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Gardner v. Long

United States District Court, D. Utah

March 25, 2019

EDSON GARDNER, Plaintiff,
v.
WENDI LONG, in her official capacity as Treasurer for Uintah County, Utah, Defendants.

          Paul M. Warner Chief Magistrate Judge

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO INTERVENE

          ROBERT J. SHELBY CHIEF JUDGE.

         On June 26, 2018, Plaintiff Edson Gardner filed a Complaint seeking to enjoin Defendant Wendi Long as Treasurer for Uintah County from foreclosing on his real property for not paying property taxes.[1] Gardner's challenge is based on his assertion that he is exempt from state taxes because his land is in “Indian Country” that is “federal trust land.”[2] Long moved to dismiss Gardner's Complaint, [3] and Chief Magistrate Judge Warner issued a Report and Recommendation recommending Long's Motion to Dismiss be granted.[4] Gardner objected.[5] After Gardner's objection, Lynda M. Kozlowicz filed a Motion to Intervene on behalf of Gardner.[6] For the reasons discussed below, Kozlowicz's Motion to Intervene is Denied, Gardner's Objection is Overruled, and the Report and Report and Recommendation is Adopted in Part.[7]

         The court will take up Kozlowicz's Motion to Intervene and Gardner's Objection in turn.

         I. ANALYSIS

         The court recognizes that both Kozlowicz and Gardner are pro se litigants. Pro se litigants are held to less stringent standards than are parties formally represented by lawyers.[8]However, a litigant's “pro se status does not excuse the obligation . . . to comply with the fundamental requirements of the Federal Rules of Civil . . . Procedure.”[9] Furthermore, “it is not the proper function of the district court to assume the role of advocate for the pro se litigant.”[10]Therefore, the court “will not supply additional facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded.”[11] The court will employ this standard when reviewing Kozlowicz's and Gardner's filings.

         A. Kozlowicz's Motion to Intervene is Not Timely

         Kozlowicz requests intervention in accordance with Rule 24 of the Federal Rules of Civil Procedure, either as a matter of right under Rule 24(a) or as a permissive intervention under Rule 24(b).

         Under Rule 24(a), the court must allow a party to intervene as a matter of right if “(1) the [motion] is timely, (2) the [movant] claims an interest relating to the property or transaction which is the subject of the action, (3) the [movant's] interest may be impaired or impeded, and (4) the [movant's] interest is not adequately represented by existing parties.”[12] The Tenth Circuit recognizes three factors that are “particularly important” when determining whether a motion to intervene is timely, these factors are: “[ (1) ] the length of time since the [movant] knew of [its] interests in the case; [ (2) ] prejudice to the existing parties; [and (3) ] prejudice to the [movant].”[13]

         These factors weigh against the timeliness of Kozlowicz's request to intervene as a matter of right. First, it appears Kozlowicz was aware of her potential interest in this case since its inception. The court takes judicial notice that Kozlowicz and Gardner have appeared together in numerous cases either as co-plaintiffs or petitioners.[14] In these cases, Kozlowicz and Gardner shared the same PO Box for their filings, [15] and this case is no different. The fact that Kozlowicz and Gardner share the same PO Box, and the two consistently file together strongly suggests that Kozlowicz knew of her interests in this litigation since its inception on June 26, 2018, but “unduly delayed seeking to intervene” until January 28, 2019-after Judge Warner issued his Report and Recommendation.[16]

         Second, allowing Kozlowicz to intervene at this time would prejudice Gardner and Long because the case is ready for disposition. Kozlowicz delayed her intervention until after Judge Warner issued his recommendation to dismiss. If entertained, Kozlowicz's intervention would effectively require the court to reevaluate the entire case in light of Kozlowicz's assertions. This would prejudice Gardner and Long by prolonging the disposition of the case. Kozlowicz has had ample opportunity to intervene in this action prior to Judge Warner's recommendation, but chose not to do so. The court will not encourage such delay by entertaining Kozlowicz's arguments now.

         Third, Kozlowicz will not be prejudiced by the court's unfavorable decision. The crux of Kozlowicz's argument is that she has an interest in cases “involving the application of federal laws, federal statutes and Code of Federal Regulations.”[17] While Rule 24(a) does not permit intervention as of right on such grounds, Kozlowicz would not be prohibited from bringing a separate action if she believes there is an issue with the application of federal laws or regulations against her. Kozlowicz's request to intervene as a matter of right is untimely, and is therefore denied.

         Even if this court were to accept the motion to intervene as timely, Kozlowicz fails to allege any facts in support of her claim of an interest relating to Gardner's property. To intervene as a matter of right, Rule 24(a) requires that a party “claims an interest relating to the property or transaction which is the subject of the action.”[18] The only interest Kozlowicz asserts in her Motion to Intervene appears to be an “interest in the interpretation of federal statutes and regulations” that pertain to “state and local taxation and regulations of activities on Indian allotment within Indians Country.”[19] These interests are not related to the property or transaction at the heart of Gardner's action. Thus, Kozlowicz's request to intervene as a matter of right fails on that basis as well.

         Kozlowicz's request for permissive intervention is also denied. Permissive intervention is “a matter within the district court's discretion, and [the appellate court] will not reverse the district court's ruling absent a clear abuse of discretion.”[20] The court, however, is required to consider whether intervention will cause undue delay or prejudice when considering whether to permit intervention.[21]

         As articulated above, allowing intervention at this stage of the litigation would unduly delay resolution of the case and prejudice the parties involved. The court therefore Denies Kozlowicz's request to permissively intervene.

         B. Gardner's Complaint Fails to State a Claim for Relief

         The court will conduct a de novo review of Gardner's timely objections to Judge Warner's dispositive Report and Recommendation.[22] To be timely, an objection must be filed “[w]ithin fourteen days after being served with a copy of the recommended disposition.”[23]Gardner filed an Objection on January 18, 2019, [24] a Motion on Indian Status on January 23, 2019, [25] and an Amended Objection, [26] Second Amended Objection, [27] and another Objection[28] on January 25, 2019. Given the liberal pleading standards applied to pro se plaintiffs, the court will construe Gardner's filings as timely objections to Judge Warner's recommendation to grant Long's Motion to Dismiss.[29]

         To survive a motion to dismiss, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”[30] A complaint “does not need detailed factual allegations, ” but it must put forward “more than labels and conclusions.”[31] Thus, a “complaint must give the court reason to believe that this plaintiff has reasonable likelihood of mustering factual support for these claims.”[32] In reviewing the motion, the court ...


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