Judge Kaplan has denied the motion of the Huaorani for leave to intervene in Chevron’s RICO action. The Huaorani are a group of Lago Agrio plaintiffs who claim that Donziger and his team had wrongfully represented to the Ecuadoran court that they represented the interests of all Lago Agrio plaintiffs, when in fact they had no authority to represent the Huaorani. The Huaorani have taken steps to protect their interest in the Lago Agrio judgment, and they sought to intervene as defendants in Judge Kaplan’s court for that purpose. They had also previously filed their own civil action against Donziger in New York, which they later voluntarily dismissed—a move that I found difficult to understand at the time.¹With a little digging, the reason for the voluntary dismissal now seems clear: the plaintiffs were all aliens, and one of the defendants was the Amazon Defense Front, an Ecuadoran corporation or association, also an alien for jurisdictional purposes. There is no diversity jurisdiction under 28 U.S.C. § 1332 when there are aliens on both sides of the “v”. The Huaorani should, therefore, have sued in the New York Supreme Court instead of the District Court.

By way of background, under the Federal Rules of Civil Procedure (Rule 24, to be precise), a non-party movant has a right to intervene if it

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 practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

Under Second Circuit precedent, there is an additional requirement: the motion for leave to intervene as of right must be timely. United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994).

Even if the non-party movant has no right to intervene, the court has discretion to permit it to intervene if it

has a claim or defense that shares with the main action a common question of law or fact.

Judge Kaplan held that the Huaorani could not intervene as of right because their motion was untimely. The Huaorani should have known of their claims in February 2011, when the Ecuadoran judgment entered, and they acknowledge that they were on notice that their interests had diverged from Donziger’s in January 2012. But rather than seeking to intervene, they filed their own lawsuit against Donziger in July 2012. And even when they dismissed their own action, in November 2012, they sought to intervene rather than filing a state court action, as they could have done.

Judge Kaplan also rejected intervention as of right because the Lago Agrio plaintiffs and Donziger could be counted on to defend the validity of the Ecuadoran judgment against Chevron’s claims.

The judge recognized that Donziger et al. did not adequately represent the Huaorani to the extent that both Chevron and the Huaorani were asserting that Donziger and others were seeking to benefit personally from the Ecuadoran judgment, to the detriment of the Huaorani and others. But on this issue, the judge reasoned that Chevron itself adequately represented the Huaorani’s interests.

Last, the judge found that because the Huaorani could sue Donziger in the New York state courts, their interests would not be impaired if they were not permitted to intervene.

So much for intervention as of right. The judge held, without much discussion, that the same considerations justified refusing to permit intervention as a matter of his discretion.

The judge may well be right about intervention as of right, and certainly the Huaorani did themselves no favor by delaying and by missing the jurisdictional problem that suing in federal rather than state court caused. But if I were the judge I would have permitted the intervention as a matter of discretion. What purpose is served by forcing the Huaorani to file a new action, and in state court at that? I previously opined that the dozens of discovery proceedings arising out of the Lago Agrio case should have been consolidated, and in general, I think that to the extent the dispute can be handled in one case, it should be. I also suggest that as a matter of appearances a court that is devoting as much effort as Judge Kaplan is to hearing the arguments of Chevron and Donziger should spare a moment for the Huaorani, who after all are among the people most directly affected by the environmental problems in Ecuador.

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  With a little digging, the reason for the voluntary dismissal now seems clear: the plaintiffs were all aliens, and one of the defendants was the Amazon Defense Front, an Ecuadoran corporation or association, also an alien for jurisdictional purposes. There is no diversity jurisdiction under 28 U.S.C. § 1332 when there are aliens on both sides of the “v”. The Huaorani should, therefore, have sued in the New York Supreme Court instead of the District Court.