11-0099-cv
St. John’s University v. Leslie Trager

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
Court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 13th day of December, two thousand and eleven.

PRESENT:

          JOSÉ A. CABRANES,
          ROSEMARY S. POOLER,
          RICHARD C. WESLEY,

          Circuit Judges.
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ST. JOHN’S UNIVERSITY, NEW YORK,

                               Plaintiff-Appellee,

          v.                                                                               No. 11-0099-cv

SANFORD M. BOLTON, HYGROSOL PHARMACEUTICAL
CORP., SPIRIDON SPIREAS,

                               Defendants,

          v.

LESLIE TRAGER,

                                Putative Intervenor-Appellant.
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FOR PLAINTIFF-APPELLEE:                        MICHAEL J. KEANE (John Becker, on the brief), Garfunkel, Wild &
                                               Travis, P.C., Great Neck, NY.

FOR INTERVENOR-APPELLANT:                      LESLIE TRAGER, pro se (Henry T. Berger, Law Office of Henry T.
                                               Berger, of counsel), New York, NY.1

        Appeal from a December 10, 2010, memorandum and order entered in the United States District Court
for the Eastern District of New York (Nicholas G. Garaufis, Judge) denying the motion of putative intervenor
Leslie Trager to intervene.

    UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the December 10, 2010, order of the District Court be AFFIRMED.

        Leslie Trager (“Trager”) appeals from the memorandum and order of the District Court
denying his motion to intervene in this action between St. John’s University (“St. John’s”) and
defendants Sanford Bolton (“Bolton”), a former St. John’s professor, Spiridon Spireas (“Spireas”),
a former St. John’s graduate student, and Hygrosol Pharmaceutical Corp., the company Bolton and
Spireas formed after departing from St. John’s (jointly “defendants”).

                                         BACKGROUND

        In November 2008, Trager, a practicing attorney involved in an unrelated lawsuit against
Bolton, approached St. John’s and offered to provide it with information he had discovered that
would purportedly support a breach-of-contract claim against the defendants. Specifically, Trager
claimed to have discovered that Bolton and Spireas had breached their respective agreements with
St. John’s to assign all discoveries, inventions, and patents to St. John’s and to pay St. John’s 30%
of all money received from these discoveries, inventions, and patents. Trager and St. John’s
subsequently entered into an agreement whereby Trager would receive 20% of the net funds
received in the event that St. John’s received any funds as a result of the information he provided.
The agreement further provided that “St. John’s is not obligated to pursue any information [Trager]
provided.”

        St. John’s commenced an action in New York’s State Supreme Court against the defendants
on November 18, 2008, which, after being removed to federal court, was amended to add claims of
fraud, breach of contract, and breach of fiduciary duty. The defendants subsequently moved to
dismiss and St. John’s opposed the motion. Trager was dissatisfied with the handling of the
opposition by St. John’s outside counsel and wrote a letter to St. John’s general counsel criticizing
the arguments made and requesting that additional arguments be made. After receiving a
dismissive response from St. John’s general counsel, Trager moved to intervene in the case on the



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           The Clerk of Court is directed to amend the caption as shown above.
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ground that “plaintiffs’s [sic] attorneys are inadequately representing the interests of the movant
[Trager].” The motion was opposed by both St. John’s and the defendants.2

         On December 10, 2010, the District Court issued a seventy-three page memorandum and
order denying in its entirety the defendants’ motion to dismiss. See St. John’s Univ., N.Y. v. Bolton,
757 F. Supp. 2d 144 (E.D.N.Y. 2010). On the same day, the District Court issued a separate
memorandum and order denying Trager’s motion to intervene. See St. John’s Univ., N.Y. v. Bolton,
No. 08-cv-5039, 2010 WL 5186823 (E.D.N.Y. Dec. 10, 2010). The District Court denied Trager’s
motion to intervene as of right under Federal Rule of Civil Procedure 24(a) because his agreement
with St. John’s “does not create a direct, legally protectable interest in the action sufficient to satisfy
Rule 24(a)” and because “[e]ven if Trager had an interest in the litigation as contemplated by Rule
24(a), he cannot intervene as of right because he has not shown that St. John’s representation of
that interest is inadequate.” Id. at *3. The District Court further declined to grant permissive
intervention under Rule 24(b). Id. at *3-4.

                                             DISCUSSION

          We review a district court’s denial of a motion to intervene for abuse of discretion. United
States v. City of New York, 198 F.3d 360, 364 (2d Cir. 1999); cf. Sims v. Blot, 534 F.3d 117, 132 (2d
Cir. 2008) (“A district court has abused its discretion if it based its ruling on an erroneous view
of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that
cannot be located within the range of permissible decisions.” (alteration, citations, and
quotation marks omitted)). “This standard reflects the view that district courts, due to their
proximity to the dispute, usually have a better sense of the case’s factual nuances upon which a
motion to intervene often turns.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 176 (2d Cir.
2001). Upon a review of the record, we conclude that the District Court did not abuse its
discretion and affirm the District Court’s order for substantially the reasons stated in its well-
reasoned opinion.
          1. Intervention as of Right

        In order to be entitled to intervene as of right under Rule 24(a)(2), “an intervenor must
show that: (1) the application is timely; (2) the applicant claims an interest relating to the property
or transaction which is the subject matter of the action; (3) the protection of the interest may as a
practical matter be impaired by the disposition of the action; and (4) the interest is not adequately
protected by an existing party.” Restor-A-Dent Dental Labs., Inc. v. Certified Alloy Prods., Inc., 725 F.2d
871, 874 (2d Cir. 1984) (internal quotation marks omitted). “All four parts of the test must be



        2
         Although the defendants opposed Trager’s motion to intervene in the District Court, they
have not taken a position on this appeal.
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satisfied to qualify for intervention as of right.” Washington Elec. Coop., Inc. v. Mass. Mun. Wholesale
Elec. Co., 922 F.2d 92, 96 (2d Cir. 1990).

         With respect to the second part of the test, we have held that “[a]n interest that is remote
from the subject matter of the proceeding, or that is contingent upon the occurrence of a sequence
of events before it becomes colorable, will not satisfy the rule.” Id. at 97. Given the facts in the
record on appeal, we cannot conclude that the District Court abused its discretion in concluding
that Trager does not have a direct, legally protected interest in the outcome of the underlying
litigation sufficient to satisfy Rule 24(a), inasmuch as his interest is contingent both on St. John’s
prevailing in the underlying action and on his prevailing in a separate action to enforce the
agreement, which St. John’s disavows. See Restor-A-Dent Dental Labs., 725 F.2d at 875 (affirming
denial of motion to intervene where intervenor’s interest was contingent both on defendant’s
prevailing in the underlying action and on the result of a separate not-yet-commenced lawsuit
between intervenor and defendant regarding indemnification).

        Even if Trager does have an interest sufficient to satisfy Rule 24(a), we agree with the
District Court that this interest is adequately represented by St. John’s, as evidenced not least by the
fact that it successfully defeated defendants’ motion to dismiss. St. John’s and Trager share the
same objective in the underlying litigation and we have previously stated that “when there is an
identify of interest between a putative intervenor and an existing party to the action,” a
“presumption of adequate representation” attaches in the absence of “evidence of collusion,
adversity of interest, nonfeasance, or incompetence.” Butler, 250 F.3d at 180. Trager has made no
such showing here.

        Therefore, the District Court did not abuse its discretion in denying Trager’s motion to
intervene as of right under Rule 24(a).

        2. Permissive Intervention

        A district court has broad discretion under Rule 24(b) to determine whether to permit
intervention on the basis that the intervenor’s “claim or defense and the main action have a
question of law or fact in common.” Fed. R. Civ. P. 24(b)(2); see Restor-A-Dent Dental Labs., 725
F.2d at 876. In the circumstances of this case, we cannot conclude that the District Court abused
this broad discretion in declining to permit Trager to intervene.




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                                        CONCLUSION

        We have reviewed all of Trager’s arguments on appeal and find them to be without merit.
Accordingly, the December 10, 2010, order of the District Court denying Trager’s motion to
intervene is AFFIRMED.



                                             FOR THE COURT,
                                             Catherine O’Hagan Wolfe, Clerk of Court




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