                                             NOT PRECEDENTIAL


              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        _____________

                            No. 13-1634
                           _____________

   ACRA TURF CLUB, LLC, A New Jersey Limited Liability Company;
FREEHOLD RACEWAY OFF TRACK, LLC, A New Jersey Limited Liability
                          Company

                                  v.

 FRANCESCO ZANZUCCKI, Executive Director of the New Jersey Racing
                       Commission

*NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC.,
                              Appellant

                 *(Pursuant to Fed. R. App. P. 12(a)).
                          _____________

            On Appeal from the United States District Court
                      for the District of New Jersey
                    District Court No. 3-12-cv-02775
            District Judge: The Honorable Michael A. Shipp

                           _____________

              Submitted Under Third Circuit LAR 34.1(a)
                          January 10, 2014

       Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges

                       (Filed: March 31, 2014)
                                 ________________

                                     OPINION
                                 ________________


PER CURIAM

      The New Jersey Thoroughbred Horsemen’s Association, Inc. (“NJTHA”)

appeals the denial of its motion to intervene in this federal action. For the reasons

that follow, we will affirm.

      ACRA Turf Club, LLC (“ACRA”) and Freehold Raceway Off Track, LLC

(“Freehold”) (collectively, “Plaintiffs”) filed this suit pursuant to 42 U.S.C. §§

1983 and 1988, against Francesco Zanzuccki (“Zanzuccki”), Executive Director of

the New Jersey Racing Commission (the “Commission”), asserting that certain

amendments to New Jersey’s Off-Track and Account Wagering Act violate their

rights under the United States Constitution.1 On July 27, 2012, NJTHA filed a

motion to intervene in Plaintiffs’ federal suit and to dismiss the complaint.2 The

Magistrate Judge struck as premature the part of the motion that sought to dismiss

the Complaint, and NJTHA filed an appeal of that order, which we dismissed for

1
       The District Court dismissed Plaintiffs’ case on Younger abstention grounds,
and Plaintiffs filed an appeal, which was docketed as No. 13-3064, and
consolidated with this appeal for disposition only. We resolve that appeal in a
separate opinion issued concurrently with this one. Because most of the facts and
procedural history are set out in that opinion, and because here we write principally
for the parties, we recite only those facts essential to our disposition of this appeal.
2
       On August 7, 2012, the Standardbred Breeders and Owners Association also
filed a motion to intervene and to dismiss, but has not participated in this appeal.

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lack of jurisdiction. The District Court thereafter denied the motions to intervene,

finding that the proposed intervenors failed to demonstrate that their interests were

not adequately represented by Zanzuccki. NJTHA timely appealed.3

      We “review a denial of a motion to intervene as of right for abuse of

discretion, although this review is ‘more stringent’ than the abuse of discretion

review we apply to a denial of a motion for permissive intervention.” Brody v.

Spang, 957 F.2d 1108, 1115 (3d Cir. 1992) (quoting Harris v. Pernsley, 820 F.2d

592, 597 (3d Cir. 1987)). When reviewing the denial of intervention as 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.”

Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361,

365 (3d Cir. 1995) (internal quotation marks omitted). We are, however, “more

reluctant to intrude into the highly discretionary decision of whether to grant

permissive intervention.” Brody, 957 F.2d at 1115. The District Court denied

NJTHA’s request to intervene as a party defendant as of right and for permissive

intervention under Fed. R. Civ. P. 24.

      Rule 24(a) intervention as of right covers any proposed intervenor who, by

timely motion, “claims an interest relating to the property or transaction that is the

subject of the action, and is so situated that disposing of the action may as a

3
      The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We
exercise jurisdiction pursuant to 28 U.S.C. §1291.

                                          3
practical matter impair or impede the movant’s ability to protect its interest, unless

existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). Thus,

an applicant may intervene as of right 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. In denying the motion, the District Court concluded that

the fourth prong was not met because NJTHA’s interest was adequately

represented by the New Jersey Attorney General as counsel for Zanzuccki.

      We agree. The Attorney General is charged with defending the

constitutionality of state statutes, N.J. Stat. Ann. § 52:17A-4, and there is no

indication here that the Attorney General, as representative of the Commission, has

not actively fulfilled his statutory role and vigorously defended the Amendments.

In this situation, “a presumption of adequate representation generally arises when

the representative is a governmental body or officer charged by law with

representing the interests of the absentee.” Commonwealth of Pa. v. Rizzo, 530

F.2d 501, 505 (3d Cir. 1976). Moreover, NJTHA and the Commission here have

aligned interests: they both want the Amendments to be upheld and the off track




                                             4
wagering programs to succeed.4 Therefore, the District Court applied the correct

legal standard and did not abuse its discretion in denying NJTHA’s Rule 24 motion

to intervene as of right.

      We turn next to the claim that the District Court abused its discretion by not

allowing permissive intervention under Rule 24(b). Permissive intervention is

available upon timely motion when the movant “has a claim or defense that shares

with the main action a common question of law or fact,” Fed. R. Civ. P.

24(b)(1)(B), and the intervention will not unduly delay the proceedings or

prejudice the original parties. Fed. R. Civ. P. 24(b)(3). In denying permissive

intervention, the District Court relied in part on the fact that the interests of

NJTHA were already adequately represented and that its interjection of unrelated

new claims would delay the proceedings. The District Court had good reason to

deny permissive intervention. “[W]here, as here, the interests of the applicant in

every manner match those of an existing party and the party’s representation is

deemed adequate, the district court is well within its discretion in deciding that the

applicant’s contributions to the proceedings would be superfluous and that any

4
       For this reason, NJTHA’s reliance on Kleissler v. U.S. Forest Service, 157
F.3d 964 (3d Cir. 1998), is misplaced. In Kleissler, the proposed intervenor was a
private entity with an interest in the logging industry. In that case, the presumption
of adequate representation was overcome “when an agency’s views are necessarily
colored by its view of the public welfare rather than the more parochial views of a
proposed intervenor whose interest is personal to it.” Id. at 972. Here, both the
Commission and NJTHA are interested in defending the Amendments and
allowing off track wagering to grow.

                                          5
resulting delay would be ‘undue.’” Hoots v. Commonwealth of Pa., 672 F.2d 1133,

1136 (3d Cir. 1982). The District Court appropriately exercised its discretion when

it concluded that the proposed intervenor’s interests are aligned with those of the

Attorney General and its unrelated claims would delay the proceeding.

      Finally, we turn to NJTHA’s argument that the District Court misapplied the

indispensible party doctrine by not allowing NJTHA to be joined under Rule 19(a).

Without deciding whether or not it is procedurally proper for a non-party to move

for joinder under Rule 19, we agree with the District Court that a movant who may

meet the joinder requirements of Rule 19 does not automatically qualify to

intervene as of right, as “[t]hat interpretation would read the ‘adequacy of

representation’ requirement out of Rule 24(a)(2) by creating a backdoor into the

litigation through the less restrictive inquiry of Rule 19(a)(2)(I).” Liberty Mut. Ins.

Co. v. Treesdale, Inc., 419 F.3d 216, 230 (3d Cir. 2005). Thus, the District Court

properly found that NJTHA’s Rule 19 argument did not provide a basis for

intervention.

      For the foregoing reasons, we will affirm the denial of the motion to

intervene.




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