1 Plaintiffs are Choice Fashion, Inc., Byung Choi, J. Yoon, Inc., Un Yim Hart, Un

S. Hoffman, Do Eui Hong, Chang D. Kim, Gina Fashion, Inc., Chi Chol Kim, In Sook

Kim, Mi Yeon Kim, Wooil Trading, Inc., J. Fashion Town, Inc., Kil S. Pae, Myung Soo

Seok, and Un H. Sin. 

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

CHOICE FASHION, INC., et al.,

Plaintiffs,

v. Case No. 09-10995

UNITED STATES BUREAU OF ALCOHOL,

TOBACCO, FIREARMS & EXPLOSIVES,

Defendant.

______________________________________/

OPINION AND ORDER DENYING “MOTION TO INTERVENE”

Pending before the court is a “Motion to Intervene” filed by JND, Inc., Jun Ro

Lee, Petrica Uriziceanu, and Jeffrey Goodman (“Prospective Intervenors”) on April 1,

2009. Having reviewed the briefs in the matter, the court concludes a hearing on the

motion is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the

court will deny the motion. 

I. BACKGROUND

On March 16, 2009, Plaintiffs1

 filed a complaint in this court pursuant to 5 U.S.C.

§ 702, requesting a declaratory judgment compelling Defendant United States Bureau

of Alcohol, Tobacco, Firearms & Explosives to produce Special Agent John Allen for a

deposition to be used in a state court proceeding in Wayne County Circuit Court (“State

Case”). 

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Plaintiffs were tenants of a single-level retail building, the 7 Days Mini Mart,

owned by Prospective Intervenor JND, Inc. (Mot. ¶ 2.) On November 10, 2004, a fire

consumed the 7 Days Mini Mart, and Plaintiffs later sued Prospective Intervenors in the

State Case for damages sustained by Plaintiffs in the fire as a result of Prospective

Intervenors’ alleged negligence. (Id.)

Defendant investigated the fire, and Plaintiffs deposed Defendant’s lead

investigator, Special Agent Christopher Van Vleet, in order to use the testimony in their

State Case. (Id. ¶¶ 4-5.) However, use of Van Vleet’s deposition as evidence at trial

was prohibited by the court in the State Case because it relied on the observations and

opinions of Special Agent Allen. (Id. ¶¶ 6-7.) As a result, Plaintiffs wrote a letter, on

August 8, 2008, to Defendant pursuant to 28 C.F.R. § 16.21, et seq., making a formal

demand on Defendant for Plaintiffs to take the deposition of Special Agent Allen

regarding his role in the fire investigation. (Def.’s Resp. Br. 2.) Defendant released the

file for the fire investigation but did not permit the deposition of Allen. (Id.) On January

5, 2009, Plaintiffs renewed their demand on Defendant with another letter and an

enclosed subpoena. (Id. at 3.) Plaintiffs received no response from Defendant, and on

March 16, 2009, Plaintiffs filed action in this court to compel Allen’s deposition. 

II. DISCUSSION

In their motion, Prospective Intervenors argue that they have an interest in the

instant federal action because Prospective Intervenors are defendants in the underlying

State Case, and, should the court compel Special Agent Allen’s deposition, Prospective

Intervenors’ “interests and position in deposing Special Agent Allen will not be

thoroughly and accurately represented to this Court and they would likely suffer

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prejudicial effect if a time limit is placed on Special [Agent] Allen’s deposition scheduling

discussions.” (Mot. Br. i.) Therefore, Prospective Intervenors have asked the court to

permit them to intervene “to contribute to discussions concerning the scheduling and

duration of Special Agent Allen’s deposition should Plaintiffs be successful on the merits

of the case.” (Mot. ¶ 14.)

Plaintiffs do not take a position on the Prospective Intervenors’ motion, but

request that, should the court grant the motion, Prospective Intervenors “be limited to

participating in discussions concerning the scheduling and duration of Special Agent

Allen’s deposition because these are the only reasons identified by [Prospective

Intervenors] as necessitating their intervention in this action.” (Pls.’ Resp. at 3-4.) 

Defendant, however, has argued that the court should deny Prospective

Intervenors’ request. Defendant argues that Prospective Intervenors, “who did not

subpoena Chief Allen or otherwise make a demand for his deposition testimony, have

no standing to challenge the agency decision being reviewed in this APA action nor do

they have an interest that can be prejudiced by the outcome of this case.” (Def.’s Resp.

Br. 4.) 

Under Federal Rule of Civil Procedure 24(b), “the court may permit anyone to

intervene who . . . has 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). However, Rule 24 also states, “[i]n

exercising its discretion, the court must consider whether the intervention will unduly

delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. (b)(3). 

“Permissive intervention” under Rule 24(b) “is addressed to the sound discretion of the

trial court.” Afro Am. Patrolman’s League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974)

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(citing Hatton v. County Bd. of Educ., 422 F.2d 457, 459 (6th Cir. 1970)). 

The Supreme Court has stated that “the words ‘claims or defenses’ in this

context manifestly refer to the kinds of claims or defenses that can be raised in courts of

law as part of an actual or impending law suit.” Diamond v. Charles, 476 U.S. 54, 76

(1986). Permissive intervention “plainly . . . require[s] an interest sufficient to support a

legal claim or defense which is ‘founded upon [that] interest’ and which satisfies the

Rule’s commonality requirement.” Id. at 77 (quoting SEC v. United States Realty &

Improvement Co., 310 U.S. 434, 459 (1940)). 

Prospective Intervenors expressly brought their motion pursuant to Rule 24(b)(1);

however, they have asserted no claim or defense in common with Plaintiffs or

Defendant. See Diamond, 476 U.S. at 77. Prospective Intervenors have not sought

and have not been denied by Defendant the opportunity to depose Special Agent Allen. 

Nor do they allege any other injury or violation by Defendant, or for that matter, by

Plaintiff, that would entitle them to relief by this court. They merely request an

opportunity to participate in the scheduling and duration of Allen’s deposition in the

event that the court grants Plaintiffs’ requested relief. Therefore, Prospective

Intervenors have no such claim or defense of their own because they “assert[] no

actual, present interest that would permit [them] to sue or be sued . . . in an action

sharing common questions of law or fact with those at issue in this litigation.” Diamond,

476 U.S. at 77. 

Not only does Prospective Intervenors’ motion not satisfy the requirements of

Rule 24(b), it remains merely speculative in its concern regarding possible prejudice to

Prospective Intervenors that may arise as this proceeding progresses. More

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importantly, Plaintiffs do not oppose Prospective Intervenors’ request to participate in

discussions regarding the scheduling and duration of any possible deposition. Thus,

Prospective Intervenors do not need to intervene in order to receive their requested

relief. 

III. CONCLUSION

For the reasons stated above, IT IS ORDERED that the “Motion to Intervene”

[Dkt. # 4] is DENIED.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: June 10, 2009

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, June 10, 2009, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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