Pete's Brewing Co. v. Anheuser-Busch ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1139-WMKC
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PETE'S BREWING COMPANY, et al., *
*
Plaintiffs-Appellees, *
*
v. * Appeal from the
* United States District Court
HOPE E. WHITEHEAD and * for the Western District
MISSOURI DIVISION OF * of Missouri, Western
LIQUOR CONTROL, * Division
*
Defendants-Appellees, * [UNPUBLISHED]
*
ANHEUSER-BUSCH, INC., *
*
Movant/Appellant. *
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Submitted: June 11, 1998
Filed: August 24, 1998
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Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit
Judges, and PANNER1, District Judge
___________
1
The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.
OWEN M. PANNER, District Judge.
Plaintiffs, several out-of-state breweries, challenge a 1996 Missouri law which
requires a statement disclosing the ownership and location of production facilities on
all malt liquor beverages sold in that state. Defendants are the Missouri Division of
Liquor Control and its supervisor, Hope Whitehead. Appellant Anheuser-Busch, Inc.
("AB") moved to intervene in the district court both as of right and permissively. The
district court denied the motions. AB appeals. We affirm.
BACKGROUND
In 1996, the Missouri Legislature passed the law at issue in response to
complaints that certain brewers, whose products were produced in unused facilities of
large brewers, were marketing those products as having been made in small
microbreweries. In pertinent part, the law provides:
[a]ny malt liquor which is offered for sale in this state and manufactured
at other than a facility owned by the person whose name appears on the
label of the container shall include on the label the name and location of
the owner of the facility which produced and packaged the malt liquor.
Mo. Rev. Stat. § 311.360.2. The law was immediately challenged in state court but
went into effect as scheduled on January 1, 1997. The Missouri Supreme Court upheld
the law in October 1997.
Plaintiffs filed this case on November 21, 1997. The next day, the district court
granted plaintiffs' motion for a temporary restraining order prohibiting enforcement of
the law, and set a December 18, 1997 trial date.
AB moved to intervene. The district court concluded that the motion was timely
but denied the motion to intervene as of right because it concluded that defendants
adequately represented AB's interest. It also denied the permissive intervention motion.
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The day after denying AB's motion, the district court continued the trial date until
February 1998. Thereafter, the district court granted AB leave to participate as amicus
curiae. The district court conducted a court trial on February 5 and 6, 1998. As
amicus, AB filed a post-trial brief with supporting affidavits. At the time of the
appellate briefing, the district court had not yet issued its decision on the merits.
DISCUSSION
I. Intervention as of Right
We review de novo the district court's denial of a motion to intervene as of right.
Standard Heating & Air Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 570
(8th Cir. 1998).
Plaintiffs argue that AB waived the right to continue to seek intervention.
Plaintiffs maintain that AB should have renewed its motion to intervene or asked the
district court to reconsider its prior ruling after the district court continued the trial from
December 1997 to February 1998. We reject this argument. The district court properly
rested its decision on its determination that defendants adequately represented AB's
interest, not on the timing of the trial.
AB must demonstrate Article III standing as a prerequisite to intervention.
Standard Heating, 137 F.3d at 570. We agree with the district court that AB had
standing. See Mausolf v. Babbitt, 85 F.3d 1295, 1301 (8th Cir. 1996)(listing Article
III standing criteria).
Once standing is established, AB is entitled to intervene if it makes a timely
application and it
claims an interest relating to the property or transaction which is the
subject of the action and [it] is so situated that the disposition of the
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action may as a practical matter impair or impede [its] ability to protect that
interest, unless [its] interest is adequately represented by existing parties.
Fed. R. Civ. P. 24(a)(2). Because the district court decided that AB had a recognized
interest in the subject matter of the litigation that might be impaired by the disposition
of the case, we examine only whether AB's interest is adequately protected by the
existing parties.
Where the interests asserted by the movant are shared with a governmental entity
acting in a matter of sovereign interest, a presumption arises that the government
adequately represents its citizens' interests. Standard Heating, 137 F.3d at 572. If the
movant's only interest in the suit is shared with the public interest, the citizen must
rebut the adequate representation presumption. Chiglo v. City of Preston, 104 F.3d
185, 188 (8th Cir. 1997).
The district court concluded that AB's interests were coextensive with
defendants' interests. The district court noted that the issue in the case was the
constitutionality and enforceability of the statute and that defendants adequately
represented AB's interests.
AB argues that defendants do not adequately represent its interests because AB
has a distinct proprietary stake in the outcome of the litigation, distinguishable from the
general public interest in enforcing the law. It further argues that defendants'
enforcement of the law has been less than vigorous. The record shows that defendants
have sought to enforce the statute. Defendants have responded to the complaint and
defended the case at trial. We agree with the district court that there has been no
showing of misfeasance or nonfeasance on the part of defendants.
As to AB's proprietary interest, there is some authority for allowing intervention
when the intervenor has a more narrow and "parochial" interest than the sovereign.
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See, e.g., Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d 994, 1001 (8th
Cir. 1993). However, as the district court noted, while both the state and the
intervenors in Mille Lacs were concerned with protecting fish and game, the state's
interest potentially conflicted with the intervenors' interests because the state could
have advanced a position consistent with protecting fishing and gaming in the area and
which could have adversely affected the property values of the intervenors. Id. at
1000-01.
In an attempt to distinguish the interests in the instant case, AB characterizes its
interest as a concern based upon a loss of business in the marketplace and defendants'
interest as protecting its citizens from deceptive marketing. What AB fails to
acknowledge, however, is that its putative loss of business would occur only as a result
of the deceptive marketing. Because the loss of business results from the deceptive
marketing the statute is aimed at prohibiting, AB's interest is exactly the interest
defendants seek to protect in defending the statute. While AB's motive may be
distinguishable from defendants', its interest, prohibiting deceptive marketing, is the
same. Thus, Mille Lacs is distinguishable.
Because we affirm the district court, we need not consider plaintiffs' harmless
error argument.
II. Permissive Intervention
We review the denial of a motion for permissive intervention for abuse of
discretion. Standard Heating, 137 F.3d at 573. The movant may be allowed to
intervene in an action when its "claim or defense and the main action have a question
of law or fact in common." Fed. R. Civ. P. 24(b)(2). Additionally, the intervention
must not unduly delay or prejudice the adjudication of the rights of the original parties.
Id.
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The district court concluded that AB was not asserting a separate and
distinguishable claim and that intervention would not promote judicial economy. There
was no abuse of discretion.
We affirm the district court but note that AB may renew its intervention motions
if the district court decides the merits of the case in plaintiffs' favor and defendants do
not appeal. Our recognition of AB's right to renew its motions is not an endorsement
of the merits of such motions.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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