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`UNITED STATES DISTRICT COURT
`Northern District of California
`Oakland Division
`No. C 11-03911 LB
`ORDER GRANTING MOVANTS’
`MOTIONS TO INTERVENE
`
`KORVEL M. SUTTON,
`Plaintiff,
`
`v.
`APPLE COMPUTERS ITUNES et al.,
`Defendants.
`_____________________________________/
`I. INTRODUCTION
`Two non-parties, Roderick Williams and Rams Horn BV (“Rams Horn”), have filed motions
`to intervene in this action. Having considered the papers submitted and the lack of opposition by
`any current party, the court hereby GRANTS both motions.
`
`[ECF Nos. 59, 63, 64]
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`II. BACKGROUND
`On August 8, 2009, pro se plaintiff Korvel Sutton sued Apple Inc.1 (“Apple”) and individuals
`Donald McMillan and James Callon (collectively, “Defendants”) for copyright infringement.
`Complaint, ECF No. 1.2 Mr. Sutton, a former member of the early-1990s West Coast rap group,
`“Pretty Boy Gangsters,” alleges that Defendants infringed his copyrighted songs that appear on
`
`1 Erroneously sued as “Apple Computers iTunes.”
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`2 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
`number at the top of the document, not the pages at the bottom.
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`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
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`Case3:11-cv-03911-LB Document78 Filed03/02/12 Page2 of 7
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`Pretty Boy Gangsters’ 1991 album, Rollin’ Like A Star. Complaint, ECF No. 1 at 3-4, Exh. 2-C.3
`Mr. Sutton alleges that the album’s songs have been made available for download on Apple’s iTunes
`service without his consent or permission, in violation of Title 17 of the United States Code. Id. at
`3-4, Exh. 2-A.
`The court granted Mr. Sutton’s application to proceed in forma pauperis and ordered the U.S.
`Marshal to serve Defendants with the complaint and summonses. IFP Order, ECF No. 6. All three
`Defendants were successfully served by the U.S. Marshal. Acknowledgment of Service (Apple),
`ECF No. 8; Acknowledgment of Service (Callon), ECF No. 10; Acknowledgment of Service
`(McMillan), ECF No. 19. Mr. Callon promptly answered the complaint. Answer (Callon), ECF No.
`9. After some delay, Apple answered the complaint on November 21, 2011, and Mr. McMillan filed
`an answer on February 22, 2012. Answer (Apple), ECF No. 39; Answer (McMillan), ECF No. 73.
`Pursuant to the court’s standard procedure, Mr. Sutton, Mr. Callon and Apple attended the initial
`case management conference on February 9, 2012. Minute Entry, ECF No. 58. During the course
`of that conference, Mr. Callon, Mr. Sutton and Apple voiced concern that two other potential parties
`– namely, Roderick Williams, who, along with Mr. Sutton, co-founded the Pretty Boy Gangsters and
`is named on the copyright attached to the initial complaint (Complaint, ECF No. 1 at 11, Exh. 2-C),
`and Rams Horn, a Dutch entity that alleges it entered into an agreement with Mr. McMillan4
`transferring to it “all rights in the audio master recordings and the musical compositions embodied in
`such masters” of the songs at issue here (Amended Counter- and Cross-Claims, ECF No. 66 at 2, ¶¶
`2, 10, Exh. 2) – may need to be added to this case. The parties agreed to meet and confer in order to
`determine the optimal procedure for adding all necessary parties, and to file the required motions
`accordingly.
`
`3 The following songs appear on Rollin’ Like A Star: (1) “Pretty Boy Gangsters”; (2) “Hard
`as Fuck”; (3) “Activist”; (4) “Monies on My Mind”; (5) “Mack on Top of the Stack”; (6) “P.B.G.’s
`Get Funky (Rollin’ like a Star)”; (7) “K the Buster”; (8) “On the Tip of a Mack”; (9) “Indo Smoke”;
`and (10) “It Ain’t Right.” Complaint, ECF No. 1 at 7-8, Exhs. 1-A & 1-B.
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`4 Rams Horn alleges that its predecessor in interest, Rams Horn Productions BV, entered into
`a contract with Macola Records Group, Inc., of which Mr. McMillan was then president and owner.
`Amended Counterclaim, ECF No. 66 at 2, ¶¶ 2, 5.
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`Subsequently, Mr. Williams filed a motion to intervene as a plaintiff in the action on February 9,
`2012. Motion (Williams), ECF No. 59.5 Rams Horn filed an answer to the complaint and a motion
`to intervene as a defendant on February 13, 2012. Motion (Rams Horn), ECF No. 61; Answer, ECF
`No. 62. Rams Horn has also filed counter- and cross-claims against all plaintiffs. Amended
`Counter- and Cross-Claims, ECF No. 66. Apple has filed statements of non-opposition to the
`intervention of both Mr. Williams and Rams Horn. Statement of Non-Opposition (re: Williams),
`ECF No. 68; Statement of Non-Opposition (re: Rams Horn), ECF No. 70. To date, no parties have
`voiced any objections.
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`III. LEGAL STANDARD
`Under Rule 24(a)(2), a non-party has the right to intervene in any action if it can “claim 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
`interests, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). In
`Wilderness Society v. United States Forest Service, the Ninth Circuit provided a four-part test for
`analyzing motions to intervene under Rule 24(a)(2): (1) The motion must be timely; (2) the applicant
`must claim a “significantly protectable” interest relating to the property or transaction which is the
`subject of the action; (3) the applicant must be so situated that the disposition of the action may as a
`practical matter impair or impeded its ability to protect that interest; and (4) the applicant’s interest
`must be inadequately represented by the parties to the action. 630 F.3d 1173, 1177 (9th Cir. 2011)
`(en banc) (citing Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993)).
`In determining whether the requirements of Rule 24(a)(2) have been met, the Ninth Circuit
`directs district courts to follow “practical and equitable considerations” and to construe the Rule
`“broadly in favor of proposed intervenors.” United States v. City of Los Angeles, 288 F.3d 391, 397
`(9th Cir. 2002) (internal quotation marks omitted); see also Sw. Ctr. for Biological Diversity v.
`Berg, 268 F.3d 810, 818 (9th Cir. 2001). Accordingly, this Circuit has rejected any requirement that
`the intervening party have a “specific legal or equitable interest” in the action in which they seek to
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`5 Mr. Williams also filed a motion for joinder. Motion for Joinder, ECF No. 63. Because the
`court grants his motion for intervention, his motion for joinder is DENIED as moot.
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`intervene. County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980); United States v. City of
`Los Angeles, 288 F.3d 391, 398 (9th Cir. 2002). Instead, the “interest” prong is “‘primarily a
`practical guide to disposing of lawsuits by involving as many apparently concerned persons as is
`compatible with efficiency and due process.’” County of Fresno, 622 F.2d at 428 (quoting Nuesse v.
`Camp, 385 F.2d 698, 700 (D.C. Cir. 1967)). Most importantly here, “a prospective intervenor ‘has a
`sufficient interest for intervention purposes if it will suffer a practical impairment of its interests as a
`result of the pending litigation.’” Wilderness Soc’y, 630 F.3d at 1179 (quoting California ex rel.
`Lockyer v. United States, 450 F.3d 436, 441 (9th Cir. 2006)).
`IV. DISCUSSION
`
`A. Timeliness
`Three factors are considered when a court considers the timeliness of an application for
`intervention under Rule 24(a)(2): “1) the stage of the proceeding at which an applicant seeks to
`intervene; 2) the prejudice to other parties; and 3) the reason for and length of the delay.” California
`Dept. of Toxic Substances Control et al. v. Commercial Realty Projects et al., 309 F.3d 1113, 1119
`(9th Cir. 2002). “Timeliness is a flexible concept; its determination is left to the district court’s
`discretion.” U.S. v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (citing Dilks v. Aloha
`Airlines, 642 F.2d 1155, 1156 (9th Cir. 1981)).
`Mr. Williams filed his application for intervention on February 9, 2011, the same day as the
`initial case management conference where Mr. Williams’s absence was first brought to the court’s
`attention. Motion, ECF No. 59. Due to the lack of prejudice (and the failure of any party to suggest
`as much) and the relatively early stage of the litigation, the court finds that Mr. Williams’s motion is
`timely.
`Rams Horn filed its motion on February 14, 2012, five days after the initial case management
`conference. Motion, ECF No. 64. Based on the above-listed factors, and for similar reasons as
`described with respect to Mr. Williams, the court finds that Rams Horn’s intervention is timely as
`well.
`B. Interest in the Subject Action
`“To demonstrate a significant protectable interest, an applicant must establish that the interest is
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`protectable under some law and that there is a relationship between the legally protected interest and
`the claims at issue.” Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 897
`(9th Cir. 2011) (internal citations omitted).
`Along with Mr. Sutton, Mr. Williams is a co-founder of the Pretty Boy Gangsters and is named
`on the copyright attached to the initial complaint. See Complaint, ECF No. 1 at 11, Exh. 2-C.
`Because the copyrights to the recordings made by the now-defunct rap group are at issue here, Mr.
`Williams clearly has a significant protectable interest in the subject matter of this litigation.
`Rams Horn claims that Mr. McMillan transferred to it the copyrights to the songs at issue in this
`case. Amended Counter- and Cross-Claims, ECF No. 66, Exh. 2. Because Rams Horn claims rights
`over these songs, the court finds it has a significant protectable interest in the litigation.
`C. Impairment of Ability to Protect Interest
`“If an absentee would be substantially affected in a practical sense by the determination made in
`an action, he should, as a general rule, be entitled to intervene . . . . ” Id. at 898 (citing Fed. R. Civ.
`P. 24 advisory committee’s note).
`As noted above, Mr. Williams claims to have an ownership interest in the songs. A finding by
`this court that Mr. Williams does not, in fact, have such an interest would substantially affect his
`claimed ownership rights. Therefore, Mr. Williams satisfies the “impairment” prong.
`Similarly, a finding that Rams Horn never validly purchased the rights to the songs, as it believes
`it did, would substantially affect their interests. Because of this potential consequence, Rams Horn
`has also established that they may be substantially affected by this litigation.
`D. Adequacy of Representation
`In determining whether the existing parties adequately represent the interests of the purported
`intervenor, the Ninth Circuit considers three criteria: (1) Whether the interest of a present party is
`such that it will undoubtedly make all the intervenor’s arguments; (2) whether the present party is
`capable and willing to make such arguments; and (3) whether the invervenor would offer any
`necessary elements to the proceeding that other parties would neglect. People of State of California
`v. Tahoe Regional Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986) (internal citations omitted).
`Mr. Williams claims partial ownership of rights in the Pretty Boy Gangsters material at issue in
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`this case. Because Mr. Williams has no representative in the action, because it is not argued that a
`current party will make all of his arguments for him and because his presence is necessary for a
`complete resolution of this litigation, Mr. Williams has a right to intervene.
`Rams Horn intends to defend the agreement that it believed grants it the copyrights to the
`property at issue here. Because it is unclear what positions the other parties will take in this action,
`and because Rams Horn’s property interests could be adversely affected, Rams Horn should be
`allowed to intervene.
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`V. CONCLUSION
`Mr. Williams and Rams Horn have demonstrated that they satisfy all of the requirements for
`intervention by right under Rule 24(a)(2). For the foregoing reasons, the court GRANTS Mr.
`Williams’s and Rams Horn’s motions to intervene.
`With respect to case management, it is the court’s understanding that Mr. Sutton recently
`attempted to file a First Amended Complaint that would add Mr. Williams as a plaintiff.6 Now that
`the court has granted Mr. Williams’s motion to intervene, Mr. Sutton and Mr. Williams may file a
`First Amended Complaint no later than March 23, 2012. Should a First Amended Complaint be
`filed, Defendants shall answer or otherwise respond to the First Amended Complaint in accordance
`with Federal Rule of Civil Procedure 12. If a First Amended Complaint is not filed, the parties are
`ordered to meet and confer to determine the best procedure for going forward with, and responding
`to, the pleadings already on file.7
`This disposes of ECF Nos. 59, 63, 64.
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`///
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`6 The Clerk of the Court suggested that Mr. Sutton wait until the court ruled on the motions
`to intervene before filing a First Amended Complaint.
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`7 The court notes that Rams Horn filed an answer to Mr. Sutton’s original complaint and also
`filed counter- and cross-claims against the parties. Should a First Amended Complaint not be filed
`by March 23, 2012, Rams Horn’s answer and its counter- and cross-claims shall be deemed filed on
`that date, and the parties shall proceed in accordance with Federal Rule of Civil Procedure 12.
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`IT IS SO ORDERED.
`Dated: March 2, 2012
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`_______________________________
`LAUREL BEELER
`United States Magistrate Judge
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