United States v. Lauer

242 F.R.D. 184, 68 Fed. R. Serv. 3d 409, 99 A.F.T.R.2d (RIA) 3166, 2007 U.S. Dist. LEXIS 42009, 2007 WL 1893308
CourtDistrict Court, D. Connecticut
DecidedMay 1, 2007
DocketCivil Action No. 3:06-CV-1724(JCH)
StatusPublished
Cited by2 cases

This text of 242 F.R.D. 184 (United States v. Lauer) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lauer, 242 F.R.D. 184, 68 Fed. R. Serv. 3d 409, 99 A.F.T.R.2d (RIA) 3166, 2007 U.S. Dist. LEXIS 42009, 2007 WL 1893308 (D. Conn. 2007).

Opinion

[185]*185RULING ON RECEIVER’S MOTION TO INTERVENE [Doc. No. 31]

HALL, District Judge.

I. INTRODUCTION

Marty Steinberg, court-appointed receiver (“Receiver”) of Lancer Management Group, LLC, Lancer Management Group II, LLC, Lancer Offshore, Inc., Omnifund, Ltd., LSPV, Inc., LSPV, LLC, Alpha Omega Group, Inc., G.H. Associates, LLC, and CLR Associates, LLC (collectively, the “Receivership Entities”), and the responsible person for Lancer Partners, L.P., has filed a Motion to Intervene in this action, filed by the United States of America on behalf of the IRS to foreclose federal tax liens encumbering a Connecticut property owned by defendant Michael Lauer. The receiver was appointed by the United States District Court for the Southern District of Florida, in the context of a pending action in that court, Securities and Exchange Commission v. Michael Lauer, et al., Case No. 03-80612-CIV-MARRA/SELTZER.

II. FACTS

The case pending before the Florida District Court involves an action by the SEC concerning federal securities laws violations. Lauer, as founder, sole manager, and principal owner of Lancer and Lancer II, which are management companies for hedge funds (some of the Receivership Entities), was alleged to have engaged in violations of federal securities laws. On July 10, 2003, the Florida District Court entered a Receivership Order, which ordered that “[t]itle to all property, real or personal, [of the defendants and their principals] ... wherever located, is vested by operation of law in the Receiver.” See Receiver’s Memorandum in Support of Motion to Intervene (“Mem. in Supp.”) at Ex. A [Doc. No. 31]. The Florida District Court also issued a Preliminary Injunction on July 17, 2003, which provided for a freeze on Lauer’s personal asserts and property until final resolution of the SEC ease on the merits. See id. at Ex. B.

The United States, on behalf of the IRS, and Mizuho Corporate Bank (USA) (“Mizu-ho”) filed separate motions to foreclose the federal tax lien and two mortgage liens encumbering Lauer’s Connecticut property. See id. at Ex. H & J. The Florida District Court modified the Receivership Order and Preliminary Injunction to permit the United States to foreclose on the property by commencing an action in the United States District Court for the District of Connecticut, “with the understanding that the sale price of the Residence be maximized,” and the “asset freeze shall remain in place as to any proceeds from the sale of the Residence after the mortgage and tax liens have been satisfied.” See id. at Ex. L at 9. The court, in a subsequent clarification order, confirmed that the Receiver shall control the net sale proceeds of the Connecticut property after the tax and mortgage liens have been satisfied. See id. at Ex. O at 2.

III. DISCUSSION

The Receiver moves to intervene as of right, pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, or in the alternative, permissively, pursuant to Rule 24(b), as a party in this action. The court will first turn to the Receiver’s motion brought pursuant to Rule 24(b), which provides:

Upon timely application anyone may be permitted to intervene in an action ... when an applicant’s claim or defense and the main action have a question of law or fact in common____ In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Fed.R.Civ.P. 24(b)(2). “An application for permissive intervention is addressed to the discretion of the court.” 7C Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 1902 at 231 (2d ed. 1986) (‘Wright & Miller”); see also U.S. Postal Service v. Brennan, 579 F.2d 188, 192 (2d Cir.1978) (“Permissive intervention is wholly discretionary with the trial court.”). Where appropriate, the district court may set such limits or “conditions [as are] necessary to ‘efficient conduct of the proceedings.’ ” Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 191-92 (2d Cir.1970) (citations omitted).

[186]*186“A motion for permissive intervention, like one for intervention of right, must be timely.” Catanzano by Catanzano v. Wing, 103 F.3d 223, 234 (2d Cir.1996). The Receiver’s request is timely. The foreclosure action was filed before this court on October 31, 2006 [Doc. No. 1]. The Receiver filed this motion on February 28, 2007, only one month after defendant Lauer filed his Answer to the Complaint [Doc. No. 26] and prior to any response from the defendant Town of Greenwich, CT. See Docket Sheet. Moreover, this motion was filed prior to any substantive motions by the parties. Thus, the Receiver has sought to intervene “at a very early stage in this litigation.” See Schaghticoke Tribal Nation v. Norton, 2006 WL 1752384, at *8 (D.Conn.2006).

Rule 24(b) also requires there to be “a question of law or fact in common.” Fed. R.Civ.P. 24(b)(2). The court finds that there exist common questions of law or fact between the Receiver’s claim to the net proceeds of the sale of the property and the main action by the IRS to foreclose the federal tax liens encumbering the same property. As holder of title to the property and of any surplus from its sale, the Receiver has an economic interest in this case. See Wright & Miller § 1911 at 357 (“Permissive intervention may be permitted when the intervenor has an economic interest in the outcome of the suit.”). The Receiver seeks to intervene to protect his right to receive the net proceeds of the sale of the property, and also to assert his position on how the property should be sold, that is, that the IRS should market the property for sale through the national Multiple Listing Service (“MLS”) to obtain the highest sale price. See Receiver’s Mem. in Supp. at 10-11. These are clearly common issues that satisfy the requirement of Rule 24(b).

Once timeliness and common questions of law or fact have been determined to exist,

[t]he principal consideration set forth in [Rule 24(b) ] is “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” The court also will consider whether the applicant will benefit by intervention. See generally 7A Wright and Miller § 1913. Other relevant factors “include the nature and extent of the intervenors’ interests,” whether their 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.” Span-gler v. Pasadena City Board of Education, 552 F.2d 1326, 1329 (9th Cir.1977) (footnote omitted).

Brennan, 579 F.2d at 191-92.

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242 F.R.D. 184, 68 Fed. R. Serv. 3d 409, 99 A.F.T.R.2d (RIA) 3166, 2007 U.S. Dist. LEXIS 42009, 2007 WL 1893308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lauer-ctd-2007.