ALD-142                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 16-4414
                                   ___________

                  THE ISLAMIC SOCIETY OF BASKING RIDGE;
                         MOHAMMAD ALI CHAUDRY

                                         v.

    TOWNSHIP OF BERNARDS; BERNARDS TOWNSHIP PLANNING BOARD;
   BERNARDS TOWNSHIP COMMITTEE; BARBARA KLEINERT, in her official
capacity; JEFFREY PLAZA, in his official capacity; JIM BALDASSARE, in his official
capacity; JODI ALPER, in her official capacity; JOHN MALAY, in his official capacity;
KATHLEEN “KIPPY” PIEDICI, in her official capacity; LEON HARRIS, in his official
  capacity; PAULA AXT, in her official capacity; RANDY SANTORO, in his official
  capacity; RICH MOSCHELLO, in his official capacity; SCOTT ROSS, in his official
  capacity; CAROL BIANCHI, in her official capacity; CAROLYN GAZIANO, in her
    official capacity; THOMAS S. RUSSO, JR.; JOHN CARPENTER, in his official
                                       capacity

                                    *Michael S. Barth, Appellant
                                    (*Pursuant to Rule 12(a), Fed. R. App. P.)
                     ____________________________________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                           (D.C. Civil No. 3-16-cv-01369)
                    District Judge: Honorable Michael A. Shipp
                    ____________________________________

                      Submitted for Possible Summary Action
                 Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 February 23, 2017
             Before: MCKEE, JORDAN and RESTREPO, Circuit Judges

                           (Opinion filed: March 8, 2017)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Michael S. Barth, proceeding pro se, appeals from an order of the United States

District Court for the District of New Jersey denying his motion to intervene in an action

filed by the Islamic Society of Basking Ridge and Mohammad Ali Chaudry (collectively,

“Plaintiffs”) against Bernard Township and entities and individuals associated with the

Township (collectively, “Township”). Because the appeal does not present a substantial

question, we will grant the Plaintiffs’ motion to summarily affirm the order of the District

Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       In March 2016, the Plaintiffs filed an action alleging that the Township violated

federal and state laws in connection with the denial of an application to build a mosque.

According to the Plaintiffs, Barth, as a member of the public, objected to the mosque

application at numerous hearings. Although Barth was not named as a defendant, the

Plaintiffs served him with a subpoena, seeking documents related to his participation in

the application process. In response, Barth, citing Rule 24 of the Federal Rules of Civil

Procedure, filed a motion to intervene for the “limited purpose” of filing “a motion to

dismiss Plaintiffs’ complaint as lacking standing under” the Religious Land Use and

Institutionalized Persons Act (RLUIPA). While Barth’s motion to intervene was




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pending, the Plaintiffs withdrew the subpoena. The District Court denied intervention as

of right and permissive intervention, holding that Barth failed to establish (1) a sufficient

interest in the litigation, (2) that his interests were not adequately represented by the

Township, and (3) that his claim that shared a common question of law or fact with the

main action. Barth appealed.1

       We have jurisdiction under 28 U.S.C. § 1291. See Carlough v. Amchem Prods.,

Inc., 5 F.3d 707, 712 (3d Cir. 1993) (“There is no doubt that an outsider denied

intervention claimed to be of right may take an immediate appeal. Such a proposed

intervenor’s future involvement in the lawsuit . . . is foreclosed entirely by the denial of

intervention, and the order of denial thus has the requisite finality for appellate review.”)

(citation omitted). “This Court reviews a district court’s denial of permissive

intervention and intervention of right for abuse of discretion but applies a more stringent

standard to denials of intervention of right.” Benjamin ex rel. Yock v. Dep’t of Pub.

Welfare of Pa., 701 F.3d 938, 947 (3d Cir. 2012) (internal quotation marks omitted).

Under this more stringent standard, we will not disturb a District Court’s decision unless

that court “applied an improper legal standard” or reached a decision that we are

“confident is incorrect.” In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 349 n.26 (3d



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
 We note that the District Court has granted the Plaintiffs’ motion for partial judgment
on the pleadings. See Islamic Soc’y of Basking Ridge v. Twp. of Bernards, -- F. Supp.
3d --, 2016 WL 7496661 (D.N.J. Dec. 31, 2016).
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Cir. 2010) (quoting United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir.

1994)).

       A litigant seeking to intervene pursuant to Rule 24(a)(2) must establish: “(1) a

timely application for leave to intervene, (2) a sufficient interest in the underlying

litigation, (3) a threat that the interest will be impaired or affected by the disposition of

the underlying action, and (4) that the existing parties to the action do not adequately

represent the prospective intervenor’s interests.” Liberty Mut. Ins. Co. v. Treesdale, Inc.,

419 F.3d 216, 220 (3d Cir. 2005) (citing Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969

(3d Cir. 1998)). Each requirement “must be met to intervene as of right.” Mountain Top

Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995)

(citation omitted).

       Barth failed to demonstrate that his interest was sufficient to warrant intervention

as of right. Fed. R. Civ. P. 24(a). We have stated that “the legal interest asserted must be

a cognizable legal interest, and not simply an interest ‘of a general and indefinite

character.’” Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1116 (3d Cir. 1992)

(quoting Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987)). Barth’s interest in the

litigation was based on the subpoena that was served upon him. But that interest

disappeared when the Plaintiffs withdrew the subpoena. Barth asserted that his interest

remained valid because the Plaintiffs withdrew the subpoena “without prejudice.” We

agree with the District Court, however, that the Plaintiffs’ ability to serve Barth with

another subpoena in the future does not preserve his interest in the underlying litigation.
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See Ungar v. Arafat, 634 F.3d 46, 51-52 (1st Cir. 2011) (“An interest that is too

contingent or speculative – let alone an interest that is wholly nonexistent – cannot

furnish a basis for intervention as of right.”). To the extent that Barth, as a member of the

public, has a general interest in the litigation, his interests are adequately represented by

the Township, the “government entity charged by law with representing” him. Brody,

957 F.2d at 1123. Therefore, we conclude that the District Court did not abuse its

discretion in holding that Barth failed to meet the requirements for intervention as of

right.

         We also agree with the District Court’s denial of Barth’s application for

permissive intervention. Fed. R. Civ. P. 24(b). Permissive intervention is available when

an applicant “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). As noted above, we are “more reluctant to

intrude into the highly discretionary decision of whether to grant permissive

intervention.” Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 227 (3d Cir. 2005).

Barth’s now-extinguished interest in challenging the subpoena does not share any

questions of law or fact with the question whether the Township violated the Plaintiffs’

constitutional rights. Accordingly, we conclude that the record provides no basis upon

which to disturb the District Court’s determination that permissive intervention was not

warranted.




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       For the foregoing reasons, no substantial question is presented, and we grant the

Plaintiffs’ motion to summarily affirm the District Court’s order. See 3d Cir. L.A.R 27.4;

I.O.P. 10.6.




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