Motion and Pleading Requirements

Motion and Pleading Requirements

Intervention starts with paper, and Rule 24(c) says what the paper must contain. The applicant must serve its motion on the parties as Rule 5 provides, state the grounds for intervention in the motion, and attach a pleading that sets out the claim or defense for which intervention is sought.¹ The rule speaks of "a motion to intervene" and draws no line between intervention of right and permissive intervention, so all three demands apply on either track. A pleading is the formal paper in which a litigant states a claim or answers one. The applicant must therefore give the court, along with its request to enter, the kind of paper a party would file.

Each demand has a purpose. The rule directs service as Rule 5 provides and mentions no summons, which makes sense because the people receiving the motion are parties already in the case. The requirement to state grounds matters because Rule 24 offers more than one route in, as the earlier sections of this chapter show. Intervention of right, for one, turns on a protectable interest, practical impairment, and inadequate representation.² A stated ground tells the court and the existing parties which test the applicant invokes and therefore which showing they should expect.

The attached pleading answers a harder question. Intervention lets an outsider join a lawsuit that others began, and the court must decide which outsiders may "complicate or even commandeer" the litigation of others.³ A general expression of concern gives the judge little to work with. A written claim or defense shows what the outsider would actually do once inside.

The pleading does its most useful work on adequacy of representation. The Supreme Court has said that this requirement is satisfied if the applicant shows that representation of its interest "may be" inadequate, and that the burden of making that showing "should be treated as minimal."⁴ Within that low bar, the existing parties' positions sort applicants into groups. If the applicant's interest will be affected and it is not represented at all, or the existing parties are adverse to it, the applicant must be allowed to intervene. If its interest is identical to a party's, or a party is charged by law with representing it, representation is presumed adequate unless special circumstances are shown. If the interests differ, though perhaps they are similar, the applicant lands between those poles.⁵ Because the pleading states what the applicant would argue, it lets the court see which group the applicant belongs to. A pleading that would only repeat an existing party's arguments invites denial, since intervention is frequently denied when the intervenor has the same interest as a party and is likely to make the same arguments.⁶

The claim or defense also bears on standing, a subject the chapter takes up later. An intervenor of right must establish standing independently if it seeks relief different from that sought by a party with standing, and the Court included cases in which the plaintiff and the intervenor seek separate money judgments in their own names. If the intervenor seeks the same relief as a party with standing, it need not establish its own.⁷ In the case that announced this rule, the Court could not tell whether the intervenor, Laroe, sought the same relief as the party, Sherman, or additional relief such as a money judgment in his own name, so it remanded for further proceedings.⁸ A pleading that states its claim clearly spares the court that uncertainty.

Finally, the motion is a request, and the court rules on it. Only in the clearest cases does the applicant have a right to a favorable ruling: when its interest will be affected and it is either unrepresented or opposed by the existing parties, it "must be allowed to intervene."⁹ In every other case, the motion, the stated grounds, and the attached pleading are what the court has to decide on.

The letter fails Rule 24(c) on its face. It states no ground, it was not served as Rule 5 provides, and it attaches no pleading.¹⁰ The second filing meets all three demands and brings the court to the merits. There, timeliness, interest, impairment, and adequacy of representation decide the result, and the attached answer is the evidence on the last of them: it shows an argument the named defendant will not make, which is what separates this applicant from one who would merely repeat an existing party's defense.¹¹