                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-1995

Mountain Top Condo. Assn. v. Dave Stabbert
Master Builder, Inc.
Precedential or Non-Precedential:

Docket 95-7031




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                             ___________

                             No. 95-7031
                             ___________


          MOUNTAIN TOP CONDOMINIUM ASSOCIATION


                          vs.

          DAVE STABBERT MASTER BUILDER, INC.; JOSEPH
          HUFFMAN

                WALTER SEIPEL; SUSAN SEIPEL,

                     Proposed Intervenors in D.C./Appellants.


                             ___________


                  APPEAL FROM THE DISTRICT COURT
                       OF THE VIRGIN ISLANDS

                    (D.C. Civil No. 90-00215)

                             ___________


                      ARGUED AUGUST 15, 1995

      BEFORE:   STAPLETON, LEWIS and WEIS, Circuit Judges.

                    (Filed   December 18, 1995)

                             ___________


Joseph B. Arellano (ARGUED)
Campbell, Arellano & Rick
4 A & B Kongens Gade
P. O. Box 11899
Charlotte Amalie, St. Thomas
USVI, 00801



                                  1
           Attorney for Appellants

Adam G. Christian (ARGUED)
Hodge & Francois
1340 Taarnederg Road
Charlotte Amalie, St. Thomas
USVI, 00802

Sandra N. Younger
Tom Bolt & Associates
Corporate Place
Royal Dane Mall
Charlotte Amalie, St. Thomas
USVI, 00802

           Attorneys for Appellees


                            ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.

           In this appeal, Walter Seipel and Susan Seipel

("appellants") seek the reversal of a district court order

denying their motion to intervene in a proceeding pending in that

court.   The district court held that while the appellants' motion

may be timely, "[t]he plain fact is that they have no interest at

stake in the litigation, and no standing to become involved in

it."   Mountain Top Condominium Association v. Stabbert, et. al.,

No. 1990/215, slip op. at 4 (D. V.I. Dec. 9, 1994).   Appellants

argue that as a matter of law, their interest in the litigation

is sufficient to support intervention as a matter of right under

Fed. R. Civ. P. 24(a)(2).   We agree, and will reverse the

district court's denial of appellants' motion to intervene.




                                 2
                                     I.

                                 A.

          The Seipels allege the following facts in their motion

to intervene and their proposed "Complaint in Intervention."

These facts are not disputed in the present record and appear to

have been accepted by the district court in ruling on the motion

to intervene.

          On September 17, 1989, Hurricane Hugo struck the Virgin

Islands and wreaked tremendous destruction.   Included in this

natural disaster was the damage and destruction of several

buildings which comprised the Mountain Top Condominiums, located

on the island of St. Thomas.   The Mountain Top Condominiums are

governed by the Mountain Top Condominium Association ("MTCA"),

which is comprised of all of the condominium owners in the

development.    The owners had delegated certain powers and duties,

including the repair and restoration of the condominiums, to the

MTCA's Board of Directors (the "Board") pursuant to the MTCA's

bylaws and Virgin Islands law, Title 28 V.I.C. Chapter 33.

          Pursuant to Article V, Sections 2 and 3 of the MTCA's

By-laws, the MTCA's Board was required to appoint an Insurance

Trustee to approve the adjustment of any loss, and to receive all

insurance proceeds for losses in excess of $50,000.   There is no

dispute that the Board did not comply with these requirements.

          Instead, the Board took it upon itself to approve the

insurance adjustment and to determine how the reconstruction and

repair proceeds were to be distributed.   As a result, the Board

adjusted the hurricane loss and received $1,538,613 from its


                                 3
insurance carrier.   The Board then deposited this fund into a

separate account specifically designated for hurricane

reconstruction.   Rather than apply all of the insurance proceeds

to repair the damage caused by Hurricane Hugo, however, the Board

decided to distribute some of the proceeds to the individual

condominium owners according to the size of the various

condominium units,0 minus fifteen percent (15%) for the Board's

supervision of the individual owners' reconstruction efforts.

Under this plan, a larger unit would receive more from the fund

than a smaller unit regardless of the damage sustained, and there

was no requirement that the money be used to benefit the

condominium units.   The appellants allege that this in turn has

provided certain unit owners with a cash windfall.   The Board

also included in the repair costs the reconstruction of five

"deck extensions" which were not covered by the MTCA's insurance

policy.0   Finally, in order to receive any money from the

hurricane restoration fund, the Board required unit owners to

sign general releases.   Apparently, the appellants are the only

owners who refused to sign a release.




0
      $20,593 were allotted to two small units. $21,482 were
allotted to 14 medium units, and $24,251 were allotted for three
large units. The Seipels' unit at issue in this case was
classified as a medium unit. The Seipels' second unit was
purchased after the distribution of $21,482 had been made to the
Seipels' predecessors in interest.
0
      Three of the five units with "deck extensions" are owned by
members of the Board.

                                 4
                                 B.

           As part of its reconstruction plan, the Board entered

into an agreement with David Stabbert Master Builder, Inc., for

construction work on the condominiums.0   The Board, however, was

dissatisfied with the quality of the work performed by Stabbert

and its subcontractors, and a dispute arose between the parties.

As a result of this dispute, Huffman and Stabbert filed

construction liens against the condominiums in the hope of

recovering payment for their work.    The Board responded by filing

a complaint against Stabbert and Huffman, alleging fraudulent

misrepresentation, negligent misrepresentation, unfair trade

practices, slander of title, injunctive relief, breach of

contract, and damages.    Huffman and Stabbert filed counterclaims

against the MTCA.

            Later, Huffman and Stabbert agreed to release the

liens.    In return, the Board deposited $250,000 of the insurance

proceeds in escrow in the registry of the district court.    This

sum represented all that remained of the hurricane reconstruction

fund.    In February, 1994, pursuant to the district court's order,

this dispute proceeded to mediation.

                                 C.

            Appellants own two condominiums that were heavily

damaged during Hurricane Hugo.    They believed that the

distribution of funds for the reconstruction of their

condominiums was not being accomplished in good faith.     Thus, on

0
     Defendant, Joseph Huffman, was a subcontractor hired by
Stabbert to fix the plumbing in the condominiums.

                                 5
March 20, 1992, they instituted a civil action against the MTCA

in the Territorial Court of the Virgin Islands.    The basis of the

Seipels' complaint was that the MTCA violated the by-laws of the

Mountain Top Condominiums by, inter alia, failing to appoint an

Insurance Trustee to manage the distribution of the insurance

proceeds.    This civil action is presently pending in the

Territorial Court.0

             When it became apparent that any settlement between

MTCA, Stabbert and Huffman might deplete all of the remaining

funds allocated for repairing the damage caused by Hurricane

Hugo, the Seipels decided to intervene in the mediation process

between the MTCA, Stabbert and Huffman.    On February 7, 1994, the

day the mediation was to occur, counsel for the Seipels sent a

written request to MTCA that he be allowed to attend the

mediation.    When this request was denied, the Seipels filed a

motion to intervene pursuant to Rule 24 of the Federal Rules of

Civil Procedure, claiming that if the litigation between the MTCA

and its contractor is successfully mediated, the entire $250,000

escrow deposit may be lost.0    Both parties to the mediation

opposed the proposed intervention.



0
      At oral argument both parties informed the court that the
Territorial Court had ordered the MTCA to appoint an Insurance
Trustee as required under the By-laws. As of this date, the MTCA
has failed to successfully appoint an Insurance Trustee.
0
      Stabbert's and Huffman's claims amounted to more than the
remaining $250,000 held in escrow, and prior to the litigation,
the unit owners were informed that the board had depleted all
money allocated for operating expenses so the insurance proceeds
appeared to be the MTCA's only remaining funds.



                                  6
            The district court denied the Seipels' motion to

intervene.    The court held that the appellants', "only

conceivable interest in this lawsuit lies in the fact that, if

plaintiff [the MTCA] is successful, plaintiff may be in a

somewhat better position to satisfy any judgment which the

Seipels may succeed in obtaining in Territorial Court, than would

be the case if plaintiff loses this lawsuit."    Mountain Top, slip

op. at 5.     This appeal followed.

                                 II.

             The District Court of the Virgin Islands had subject

matter jurisdiction over this case pursuant to 4 V.I.C. § 32,0

and Section 22 of the Revised Organic Act, 48 U.S.C. § 1611.0       We

      While they contend that their damages are greater, at the
very least the Seipel's claim an interest in the $21,482
allocated to them under the Board's plan.
0
      4 V.I.C. § 32 provides in pertinent part:

          (a) Under section 22 of the Revised Organic Act,
      approved July 22, 1954, the district court has the
      original jurisdiction of a district court of the
      United States in all causes arising under the
      Constitution, treaties and laws of the United States,
      regardless of the sum or value of the matter in
      controversy, and has general original jurisdiction in
      all other causes in the Virgin Islands, where
      exclusive jurisdiction is not conferred upon the
      territorial court, as the inferior court of the
      Territory, by section 23 of the Revised Organic Act.
      When it is in the interest of justice to do so the
      district court may on motion of any party transfer to
      the district court any action or proceeding brought
      in the territorial court, and the district court
      shall have jurisdiction to hear and determine such
      action or proceeding.
0
      48 U.S.C. § 1611 provides in pertinent part:

          (a) . . . The judicial power of the Virgin
      Islands shall be vested in a court of record
      designated the "District Court of the Virgin Islands"

                                  7
have jurisdiction over this appeal under 28 U.S.C. § 1291.     In

reviewing a district court's decision denying intervention as a

matter of right, we will reverse a district court's determination

only if the court "has applied an improper legal standard or

reached a decision that we are confident is incorrect."    Harris

v. Pernsley, 820 F.2d 592, 597 (3d Cir. 1987) (citations

omitted).

                                  III.

            We have stated that a non-party is permitted to

intervene under Fed. R. Civ. P. 24(a)(2) only if:
          (1) the application for intervention is
          timely; (2) the applicant has a sufficient
          interest in the litigation; (3) the interest
          may be affected or impaired, as a practical
          matter by the disposition of the action; and
          (4) the interest is not adequately
          represented by an existing party in the
          litigation.

Harris, 820 F.2d at 596.    Each of these requirements must be met

to intervene as of right.   Id.    The district court denied

appellants' motion because it found that they did not have a

sufficient interest in the litigation, and thus had failed to

satisfy subsection (2) of section 24(a).     Appellants argue that



     established by Congress, and in such appellate court
     and lower local courts as may have been or may
     hereafter be established by local law.

         (b) . . . The legislature of the Virgin Islands
     may vest in the courts of the Virgin Islands
     established by local law jurisdiction over all causes
     in the Virgin Islands over which any court
     established by the Constitution and laws of the
     United States does not have exclusive
     jurisdiction. . . .


                                   8
because a specific fund is at issue, they have a sufficient

interest in the litigation pending in the district court.

            While we will address each of Rule 24(a)'s

requirements, we first turn to whether the appellants have a

sufficient interest in the litigation.

                                       A.

                  Rule 24(a)(2) requires the intervenor to

demonstrate "an interest relating to the property or transaction

which is the subject of the action . . ."     Fed. R. Civ. P.

24(a)(2).     While the precise nature of the interest required to

intervene as of right has eluded precise and authoritative

definition, Harris, 820 F.2d at 596; 3B Moore's Federal Practice,

¶ 24.07[2], at 24-57 (2d ed. 1982); 7C Wright, Miller & Kane,

Federal Practice & Procedure § 1908, at 263 (1986), some general

guidelines have emerged.     According to the Supreme Court, an

intervenor's interest must be one that is "significantly

protectable."     Donaldson v. United States, 400 U.S. 517, 531

(1971).     In defining the contours of a "significantly

protectable" legal interest under Rule 24(a)(2), we have held

that, "'the interest must be a legal interest as distinguished

from interests of a general and indefinite character.' * * * The

applicant must demonstrate that there is a tangible threat to a

legally cognizable interest to have the right to intervene."

Harris, 820 F.2d at 601 (citations omitted).    This interest is

recognized as one belonging to or being owned by the proposed

intervenor.     United States v. Alcan Aluminum, Inc., 25 F.3d 1174,
1185 (3d Cir. 1994) (quoting New Orleans Public Service, Inc. v.


                                  9
United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir. 1984)).     We

must therefore determine whether the proposed intervenors are

real parties in interest.   Harris, 820 F.2d at 596-598.

           In general, a mere economic interest in the outcome of

the litigation is insufficient to support a motion to intervene.

See, e.g., Alcan Aluminum, 25 F.3d at 1185 ("Some courts have

stated that a purely economic interest is insufficient to support

a motion to intervene."); New Orleans Public Service, Inc. v.

United Gas Pipe Line Co., 732 F.2d at 464 (in banc) ("It is plain

that something more than an economic interest is necessary.").

Thus, the mere fact that a lawsuit may impede a third party's

ability to recover in a separate suit ordinarily does not give

the third party a right to intervene.    See Hawaii-Pacific Venture

Capital Corp. v. Rothbard, 564 F.2d 1343, 1346 (9th Cir. 1977).

If the appellants' only interest in the present case was to

ensure that the MTCA would have sufficient resources to satisfy

any judgment they may be able to obtain in the territorial court

action, the district court's reasoning and conclusion would be

sound.   The district court's holding, however, does not recognize

that the appellants claim an interest in a specific fund being

held in the district court's registry.

          While a mere economic interest may be insufficient to

support the right to intervene, an intervenor's interest in a

specific fund is sufficient to entitle intervention in a case

affecting that fund.   See, e.g., Gaines v. Dixie Carriers, Inc.,
434 F.2d 52, 53-54 (5th Cir. 1970) (holding that a law firm could

intervene in a former client's action to protect its interest in


                                10
its contingency fee); Hardy-Latham v. Wellons, 415 F.2d 674 (4th

Cir. 1968) (holding that finders who supplied a broker with the

name of a seller were allowed to intervene in the broker's case

against the seller for a broker's fee because "[t]hey claim an

interest in both the transaction and the fund which are the

subject of the main action, and if the entire amount were paid

directly to [the broker] their ability to collect their proper

share would as a practical matter be impaired"); United States v.

Eilberg, 89 F.R.D. 473 (E.D. Pa. 1980) (holding that two

attorneys who claimed an interest in the same funds sought by the

United States in a suit against a Congressman were entitled to

intervene "whether their claim sounded in contract or tort, in

law or equity."); Peterson v. United States, 41 F.R.D. 131 (D.

Minn. 1966) (holding that the trust remaindermen had a sufficient

interest to intervene in an action by the trust executors for a

tax refund); see generally, Wright & Miller, supra, § 1908, at

272-74 (and cases cited therein) ("`Interests in property are the

most elementary type of right that Rule 24(a) is designed to

protect,' and many of the cases in which a sufficient interest

has been found under amended Rule 24(a)(2) have been cases in

which there is a readily identifiable interest in land, funds, or

some other form of property.").    Thus, when a particular fund is

at issue, an applicant claims an interest in the very property

that is the subject matter of the suit.

          The $250,000 held in the district court registry

represent all that remains of the hurricane reconstruction fund

that the MTCA received to cover the cost of repairing the


                                  11
condominiums in the aftermath of Hurricane Hugo.    According to

Virgin Islands law and the MTCA's By-laws, this money is held in

trust for each of the apartment owners under the supervision of

an Insurance Trustee.    See 28 V.I.C. §924 ("Such insurance

coverage shall be written on the property in the name . . . of

the Board of Directors of the Association of Apartment Owners, as

trustee for each of the apartment owners . . .") (emphasis

added).    Similarly, Article V Section 2 of the MTCA's By-laws,

requires the Board of Directors to obtain this insurance and

appoint an Insurance Trustee to manage the funds.    App., Vol I.,

at 58.    Thus, the Seipels have a right to have an independent

trustee appointed and to have that trustee "disburse the proceeds

of all insurance policies to the contractors engaged in such

repairs or restoration in appropriate progress payments."      App.,

Vol. I at 59.0

            We agree with the Seipels that the funds deposited with

the district court are assets of an express trust, of which the

individual apartment owners are the intended beneficiaries.       Like

all beneficiaries of an express trust, these beneficiaries have a

property interest in the trust res that is enforceable either in

law or in equity.    See generally, Restatement (2d) of Trusts,

§§198-99 (1959).    Like all other beneficiaries of an express

trust, they have an interest in seeing that the assets of the

0
      While the By-laws do not explicitly instruct the trustee as
to how to set priorities among competing contractors, it seems
implicit in the By-laws that the trustee would be required to
distribute the proceeds in accordance with the By-laws, Virgin
Islands law, and in the best interest of the beneficiaries (i.e.,
the condominium owners).


                                 12
trust are not diverted in a manner that will defeat the purpose

of the trust.0

          The MTCA urges us to accept the district court's

finding that the Seipels' "concession" that they have no interest

in the merits of the litigation leads inexorably to the

conclusion that they lack a sufficient stake in the litigation.

According to the MTCA, by their own admission:
          [t]he Seipels have no interest in the merits
          of the Board's lawsuit against these
          Defendants; they are not privy to the
          underlying documents, and have no personal
          knowledge of the merits of that case, or the
          grounds for the dispute, other than that
          their 2 units were not repaired and restored.
          And accordingly, they did not then, and they
          do not now, seek to intervene so as to
          litigate the merits of the underlying suit.

App., Vol. III, at 605.   The district court found this and

similar statements sufficient to support its conclusion that,

"[i]n essence, the Seipels wish merely to have a voice in

controlling the timing and processing of this lawsuit (which is

no concern of theirs) in the hope that, if they succeed in

obtaining a judgment in the Territorial Court, they can satisfy

it by recourse to the $250,000."     Mountain Top, slip op. at 4.
This argument fails to recognize the scope of interests

encompassed in Rule 24(a)(2).   Proposed intervenors need not have

an interest in every aspect of the litigation.     They are entitled

to intervene as to specific issues so long as their interest in

those issues is significantly protectable.     See, e.g., Harris 820

0
      Judge Weis believes that the contractors who performed the
work that provided the underlying basis for the insurance
adjustment are beneficiaries as are the apartment owners.


                                13
F.2d at 599; Howard v. McLucas, 782 F.2d 956, 962 (11th Cir.

1986) (holding that non-minority employees had the right to

intervene to challenge the promotional remedy, but not to contest

the existence of past discrimination); Bradley v. Milliken, 620

F.2d 1141, 1142 (6th Cir. 1980) (holding that a representative of

the Hispanic community has the right to intervene for the limited

purpose of presenting evidence on the question of de jure

segregation of Hispanics).   In this case, while the Seipels may

not have an interest in the merits of the claims pending between

MTCA and Huffman and Stabbert, they do have an interest in the

property over which the court has taken jurisdiction.   Clearly

they have an interest in being heard with respect to the

disposition of that fund.0   As we have observed, such an interest

is sufficient to support an applicant's intervention as of right.

Accordingly, we find the appellants' interest in the litigation

sufficient to support intervention as of right under Rule

24(a)(2).0

0
      We do not say that the Seipels have a right to participate
in a mediation of the claims between MTCA and Huffman and
Stabbert insofar as that mediation is directed solely to the
resolution of those claims and not to the disposition of the
funds in the court's registry. We do hold, however, that the
Seipels have a right to participate in any proceeding that may
result in the disbursement of those funds other than to a duly
appointed independent trustee.
0
      MTCA also argues that the appellants' interest is
contingent upon the outcome of the case pending in the
territorial court. Appellees rely on decisions denying a third
party's motion to intervene when the party's interest depended
upon prevailing on a tort claim in a separate action. See, e.g.,
Liberty Mut. Ins. Co. v. Pacific Indemnity Co., 76 F.R.D. 656
(W.D. Pa. 1977); Independent Petrochemical Corp. v. Aetna Cas.
and Sur. Co., 105 F.R.D. 106, 110 (D.D.C. 1985). But see,
Continental Casualty Co. v. SSM Group, Inc., No. CIV.A. 94-7789,


                                14
                                 B.

            In order to meet the requirements of Rule 24(a)(2),

proposed intervenors must also demonstrate that their interest

might become affected or impaired, as a practical matter, by the

disposition of the action in their absence.    Alcan Aluminum, 25

F.2d at 1185 n.15.    The contractors' claims against the MTCA in

this case are in excess of $250,000.    Presumably, the MTCA could

settle the case by paying the full $250,000 to the contractors,

thus depleting the hurricane reconstruction fund.    If that were

to occur, appellants would be the beneficiaries of an empty and

worthless trust.    Similarly, if the MTCA were allowed to disburse

the funds, most of the appellants' claims against the MTCA would

become moot, including the claim that only a trustee should

"receive all insurance proceeds following a loss."    App., Vol. I,

at 39.    Moreover, any distribution, even a distribution which

does not exhaust the fund, presumably usurps the authority of the

trustee.    Accordingly, we conclude that appellants' interest in

the fund as a practical matter may, indeed, become affected or

impaired in their absence.

                                 C.

            We must now determine whether the appellants' interests

in the litigation are adequately represented.   Harris, 820 F.2d

at 596.    As the Supreme Court stated, "[t]he requirement of the

Rule is satisfied if the applicant shows that representation of

1995 WL 422780 (E.D. Pa. 1995). These cases simply do not apply
here. As we discuss above, appellants interest in the fund is
clearly established by 28 V.I.C. § 924 and Article V § 2 of the
MTCA's By-laws.


                                 15
his interest `may be' inadequate; and the burden of making that

showing should be treated as minimal."   Trbovich v. United Mine

Workers, 404 U.S. 528, 538 n.10 (1972). It has been noted that,
          The most important factor in determining
          adequacy of representation is how the
          interest of the absentee compares with the
          interest of the present parties. If the
          interest of the absentee is not represented
          at all, or if all existing parties are
          adverse to him, then he is not adequately
          represented. If his interest is identical to
          that of one of the present parties, or if
          there is a party charged by law with
          representing his interest, then a compelling
          showing should be required to demonstrate why
          this representation is not adequate.

Wright & Miller, supra, § 1909, at 318-19; see generally Alcan

Aluminum, 25 F.3d at 1185-86.   We therefore must determine

whether the MTCA would adequately represent the appellants'

interest in the district court action by comparing their

respective interests.0

          As we have noted, the Seipels wish to have the funds in

the district court placed in the hands of an independent trustee

so that the terms of the trust can be carried out.   It is

apparent from the prior conduct of MTCA that it will not

represent that point of view in this proceeding.   If an

independent trustee is appointed and intervenes in this

proceedings, the Seipels' interest will be adequately

represented, but until that time, the Seipels must be permitted

to advocate for implementation of the trust.


0
      There is no contention that the appellants are adequately
represented by the contractors given that they are in fact
competing over the funds deposited in the district court.


                                16
                                  D.

          The final requirement for intervention is that

application for intervention be timely.   We review a district

court's determination as to the timeliness of an intervention

motion only for abuse of discretion.    Halderman v. Pennhurst

State School & Hosp., 612 F.2d 131 (3d Cir. 1979).      In

determining whether an application for intervention as of right

is timely, we are reminded that, "[s]ince in situations in which

intervention is of right the would-be intervenor may be seriously

harmed if he is not permitted to intervene, courts should be

reluctant to dismiss a request for intervention as untimely, even

though they might deny the request if the intervention were

merely permissive."   Wright & Miller, supra, § 1916 at 424.

Appellees contend not only that the Seipels' motion was untimely,

but that because the district court did not reach the issue, it

is not properly before us.   (Appellees Brief at 20).

          In its opinion, the district court stated that:
          The proposed intervenors are correct, in my
          view, in arguing that intervention is not
          precluded merely because of the passage of
          time between the filing of this lawsuit and
          the application for intervention: From their
          perspective they did seek intervention
          promptly upon learning of the existence of
          the $250,00 escrow deposit, and upon becoming
          aware that their alleged interests might be
          in jeopardy in this litigation.

Mountain Top, slip op., at 3-4.    We agree.

          The timeliness of a motion to intervene is "`determined

from all the circumstances' and, in the first instance, `by the

[trial] court in the exercise of it sound discretion.'"      In re



                                  17
Fine Paper Antitrust Litigation, 695 F.2d 494, 500 (3d Cir. 1982)

(citing NAACP v. New York, 413 U.S. 345, 366 (1973)).    To

determine whether the intervention motion is timely, we have

listed three factors for courts to consider:    (1) the stage of

the proceeding; (2) the prejudice that delay may cause the

parties; and (3) the reason for the delay.     In re Fine Paper

Antitrust Litigation, 695 F.2d at 500.

                                  1.

          The MTCA argues that intervention at this stage is

untimely and would prejudice them because the case is in an

advanced stage.   The mere passage of time, however, does not

render an application untimely.    Bank of America Nat. Trust and

Sav. Ass'n v. Hotel Rittenhouse Associates, 844 F.2d 1050, 1056

(3d Cir. 1988); Wright & Miller, supra, § 1916 at 425-26.     While

four years had elapsed before the Seipels filed their motion to

intervene, the critical inquiry is:    what proceedings of

substance on the merits have occurred?    See In re Fine Paper

Antitrust Litigation, 695 F.2d at 500 ("a motion to intervene

after an entry of a decree should be denied except in

extraordinary circumstances.") (emphasis added).    Cf. Hicks v.
Miranda, 422 U.S. 332, 349 (1975) (holding that, "where state

criminal proceedings are begun against the federal plaintiffs

after the federal complaint is filed but before any proceedings

of substance on the merits have taken place . . . the principles

of Younger v. Harris apply in full force.").    This is because the

stage of the proceeding is inherently tied to the question of the

prejudice the delay in intervention may cause to the parties


                                  18
already involved.   See generally Wright & Miller, supra, § 1916

at 435-456.   As a result, intervention has been allowed even

after the entry of a judgment.   See, e.g., SEC v. United States

Realty & Improvement Co., 310 U.S. 434, 458-461 (1940); Wright &

Miller, supra, § 1916 at 20 (cases cited therein).

          The record before us reveals that while some written

discovery and settlement negotiations had occurred between the

MTCA and the contractors prior to the Seipels' motion, there were

no depositions taken, dispositive motions filed, or decrees

entered during the four year period in question.   Under these

circumstances, we cannot say that intervention at this stage of

the litigation would prejudice the current parties.

                                 2.

          The heart of the MTCA's objection is that intervention

would "essentially `deep six' any possible settlement."

(Appellees brief at 21).   Even if we were to accept the MTCA's

argument that intervention would prejudice settlement

negotiations, that prejudice would not be attributable to any

time delay.   Indeed, the only threat to settlement negotiations

between the MTCA and the contractors that the intervention might

pose would be that the MTCA and the contractors might have to

consider the Seipels' legitimate interest in the funds at issue.

But we do not see how this in any way dilutes our practice of

encouraging the private settlement of disputes, see, e.g.,

Edwards v. Born, Inc., 792 F.2d 387, 390 (3d Cir. 1986), any more

than recognizing the fundamental principal that an injured party

has a legitimate right to redress.


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                                  3.

           Finally, appellees argue that the Seipels have not

expressed adequate reasons for their delay.      Again, we disagree.

We have held that, "to the extent the length of time an applicant

waits before applying for intervention is a factor in determining

timeliness, it should be measured from the point at which the

applicant knew, or should have known, of the risk to its rights."

Alcan Aluminum, 25 F.3d at 1183.       The Seipels first learned that

the $250,000 had been deposited with the court in a March 8, 1991

memorandum from the Board.   At that time, however, the Board also

predicted that the $250,000 would be returned to the MTCA, and

that there would be a $130,000 surplus after reconstruction was

completed.   When the Seipels filed suit in the Territorial Court

in March of 1992, the Board informed the association members that

the contractors would not release their interest in the $250,000.

The Seipels claim that they reasonably concluded that the money

would remain in the district court's registry throughout the

litigation, beyond the reach of both the MTCA and the

contractors.   They only became aware that the fund was in

jeopardy by a memorandum dated February 2, 1994, when the Board

informed the association members that the district court had

ordered the parties to mediate.    The Seipels immediately sought

to attend the mediation, which was scheduled for February 7,

1994.   When they were not allowed to attend, they sought to

intervene by motion filed on March 11, 1994.      There is,

therefore, sufficient evidence in the record to support the

district court's determination that the appellants "promptly"


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sought intervention upon learning that their interests were in

jeopardy.




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                              IV.

          For the foregoing reasons, we will reverse the district

court's denial of appellants' motion to intervene, and order the

district court to grant the motion.




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