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McDonough v. City of Portland

United States District Court, D. Maine

June 16, 2015

PAUL M. McDONOUGH, Plaintiff,
v.
CITY OF PORTLAND, Defendant.

ORDER ON MOTIONS TO INTERVENE AND MOTIONS TO DISMISS

Jon D. Levy U.S. District Judge

This is a reverse discrimination claim brought by Paul M. McDonough, a taxicab driver, against the City of Portland, which was removed from the Maine Superior Court. ECF No. 3-2. Two additional parties, the Airport Taxi Group and the Non-Reserved Taxi Group, Inc. (“NRTG”), have each filed motions to intervene and to dismiss. For the reasons discussed below, NRTG’s motions to intervene (ECF No. 3-20) and dismiss (ECF No. 3-23) are granted. The Airport Taxi Group’s motions to intervene (ECF No. 3-5) and dismiss (ECF No. 3-6) are denied as moot.

I. FACTUAL BACKGROUND

McDonough is an American-born, Caucasian taxi driver. He holds a City of Portland taxi permit, but that permit does not allow him to collect passengers at the Portland International Jetport who have not made prior reservations. Only drivers who hold a Portland non-reserved Jetport taxicab permit (“non-reserved permit”) may pick up passengers without a reservation at the Jetport. ECF No. 3-17 at 1.

McDonough alleges that all of the current non-reserved permits are held by non-white immigrants from Somalia or Iran, and that Portland discriminated against him and “all other non-black, non-immigrant Portland taxicab drivers” by allegedly allocating all non-reserved permits to “non-Caucasian immigrants.” Id. at 2.

McDonough filed his initial complaint on December 30, 2014 in the Cumberland County Superior Court, alleging one count of disparate impact discrimination in violation of the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4551, et seq. (2014). ECF No. 3-2. In its answer, Portland admitted that the taxi drivers who hold non-reserved permits are primarily black and that their national origin is primarily Somali or Iranian, but asserted that this “occurred by happenstance, ” and otherwise denied McDonough’s allegations. See ECF No. 3-3 at 2.

On February 4, 2015, the Airport Taxi Group, an unincorporated association of taxi drivers who hold non-reserved permits, filed motions to intervene and to dismiss the sole count contained in the initial complaint. ECF No. 3-5; ECF No. 3-6. McDonough objected on the basis that an unincorporated association may not intervene in a civil action and that the Airport Taxi Group was not a real party in interest. ECF No. 3-7 at 2.

The Airport Taxi Group countered that an unincorporated organization is a “person” within the meaning of § 4553(7) of the MHRA. ECF No. 3-11 at 1. Nevertheless, its membership subsequently formed a new, incorporated entity, NRTG, which filed new motions to intervene and to dismiss “in place of [the] Airport Taxi Group” on April 2nd. ECF No. 3-20; ECF No. 3-23. NRTG’s motions incorporate by reference the same legal arguments presented in the Airport Taxi Group’s motions to intervene and dismiss.[1]

McDonough filed an amended complaint on March 27, 2015, in which he alleged claims for intentional and disparate impact discrimination by Portland in violation of § 4592(1) of the MHRA, which prohibits denial of public accommodations on account of race (Counts One and Two). ECF No. 3-17 at 3-5. McDonough also alleged that Portland discriminated against him in violation of 42 U.S.C. § 1983 (Count Three) and 42 U.S.C. § 1981 (Count Four). Id. at 5-6. In its Answer to the amended complaint, Portland again admitted that “primarily the race of the current non-reserved permit holders is black and their national origin is Somali and/or Iranian, ” ECF No. 3-21 at 2, but otherwise denied McDonough’s allegations, see ECF No. 3-21.

II. MOTIONS TO INTERVENE

NRTG’s motion to intervene was filed pursuant to Maine Rule of Civil Procedure 24(a)(2). ECF No. 3-5. The Maine rule is “virtually the same” as Federal Rule of Civil Procedure 24(a)(2), Doe v. Roe, 495 A.2d 1235, 1237 n.4 (Me. 1985), and I consider the motions pursuant to the federal authority concerning intervention.

Federal Rule 24(a)(2) requires a party to show that: (1) it timely moved to intervene; (2) it has an interest relating to the property or transaction that forms the basis of the ongoing suit; (3) the disposition of the action threatens to create a practical impediment to its ability to protect its interests; and (4) no existing party adequately represents its interests. B. Fernández & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 544-45 (1st Cir. 2006) (citing Pub. Serv. Co. of N. H. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998)). “The failure to satisfy all four conditions dooms intervention.” Id. at 545 (quoting Patch, 136 F.3d at 204) (punctuation omitted).

McDonough does not dispute that NRTG’s motion is timely, nor that the disposition of the action threatens to create a practical impediment to NRTG’s ability to protect any interest. See ECF No. 3-7 at 2. Instead, he objects that NRTG does not have an adequate property interest in the current permit system, id. at 3, and that ...


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