                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



U.S. COMMODITY FUTURES                           No. 08-56165
TRADING COMMISSION,
                                                 D.C. No. 8:07-cv-01437-CJC-
             Plaintiff - Appellee,               RNB

  v.
                                                 MEMORANDUM *
FOREX LIQUIDITY LLC,

             Defendant,

____________________________

ROBERT GRAY,

             Intervenor - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                             Submitted June 8, 2010 **
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: D.W. NELSON and GOULD, Circuit Judges, and DOWD, Senior District
Judge.***

      Appellant Robert Gray appeals the district court’s order denying his motion

to intervene and granting Receiver-Appellee Robb Evans and Associates’ motion

for a distribution order and related administrative orders.

      We have jurisdiction over Gray’s appeal of the intervention order because

the “denial of a motion to intervene as of right under Rule 24(a)(2) is appealable as

a final order within the meaning of 28 U.S.C. § 1291.” Sagebrush Rebellion, Inc.,

v. Watt, 713 F.2d 525, 527 (9th Cir. 1983). The district court found Gray’s motion

to intervene untimely, a finding we review for abuse of discretion. United States v.

$129,374 in U.S. Currency, 769 F.2d 583, 585 (9th Cir. 1985).

      A court “consider[s] three criteria in determining whether a motion to

intervene is timely: (1) the stage of the proceedings; (2) whether the parties would

be prejudiced; and (3) the reason for any delay in moving to intervene.” Nw.

Forest Res. Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996). All three

factors support the district court’s finding. Gray moved to intervene at a late stage

of the proceedings, after the Receiver had 1) conducted discovery, 2) filed an

interim report, and 3) developed a second interim report and an outlined


        ***
            The Honorable David D. Dowd, Jr., Senior U.S. District Judge for the
Northern District of Ohio, sitting by designation.

                                           2
distribution plan with input from creditors, customers, and Gray himself. As the

district court noted, permitting intervention at such a late stage of the proceedings

“would likely disrupt the orderly and efficient administration of the estate” and

“may also result in prejudice to Forex’s numerous creditors and customers,

particularly because all of those customers’ accounts remain frozen.” Finally, like

the district court, we find unpersuasive Gray’s reason for delay–that the Receiver

gave Gray copies of Forex’s records on digital media without optical recognition

capability, allegedly making information retrieval tedious and difficult.. The

district court was well within its discretion when it found Gray’s motion to

intervene untimely. We affirm the intervention order.

      We do not have jurisdiction over Gray’s appeal of the distribution orders.

Gray acknowledges that the distribution orders do not dispose of the underlying

litigation, but argues that the orders are appealable as collateral orders. “Orders

that do not dispose of the entire litigation are appealable as collateral orders if they

[1] conclusively determine the disputed question, [2] resolve an important issue

completely separate from the merits of the action, and [3] are effectively

unreviewable on appeal from a final judgment.” S.E.C. v. Capital Consultants

LLC, 453 F.3d 1166, 1171 (9th Cir. 2006) (per curiam) (quotations and alterations

omitted). Here, first, the distribution orders at issue were merely an intermediate


                                            3
step, not a conclusive determination, in the disposition of the assets discussed in

the orders. Second, distributing Forex’s assets equitably is one of the central

purposes of the receivership and, correspondingly, of the underlying action. See

id. at 1172. Even if the distribution orders will be effectively unreviewable on

appeal from the eventual final judgment in the underlying action, the orders clearly

fail the first two prongs of the collateral order test and thus are not appealable as

collateral orders.

        AFFIRMED in part, DISMISSED FOR LACK OF JURISDICTION in

part.




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