NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0432n.06 No. 10-5164 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

SUZ ANNE C. CL ARKE; CONI SE DI L L ARD, On behalf of themselves and all others simil arly situated, Plaintiffs, and ANNA B ACHEL DER, I nterve nor Plaintiff-Appe llant,

v. BA PTI ST MEMORI AL

HEAL THCARE CORPOR ATI ON; METHOD I ST HEAL THCARE, Def endants - A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM T HE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE

BEF ORE: COL E, McKEA GUE, a nd GRI FF I

N, Circuit J udg es. GRI FF I N, Circuit J udg e. Anna Ba chelde r appea ls an order of the district court denying her motion to intervene

. We aff irm. I

. Plaintiffs reg istered nurses Suz anne Clarke and Conise Dillard filed this antitrust suit ag ainst defe ndants Ba

ptist Memoria l Healthcare Corporation and Methodist Hea lthcare of Memphis,No. 10-5164

Clarke, et al. v. Baptist Mem orial Hospital , et al.

Tenne ssee, on behalf of “[a]ll persons em p l oy ed by any defe ndant or co-c onspirator to work in a hospital in the Memphis [area] as [a reg istered nurse] at any time from J une 20, 2002 u n t i l the prese nt,” alleg ing that defe ndants illega lly conspired to depre ss the wag es paid to reg istered nurses in Memphis-area hospitals in violation of Section 1 of the Sherman Act by regularly exchang ing detailed, non-public data about the compensa tion eac h is paying or will pay its reg istered nurses; by not competing with eac h other over compensa tion; by paying all reg istered nurses near ly the same; and by jointly rec ruiting r eg istered nur ses to avoid competition. Fr om the outset of the litigation, there was some conce rn that Suz anne Clarke would not be able to adequately repr esent the class beca use she had worke d for the Nurse Alliance, an advoca cy g roup aff iliated with the Service Employ ees I n t er n ational Union (“SEIU”)

. (Memora ndum in Support of Motion to I nterve ne at 1 (noting that counsel knew of this potential conflict “[f]rom the outset of t his litigation”) .) Th at co n cern deepe ned when, during her deposition, Clarke “decla red that she would resist any monetary settlement in this case if it did not also reduc e the nurse- to-patient ratio i n Memphis-are a hospi tals,” which was a primary g oal of the N u rse Alliance and t he S EIU. Clarke v. Baptist Mem ’l Healthcare Corp. , 264 F.R.D. 375, 377 (W.D. Te nn. 2009). The other named plaintiff, Conise Dillard, beg an as a viable candida t e t o s erve as a class repr esenta tive. I n Aug ust 2007, howeve r, Dillard filed for bankruptc y protec tion, raising questions reg arding her adequa cy . Although the deadline to add parties was Aug ust 28, 2007, plaintiffs waited until J anuar

y 4, 2008, to file a motion to amend the scheduling order to add An n a Ba chelde r, a

m em b er o f the plaintiff class, as a party

. Clarke , 264 F.R.D. at 377. Howeve r, on Fe brua ry 1 3 ,
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Clarke, et al. v. Baptist Mem orial Hospital , et al. 2008, the mag istrate judge denied the motion as untimely , co n cl u d ing that “Plaintiffs have not aff irmatively demonstrated that they acte d with due dil ige nce in s ee k i n g t o amend the scheduling order .” Plaintiffs claim that they re co gn i z ed that Dillard’s bankruptc y could pose an adequa cy problem, but they did not think it was fata l, mostly becaus e Di llard possessed an exemption that would allow her

to personally

rec over at least a portion of a ny settlement in this case. Plaintiffs there afte r proce eded to litigate their motion for class cer tification with Clarke and Dillard as the named plaintiff putative class repr esenta tives. On September 4, 2009, the district court denied the motion for class cer tification on the basis that Clarke and Dillard wer e inadequa te class repr esenta tives. The district court based its ruling on Clarke’ s testimony , her former aff iliation with SEI U, and Dillard’s bankruptc y . There afte r, on September 18, 2009, Ba chelde r filed the motion to intervene at issue in this appea l. The district court denied the motion as untimely beca use “thre e [of the five timeliness fac tors] weig h strong ly in favor of finding that t h e i n terve ntion motion is untimely ”; “one fac tor

. . . modera tely tilts in favor of finding the motion untimely ”; and the “fina l fac tor, the point to which the suit has prog resse d, emphasizes the tardiness of Ba chelde r’s motion.” Clarke , 264 F.R.D. a t 382. Ba chelde r timely

appea ls. I I

. Ba chelde r argues that the district court abused its discretion in three way s: (1) it applied the wrong leg al standard for timeliness by requiring her to i n terve ne at the first sign that defe ndants could challeng e both named class repr esenta tives’ adequa cy , rathe r than afte r it beca me “cle ar” that

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Clarke, et al. v. Baptist Mem orial Hospital , et al.

her interests would no longe r be protect ed b y t h e named class repr esenta tives; (2) it relied on

err oneous finding s of fac t reg arding Clarke’ s and Dillard’s adequa cy in deter mining that her motion to intervene was untimely ; and (3) it misapplied the standards for timeliness by not finding that the balanc e of the timeliness fac tors weig hed in favor of g ranting her motion to intervene .” We addre ss these c laims in turn. A. Under Fe d. R. Civ. P. 24(a) , intervention is proper wher e: (1) the application is timely ; (2) the applicant’ s leg al interest in the case is substantial; (3) absent intervention, the applicant’ s ability to protec t her interest will be impaired; and (4) the parties alre ady befor e the court cannot adequately repr esent the a

pplicant’s intere sts. Stupak-Thrall v. Glickman , 226 F.3d 467, 471 (6th Cir. 2000). At issue here is the timeliness of the motion to intervene , which we assess by considering : (1) the point to which the suit has prog resse d; (2) the purpose for which intervention i s soug ht; (3) the leng th of time pr ece ding the application during which the proposed intervenor knew or rea sonably should have known of her interest in the case ; (4) the prejudice to the orig inal parties due to the proposed intervenor ’s failure afte r she knew or rea sonably should have known of her interest in the

case to apply promptly for intervention; and (5) the ex istence of unusual circ umstances mil itat ing ag ainst or in favor of intervention. Triax Co. v. TRW , Inc. , 724 F.2d 1224, 1228 (6th Cir. 1984). We revie w a district court’s decision reg arding the t imeliness of a moti on to intervene for a n abuse of discretion. Stupak-Thrall , 226 F.3d a t 471.

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Clarke, et al. v. Baptist Mem orial Hospital , et al.

Ba chelde r claims that the district court applied the wrong leg al standard under the third timeliness fac tor beca

use it found that she failed to intervene once she was “aw are of signific ant and potentially fata l obsta cles to the adequa cy of Clarke and Dillard” as potential class repr esenta tives rathe r than afte r it beca

me “ clear

. . . that her interests [we]re not being protec ted adequately by the named plaintiff.” I n support of this argument, Ba chelde r relies on United Airlines, Inc. v. McD onald , 432 U.S. 385, 394 (1977), wher e a class of airline stewar desses challeng ed a rule requiring them, but not stewar ds, to rema in unmarrie d as a condition of employ ment. After the named plaintiffs failed to appea l the trial court’s denial of their reque st for class cer tification, McDona ld, a member of the plaintiff class, filed a motion to intervene for p u rp o s es o f prosec uting the appea l. The Supreme Court eventua lly g rante d cer tiorari on the timeliness question, and held that McDona ld’s motion was timely beca

use “as soon as it beca

me clea r to [her] that the interests of the unnamed class members would no longe r be protec ted by the named class repr esenta tives, she promptly moved to intervene to protect those inter ests.” 432 U.S. at 394. W e fi n d Ba chelde r’s relianc e on McD onald misplaced. Her e, the district court’ s deter mination that Ba chelde r was “aw are of signific ant and potentially fata l obstacles to the adequa cy of Clarke and Dillard as potential class repr esenta tives” on Aug ust 28, 2007, Clarke , 264 F.R.D. at 379, and thus rea sonably should have known of her interest in the case at that time fo r purposes of filing a motion to intervene , is not inconsistent with the Supreme Court’s finding in McD onald

. The McD onald Court was not setting an “it must be clea r that an intervenor ’s interests

are not being adequa

tely protec ted” standard; i t was apply i n g the “reasona bly should have known

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of one’s interest in the case ” standard to the fac ts of the case . See also Triax Co. , 724 F.2d at 1229 1 (finding a motion timely

wher e “[the pate nt owner], upon lear ning of [t he plaintiff’ s] decision not to appea l the judgme nt rende ring the two patents invalid, promptly soug ht to file for intervention”) ; Jansen v. City of Cincinnati , 904 F.2d 336, 341 (6th Cir. 1990) (finding a motion timely beca use it

was filed shortly afte r “[t] he City ’s arg uments in response to plaintiffs’ summary judgme nt motion . . . aler ted the propose d intervenor s that their intere st was not beingadequately protec ted.”)

. Contrary to B ache lder’s contention, it wa s not ne cessa ry for Clarke’ s and Dillard’s alleg ed conflicts to have compelled the conclusion that they wer e inadequa te repr esenta tives, or for the district court to have decide d as much, befor e she should have intervene d

. Rather, as the district court corr ectly stated, Ba chelde r should have intervene d when she knew or rea sonably should have known of her interest. See Michigan Ass’n for Retarded Citizens v. Smith , 657 F.2d 102, 105 (6th Cir. 1981); cf. , e.g. , In re Troutman Enters., Inc. , 286 F.3d 359, 365 (6th C ir. 2002) (finding a motion to intervene unti m ely wher e “[t] he Trustee beg an contesting the Shareholde rs’ standing

. . . there by

notify ing the reor g anized Troutman Enter prises of the possibili ty that its S hare holders might not be able to adequately protec t its interests”) (empha ses added) ; In re Sonus Networks, Inc. Sec. Liti g. , 229 F.R.D. 339, 346 (D. Mass. 2005) (holding that a motion to intervene was untimely

I ndeed, the former Fifth Circuit’s decision in Stallw orth v. Monsanto Co. , 558 F.2d 257 (5th 1 Cir. 1977) cited McD onald for the proposition that courts should consider “[ t ] h e leng th of time during which the would-be intervenor actua lly knew or rea sonably should have known of his interest i n the case befor e he petitioned for leave to intervene .” Id. at 264. And this court, i n t u rn , ci t ed Stallw orth for that proposition in Michigan Ass’n for Retarded Citi

zens when it laid out the third step of th e timeliness analy sis applied by the district court in this case . Michigan Ass’n for Retarded Citi zens v. Smith , 657 F.2d 102, 105 ( 6th Cir. 1981). - 6 -No. 10-5164

Clarke, et al. v. Baptist Mem orial Hospital , et al.

beca use class counsel an d t h e i n t er venor had ample “notice that there was a rea l risk that class

cer tification would be den i ed ”)

. Acc ording ly , we reje ct Ba chelde r’s claim that the district court abused its discre tion by

apply ing the wrong leg al standar d for timeliness.

B. Ne x t , Ba chelde r argues that the district court abused its discretion by rely ing on cl ea rl y

err oneous “finding [s] of fac t when it found that [she] should have known that her interests wer e unprotec ted.” See generally Mapother & Mapother, P.S.C. v. Cooper ( In re Downs) , 103 F.3d 472, 480-81 (6th Cir. 1996). This ar g ument has two par ts, neither of w hich is persua sive. First, Ba chelde r asser

ts that the district court’s conclusion that “Dillard’ s bankruptc y filing somehow cr eate d obliga tions to her cre ditors that conflicte d with her obligations as a class repr esenta tive” is a clea

rly err oneous finding of fac t. Howeve r, this was not a fact relied on by the district court in making its determination that the motion to int erve ne wa s untimely ; it was part of the district court’s legal co n cl u s i on reg arding Dillard’s adequa cy as a class repr esenta tive, which plaintiffs have n o t appea led. The only fac ts rele vant t o whether Ba chelde r shoul d have known of her interest beca

use of Dillard’s potential conflict are (1 ) b efor e the deadline to add additional parties, Ba chelde r’s counsel lear ned that Dillard had filed for bankruptc y ; (2) Ba chelde r’s attorney s “re sear ched” the implications of Dillard’s bankruptc y and conclude d “that Def endants had potential

av en ues for challeng ing Ms. Dillard’s adequa cy as a class repr esenta tive” beca

use of it; and (3) “[o] ut of an abundanc e of caution,” Ba chelde r’ s counsel filed a motion for leave to amend the

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Clarke, et al. v. Baptist Mem orial Hospital , et al. scheduling order

to add B ache lder as a pla intiff. These f acts a re undisputed, a

nd the district court did not abuse its discretion in relying upon the m. Second, Ba chelde r clai m s that the district court’s deter mination that Clarke’ s testimony showed that she would not a cce pt a settlement that was purely monetary was clea rly err oneous. I n support of this argument, Ba chelde r quotes Clarke’ s deposition testimony at leng th and opines that t h e o n l y “fa ir char acte rization of [t hat testimony ]

. . . is that [C larke ] would ref use an individual

s et t l ement, or ref

use any monetary settlements that provided too littl e back pay to deter fut u re collusion or t hat were unaccompa nied by an agr eeme nt t o s t op fix ing wag es.” Howeve r, because Clarke was asked “I f y ou wer e co n fr o n t ed with choosing whether or not to take a monetary settlement in this case that did not impact the nurse- to-patient ratio, could y ou acc ept that? ” and she responde d “No, I would not,” the district court’s deter mination that C l ar ke would not acc ept a settlement that was pur ely monetary was not cle arly

err oneous. C. Finally , Ba chelde r asser

ts that the district court abused its discretion by “not finding that the balanc e of the timeliness fac tors weig hed in favor of g ranting [her] motion to intervene ” beca use it failed to consider “the purpose for which intervention was soug ht” and improperly analy zed “the point to which the suit has prog resse d” and “the prejudice to the orig inal parties.” We disag ree . Ba chelde r is corr ect that the district court should have evalua ted the “purpose of intervention” in terms of the importance of the leg al interests asser ted, see Blount-Hill v. Zelman , 636 F.3d 278, 285 (6th Cir. 2011), rathe r than simply concluding that the fac tor weig hed “strong ly ag ainst a finding of

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timelines s ” beca

use Ba chelde r and her attorney s had not made maintaining a viable class repr esenta tive “a first priority .” Clarke , 264 F.R.D. at 380. Howeve r, the district court rea sonably analyzed the “point to which the suit has prog resse d,” as well as “the prejudice to th e o ri gi n al 2 parties.” Given the totality of the circ umstances, including the fac ts tha t B ache lder employ ed the 3

same c ounsel as Clarke and Dillard, failed to ga in admission as a party throug h amendment of

the scheduling order beca

use of a lack of diligenc e, an d wa i t ed m any months until afte r the close of class-c ertifica

tion discovery and a decision on the merits of cer tification befor e seeking to intervene ,
we hold that the district court did not abuse its discretion in ruling that Ba chelde r’s motion to intervene was untimely

. I I I

. For these re asons, we a ffirm the or der of the district court.

The district court found that “seve ral important litigat ion milestones have passed,” e.g ., 2 during the three y ear s betwee n the filing of Clarke’ s and Dillard’s complaint and Ba chelde r’s motion to intervene , it h ad d en ied defe ndant’s motion to dismiss ; set a deadline for joining additional p ar t i es , whi ch elapse d; schedule d discovery as to class cer tification, which closed; and denied plaintiffs’ re quest for c lass cer tification. Clarke , 264 F.R.D. a t 379. The district cour

t noted t hat Bache lder admitt ed that upon intervention she anticipated ( i) 3 filing a rene wed motion for class cer tification, (ii) filing a repor t by a new expert, and (iii) seeking an alternative cer

tification o f another class. Clarke , 264 F.R.D. at 380-81. I t also found that the t iming of the motion would forc e defe ndants to “start from scra tch” on class cer tification, wh i l e plaintiffs would g ain “the benef it of hindsight,” having alre ady seen the arguments in opposition, the district court’s “prior order denying class cer tification,” and “the order s of other courts in rela ted litigation ar ound the country .” Id. - 9 -