United States District Court, D. Maryland
UNITED STATES OF AMERICA for the use and benefit of BALTIMORE STEEL ERECTORS, LLC
THE HANOVER INSURANCE COMPANY
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
pending and ready for resolution in this Miller Act case is
the motion to intervene filed by third party ARGO Systems,
LLC (“ARGO”). (ECF No. 25). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons, the
motion to intervene will be granted.
following facts are undisputed except where otherwise noted.
The United States awarded a construction contract
(“prime contract”) to ARGO as general contractor
“on or about June 27, 2016.” (ECF No. 1 ¶
6). The prime contract was for the construction of “the
Fort Meade Department of Public Works Building, Fort George
C. Meade, Hanover, Maryland.” (Id. ¶ 5).
Because the prime contract was awarded for the construction
of a federal building and exceeded $100, 000 in value,
(see Id. ¶ 7), ARGO was required by §
3131(b) of the Miller Act, 40 U.S.C. § 3131(b), to
furnish the United States with a payment bond. “ARGO, as
[p]rincipal, and [Hanover Insurance Company
(“Defendant” or “Surety”)], as
surety, issued [a payment bond] in the penal sum of $6, 900,
000.00 . . . to assure payment to subcontractors and
materialmen who performed work and/or provided labor,
materials[, ] and services . . . in connection with the work
required by the subcontract.” (ECF No. 1 ¶ 7).
ARGO, thereafter, awarded Plaintiff, Baltimore Steel
Erectors, LLC (“Plaintiff” or “Baltimore
Steel”), a subcontract for “steel fabrication and
erection services.” (ECF Nos. 1 ¶ 8; 7-1). Plaintiff
alleges that ARGO has yet to pay Plaintiff $153, 846.13 for
its completed “work . . . labor, materials[, ] and
services” under the subcontract. (ECF No. 1 ¶ 10).
timely filed this Miller Act suit against Defendant on August
20, 2018 to recover on the payment bond. Plaintiff seeks
damages totaling “$153, 846.13, plus interest . . .
attorney's fees and the costs of these
proceedings.” (ECF No. 1, at 4). Defendant filed a
motion to compel arbitration and stay action on October 23,
2018. (ECF No. 7). The court denied that motion on July 23,
2019. (ECF No. 10). Hanover subsequently answered the
complaint, (ECF No. 14), and discovery commenced. On
September 29, 2019, ARGO moved to intervene. (ECF No. 25).
seeks to intervene both as of right and by permission of the
court. To establish the right to intervene in an action under
Rule 24(a), an intervenor must (1) submit a timely motion;
(2) demonstrate a “direct and substantial
interest” in the property or transaction; (3) prove
that the interest would be impaired if the intervention was
not allowed; and (4) establish that the interest is
inadequately represented by existing parties. First Penn-
Pacific Life Ins. Co. v. William R. Evans, Chartered,
200 F.R.D. 532, 536 (D.Md.2001) (citing In re
Richman, 104 F.3d 654, 659 (4th Cir.1997)). A party
moving for intervention under 24(a) bears the burden of
establishing a right to intervene, and must do so by
satisfying all four requirements.
case where permissive intervention is granted, the court need
not decide the issue of intervention by right. See
United States v. Continental Casualty Company,
2017 WL 3642957 at *5 (D. Md. Aug. 24, 2017) (citing U.S.
ex. Rel. MPA Const., Inc. v. XL Specialty Ins.
Co., 349 F.Supp.2d 934, 938-39 (D. Md. 2004)). Rule
24(b)(2) governs permissive intervention and states, in
Upon timely application anyone may be permitted to intervene
in an action: ... (2) when an applicant's claim or
defense and the main action have a question of law or fact in
common.... In exercising its discretion the court shall
consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original
Fed. R. Civ. P. 24(b)(2). As with intervention by right,
permissive intervention is governed by a four factor test:
(1) that [the intervenor's] motion is
“timely”; (2) that its “claim or defense
and the main action have a question of law or fact in
common” ...; (3) that there exists an independent
ground of subject matter jurisdiction; and, (4) that
“intervention will [not] unduly delay or prejudice the
adjudication of the rights of the original parties.”
Shanghai Meihao Elec. Inc. v. Leviton Mfg. Co., 223
F.R.D. 386 (D. Md. 2004) (addressing permissive intervention
these factors, neither the court nor the parties find the
second to be in dispute. See also, XL Specialty
Ins. Co., 349 F.Supp.2d at 938-39 (D. Md. 2004) (noting
commonality of questions of law and fact in similar Miller
Act case). Plaintiff expressly disputes two of the other
three factors, arguing that 1) ARGO's motion is not
timely, (ECF No. 26, at 2), and 2) Plaintiff would be
prejudiced by intervention at this stage (Id., at
questions of timeliness and potential prejudice to Plaintiff
are essentially one and the same. See, e.g., Alt
v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir.
2014) (“In order to properly determine whether a motion
to intervene in a civil action is sufficiently timely, a
trial court in this Circuit is obliged to assess three
factors: first, how far the underlying suit has progressed;
second, the prejudice any resulting delay might cause the
other parties; and third, why the movant was tardy in filing
its motion.”). Plaintiff does not, in its papers, point
to any potential prejudice. What is more, ARGO's motion
to intervene comes at an early stage: discovery is still
ongoing and ARGO filed its motion within the court's
October 3, 2019 deadline for joinder of additional parties.
(ECF No. 15, at 2). Some delay is inherent in the notion of
intervention, of course, 7C Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1913 (3d ed.
2017), and there is no indication that intervention will
cause undue delay in this case.
foregoing reasons, the motion to intervene filed by ARGO will