Clifford C. Bottoms v. Dresser Industries, Inc., Kenneth Foster, Applicant for Intervention-Appellant

Therefore, prima a facie case. we supple tablish it had considered that noted that denial reaching final affirm district court’s of Dr. its mental information hearing procedures Koerpel’s preliminary injunc- for a thus motion The decision. Koerpel Dr. “no tion. far havé afforded him and

tice of the case AFFIRMED. it.” opportunity to meet Joint Anti-Fas McGrath, 341 v. Refugee cist Comm. 648-49, 123,171-72 S.Ct.

U.S. [71 (1951). By statute, Dr. Koer

L.Ed. 817] post-termination

pel admin is entitled provide which will

istrative review opportunity a more extensive and BOTTOMS, Clifford C. of the evidence. thorough review Plaintiff-Appellee, 301-03.) (R., I, pp. Vol. v. concluding Koerpel that Dr. re due, he was process the dis ceived all the INDUSTRIES, INC., DRESSER entirely trict was correct because court Defendant-Appellee, only pre-termi has a full in rare instances Foster, Applicant Kenneth hearing evidentiary required. been nation Intervention-Appellant. in only Dr. one situa Koerpel concedes granted Supreme Court such tion has the No. 84-1437. hearing A extraordinary trial-type relief. Appeals, United States Court recipient’s welfare required was where Tenth Circuit. to be The benefits were about terminated. recipi Supreme held that a welfare Court July independent ent resources which lacks Rehearing 15,1986. Denied Oct. may necessities to obtain the basic deprived the means to live while he hearing. post-termination for a

waits 254, 264, 397 U.S.

Goldberg Kelly, 1011, 1018, (1970). 25 L.Ed.2d 287

S.Ct. Supreme

The Court has been disinclined to proposed to other procedure

extend this

deprivations, even where a disabled worked disability

was to have his benefits halted. 319, 343, Eldridge,

Mathews v. (1976). 893, 907, 47 L.Ed.2d other assist

Court reasoned that forms of to such

ance would be available a worker is not disability assistance based has

need. Because the Court so re been requirement of a full

luctant to extend the evidentiary hearing

pre-termination which trial,

approximates judicial have no we legal Koerpel’s arguments

doubt that Dr. ques present

do difficult doubtful not

tions. Lundgrin the test announced

Under requires the movant show that difficult,

serious, substantial, and doubtful exist, Koerpel has to es-

issues Dr. failed Garvin, Agee Agee Meisel,

Alan & Oklahoma, Valley, Pauls Ken- neth Foster.

Jerry Dunlap (Gary J. Peterson of Dun- briefs), lap Codding, him on & Okla- Okl., City, homa plaintiff-appellee Clif- ford C. Bottoms. (Page

Charles F. Alden III Dobson of Dobson, Holloway, Bachman, Hudson & Okl., City, Rodney Oklahoma and K. Cald- Arnold, Durkee, Houston, well of White & Tex., counsel, brief), him on Industries, defendant-appellee Dresser Inc. LOGAN, SETH, SEYMOUR, and Before Judges. Circuit LOGAN, Judge. Circuit appeal in The issue this is whether the correctly district court denied Kenneth Foster’s motion to intervene as 24(a)(2). right pursuant to Fed.R.Civ.P. We affirm. attempted in

Foster to intervene an ac- tion Clifford C. Bottoms had initiated Industries, against Dresser Inc. to recover agreement. royalties pursuant to a 1971 assigned agreement, In that Bottoms drilling in oil Dresser his interest well on Bottoms held U.S. Patent No. tool which 26,745. Re Bottoms was entitled to five percent of the sales and rentals of all net patent. infringed Dresser devices apparently paid royalties to Bottoms through 1981 but then declared that it was longer infringing Bottoms’ no obligated payments. to make Bot- thus not agree- suit Dresser on the toms’ Discovery in ment was filed March 1982. completed, essentially had some is- been settled, sues and the case was within two sought Foster to in- months of trial when 16, January 1984. tervene alleges that he and Bottoms en- Foster partnership agreement in tered into a entitling Foster to a one-half March 1965 in the Bot- in the at issue to this action. Pursuant toms-Dresser designed in agreement, 1965 Foster 872 1075, of an oil Litigation, to Bottoms a model well Co.

sent Securities 726 F.2d denied, “bumper 1087 cert. drilling tool called a sub.” There- Schreiber 858, 187, Inc., him that Gencorp, informed after Bottoms device 469 Bell, patented. (1985); not be and could was failure 83 L.Ed.2d 120 Zimmerman v. Foster during (D.Md.1984); 329, Sometime discovered F.R.D. Piedmont patented Bottoms had device similar American Paper Products v. Financial August bumper sub (S.D.Ohio 1980); in- Corp., 89 F.R.D. 1983, he learned November of the action agents been denied interven- surance have Bottoms and pending between Dresser. the insurer and in- tion actions between Services, sured, Graphic see Continental The district court denied Foster’s motion Co., Casualty Inc. v. 681 F.2d Continental that, although intervene. It reasoned Cir.1982); and remaindermen does litiga- have an interest of an under a trust and heirs estate have Dresser, tion Bot- brought denied actions been intervention represent Foster’s toms interests ad- fiduciaries, by that, see Peterson v. United equately. The court also noted even 131, (D.Minn. Bottoms, States, if Dresser 41 F.R.D. 134-35 settled with Foster pursue 1966); Bumgarner could his claims in v. Bottoms see also Ute Indian separate 1305, Tribe, action. 417 F.2d 1308-09 Cir. 1969). alleges that he is Bottoms’ Foster 24(a)(2)provides Fed.R.Civ.P. that a fifty percent to a partner or at least entitled person is entitled to intervene as a matter patent. in We fail to see interest the how right of when the liti- Foster’s interest in outcome of this “the applicant an relating claims interest gation differs from Bottoms’ interest. property to the or transaction which is the of the action and he is so Although obviously there is a ser disposition situated that of the the action dispute ious Foster, Bottoms may practical impair as a matter or im- Bottoms overwhelming has an in interest pede ability interest, his protect to that maximizing the of royalties amount Dress applicant’s unless the interest is ade- er owes licensing agreement. under the quately represented by existing parties.” sense, this if part Bottoms Foster are Foster claims an property the ners or co-owners the of as Foster transaction, required by 24(a)(2), or as but claims, they position are in the same as the enough. that not He also carries the corporation stockholder and in those deriva showing burden of may that Bottoms rep- tive actions in which the stockholder sues his inadequately, resent interests Trbovich corporation’s to vindicate rights: the Each Workers, 528, v. United Mine 404 U.S. 538 has an identical interest and motivation 10, 630, 10, n. 636 n. 30 L.Ed.2d obtaining greatest possible recovery. the (1972); Natural Resources Because the of Defense interests Bottoms and Fos Counsel, Inc. v. United States Nuclear identical, ter are must Foster make “a con Commission, Regulatory 1341, 578 F.2d showing crete of circumstances ... that 1345-46 disposi- and that representation make inade [Bottoms’] impair tion of the action will his ability to quate.” Wright Miller, 7A C. & A. Federal protect 24(a). those interests. Fed.R.Civ.P. 1909, Practice & Procedure at 529 § (1972). Moreover, type case, The most in this common situation in of the party’s representation representation adequate courts find is presumptively ad arises equate. objective the applicant Sanitary when of the See Moosehead District Phillips intervention is to v. S.G. Corp., (1st identical that of one 610 F.2d of parties. Cir.1979); the On this basis Virginia shareholders Commonwealth of been Westinghouse have denied Corp., intervention derivative Electric 542 F.2d actions (4th Cir.1976). when their repre- interests were presumption This sented may other corpo- shareholders the by showing overcome that there is ration, see In re General Tire & representative Rubber collusion between the dismissal of the claim that representative party, that the opposing motion to intervene was filed. R. day the applicant, or to the interest adverse has an Ill, 585, it should not have 586. Thus been represent to representative failed that respect part any of settlement reached with Ltd. v. Sanguine, interest. applicant’s in which Foster had an inter- to the claim Interior, Department States United of If did structure a settlement est. Bottoms Cir.1984). 1416, 1419(10th Foster F.2d his own interest with Dresser to favor over any of these. did not show Foster, he presumably still would repre argues Bottoms’ Foster money. same total amount of receive the inadequate because sentation Dresser could then be The settlement with royalties entitled to all the he is asserts litigation between Foster and examined only one- Foster claims Dresser owes while Foster, Bottoms; if Bottoms cheated Bot- argument This mer royalties. half of responsible the loss in would be toms response. Bottoms obvi significant its no damages. possible out get as much as ously wants argues also that the district Dresser, dispute Foster. despite his approving order the settlement and court’s to Foster’s ad ultimately work This dismissing impaired ability his the action against Bottoms. vantage in an action by preventing bringing him from recover Foster, attempting to show adver against Dresser. district later action collusion, may argues that Bottoms sity or stated: court’s order of dismissal the eventual settlement structured have purpose express “It is the and intent of Specif detriment. litigation to Foster’s that all claims or causes of this order may have alleges that Bottoms ically he might or which were have been action royalties and away his claim to bargained by plaintiff, Clifford C. Bot- asserted a consult settlement instead on based the firm, toms, by any person, corpora- with Dresser. This ing agreement he had tion, entity claiming by, partnership, or consulting wholly unconvincing. The is (in- plaintiff through or under the said 1973; apparently expired agreement royalties for due for cluding all claims paid 1974 and only royalties were between or for the sale or rental practice, future Industries, Inc., Dresser 1981. Bottoms v. infringes a claim of any device which of 82-388-W, (W.D.Okl. slip op. at 2 Feb. No. 26,745) Re shall be suit U.S. the 644). 23, 1984) (R. Ill, appears Thus it discharged extinguished and forever as extremely unlikely that the settlement defendant, Dresser Indus- against the consulting unpaid fees. could be based on tries, Inc.” Moreover, for has made no claims Bottoms 82-388-W, Dresser, slip op. No. Bottoms v. very it is consulting fees. Therefore 22, 1984) (R. IV, (W.D. March at 1 Okla. paints Foster that the scenario doubtful order 1027). Assuming the district court’s Sanitary occur.1 See Moosehead would against preclude by an action Foster (must than District, 54 be more 610 F.2d at Dresser, not believe that Foster’s we do inadequacy of concerning “speculation” impaired. Fos- ability to recover would representation). necessarily is limit- royalties ter’s claim Dresser of the amount owes accept ar ed to one-half Foster’s We also cannot above, And, as discussed Bot- Bottoms, Bottoms. originally made gument that who every incentive to maximize the of toms has patents, only one concerning two claims royalties Dresser for owed. Foster, recovery from might structure the affected bring Thus, if could not even Foster paid royalties would be so settlement Dresser, he could collect the against no action in which Foster had only the by bringing an allegedly him money owed parties’ the approved The court interest. 1416, Cir.1984); Interior, (10th addition, parties F.2d 1419 possibility 736 the the 1. In Westinghouse Virginia v. Commonwealth may warrant intervention. does not alone settle of 214, Cir.1976). Corp., 542 F.2d 216 Dep’t Electric Sanguine, States the Ltd. v. United See 874 fact, against dis Bottoms. The decision of the

action district court AF- specifically that it trict court stated would FIRMED. regarding dis any not “decide issues SETH, Judge, dissenting: Circuit Bot

pute Bottoms.” Dresser, 82-388-W, slip op. No. at toms v. must respectfully I dissent from the ma- 1984) 23, (R. III, 648). (W.D.Okla. 6 Feb. jority opinion an appeal from a denied motion to intervene in an action in the only possible impairment of The United States District Court for the West- if ability to recover would occur Foster’s District Appellant, ern of Oklahoma. Ken- pro disposed of the settlement Foster, sought participate neth in an assert ceeds before Foster could a claim commenced action Clifford Bottoms against him. But there is no evidence that Industries, against Dresser Inc. in which this, likely Bottoms is to do and “the mere sought royalties Mr. Bottoms allegedly due may fact that the first action decrease the him from Dresser under a contract ability poten of the intervenor collect a patent rights. sale certain Dresser had judgment tial ... insufficient to be con against crossclaimed roy- Mr. Bottoms for impairment in sidered a substantial of an it allegedly paid by alties had mistake. 24(a)(2). terest” under Rule Jet Traders The claimed an interest Corp. Tekair, Ltd., 89 Investment patent rights which were 560, (D.Del.1981) (citing F.R.D. 570 Ha sought contract and to intervene as of Capital Corp. v. Venture waii-Pacific 24(a)(2). right under Fed.R.Civ.P. dis- Rothbard, (9th Cir.1977); F.2d 564 1343 appellant’s trict court denied in- motion to Colony Old Penrose Trust Co. v. Indus tervene and thereafter dismissed the un- (3d Corp., Cir.), F.2d tries 387 939 cert. derlying action when Mr. Bottoms denied, their Dresser settled claims each (1968); Liberty L.Ed.2d Mutual In Mr. appeals other. Foster now his denied Co., Indemnity surance Co. v. Pacific motion to intervene. (W.D.Pa.1977); F.R.D. 656 In re Penn Paper Litigation, Central Commercial pursuing appeal In addition to this Mr. (S.D.N.Y.1974), F.R.D. 341 per cu Foster filed an action in state district court affd riam, (2d Cir.1975)); 515 F.2d 505 also see against Mr. Bottoms and Dresser. Dresser Kennedy, 3 B Moore J. & J. Moore’s Feder obtaining was successful in a in dismissal 24.07[3], (fact # al Practice 24-64 at that by arguing infringe- action patent that that prior judgment may impair collectibility of exclusively jur- ment actions lie within the impairment). claim insufficient isdiction of federal the courts. Dresser has filed also an action in the United States any Foster thus has not offered District Court for the Western District of demonstrating inadequa concrete evidence against seeking Oklahoma Mr. Foster a cy representation of impairment or of his declaratory judgment that Mr. Foster has Further, interest. the motion to intervene against by no claims Dresser reason the of discovery came after extensive just and patents. a before scheduled trial on Bottoms’ claims Nearly 600 pages Dresser. of The basis for Mr. claimed inter- Foster’s pleadings and had in infringe- orders accumulated est in the patent Bottoms-Dresser sought the dispute explained record before Foster to following assert ment the by patent an interest in the titled to Bottoms. of Mr. alleges version facts. in that upon alleged Foster’s claim based an early was 1965 he and Clifford Bottoms entered agreement agreement between Foster into an which Mr. Foster nearly twenty Allowing years design before. the an would and construct oil field tool only intervention in delay “bumper could cause a called sub” and Mr. Bottoms ject totally lawyer elements into the suit patent irrelevant would use his to a on obtain to li They whether Dresser had breached equally the the tool. were to share in all censing agreement. profits “bumper ap- from the sub” and its I.C.C., constructing “bumper 564 F.2d 381 the on plications. After delivering subject Mr. Bottoms in of what interest is necessary it to the to sub” and intervention, to Okla- permit pointed returned home we appellant out that the California pro- patent application applicant seeking await the interest of the homa to interven- Mr. Foster re- Shortly significant thereafter cess. tion need be but need not be told Mr. Bottoms who a call from Here the intervenor alleged ceived direct. has failed, “bumper had that the sub” support him that if true would his facts which claim patent application and not merit a patent. it rights Accordingly, would to the I forget it. should all about Mr. Foster agree with the district court’s conclusion this advice. appellant followed The allege here a that the did suffi- relating property interest to the cient However, August in of 1965 Mr. Bottoms However, is the of the action. I application to the Patent Office made disagree must with the district court’s de- “bumper patent received a on the and later termination that Mr. Foster did not estab- in subsequently was reissued sub” which lish the existence of the second and third 26,745. RE as U.S. Patent No. late 1969 necessary permit elements to intervention. agree- into an Mr. Bottoms entered assigned whereby he ment with Dresser Resources, Etc., noted in As we Natural any future rights to that question impairment appli- of the in return for of net sales and patents 5% separate cant’s interest is difficult to from infringing on the rentals of devices question of the existence of an interest. $1,000 per month retainer in addition 578 F.2d at 1345. In a situation where it applicabil- scope patent, of the its fee. The already appli- has been determined that the ity equipment and the amount to Dresser’s alleged cant for intervention has a suffi- paid any royalties thereby due to be or litigation cient interest in the it is also the central elements of the refunded were rule useful to recall that the refers to im- sought Mr. Foster to inter- action which pairment practical “as a matter.” Thus the property inter- Mr. Foster claimed a vene. court is not limited to a consideration of alleged patent by reason of the est strictly legal consequences. 578 F.2d at agreement and moved to inter- partnership 1345. With the additional standard any royalties to recover one-half of vene impairment of interest criteri- rule that the due from and interest found still something “may” occur I must and to recover from Clifford Bot- Dresser possibility plaintiff that the of the conclude royalties already paid. toms one-half of the purely personal pressing individual motion was denied with the district negotiations trial or in settlement claims at concluding court Mr. Foster’s expense at the of claims shared with Mr. event, and, any impaired not be he potential suggest Foster does in fact represented by Mr. Bot- adequately was impairment. potential impairment Where a toms. raised, applicant need not wait until is 24(a)(2)provides intervention as Rule point it comes to fruition. Even at this right in an action where: where a settlement has been reached original parties to the action it cannot applicant relating an interest “the claims shown that Mr. Foster’s interests have property or transaction is be to the impaired. not been action and he is so of the disposition of the situated that the action Finally, question I reach the of whether im- practical impair matter may as a repre- adequately Mr. Foster’s interest was interest, ability protect that pede his litigation by in the Mr. Bottoms. In sented ade- applicant’s unless the I.C.C., v. 564 F.2d National Farm Lines represented by existing parties.” quately Cir.1977), although we stated that Resources, upon applicant Nu- the burden is to show In Natural Etc. v. U.S. Comm’n, by existing parties may representation 578 F.2d 1341 that Regulatory clear inadequate, potential all that Lines and National Farm burden is need be shown and the minimal. Workers, v. Mine Trbovich United

See potential This has present.

certainly been to be shown We potential by in this

cannot remove this dangers by resolving advancing

court acknowledged only possibili- are as

what

ties, speculations assumptions. I it is misleading

these circumstances think apply overly mechanistic test of de-

termining scope whether the entire of Mr. entirely

Foster’s claims lies within the com-

plaint original plaintiff. of the

Where the essence of Mr. Foster’s

sought participation litigation in the is to

protect rights allegedly his in the long by Mr. Bottoms’

denied concealed suggest plain-

fraud I find little to that the adequately represent

tiff will Mr. Foster’s

interests. The settlement between Dresser patents Mr. Bottoms several involved several interests them. It appears

also that a cross-claim Mr. litigation. was resolved

I would motion hold that the to intervene granted.

should have been HAUSER, individually Ellen

Greta and as Representative

Personal of the Estate Hauser, Jeffrey H. and as mother

and next friend of Jennifer Ann Hau-

ser, minor, Plaintiff-Appellee,

PUBLIC SERVICE COMPANY OF

COLORADO, a Colorado

corporation, Defendant-Appellant.

No. 84-2067. Appeals,

United States Court

Tenth Circuit.

July

Case Details

Case Name: Clifford C. Bottoms v. Dresser Industries, Inc., Kenneth Foster, Applicant for Intervention-Appellant

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 15, 1986

Citation: 797 F.2d 869

Docket Number: 84-1437

Court Abbreviation: 10th Cir.