8:21-cv-00338
C.D. Cal.Sep 28, 2023Background
- Jane Doe (Plaintiff) filed a putative class action in C.D. Cal. on Feb. 19, 2021, alleging Mindgeek defendants posted and profited from pornography of minors (TAC).
- A different putative class member (Proposed Intervenor, "Jane Doe #1") filed a substantially similar suit in the N.D. Ala. on Feb. 11, 2021.
- Proposed Intervenor waited ~28 months and then moved to permissively intervene in the California case to seek a stay or transfer under the first-to-file rule.
- The California court analyzed Rule 24(b) permissive-intervention requirements, focusing on timeliness; it acknowledged common questions of law/fact and jurisdiction but found timeliness lacking.
- The court held that Proposed Intervenor should have known of the risk to her interests by April 6, 2021, and that intervening now would prejudice Plaintiff (re‑traumatization, forum choice burdens) and unduly delay the proceedings.
- The motion to intervene was DENIED; the court noted the first-to-file rule would likely not warrant transfer given the near-simultaneous filings but did not reach that argument on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of permissive intervention under Rule 24(b) | Motion untimely; intervenor knew or should have known earlier | Intervenor waited until scheduling made class-certification risk imminent | Denied: Motion untimely—intervenor should have acted earlier (aware April 6, 2021); stage of proceedings disfavors intervention |
| Prejudice to original plaintiff from stay/transfer | Granting stay/transfer would retraumatize plaintiff, negate her forum choice, impose burdens/expenses | No prejudice: plaintiff would be a member of proposed Alabama class | Court found significant prejudice to plaintiff; weight against intervention |
| Length and explanation of delay | 28-month delay is unexplained and prejudicial | Delay due to concern about an unfavorable or inconsistent certification ruling | Delay was substantial and inadequately explained; weighs heavily against intervention |
| First-to-file rule (stay/transfer alternative) | First-to-file inapplicable/won't warrant transfer given circumstances and prejudice | Alabama action filed earlier; rule favors Alabama forum | Court noted filings were virtually simultaneous and first-to-file likely unwarranted; did not transfer because intervention denied |
Key Cases Cited
- Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) (permits permissive intervention if Rule 24(b) thresholds met)
- Orange Cnty. v. Air California, 799 F.2d 535 (9th Cir. 1986) (permissive intervention rests in court's discretion)
- League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997) (timeliness inquiry for intervention; stricter for permissive intervention)
- United States v. State of Wash., 86 F.3d 1499 (9th Cir. 1996) (untimeliness can dispose of intervention motion without reaching other elements)
- Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843 (9th Cir. 2016) (critical date for timeliness is when intervenor should have known interests not adequately protected)
- Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999) (same principle on awareness for timeliness)
- California Dep’t of Toxic Substances Control v. Com. Realty Projects, Inc., 309 F.3d 1113 (9th Cir. 2002) (party seeking to intervene must act once it knows interests may be adversely affected)
- Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977) (prejudice analysis focuses on consequences of delayed intervention)
- Scholl v. Mnuchin, 483 F. Supp. 3d 822 (N.D. Cal. 2020) (near-simultaneous filings may make first-to-file rule inapplicable)