OVERVIEW
A number of petroleum purchasers (“named plaintiffs”) brought suit against a number of petroleum companies (“Suburban”). The district court denied class certification. The named plaintiffs continued the suit in their individual capacities and eventually settled with Suburban. After judgment was entered, Jose Daniel Ramos, a putative class member, attempted to intervene for the purpose of appealing the denial of class certification. The district court denied intervention on the grounds that the motion to intervene was untimely and there was no justiciable issue. Ramos appeals the district court’s denial of his motion to intervene.
We have jurisdiction under 28 U.S.C. § 1291. We conclude that although the district court erred in denying Ramos’s motion to intervene, the error was harmless and we affirm.
FACTS
On behalf of themselves and a class of 1,300 commercial users of propane in certain areas of Alaska, the named plaintiffs brought an action against Suburban, alleging antitrust violations. The district court reasoned that, because the named plaintiffs were large and sophisticated petroleum purchasers, them bargaining power might give them an opportunity to avoid injury altogether, and this in turn could provide the defendants with a defense to the claim of antitrust injury. Because this potential defense was not typical to the putative class, the district court denied the motion for class certification. The named plaintiffs continued the suit in their individual capacities and eventually settled with Suburban. The court entered a final judgment of dismissal on September 26, 1995.
On October 25, 1995, Ramos moved to intervene as a member of the putative class of commercial users of propane. He filed his motion on the twenty-ninth day of the thirty-day period within which a named plaintiff could file a notice of appeal from the final judgment. See Fed. R.App. P. 4(a).
Ramos sought to intervene for the sole purpose of appealing the denial of class certification. The district court denied his motion on the ground that it was untimely because Ramos had not filed it until after final judgment was entered, and Ramos offered no excuse for this “delay.” As an alternative ground for denial of the motion, the district court concluded there was no justiciable issue, because the named plaintiffs no longer were willing to act as class representatives and Ramos had not agreed to be the class representative nor had he identified a new class representative.
DISCUSSION
A. Timeliness
The district court denied Ramos’s motion to intervene, stating that Ramos reasonably could have intervened at any time during the eight months before final judgment and, in the absence of a good excuse for not filing the motion until he did, his motion to intervene was untimely.
We review for abuse of discretion the district court’s determination that the motion to intervene was untimely. Northwest Forest Resource Council v. Glickman,
In deciding that Ramos’s motion to intervene was untimely, the district court applied the test by which we determine timeliness for general intervention in the typical case. That test requires the consideration of three factors: (1) the stage of the proceedings at which intervention is sought; (2) the prejudice that would be suffered by other parties if intervention were granted; and (3) the reason for and length of the delay in seeking intervention. Empire Blue Cross &
The present case, however, does not involve general intervention. It involves intervention for the limited purpose of appeal from denial of class certification. In this type of intervention, our three-part test does not apply.
For the limited purpose of intervention to appeal from denial of class certification, the Supreme Court has held that the proper stage of the proceedings to intervene is after final judgment. United Airlines, Inc. v. McDonald,
Filing the notice of appeal on the twenty-ninth day of the thirty-day period within which the named plaintiffs could have taken an appeal did not unfairly prejudice Suburban. It was put on notice by the original complaint of the possibility of classwide liability. Its settlement bound only the individually named plaintiffs who settled them claims. There was always the risk that a putative class member might appeal the denial of class certification, and this is a risk Suburban assumed. As the Court stated in United Airlines,
[Defendant] can hardly contend that its ability to litigate the issue was unfairly prejudiced simply because an appeal on behalf of putative class members was brought by one of their own, rather than by one of the original named plaintiffs.... [Defendant] was put on notice by the filing of the [original] complaint of the possibility of classwide liability, and there is no reason why [the proposed intervenor’s] pursuit of that claim should not be considered timely under the circumstances here presented.
United Airlines,
We conclude the district court abused its discretion by applying our three-part test for general intervention to deny as untimely Ramos’s motion to intervene for the limited purpose of appeal from denial of class certification.
B. Justiciable Issue
As an alternative ground for its denial of Ramos’s motion to intervene, the district court held that there was no justiciable issue created by Ramos’s motion. The district court reasoned that because the named plaintiffs had settled their claims, and as a result had refused to act as class representatives, and because Ramos did not volunteer to be named class representative nor did he identify anyone else who would act as class representative, there was no longer a justiciable case or controversy to litigate.
We respectfully disagree with the district court. A similar question was presented in United States Parole Comm’n v. Geraghty,
[A] case or controversy still exists. The question of who is to represent the class is a separate issue. We need not decide here whether Geraghty is a proper representative for the purpose of representing the class on the merits. No class as yet has been certified. Upon remand, the District Court can determine whether Geraghty may continue to press the class claims or*1321 whether another representative would be appropriate. We decide only that Ger-aghty was a proper representative for the purpose of appealing the ruling denying certification of the class....
Id. at 407,
In light of Gemghty, Ramos is not required to offer himself as class representative, nor must he identify a class representative, for the class action suit. He merely must show that he is a proper representative for the purpose of appealing class denial. He has made this showing.
Ramos is a putative plaintiff class member. The statute of limitations rendered the class members’ individual claims time barred. Thus, putative class members have a substantial stake in the outcome of the appeal. If the denial of class certification were improper then the class still exists and the class members retain the opportunity to seek recourse through litigation.
The Supreme Court has pointed out:
The imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions. [And] these elements can exist with respect to the class certification issue notwithstanding that the named plaintiffs claim on the merits has expired. The question whether class certification is appropriate remains as a concrete, sharply presented issue.
Geraghty,
This reasoning applies with equal force in the present case. Here, there is a sharply presented issue-whether the district court erred in denying class certification. There is also a concrete factual setting, and Ramos and Suburban certainly qualify as self-interested parties who would vigorously advocate opposing positions. This is a dispute capable of judicial resolution. If an appellate court were to determine that the class should have been certified and remand the case to the district court, then would be an appropriate time to select a class representative.
We conclude that the district court abused its discretion in denying intervention on justiciability grounds.
C. Harmless Error
Although the district court erred in denying Ramos’s motion to intervene, the error is harmless under Federal Rule of Civil Procedure 61.
“[A] named plaintiffs motion for certification should not be granted if there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” Hanon v. Dataproducts Corp.,
Here, the district court found just such a problem. In its order denying class certification, the district court identified a number of ways in which the named plaintiffs were differently situated from many of the putative class members. The district court then stated, “[a] careful consideration of how different situations may affect the very existence of damages (and hence of antitrust injury) raises serious doubts about how well situated plaintiffs are to act as class representatives.” According to the district court, the bargaining power wielded by the named plaintiffs (which included the State of Alaska and some corporations) might have given them opportunities to avoid injury altogether and this, in turn, would have provided the defendants with a defense to the claim of antitrust injury.
We conclude the district court did not abuse its discretion in utilizing this rationale as a reason for denying class certification. The decision to deny class certification was correct. Accordingly, the error in denying
AFFIRMED.
Notes
. Although we have not yet applied the harmless error doctrine to this factual situation, .the Eighth Circuit has. An Eighth Circuit case held that a district court’s error in denying a putative class member's motion to intervene for the purpose of appealing class denial was harmless error because the class denial was not an abuse of discretion. See Burkhalter v. Montgomery Ward & Co.,