22-1265 ExteNet Sys., LLC. v. Village of Kings Point
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of June, two thousand twenty-three. PRESENT: ROSEMARY S. POOLER, RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges. _________________________________________________________________________________________
EXTENET SYSTEMS, LLC., Plaintiff-Appellee, v. No. 22-1265 VILLAGE OF KINGS POINT, Defendant, EDWARD ROUBENI, SEPY ROUBENI, ARMAN NOGREH, MOJDAH NOGREH, TALI DAMAGHI, DAVID DAMAGHI, HONEY DAMAGHI, HERZEL OWADEYAH,
Intervenor Defendants-Appellants. * _________________________________________________________________________________________
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Intervenor Defendants-Appellants: ANDREW J. CAMPANELLI, Campanelli & Associates, P.C., Merrick, NY.
For Plaintiff-Appellee: BRENDAN M. GOODHOUSE (Christopher B. Fisher, on the brief), Cuddy & Feder LLP, White Plains, NY.
Appeal from an order of the United States District Court for the Eastern
District of New York (Kiyo A. Matsumoto, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
This appeal is brought by eight residents of the Village of Kings Point (the
“Village”) – Edward Roubeni, Sepy Roubeni, Arman Nogreh, Mojdah Nogreh,
Tali Damaghi, David Damaghi, Honey Damaghi, and Herzel Owadeyah (the
“Residents”) – who challenge the district court’s order denying their motion to
intervene, pursuant to Federal Rule of Civil Procedure 24, in a lawsuit commenced
by ExteNet Systems, LLC. (“ExteNet”) against the Village for violations of the
Telecommunications Act of 1996. The Residents argue that intervention is
necessary to protect their individual properties from the purported aesthetic and
economic impacts of the proposed installation of wireless cellular equipment near
their properties by ExteNet, a wireless facilities company. The Residents assert
2 that they are entitled to intervene under both prongs of Rule 24 – i.e., as of right
under Rule 24(a) and on a permissive basis under Rule 24(b). We assume the
parties’ familiarity with the underlying facts, procedural history, and issues on
appeal.
Rule 24 sets forth two ways in which a third party may intervene in a district
court action. Rule 24(a) provides that a district court must permit an individual
to intervene as of right when he “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
[his] interest, unless existing parties adequately represent that interest.” Fed. R.
Civ. P. 24(a). As the language of the rule suggests, an individual seeking to
intervene as of right must demonstrate – among other things – that his “interest is
not protected adequately by the parties to the action.” In re Bank of N.Y. Derivative
Litig., 320 F.3d 291, 300 (2d Cir. 2003) (internal quotation marks omitted). A
movant’s failure to satisfy this requirement constitutes a sufficient ground to deny
a Rule 24(a) motion. See id.
Rule 24(b), on the other hand, provides that a district court may permit an
individual to intervene when he asserts “a claim or defense that shares with the
3 main action a common question of law or fact.” Fed. R. Civ. P. 24(b). In
exercising its discretion to permit intervention, a district court “must consider
whether the intervention will unduly delay or prejudice the adjudication of the
original parties’ rights.” Fed. R. Civ. P. 24(b)(3); see also U. S. Postal Serv. v.
Brennan, 579 F.2d 188, 191 (2d Cir. 1978) (noting that the potential for delay and
prejudice is a “principal consideration” in the permissive intervention analysis).
A district court may also consider “the nature and extent of the intervenors’
interests,” whether the intervenors’ interests are “adequately represented by the
other parties,” and “whether parties seeking intervention will significantly
contribute to full development of the underlying factual issues in the suit and to
the just and equitable adjudication of the legal questions presented.” Brennan,
579 F.2d at 191–92 (internal quotation marks omitted).
We review a district court’s denial of a motion to intervene – whether as of
right or by permission – for abuse of discretion. See In re N.Y.C. Policing During
Summer 2020 Demonstrations, 27 F.4th 792, 799, 804 (2d Cir. 2022). A district court
abuses its discretion if it “base[s] its ruling on an erroneous view of the law,
ma[kes] a clearly erroneous assessment of the evidence, or render[s] a decision that
cannot be located within the range of permissible decisions.” Id. at 799 (internal
4 quotation marks omitted). When a district court denies a request for permissive
intervention, our review is “particularly deferential.” AT & T Corp. v. Sprint Corp.,
407 F.3d 560, 561 (2d Cir. 2005) (internal quotation marks omitted). Indeed, we
have recognized that a “denial of permissive intervention has virtually never been
reversed.” Id. (internal quotation marks omitted).
Contrary to the Residents’ contention, the district court did not abuse its
discretion in concluding that the Village could adequately represent the Residents’
interests in this action. As such, we cannot conclude that the district court erred
in denying the Residents’ motion to intervene under either Rule 24(a) or Rule
24(b). See In re Bank of N.Y. Derivative Litig., 320 F.3d at 300 (explaining that a
district court has a sufficient ground to deny a Rule 24(a) motion when the
intervenor’s interest is “protected adequately by the parties to the action” (internal
quotation marks omitted)); Brennan, 579 F.2d at 191 (explaining that Rule 24(b)
intervention is “wholly discretionary with the trial court” and may not be
warranted when the intervenor’s interest is “adequately represented by the other
parties” (internal quotation marks omitted)). And, because the district court’s
determination regarding the adequacy of the Village’s representation is alone
sufficient to justify the denial of the Residents’ motion to intervene, see Floyd v. City
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22-1265 ExteNet Sys., LLC. v. Village of Kings Point
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of June, two thousand twenty-three. PRESENT: ROSEMARY S. POOLER, RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges. _________________________________________________________________________________________
EXTENET SYSTEMS, LLC., Plaintiff-Appellee, v. No. 22-1265 VILLAGE OF KINGS POINT, Defendant, EDWARD ROUBENI, SEPY ROUBENI, ARMAN NOGREH, MOJDAH NOGREH, TALI DAMAGHI, DAVID DAMAGHI, HONEY DAMAGHI, HERZEL OWADEYAH,
Intervenor Defendants-Appellants. * _________________________________________________________________________________________
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Intervenor Defendants-Appellants: ANDREW J. CAMPANELLI, Campanelli & Associates, P.C., Merrick, NY.
For Plaintiff-Appellee: BRENDAN M. GOODHOUSE (Christopher B. Fisher, on the brief), Cuddy & Feder LLP, White Plains, NY.
Appeal from an order of the United States District Court for the Eastern
District of New York (Kiyo A. Matsumoto, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
This appeal is brought by eight residents of the Village of Kings Point (the
“Village”) – Edward Roubeni, Sepy Roubeni, Arman Nogreh, Mojdah Nogreh,
Tali Damaghi, David Damaghi, Honey Damaghi, and Herzel Owadeyah (the
“Residents”) – who challenge the district court’s order denying their motion to
intervene, pursuant to Federal Rule of Civil Procedure 24, in a lawsuit commenced
by ExteNet Systems, LLC. (“ExteNet”) against the Village for violations of the
Telecommunications Act of 1996. The Residents argue that intervention is
necessary to protect their individual properties from the purported aesthetic and
economic impacts of the proposed installation of wireless cellular equipment near
their properties by ExteNet, a wireless facilities company. The Residents assert
2 that they are entitled to intervene under both prongs of Rule 24 – i.e., as of right
under Rule 24(a) and on a permissive basis under Rule 24(b). We assume the
parties’ familiarity with the underlying facts, procedural history, and issues on
appeal.
Rule 24 sets forth two ways in which a third party may intervene in a district
court action. Rule 24(a) provides that a district court must permit an individual
to intervene as of right when he “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
[his] interest, unless existing parties adequately represent that interest.” Fed. R.
Civ. P. 24(a). As the language of the rule suggests, an individual seeking to
intervene as of right must demonstrate – among other things – that his “interest is
not protected adequately by the parties to the action.” In re Bank of N.Y. Derivative
Litig., 320 F.3d 291, 300 (2d Cir. 2003) (internal quotation marks omitted). A
movant’s failure to satisfy this requirement constitutes a sufficient ground to deny
a Rule 24(a) motion. See id.
Rule 24(b), on the other hand, provides that a district court may permit an
individual to intervene when he asserts “a claim or defense that shares with the
3 main action a common question of law or fact.” Fed. R. Civ. P. 24(b). In
exercising its discretion to permit intervention, a district court “must consider
whether the intervention will unduly delay or prejudice the adjudication of the
original parties’ rights.” Fed. R. Civ. P. 24(b)(3); see also U. S. Postal Serv. v.
Brennan, 579 F.2d 188, 191 (2d Cir. 1978) (noting that the potential for delay and
prejudice is a “principal consideration” in the permissive intervention analysis).
A district court may also consider “the nature and extent of the intervenors’
interests,” whether the intervenors’ interests are “adequately represented by the
other parties,” and “whether parties seeking intervention will significantly
contribute to full development of the underlying factual issues in the suit and to
the just and equitable adjudication of the legal questions presented.” Brennan,
579 F.2d at 191–92 (internal quotation marks omitted).
We review a district court’s denial of a motion to intervene – whether as of
right or by permission – for abuse of discretion. See In re N.Y.C. Policing During
Summer 2020 Demonstrations, 27 F.4th 792, 799, 804 (2d Cir. 2022). A district court
abuses its discretion if it “base[s] its ruling on an erroneous view of the law,
ma[kes] a clearly erroneous assessment of the evidence, or render[s] a decision that
cannot be located within the range of permissible decisions.” Id. at 799 (internal
4 quotation marks omitted). When a district court denies a request for permissive
intervention, our review is “particularly deferential.” AT & T Corp. v. Sprint Corp.,
407 F.3d 560, 561 (2d Cir. 2005) (internal quotation marks omitted). Indeed, we
have recognized that a “denial of permissive intervention has virtually never been
reversed.” Id. (internal quotation marks omitted).
Contrary to the Residents’ contention, the district court did not abuse its
discretion in concluding that the Village could adequately represent the Residents’
interests in this action. As such, we cannot conclude that the district court erred
in denying the Residents’ motion to intervene under either Rule 24(a) or Rule
24(b). See In re Bank of N.Y. Derivative Litig., 320 F.3d at 300 (explaining that a
district court has a sufficient ground to deny a Rule 24(a) motion when the
intervenor’s interest is “protected adequately by the parties to the action” (internal
quotation marks omitted)); Brennan, 579 F.2d at 191 (explaining that Rule 24(b)
intervention is “wholly discretionary with the trial court” and may not be
warranted when the intervenor’s interest is “adequately represented by the other
parties” (internal quotation marks omitted)). And, because the district court’s
determination regarding the adequacy of the Village’s representation is alone
sufficient to justify the denial of the Residents’ motion to intervene, see Floyd v. City
5 of New York, 770 F.3d 1051, 1057 (2d Cir. 2014), we need not reach the Residents’
other claims of error, including their argument that the district court erred in
concluding that their aesthetic interests were not legally protectable interests for
the purposes of their motion to intervene under Rule 24(a).
The Residents raise various arguments as to how the district court abused
its discretion in concluding that their interests would be adequately protected by
the Village. None is persuasive. With respect to the Residents’ claim for
intervention as of right, the district court fairly concluded that the Village would
adequately represent the Residents because the two share “an identity of interest”
in the outcome of the litigation. J. App’x at 246 (internal quotation marks
omitted). Though in general an intervenor’s burden to demonstrate the
inadequacy of a named party’s representation is minimal, “we have demanded a
more rigorous showing of inadequacy in cases where the putative intervenor and
a named party have the same ultimate objective,” e.g., an identity of interest.
Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001). Where
such an identity of interest exists, the putative intervenor “must rebut the
6 presumption of adequate representation by the party already in the action.” 1 Id.
at 179–180. In these circumstances, we have explained that evidence
demonstrating “collusion, adversity of interest, nonfeasance, or incompetence”
may be sufficient to overcome the presumption of adequacy. Id. at 180.
Here, the district court did not abuse its discretion in concluding that the
Residents failed to provide evidence of the type necessary to overcome the
presumption of adequacy. Nor did the district court abuse its discretion in
concluding that the Village’s vague statements that the Residents “may seek to
raise issues that the Village might not otherwise raise” failed to rebut the
presumption of adequate representation – particularly in light of the Village’s
coinciding representations that it “believe[d] that it would properly protect the
interests of those residents.” J. App’x at 82, 180. We therefore cannot conclude
that the district court erred in denying the Residents’ motion to intervene as of
right.
1 The Supreme Court’s decision in Berger v. North Carolina State Conference of the NAACP is not applicable here, given that Berger was explicitly limited to circumstances in which “a duly authorized state agent seeks to intervene to defend a state law.” 142 S. Ct. 2191, 2204 (2022); see also id. (declining to “decide whether a presumption of adequate representation might sometimes be appropriate when a private litigant seeks to defend a law alongside the government or in any other circumstance”).
7 Nor did the district court err in concluding, pursuant to Rule 24(b), that the
Residents’ intervention would not significantly contribute to the development of
the underlying factual issues in the suit or the just adjudication of the relevant
legal questions. Indeed, the district court reviewed the Residents’ proposed
answer and proposed opposition to ExteNet’s motion for a preliminary injunction
and concluded that the Residents failed “to bring anything new to the table.” Id.
at 249 (internal quotation marks omitted). The district court specifically noted
that the Residents’ submissions rehashed various arguments that had been
advanced by the Village and raised arguments that could not be properly
considered because they had not been presented to the Village board and were not
part of the written record. Given the “particularly deferential” standard of
review applicable to a district court’s denial of a request for permissive
intervention, AT & T Corp., 407 F.3d at 561 (internal quotation marks omitted), we
will not second-guess the district court’s determination here.
Furthermore, the district court reasonably concluded that permitting the
Residents to intervene would unduly delay and prejudice the adjudication of
ExteNet’s claims, which by statute are to be heard and decided “on an expedited
basis.” 47 U.S.C. § 332(c)(7)(B)(v). In granting ExteNet’s motion for a
8 preliminary injunction, the district court recognized that ExteNet has suffered, and
would continue to suffer, harm as a result of the Village’s delay in allowing
ExteNet to install the wireless facilities; as such, it was within the district court’s
discretion to determine that additional delay from intervention would result in
further prejudice to ExteNet. Because the potential for delay and prejudice is a
“principal consideration” in the permissive intervention analysis, Brennan, 579
F.2d at 191, we cannot conclude that the district court erred in failing to grant
permissive intervention here – even setting aside the district court’s conclusions
with regard to the adequacy of the Village’s representation.
We have considered the Residents’ remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court