds located in New York City and the New York State system that steers people with mental illness into such homes." ...