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David Grochocinski, Not Individually, But Solely In His Capacity As v. Mayer Brown Rowe & Maw Llp and Ronald B. Given

February 3, 2011

DAVID GROCHOCINSKI, NOT INDIVIDUALLY, BUT SOLELY IN HIS CAPACITY AS THE CHAPTER 7 TRUSTEE FOR THE BANKRUPTCY ESTATE OF CMGT, INC., PLAINTIFF,
v.
MAYER BROWN ROWE & MAW LLP AND RONALD B. GIVEN, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

David Grochocinski ("Grochocinski"), in his capacity as Chapter 7 Trustee for the bankruptcy estate of CMGT, Inc. ("CMGT") sued Mayer Brown Rowe & Maw LLP ("Mayer Brown") and Ronald B. Given ("Given"), an attorney at Mayer Brown, (collectively "the Defendants") for legal malpractice. On March 31, 2010, this Court granted the Defendants' Motion for Summary Judgment and entered final judgment. Non-party Gerard Spehar ("Spehar") now moves pursuant to Federal Rule of Civil Procedure 24 to intervene and pursuant to Federal Rule of Civil Procedure 59(e) to alter and amend the judgment. For the reasons stated below, the Court denies Spehar's Motion to Intervene and dismisses his Motion to Alter and Amend as moot.

BACKGROUND

Spehar seeks to intervene in a lawsuit that began in August of 2006. On that date, Grochocinski sued the Defendants in state court in Illinois, alleging legal malpractice arising from the Defendants' failure to appear and defend CMGT in a lawsuit in California. The Defendants removed the case to this Court and, on November 30, 2006, moved to dismiss the Complaint, arguing, among other things, that Spehar Capital ("SC"), Spehar's venture capital consulting firm, orchestrated a fraud on the judicial system. Specifically, the Defendants argued that SC filed a meritless suit against CMGT in California, obtained a Temporary Restraining Order that prevented CMGT from obtaining financing, secured a "bogus" default judgment, used the default judgment to file a single-creditor involuntary bankruptcy action against CMGT, and then "orchestrated and funded" the filing of this malpractice suit. This Court initially rejected the Defendants' argument, concluding that the Defendants had failed to demonstrate that Grochocinski himself had perpetrated fraud on the judicial system. (R. 49.) Nevertheless, upon denying the Defendants' Motion to Reconsider, the Court stated that it found the Defendants' position as to "fraud on the Court" or "unclean hands" persuasive. (R. 67; Transcript of Oct. 30, 2007 hearing at 2:22-25.) As a result, the Court ordered the parties to engage in limited discovery on the "unclean hands" issue and, if appropriate, file a motion for summary judgment on this issue. (Tr. at 7:23-8:2.) Following discovery, the Defendants moved for summary judgment on their "unclean hands" defense. The Court granted the Defendants' Motion on March 31, 2010 ("the March 2010 Opinion") and entered final judgment in their favor. (R. 171, 172.)

On April 28, 2010, Spehar moved both to intervene and to alter and amend the judgment. The next day, Grochocinski filed a Notice of Appeal and subsequently moved the Seventh Circuit Court of Appeals to stay his appeal pending this Court's resolution of Spehar's Motions to Intervene and to Alter or Amend. (R. 175; No. 10-2057, R. 2.) On May 13, 2010, the Seventh Circuit granted Grochocinski's Motion to Stay pending this Court's resolution of Spehar's Motion to Intervene. (R. 192; No. 10-2057, R. 5.) The Seventh Circuit ordered that all proceedings in the appeal be held in abeyance until this Court ruled on the Motion to Intervene. (R. 192; No. 10-2057, R. 5.) The Seventh Circuit construed the Defendants' Response-filed the same day as the Seventh Circuit's order-as a Motion to Reconsider and denied the Defendants' Motion on June 22, 2010. (No. 10-2057, R. 10.) In its Response, the Defendants had argued that this Court no longer had jurisdiction over Spehar's Motions to Intervene and to Alter or Amend because Grochocinski had filed a Notice of Appeal. (No. 10-2057, R. 7.)

Spehar moves to intervene in this case as a matter of right to protect his personal and professional reputation, his ability to earn a living, and his Chartered Financial Analyst ("CFA") credential. In the alternative, he moves for permissive intervention. Spehar contends that he earns his living as a financial consultant and that his "ability to attract and retain clients materially depends on [his] good name and professional reputation." (R. 173 at 2.) According to Spehar, this Court's March 2010 Opinion "scaths [his] good name and reputation," and will undoubtably influence his current or potential clients, making it impossible for him to earn a living. (R. 173 at 2.) Further, Spehar asserts that if it is not altered, the March 2010 Opinion "will almost certainly cause the loss of [his] CFA credential." (R. 173 at 3.) Spehar's Motion to Alter or Amend challenges the factual findings in the Court's March 2010 Order and contends, at the very least, that there are factual disputes that cannot be resolved on summary judgment.

DISCUSSION

I. Jurisdictional Argument

Before reaching the merits of Spehar's Motions, the Court must address the Defendants' jurisdictional argument. The Defendants argue that the Court lacks jurisdiction to rule on Spehar's Motions because, once Grochocinski filed his Notice of Appeal, this Court was stripped of its jurisdiction over all "aspects of the case involved in the appeal." (See R. 200 at 3 (citing May v. Sheahan, 226 F.3d 876, 879 (7th Cir. 2000).) The Defendants are correct that the filing of a notice of appeal typically "divests the district court of its control over those aspects of the case involved in the appeal," Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982), including its ability to consider a motion to intervene. See Roe v. Town of Highland, 909 F.2d 1097, 1100 (7th Cir. 1990) (filing a notice of appeal at the same time as a motion to intervene divested the district court of its jurisdiction over the case); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 928 (5th Cir 1983) ("[T]he filing of a valid notice of appeal deprives the district court of jurisdiction to consider motions for intervention."). Here, however, the Seventh Circuit has stayed all proceedings on appeal pending this Court's resolution of Spehar's Motion to Intervene and it rejected the Defendants' jurisdictional argument in its June 22, 2010 ruling. Thus, having been directed by the Seventh Circuit to rule on Spehar's Motion to Intervene, and there being no fear of duplication of efforts, the Court proceeds to the merits of Spehar's Motions. See, e.g., Rolle v. New York City Hous. Auth., 294 F. Supp. 574, 576 (S.D.N.Y 1969) (recognizing an exception to the general jurisdictional rule where the district court has "authorization from the Court of appeals"); Hobson v. Hansen, 44 F.R.D. 18, 21 (D.D.C. 1968) (the district court has jurisdiction to rule on a motion to intervene after a notice of appeal was filed where the D.C. Circuit had directed the district court to decide the motion); c.f. Apostol v. Gallion, 870 F.2d 1335, 1337 (7th Cir. 1989) ("[S]imultaneous proceedings in multiple forums create confusion and duplication of efforts.").

II. Motion to Intervene

A. Intervention As of Right

To intervene as of right under Rule 24(a)(2), a non-party must satisfy four requirements: (1) the motion must be timely; (2) the applicant must claim an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) existing parties must not be adequate representatives of the applicant's interest. Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 945-46 (7th Cir. 2000). "Failure to satisfy any one of the four intervention factors is sufficient grounds to deny the intervention." U.S. v. BDO Seidman, 337 F.3d 802, 808 (7th Cir. 2003) (citing Vollmer v. Publishers Clearing House, 248 F.3d 698, 705 (7th Cir. 2001)).

i. Timeliness

The Court evaluates whether an application to intervene is timely according to a reasonableness standard. See People Who Care v. Rockford Bd. of Educ., 68 F.3d 172, 175 (7th Cir. 1995) (timeliness factor requires "potential intervenors to be reasonably diligent in learning of a suit that might affect their rights, and upon learning of such a suit, to act to intervene reasonably promptly"). A party may not intervene if it dragged its heels after learning of its interest in a lawsuit.*fn1 See Nissei Sangyo Am., Ltd. v. United States, 31 F.3d 435, 438 (7th Cir. 1994). In determining whether a motion to intervene is timely, the Court looks to four factors: (1) the length of time the intervenor knew ...


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