Rollins Cablevue, Inc. v. Saienni Enterprises

115 F.R.D. 484, 1986 U.S. Dist. LEXIS 17296
District Court, D. Delaware·Decided November 24, 1986·No. Civ. A. No. 86-139-JRR·Published·Cited by 7 cases

Opinion

ROTH, District Judge.

On March 28, 1986, Rollins Cablevue, Inc. (Rollins) filed an action against Saienni Enterprises (Saienni) and Clayton Cable, Inc. (Clayton), seeking declaratory and injunctive relief against Saienni and Clayton. A hearing on a preliminary injunction was held on April 25, 1986, at which time the Court considered whether the Cable Communications Policy Act (Cable Act), 47 U.S.C. § 521 et seq., provided Rollins with a private right of action to seek a declaration that Clayton was in violation of the Cable Act and of the Delaware Regulation of Cable Systems Act, 26 Del.C. § 601 et seq. The Court at that time ruled that there was no such private right of action under the Cable Act and refused to grant Rollins’ petition to enjoin defendant Clayton from constructing a cable television system using public rights of way at the Saienni operated Beaver Brook Apartment complex.

The Court did rule at that time that it had jurisdiction under the Cable Act to determine whether Rollins had a right of access to the Apartments to operate its cable equipment installed there as alleged in Count Two of the Complaint. The Court also retained jurisdiction under Count Four of the Complaint of Rollins’ state law claim for a declaratory judgment on the validity of its contract with Saienni. However, because plaintiff no longer asserted any claim against Clayton, Clayton was dismissed from the case. Rollins Cablevue, Inc. v. Saienni Enterprises, 633 F.Supp. 1315 (D.Del.1986). On May 20, 1986, Clayton filed a Motion to Intervene as Defendant. Intervention by Clayton was opposed by Rollins. After partial briefing, the attorney for Clayton informed the Court in early July, 1986 that Clayton’s Motion to Intervene was being withdrawn although no formal withdrawal has ever been filed.

On July 25, 1986, The Crouse Group, Inc. (Crouse) filed a Motion to Intervene under Fed.R.Civ.P. 24(a)(2) and (b)(2). In its motion, Crouse asserts that it is a successor in interest to Clayton, more specifically that it is the assignee of all the right, title and [486]*486interest previously held by Clayton pursuant to a contract between Clayton and Saienni. Rollins opposes intervention by Crouse in this action. Saienni has not voiced any support for or opposition to the motion.

The Court finds that there is no basis either for intervention as a matter of right under Fed.R.Civ.P. 24(a)(2) or for permissive intervention under Fed.R.Civ.P. 24(b)(2) and denies Crouse’s motion.

I. Intervention as a Matter of Right Under Fed.R.Civ.P. 24(a)(2)

Rule 24(a)(2) of the Federal Rules of Civil Procedure provides for intervention as a matter of right:

[W]hen the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

In order to determine the “property or transaction which is the subject” of this action and Crouse’s interest, if any, it is helpful first of all to examine the remaining counts of the Complaint. Rollins alleges in the Complaint that it is the holder of a franchise, issued pursuant to the Delaware Regulation of Cable Systems Act, 26 Del. C. § 601 et seq., authorizing it to construct and operate a community antenna television system (CATV) in non-incorporated areas of New Castle County. Saienni owns and operates the Beaver Brook Apartment complex in such an unincorporated area of New Castle County.

In approximately 1970 Rollins entered into an agreement with Saienni to construct and maintain a master antenna television system for the Beaver Brook complex. In return, Saienni granted Rollins the right to construct, operate and maintain wires, cables and related equipment on the apartment complex property, including inside its buildings, as was necessary to provide cable television service to residents of Beaver Brook.

Rollins claims that the initial term of the contract was 20 years and continuously thereafter at Rollins’ option under successive 10 year renewals for as long as any Beaver Brook resident desired to receive Rollins’ cable television services. Rollins has not, however, been able to locate a copy of the contract. Rollins asserts that it has provided cable television service to residents of the Beaver Brook complex since 1970 and has maintained the only master antenna television system in the complex. In April of 1986, Rollins had 340 subscribers at Beaver Brook, generating a total average revenue of approximately $81,600 per year.

During January, 1986, attorneys for Saienni informed Rollins that the Beaver Brook contract was being terminated, that Clayton was installing a new Sattelite Master Antenna Television System (SMATV) there, and that Rollins should remove its equipment from Beaver Brook by March 1, 1986.

In Count Two of the Complaint Rollins seeks a declaratory judgment to establish that it is legally entitled under section 621(a)(2) of the Cable Act to maintain and operate its wires, cable and equipment at the Beaver Brook Apartment complex. Count Four of the Complaint is a state law claim, requesting recognition of the validity of the Rollins-Saienni contract and an injunction to prevent any breach of that contract by Saienni.

In its Opening Brief in support of its motion to intervene, Crouse contends that it is the assignee of Clayton’s January 23, 1986 contract with Saienni to be the exclusive provider of cable television services to the Beaver Brook Apartment complex. Crouse claims as the basis for its right to intervene under Rule 24(a)(2) that, since both Crouse and Rollins claim to have contracted with Saienni to provide cable television service to the Beaver Brook Complex, Crouse should participate in the litigation which determines the enforceability of the Rollins-Saienni contract. Crouse also asserts that, as a competitor of Rollins in [487]*487providing cable television service in New Castle County, it should be permitted to take part in this litigation which will interpret the Cable Act and the Delaware Cable Systems Act.

Considering first Crouse’s interest in the Rollins-Saienni contract, that interest is not direct. Crouse wants the Rollins contract to be declared invalid so that Crouse can profit from its' subsequent “exclusive” contract with Saienni. However, such a conditional interest in the validity of the subject matter of litigation which, if held valid, will affect the profitability of other business interests of the would-be intervenor, has been held to be speculative and inadequate to permit intervention under Rule 24(a)(2). See Paine, Webber v. Merrill Lynch, Pierce, 564 F.Supp. 1358, 1372 (D.Del.1983).

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Rollins Cablevue, Inc. v. Saienni Enterprises, 115 F.R.D. 484, 1986 U.S. Dist. LEXIS 17296 (D. Del. 1986).

115 F.R.D. 484 (Rollins Cablevue, Inc. v. Saienni Enterprises) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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