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M Street Investments, Inc. v. Zurich American Ins. Co.

United States District Court, Fifth Circuit

August 1, 2013

M STREET INVESTMENTS, INC., Plaintiff,
v.
ZURICH AMERICAN INS. CO., ET AL., Defendants. GARY WILBORN, Plaintiff,
v.
ZURICH AMERICAN INS. CO., Defendant.

ORDER

MICHAEL T. PARKER, Magistrate Judge.

This matter is before the court on the Motion to Intervene [33] filed by J. Stephen Smith, Trustee for the bankruptcy estate of Delta Investments & Development, Inc., d/b/a Grand Station Casino, Vicksburg. The court, having considered the submissions of the parties and the applicable law, finds that the Motion should be DENIED.

The Movant seeks to intervene as of right in this action pursuant to Federal Rule of Civil Procedure 24(a)(2).[1] Alternatively, the Movant seeks a permissive intervention pursuant to Rule 24(b)(1)(B).[2] Plaintiff M Street Investments, Inc. ("M Street") and Defendant Belfor Group, USA, Inc. ("Belfor") oppose the intervention.

Intervention of Right

Federal Rule of Civil Procedure 24(a)(2) provides:

On timely motion, the court must permit anyone to intervene who:
...
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

According to Fifth Circuit precedent, in order to intervene as a right, a movant must meet the following four prerequisites:

(1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair his ability to protect that interest; (4) the applicant's interest must be inadequately represented by the existing parties to the suit.

Taylor Commc'ns Grp., Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999). A movant's "[f]ailure to meet any one of these requirements is fatal to a claim of intervention as of right." Id.

Here the focus is on the second requirement. Both M Street and Belfor claim that the Movant should not be allowed to intervene as of right because he fails to establish that the bankruptcy estate has an interest relating to the property or transaction which is the subject of the action. To meet the second requirement, the Movant must show that the estate has a "direct, substantial, legally protectable interest in the proceedings." Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1124 (5th Cir. 1970) (citations and quotations omitted). The interest asserted by the Movant must be "one which the substantive law recognizes as belonging to or being owned by the applicant." New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir. 1984).

The Movant must demonstrate a present interest and not a contingent interest or mere expectancy. United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir. 1969). The asserted interest is insufficient to justify intervention if it is "too contingent, speculative, or remote from the subject of the case." Bear Ranch, LLC v. Heartbrand Beef, Inc., 286 F.R.D. 313, 316 (S.D. Tex. 2012).

On April 24, 2013, the Trustee filed a Complaint to Set Aside a Fraudulent Conveyance in the bankruptcy proceeding which seeks to set aside the conveyance of the Grand Station Hotel from the bankruptcy estate to Great Southern Investment Group, Inc. ("Great Southern"), a wholly owned subsidiary of M Street. If the Trustee is successful in setting aside the ...


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