874 F. 2d 816 - Myer v. County of Orange H

MEMORANDUM**

Dr. Lyle Prenzler appeals pro se the district court's denial of his motion to set aside the denial of a motion for default in Myer v. County of Orange. The court denied Prenzler's motion because he was not a party to Myer.

In construing Prenzler's complaint liberally, we treat his request to set aside the denial to enter default judgment as a motion to intervene. We further treat the district court's refusal to set aside the denial--because Prenzler is not a party--as a denial of a motion to intervene.

We have adopted a four-part test to determine whether intervention as a matter of right pursuant to Fed.R.Civ.P. 24(a)(2) should be granted: "[a]n order granting intervention as of right is appropriate if (1) the applicant's motion is timely; (2) the applicant has asserted an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that without intervention the disposition may, as a practical matter, impair or impede its ability to protect that interest; and (4) the applicant's interest is not adequately represented by the existing parties." Portland Audubon Soc. v. Hodel, 866 F.2d 302, 308 (9th Cir.1989). The plaintiffs in Myer have been successful in their attempt to improve conditions in the Orange County Jail. Although plaintiffs in Myer agreed to a stay of that action, if the requested corrections do not occur, plaintiffs may still bring the matter to the court's attention. Thus, Prenzler's interest in having the stay lifted and default judgment entered due to the ongoing alleged constitutional violations and civil rights violations is adequately represented by plaintiffs in Myer. Accordingly, Prenzler may not as a matter of right become a party to Myer and request the relief sought through intervention.

"A court may grant permissive intervention under Rule 24(b) only if three conditions are met: (1) the movant must show an independent ground for jurisdiction; (2) the motion must be timely; and (3) the movant's claim or defense and the main action must have a question of law and fact in common." Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir.1989). The record does not reflect whether the court below considered these factors. However, "a court in deciding whether to permit intervention should evaluate whether the movant's 'interests are adequately represented by existing parties.' " Id. at 530 (quoting State of California v. Tahoe Regional Planning Agency, 792 F.2d 775, 779 (9th Cir.1986)). As we found above, Prenzler's interests are adequately represented by the existing parties. Accordingly, we find permissive intervention is not warranted.

Because we find that Prenzler may not intervene in Myer, we AFFIRM the district court's denial of his motion.