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The Guardian Life Insurance Company of America v. the Estate of Joseph A. Cerniglia

March 28, 2011

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, PLAINTIFF,
v.
THE ESTATE OF JOSEPH A. CERNIGLIA, CWB1, LLC, COMPANIA HOLDING CORP., MELISSA CERNIGLIA, VALLEY NATIONAL BANK, RICCARDO BOTTI AND KEVIN WYNN,
DEFENDANTS.



The opinion of the court was delivered by: Walls, Senior District Judge

NOT FOR PUBLICATION

OPINION and ORDER

On March 8, 2011, Galasso Enterprises, LLC, ("Galasso") moved to intervene in the above captioned case under either Fed. R. Civ. P. 24(a) or 24(b). Pursuant to Rule 78.1 of the Local Rules, the motion is decided without oral argument. The motion is denied.

FACTUAL AND PROCEDURAL BACKGROUND

Galasso

In 2001 Galasso purchased a shopping center located at 17-15 Broadway, Fair Lawn, New Jersey. This sale included the transfer of leases the prior owner had with tenants of the shopping center. One such lease was with Carlo Carissa, Inc., trading as Campania Ristorante Italiano. In or about 2006, Carlo Carissa sold it assets and debts to CWB1, LLC and assigned its lease with Galasso to the CWB1. On September 16, 2010, Campania Holding Corp. purchased CWB1 and assumed all of its debts and obligations, including the lease with Galasso. Galasso claims that Campania Holding Corp. has not paid rent or late fees for non-payment for at least 11 months.*fn1 In addition to nonpayment, Galasso contends that it incurred attorneys' fees during eviction proceedings, water charges and approximately $30,000 in costs to repair the property which Campania Holding Corp. damaged. In total, Galasso claims that it is owed $95,826.23. The Policy

Joseph Cerniglia, Riccardo Botti and Kevin Wynn formed CWB1 as a New Jersey Limited Liability Company to manage Campania, a restaurant in Fairlawn, New Jersey. Each of the members had a 1/3 interest in the Company. (Compl. ¶ 39.) On October 25, 2005, CWB1 took out a $600,000 life insurance policy from the Guardian Life Insurance Company of America that covered the life of Joseph Cerniglia (the "Policy"). CWB1 was the designated beneficiary under the Policy. (Id. at ¶ 12.) Eight days after Campania Holding Corp. purchased CWB1 , Cerniglia committed suicide. (Id. at ¶ 50.)

On October 27, 2010, Guardian filed an interpleader motion concerning the proper beneficiary under the Policy. It averred that, due to competing claims, it was unsure of the legal beneficiary and requested an order declaring the lawful and proper beneficiary. (ECF No. 1.) On October 29, 2010, Campania Holding Corp. and CWB1, LLC ("Cross-claimants") filed an answer and cross-claim against Botti, Wynn, Melissa Cerniglia and the Estate of Joseph A. Cerniglia asserting a claim for tortious interference and requesting a declaratory judgment stating that these parties have no rights under the Policy.

The Cross-claimants then filed a motion for an injunction directing that the Policy be paid to CWB1. (ECF No. 8.) The Court held a hearing on November 22, 2010. The request for an injunction was denied. On December 15, 2010, Botti and Wynn filed an answer and on December 21, 2010, Melissa Cerniglia and the Estate of Joseph A. Cerniglia filed answers to the complaint and the cross-claims.

Galasso now moves to intervene in this action pursuant to Federal Rule of Civil Procedure 24(a) or alternatively, pursuant to Rule 24(b).

STANDARD OF REVIEW

To intervene as of right under Federal Rule of Civil Procedure 24(a)(2), a prospective intervenor must show: "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 [his] interests." United States v. New Jersey, 373 F. App'x 216, 221 (3d Cir. 2010) (citing Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005)). "Each of these requirements must be met" before a non-party is entitled to intervene as of right. Mountain Top Condominium Assoc. v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995).

Permissive intervention is governed by Rule 24(b), which provides that "[o]n timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b). Furthermore, "[i]n exercising its discretion, the court must consider whether ...


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