United States District Court, E.D. Virginia, Richmond Division
ASHLEY BURKE, individually and on behalf of a class of similarly situated persons, Plaintiff,
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant.
MEMORANDUM OPINION (DENYING MOTION TO
E. Hudson United States District Judge
MATTER is before the Court on a Motion to Intervene (ECF No.
59), filed on September 2, 2016, through which the Federal
Housing Finance Agency (the "FHFA" or
''movant") seeks to intervene as a defendant in
the above-captioned matter. For the reasons stated herein,
the Motion will be denied.
Ashley Burke ("Plaintiff) filed a Complaint on behalf of
herself and a putative class of similarly situated persons on
March 11, 2016, alleging that the Federal National Mortgage
Association ("Defendant") violated her rights under
the Fair Credit Reporting Act by unlawfully obtaining her
credit report under the false pretense of an "account
review, " even though no account existed. (Compl. ¶
3.) In claiming that Defendant violated 15 U.S.C. §
1681b(f), she contends that her privacy was invaded and that
she was placed at an increased risk of identity theft and/or
a data breach, resulting in anxiety and emotional distress.
(Compl. ¶¶ 24-25.) Plaintiff seeks, inter
alia, class certification, "actual and/or statutory
damages and punitive damages, " and attorney's fees
and costs. (Compl. ¶ 35.)
filed its Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) on June 27, 2016. (ECF No. 30.) On August
9, 2016, the Court issued a Memorandum Opinion and an
accompanying Order (ECF Nos. 57, 58) denying Defendant's
Motion. Nearly one month later, on September 2, 2016, the
FHFA filed its Motion to Intervene. (ECF No. 59.) Plaintiff
filed her Memorandum in Opposition to the FHFA's Motion
to Intervene on September 16, 2016. (ECF No. 68). And the
movant filed its Reply on September 22, 2016. (ECF No. 72.)
established the FHFA as the primary regulatory and oversight
authority of the Defendant through the Housing and Economic
Recovery Act of 2008 ("HERA"), Pub. L. No. 110-289,
122 Stat. 2654. On September 6, 2008, pursuant to HERA, 12
U.S.C. § 4617(a), the FHFA's director placed the
Defendant into a conservatorship. In doing so, the FHFA
succeeded to "all rights, titles, powers, and
privileges" of the Defendant and its respective
stockholders, boards of directors, and officers. 12 U.S.C.
Conservator, the FHFA is authorized to participate in
litigation involving the Defendant and is empowered to
"take such action as may be ... appropriate to ...
preserve and conserve the assets and property of [the
Defendant]." 12 U.S.C. § 4617(b)(2)(B)(ii).
Further, HERA provides that "no court may take any
action to restrain or affect the exercise of powers or
functions of the [FHFA] as conservator ...." 12 U.S.C.
capacity, the FHFA now seeks to intervene in this suit, two
months before the scheduled trial date of December 5, 2016.
(ECF No. 34.)
MOTION TO INTERVENE
Rule of Civil Procedure 24 offers two avenues for
intervention into a lawsuit by a non-party
movant-intervention as of right and permissive intervention.
A movant may intervene as of right "[o]n timely
motion" if it has been "given an unconditional
right to intervene by a federal statute." Fed.R.Civ.P.
24(a)(1). Additionally, the Court must permit anyone to
intervene who, "[o]n a timely motion, " asserts
"an interest relating to the property or transaction
that is the subject of the action" such that
"disposing of the action ... as a practical matter
impair[s] or impede[s] the movant's ability to protect
its interest, unless existing parties adequately represent
that interest." Fed.R.Civ.P. 24(a)(2). Alternatively, at
its discretion, the Court may permit intervention "[o]n
timely motion" by a movant showing "a claim or
defense that shares with the main action a common question of
law or fact." Fed.R.Civ.P. 24(b)(1)(B). In determining
whether to permit intervention, the Court must also consider
delay or prejudice to the adjudication of the original
parties' rights. Fed.R.Civ.P. 24(b)(3).
FHFA asserts that it should be granted intervention as of
right under Rules 24(a)(1) and 24(a)(2), or, alternatively, it
seeks permissive intervention under Rule 24(b)(1). (Mem. in
Supp. of Mot. to Intervene 2.) In her Memorandum in
Opposition, Plaintiff "does not contest the FHFA's
assertion that it may intervene as a matter of right;"
rather, she contends that the Motion to Intervene is
untimely. (Mem. in Opp'n to Mot. for Intervention 4.) As
there appears to be no genuine dispute between the parties
regarding the FHFA's right to intervene in this case as a
matter of law, the Court will focus its analysis on Rule
24's threshold requirement that motions for intervention
be "timely" filed.
assessing the timeliness of a motion to intervene under Rule
24, the Court "is obliged to assess three factors:
first, how far the underlying suit has progressed; second,
the prejudice any resulting delay might cause the other
parties; and third, why the movant was tardy in filing its
motion." Alt v. U.S. E.P.A., 758 F.3d 588, 591
(4th Cir. 2014).
merely considering the factors articulated in Alt,
the Fourth Circuit has noted the importance of this threshold
requirement of timeliness and has emphasized that courts
should be reluctant to stall "the momentum of [a]
lawsuit" that is in the advanced stages of litigation.
Id. And while '"the timeliness requirement
of Rule 24 should not be as strictly enforced [where
intervention is of right] as in a case where intervention is
only permissive, "' Scardelletti v. Debarr,265 F.3d 195, 203 (4th Cir. 2001) (quoting Brink v. Da
Lesio,667 F.2d 420, 428 (4th Cir. 1981)),
rev'don other grounds by Devlin v. Scardelletti,
536 U.S. 1 (2002), it remains a "cardinal
consideration" that is applicable to both ...