Case: 12-1614

Document: 00116554691

Page: 1

Date Filed: 07/11/2013

Entry ID: 5748020

United States Court of Appeals

For the First Circuit

No. 12-1614 MARK AHLQUIST, as next friend and guardian of J.A., a minor, Plaintiff, Appellee, v. CITY OF CRANSTON, by and through Robert F. Storm, in his capacity as Director of Finance, and through the School Committee of the City of Cranston, ET AL., Defendants, ________________________ CAROLYN MESAGNO, ET AL., Movants, Appellants. ________________________ Before Lynch, Chief Judge, Howard and Kayatta, Circuit Judges. JUDGMENT Entered: July 11, 2013 Five pro se individuals ("movants") appeal from the denial of their motion to intervene in district court proceedings. We affirm substantially for the reasons set forth in the court's April 12, 2012 Memorandum and Order, adding only the following comments. Denial of a request to intervene is reviewed for abuse of discretion, see, e.g., Cadle Co. v. Schlictmann, Conway, Crowley & Hugo, 338 F.3d 19, 21 (1st Cir. 2003), which is plainly absent here. With respect to the defenses that movants wish to raise, movants concede that the court's merits ruling comports with Supreme Court precedent. The district court was also warranted in finding the motion to intervene--filed almost six months after submission of trial briefs, almost two months after the merits ruling, and just one day before entry of judgment--to be untimely. See, e.g.,

Case: 12-1614

Document: 00116554691

Page: 2

Date Filed: 07/11/2013

Entry ID: 5748020

R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1, 8-9 & n.4 (1st Cir. 2009) (holding that two-and-one-half-month delay in seeking intervention could be deemed inexcusable); Banco Popular v. Greenblatt, 964 F.2d 1227, 1231 (1st Cir. 1992) (enumerating relevant factors in timeliness inquiry). And while a party's eschewal of an appeal can result in inadequate representation of a would-be intervenor's interests for purposes of Fed. R. Civ. P. 24, see, e.g., Ross v. Marshall, 426 F.3d 745, 761 (5th Cir. 2005), movants are not seeking to pursue the line of defense relied on by the (non-appealing) town defendants; instead, they wish to advance an entirely new set of arguments that could have been brought to the district court's attention earlier. Movants seek support from Freedom from Religion Found. v. Hanover School Dist., 626 F.3d 1 (1st Cir. 2010), where the district court allowed various students and parents to intervene "to assist in the defense" of the enactment being challenged. Id. at 5. Yet as the docket sheet reveals, the intervention motions there were "assented to" by all parties, were made promptly after the filing of the complaint, and were "accompanied by a pleading that set[] out the ... defense for which intervention [was] sought." Fed. R. Civ. P. 24(c). None of these features are present here. And even if it were otherwise, a favorable exercise of discretion in that case would not automatically mean that an abuse of discretion occurred in the present one. Affirmed. By the Court: /s/ Margaret Carter, Clerk. cc: Cavanagh, Joseph V., III Cavanagh, Joseph V., Jr. Labinger, Lynette J. Windham, Lori Halstead L'Heureux, Ronald McClain, Lori McMullen, Jared Mesagno, Carolyn Motaranni, Michael