Gillispie v. Miami Township

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ROGER DEAN GILLISPIE, :

:

Plaintiff, : Case No. 3:13-cv-416

:

v. :

: Judge Thomas M. Rose

THE CITY OF MIAMI TOWNSHIP, et al., :

:

Defendants. :

______________________________________________________________________________

ENTRY AND ORDER DENYING PLAINTIFF’S MOTION TO BE JOINED AS

A NECESSARY PARTY OR INTERVENE IN THE TOWNSHIP’S ACTION

AGAINST MOORE WITHIN THIS ACTION (DOC. NO. 480)

______________________________________________________________________________

Pending before the Court is Plaintiff’s Motion to be Joined as a Necessary Party or

Intervene in the Township’s Action Against Moore within this Action (“Motion”) (Doc. No. 480),

filed by Plaintiff Roger Dean Gillispie (“Gillispie”). Gillispie moves this Court to either: join him

as a necessary party under Fed. R. Civ. P. 19 or, in the alternative, to allow him to intervene under

Fed. R. Civ. P. 24 in Intervenor-Plaintiff Miami Township Board of Trustees’ (“Township”)

declaratory judgment action against Intervenor-Defendant Matthew Scott Moore (“Moore”). The

declaratory judgment action involves whether the Township has a duty to defend or indemnify

Moore pursuant to Ohio Rev. Code § 2744.07 for claims made against him by Gillispie in the

underlying action. (Doc. No. 480 at PageID 15578-79; Doc. No. 397.) The Township argues that

Gillispie does not have a “substantial legal interest in th[e] declaratory action.” (Doc. No. 483 at

PageID 15689.)

For the reasons explained below, the Court DENIES the Motion.

I. BACKGROUND

The Court assumes that the parties are familiar with the factual background of this case and

will not delve into its extensive history. The Court will briefly address the procedural posture of

this case as it is relevant to this Motion.

On September 23, 2022, the Township filed its Motion to Intervene. (Doc. No. 370.) In

the Motion to Intervene, the Township argued that it had a “substantial legal interest in any

determination as to whether Moore was not acting in good faith or was acting outside of the scope

of his employment or official responsibilities” at the relevant time(s) in the underlying action. (Id.

at PageID 12701.) The Township requested “limited participation in the trial of this matter.” (Id.

at PageID 12694.) This was because Ohio Rev. Code § 2744.01 and § 2744.07 could require the

Township to pay the costs of Moore’s defense and indemnify him for any compensatory damages

awarded against him. (Id. at PageID 12701.) The Township further argued that § 2744.07 provides

exceptions that would relieve the Township of its duties if Moore did not act in good faith or if he

was acting outside the scope of his employment or official responsibilities at the relevant time(s)

in the underlying action. (Id.) The Township argued that the questions of good faith and scope of

employment aligned directly with Gillispie’s claims against Moore that would be addressed at

trial. (Id. at PageID 12701-702.)

On October 11, 2022, the Court granted the Township’s Motion to Intervene, with certain

parameters. (Doc. No. 392.) Aligning with its request (Doc. No. 370 at PageID 1267), the

Township’s participation at trial was limited to questioning, argument, and submitting proposed

jury instructions and interrogatories on the discrete issues of good faith and scope of employment

consistent with Ohio Rev. Code § 2744.07. (Doc. No. 392 at PageID 13693-94.) Gillispie and

Moore were also allowed to question, argue, and submit proposed jury instructions on the issues

of good faith and scope of employment. (Id. at PageID 13694.)

On October 13, 2022, in compliance with the Court’s order (Doc. No. 392 at PageID

13693) and Rule 24(c), the Township filed Miami Township Board of Trustees’ Intervenor

Complaint for Declaratory Judgment and Relief. (Doc. No. 397.) In that Intervenor Complaint,

the Township seeks a declaratory judgment that it does not owe a duty to defend or indemnify

Moore for claims made against him in Gillispie’s Amended Complaint. (Id. at PageID 13763.)

Trial began on November 7, 2022 and concluded on November 21, 2022. (Doc. Nos. 455,

474.) At the conclusion of the trial, the jury found for Gillispie on his two remaining claims against

Moore and awarded Gillispie $45,000,000. (Doc. No. 475 at PageID 15561-63.) The jury further

found that it had not been proven that Moore was not acting in good faith, was acting manifestly

outside the scope of his employment or official responsibilities, or was not acting within the scope

of his employment or official responsibilities. (Id. at PageID 15564-65.)

On December 7, 2022, Gillispie filed the present Motion. (Doc. No. 480.) The Township

filed its opposition on December 23, 2022 (Doc. No. 483), and Gillispie filed his reply on January

6, 2023 (Doc. No. 487). Moore did not file any response to the Motion. The Motion is fully

briefed and ripe for review and decision.

II. ANALYSIS

Gillispie argues that, under both Rule 19 and Rule 24, he has an interest in protecting the

verdict. (Doc. No. 480 at PageID 15580.) Moreover, Gillsipie argues that Moore’s testimony at

trial may prevent him from making the types of arguments necessary to protect the verdict. (Id. at

PageID 15581-82.) For instance, Gillispie argues that Moore denies any wrongdoing and that may

make it difficult for him to fully embrace the jury verdict in order to defend it. (Id.) Finally,

Gillispie argues that Ayers v. Cleveland, 2020-Ohio-1047, 156 N.E.3d 848 (Ohio 2020) presents

no bar to his ability to be joined under Rule 19 or intervene under Rule 24. (Id. at PageID15584-

85.)

a. Ayers v. Cleveland

Gillispie and the Township both raise the specter of Ayers, which hangs over the analysis

of whether Gillispie has a legal interest in the Township’s declaratory judgment action within the

meaning of Rule 19 and Rule 24.

In Ayers, the plaintiff had been released from prison pursuant to a habeas corpus action

and then filed a civil rights lawsuit against the city of Cleveland and the detectives who had been

involved in his case. Ayers, 2020-Ohio-1047 at ¶ 2. The district court dismissed the claims against

the city of Cleveland, but the plaintiff ultimately obtained a jury verdict against the two officers.

Id. at ¶ 3. After the verdict, one of the detectives passed away and the other filed chapter 7

bankruptcy, but neither detective sought to enforce their right to indemnification. Id. at ¶ 4.

The plaintiff filed a second action against the city of Cleveland, alleging claims of statutory

indemnification under Ohio Rev. Code § 2744.07(A)(2), and the case ultimately made its way to

the Ohio Supreme Court. Id. at ¶¶ 6-10. The Ohio Supreme Court held that the plain language of

Section 2744.07(A)(2) requires a political subdivision to indemnify an employee for any judgment

qualifying under the statute. Id. at ¶ 18. However, the court held that the statute “provides that a

political subdivision ‘shall indemnify and hold harmless an employee.’ Thus, the right of

indemnification is personal to the employee.” Id. at ¶ 21 (emphasis in original). The Ohio

Supreme Court further held that, “[b]ased on the unambiguous language of the statute, which

serves only to indemnify an employee and does not vest any rights in third parties connected to

the employee, we conclude that R.C. 2744.07(A)(2) does not permit a judgment creditor to proceed

directly against an indemnitor.” Id.

The court declined to address the issue of third-party standing because it was not properly

before the court. Id. at ¶ 27. However, Ohio’s Second District Court of Appeals has since weighed

in on this very issue. In OTARMA v. Miami Township, 2023-Ohio-733 (Ohio Ct. App. 2023), the

plaintiff, “a political-subdivision risk pool providing liability coverage to Ohio townships,” sought

a declaratory judgment declaring that it had no duty to defend or indemnify the Township in

relation to Gillispie’s underlying federal action. OTARMA, 2023-Ohio-733 at ¶¶ 4-5. In evaluating

the plaintiff’s obligations to the Township, the court held:

Moreover, the Ohio Supreme Court has made clear that the statutory right to

indemnification is a personal right held by the employee, not a judgment creditor.

For that reason, a judgment creditor such as Gillispie may not assert an employee’s

indemnification right in an action directly against a political subdivision.

Id. at ¶ 25 (citing Ayers, 2020-Ohio-1047).

Gillispie argues that Ayers does not block his joinder or intervention in the Township’s

declaratory judgment action. (Doc. No. 480 at PageID 15585.) Indeed, Gillispie argues that the

case “confirms that it does not apply to block third-party standing.” (Id.) The Township, on the

other hand, argues that Ayers makes clear an officer’s “right to indemnification related to any

judgment against an employee is personal to the employee and arises specifically out of the

employer-employee relationship.” (Doc. No. 483 at PageID 15692-93.)

The Court agrees that Ayers limits who may bring a claim under Ohio Rev. Code § 2744.07

to the employee seeking to be indemnified by a political subdivision. It is apparent that Gillispie

would not be able to bring a claim under the statute directly against Miami Township. Indeed,

Ayers makes clear that § 2744.07 “does not vest any rights in third parties connected to the

employee. . . .” Ayers, 2020-Ohio-1047 at ¶ 21. To go beyond this rationale and hold that Gillispie

possessed the standing to assert and enforce Moore’s indemnification rights as a third party would

expand Ohio law beyond where it presently sits. It is not the province of this Federal Court to do

so. Imperial Hotels Corp. v. Dore, 257 F.3d 615, 620 (6th Cir. 2001) (a federal court must apply

the substantive law of Ohio “in accordance with the then-controlling decision of the highest court

of the State”). Indeed, the holding of OTARMA demonstrates that the Court’s interpretation of

Ayers is consistent with the current state of Ohio law.

b. Joinder

Gillispie first moves the Court to join him as a necessary party under Rule 19. “Assessing

whether joinder is proper under Rule 19 is a three step process.” Glancy v. Taubman Ctrs., Inc.,

373 F.3d 656, 666 (6th Cir. 2004). “First, the court must determine whether the person or entity

is a necessary party under Rule 19(a).” Id. (citing Temple v. Synthes Corp., 498 U.S. 5, 8, 112 L.

Ed. 2d 263, 111 S. Ct. 315 (1990)). “Second, if the person or entity is a necessary party, the court

must then decide if joinder of that person or entity will deprive the court of subject matter

jurisdiction.” Glancy, 373 F.3d. at 666 (citing W. Md. Ry. Co. v. Harbor Ins. Co., 910 F.2d 960,

961 (D.C. Cir. 1990)). “Third, if joinder is not feasible because it will eliminate the court’s ability

to hear the case, the court must analyze the Rule 19(b) factors to determine whether the court

should ‘in equity and good conscience’ dismiss the case because the absentee is indispensable.”

Glancy, 373 F.3d. at 666 (quoting W. Md. Ry. Co., 910 F.2d at 961). The Court need only address

the first step to decide the joinder issue in this case.

A person must be joined under Rule 19(a) if:

(A) in that person’s absence, the court cannot accord complete relief among existing

parties; or

(B) that person claims an interest relating to the subject of the action and is so

situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the

interest; or

(ii) leave an existing party subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19. “The burden is on the moving party to establish that a party is necessary for

purposes of Rule 19(a).” Norfolk S. Ry. Co. v. Baker Hughes Oilfield Operations, LLC, 443 F.

Supp. 3d 877, 883 (S.D. Ohio 2020) (citing Eagle Realty Invs., Inc. v. Dumon, No. 18-cv-362,

2019 U.S. Dist. LEXIS 23121, at *4, 2019 WL 608830, at *2 (S.D. Ohio Feb. 13, 2019)). “‘The

moving party may satisfy this burden through the production of affidavits or other relevant extra-

pleading evidence.’” Norfolk, 443 F. Supp. 3d at 883 (quoting Reilly v. Meffe, 6 F. Supp. 3d 760,

774 (S.D. Ohio 2014) (internal quotations omitted)).

i. Complete Relief

Regarding Rule 19(a)(1)(A), Gillispie argues that complete relief cannot be afforded

without Gillispie because the money used to “indemnify Moore must be paid to Gillispie.” (Doc.

No. 480 at PageID 15580.)

Under Rule 19(a)(1)(A), the Court must determine whether complete relief can be accorded

among the existing parties. “‘Completeness is determined on the basis of those persons who are

already parties, and not as between a party and the absent person whose joinder is sought.’” Sch.

Dist. of City of Pontiace v. Sec’y of U.S. Dept. of Educ., 584 F.3d 253, 265 (6th Cir. 2009) (quoting

Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705 (3d Cir.1996) (citations omitted)). Rule

19(a)(1)(A) is “only concerned with whether [p]laintiff may receive complete relief from this

defendant.” Norfolk, 224 F. Supp. 3d at 884.

As to Gillispie’s argument that complete relief cannot be afforded without his participation,

that is incorrect. In considering whether complete relief can be granted, the Court need only

consider “the ability of the existing defendant to satisfy an award to the existing plaintiff.” Cypress

Creek Equine, LLC v. N. Am. Specialty Ins. Co., No. 5:22-cv-95, 2023 U.S. Dist. LEXIS 966, at

*3, 2023 WL 98594, at *1 (E.D. Ky. Jan. 4, 2023) (citing Phillips v. Sun Life Assurance Co. of

Canada, No. 1:20-cv-937, 2022 U.S. Dist. LEXIS 208466, at *6, 2022 WL 16964176, at *3 (S.D.

Ohio Nov. 16, 2022)); see also Bedel v. Thompson, 103 F.R.D. 78, 80 (S.D. Ohio 1984). In this

case, posture of the parties is slightly different, but the core concept remains the same. The

question posed by the declaratory judgment action is, at its most basic level, whether the Township

must indemnify Moore. Complete relief can be granted by answering that question in the negative,

and allowing the Township to go on its way, or in the positive, and requiring the Township to

indemnify Moore for the amount of the judgment against him. While Gillispie may be the ultimate

destination of any indemnification funds, the answer to the question of whether Moore must be

indemnified pursuant to Ohio Rev. Code § 2744.07 (Doc. No. 397) can be answered without

Gillispie.

ii. Claiming an Interest

As to Rule 19(a)(1)(B), Gillispie argues that his interest in the Intervenor Complaint lies in

his “ability to protect the interest he has in the verdict just entered.” (Doc. No. 480 at PageID

15580.) Moreover, Gillispie argues that, due to Moore’s testimony and Moore’s counsel’s tactics

at trial, his interests will not be adequately represented. (Id.)

Rule 19(a)(1)(B) requires the Court to determine whether disposal of the action in the

absence of a non-party will impair or impede the non-party’s interest. See Fed. R. Civ. P.

19(a)(1)(B); Fort Washington Inv. Advisors, Inc. v. Adkins, No. 1:19-cv-685, 2021 U.S. Dist.

LEXIS 70009, at *28, 2021 WL 1345417, at *9 (S.D. Ohio Apr. 12, 2021). The threshold inquiry

is whether the non-party has a legal interest in the dispute that requires protection. Sch. Dist. of

City of Pontiac, 584 F.3d at 266. Specifically, a party must explain how it has “‘a legally protected

interest in this case that could be harmed, legally or otherwise, by a judgment in [its] absence.’”

Norfolk, 224 F. Supp. 3d at 884 (quoting Intercept Sec. Corp. v. Code-Alarm, Inc., 164 F.R.D. 215,

219 (E.D. Mich. 1995)); see also Keweenaw Bay Indian Cmty. v. State, 11 F.3d 1341, 1347 (6th

Cir. 1993) (holding that the district court did not err where it found Red Cliff and Bad River bands

had a “legally protected interest in the suit”); Tillman v. Apostolopoulos, No. 10-cv-12253, 2010

U.S. Dist. LEXIS 93660, at *6, 2010 WL 3584294, at *2 (E.D. Mich. Sept. 9, 2010) (citation

omitted) (“If the absent party has a legally protected interest in the subject matter of the action—

i.e., he is a party to a contract at issue—he falls squarely within the terms of [Rule 19(a) (1)(B)]”);

Fort Washington Inv., 2021 WL 1345417, at *9-10 (finding that the court must assess whether the

non-party had a legally protectable interest).

Gillispie’s argument that he has an interest in protecting the verdict is flawed for the

purposes of Rule 19(a)(1)(B). Numerous courts across the country have held that a legally

protected interest must be more than a merely financial interest. PaineWebber, Inc. v. Bahr, 97

F.3d 1460 (9th Cir. 1996) (interest must be more than “merely a financial interest”); Liberty Mut.

Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 230 (3d Cir. 2005) (holding that, under Rule 19, “a party

is only ‘necessary’ if it has a legally protected interest, and not merely a financial interest, in the

action”); Scottsdale Ins. Co. v. B & G Fitness Ctr., Inc., No. 4:14-cv-187, 2015 U.S. Dist. LEXIS

101749, at *9, 2015 WL 4641530, at *4 (E.D.N.C. Jul. 3, 2015) (“Courts have held that the

financial interest incidental beneficiaries might have in a declaratory judgment action is not a

recognized legal interest that would make the absent party ‘necessary’”); Old Colony Ventures I

v. SMWNPF Holdings, 968 F. Supp. 2d 1422, 1430 (D. Kan. 1997) (“This interest must be ‘legally

protected, not merely a financial interest or interest of convenience’”); Sac & Fox Nation v. Norton,

585 F. Supp. 2d 1293, 1304 (W.D. Okla. 2006) (“The relevant inquiry for Rule 19(a) is not whether

the absent person has an ‘interest,’ in the broad sense, in the outcome of the litigation, but whether

cognizable legal rights of the absent person will be prejudiced by the suit’s continuation”); Axiom

Worldwide, Inc. v. Becerra, No. 08-1918, 2009 U.S. Dist. LEXIS 40214, 2009 WL 1347398, at

*4 (M.D. Fla. May 13, 2009) (Rule 19 requires “a legally protected interest, and not merely a

financial interest or interest of convenience”); Conceal City, LLC v. Looper Law Enforcement,

LLC, 917 F. Supp. 2d 611, 622-623 (N.D. Tex. 2013) (finding that an interest must be more than

a financial interest); Lovell v. GEICO Gen. Ins. Co., No. 12-CV-00546, 2014 U.S. Dist. LEXIS

187215, at *6 (W.D.N.Y. Jul. 11, 2014) (“This interest must be legally protected, not merely a

financial interest or interest of convenience”); ACI Worldwide Corp. v. Mastercard Techs., LLC,

No. 8:14-cv-31, 2014 U.S. Dist. LEXIS 179068, at *10, n. 1 (D. Neb. Dec. 31, 2014) (finding the

non-party did not have an interest, in part, because a financial interest is not sufficient under Rule

19); New Life Evangelistic Ctr. v. City of St. Louis, No. 4:15-cv-00395, 2015 U.S. Dist. LEXIS

65132, at *29, 2015 WL 2383499, at *11 (E.D. Mo. May 19, 2015) (“This interest must be legally

protected and not merely a financial interest or an interest of convenience”); Fastcase, Inc. v.

Lawriter LLC, No. 1:17-cv-414, 2019 U.S. Dist. LEXIS 243992, at *5, 2019 WL 13210381, at *2

(N.D. Ga. May 13, 2019) (“Many courts, however, have recognized that a mere financial interest

is insufficient under Rule 19(a) to make a party necessary to the litigation”); Crum & Forster

Indem. Co. v. Sidelines Tree Serv., LLC, No. 2:20-cv-01030, 2021 U.S. Dist. LEXIS 161416, at

*24, 2021 WL 3810178, at *8 (W.D. Pa. Aug. 26, 2021) (“a party is only ‘necessary’ if it has a

legally protected interest, and not merely a financial interest, in the action”). While the Sixth

Circuit has not directly ruled1 on this issue, at least one court in this district has found that a

financial interest alone is insufficient under Rule 19. Safelite Grp., Inc. v. Zurich Am. Ins. Co.,

2005 U.S. Dist. LEXIS 55166, at *9 (S.D. Ohio Dec. 14, 2005) (“the Court agrees with [plaintiff]

1 In Sch. Dist. v. Sec’y of the United States Dep’t of Educ., 584 F.3d 253, 281 (6th Cir. 2009), Judge Sutton, in a

concurrence, cited the core holding of Liberty Mut. Ins. Co., “that ‘merely a financial interest’ is not enough under

Rule 19(a)(1)(B).” While this is not binding, it corresponds with the large number of courts across the country that

have adopted the same position.

that an interest in the subject of the cause of action must be a legal interest, not merely a financial

interest”).

Indeed, the Court has also found that Ayers presently limits who may bring a claim under

Ohio Rev. Code § 2744.07 to the employee seeking to be indemnified by a political subdivision.

Gillispie has no ability to enforce Moore’s indemnification rights and, therefore, he cannot state a

legal interest based on the statute. Ayers, 2020-Ohio-1047 at ¶ 21; OTARMA, 2023-Ohio-733 at ¶

25.

While it may appear odd that a party does not have an interest in an action contained within

its own case, the Court is bound by the confines of Rule 19. Gillispie has not stated a legally

protectable interest in the Township’s action. As the Court has determined that Gillispie does not

have an “interest” in the action for purposes of Rule 19, it is unnecessary to evaluate the remaining

aspects of Rule 19.

c. Intervention

In the alternative, Gillispie moves the Court to allow him to intervene under Rule 24. Rule

24 provides:

(a) Intervention of Right. On timely motion, the court must permit anyone to

intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) 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.

(b) Permissive Intervention.

(1) In General. On 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.

The Sixth Circuit has held that a party seeking to intervene of right must establish four

elements: “(1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal

interest in the subject matter of the case; (3) the proposed intervenor’s ability to protect that interest

may be impaired in the absence of intervention; and (4) the parties already before the court may

not adequately represent the proposed intervenor’s interest.” U.S. v. Michigan, 424 F.3d 438, 443

(6th Cir. 2005) (citing Grutter v. Bollinger, 188 F.3d 394, 397–98 (6th Cir. 1999)). “The proposed

intervenor must prove each of the four factors; failure to meet one of the criteria will require that

the motion to intervene be denied.” Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989).

“To intervene permissively, a proposed intervenor must establish that the motion for

intervention is timely and alleges at least one common question of law or fact.” Michigan, 424

F.3d at 445 (citing Michigan State AFL–CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997)).

“Once these two requirements are established, the district court must then balance undue delay and

prejudice to the original parties, if any, and any other relevant factors to determine whether, in the

court's discretion, intervention should be allowed.” Michigan, 424 F.3d at 445 (citing Michigan

State AFL–CIO, 103 F.3d at 1248).

The Court will assume, without deciding, that the Motion was timely and turn to the issue

of interest, for purposes of determining whether intervention of right is appropriate. In support of

his intervention, Gillispie argues that he “has a serious legal interest in the Township’s duty to

indemnify Moore.” (Doc. No. 480 at PageID 15583.) He further argues that “Moore cannot be

trusted to zealously advocate that Gillispie be paid for his jury award. . . .” (Id.)

As a general matter, the proposed intervenor must have “‘a significant legal interest in the

subject matter of the litigation.’” Reliastar Life Ins. Co. v. MKP Invs., 565 F. App’x 369, 371-72

(6th Cir. 2014) (quoting Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir. 1990)). For

instance, the Sixth Circuit has held that “a putative intervenor does not possess the requisite interest

where its ‘primary interest’ in the litigation is to preserve a party’s financial viability in order to

protect the intervenor’s own economic interests in the party’s continued solvency.” Reliastar Life

Ins. Co., 565 F. App’x at 372 (citing Blount-Hill v. Bd. of Educ. of Ohio, 195 F. App’x 482, 486

(6th Cir. 2006)). Moreover, “‘circuits have generally concluded that a party may not intervene in

support of a defendant solely to protect judgment funds that the party wishes to recover itself.’”

Reliastar Life Ins. Co., 565 F. App’x at 372 (quoting Deutsche Bank Nat. Trust Co. v. F.D.I.C.,

717 F.3d 189, 195 (D.C. Cir. 2013)).

Gillispie’s intervention request runs into the same problem as his joinder request. Namely,

Gillispie does not have, for purposes of Rule 24(a), a legal interest in the Township’s action

sufficient to permit intervention. While the Township’s declaratory judgment action exists within

Gillispie’s case and will, presumably, determine who will be required to pay the jury’s award to

Gillispie, that does not mean Gillispie has a requisite “interest” under Rule 24(a). Indeed, courts

in this circuit have found it significant that a proposed intervenor’s “‘rights under his judgment

against [the party] will not in anywise be affected by any judgment or decision of the court as to

the rights and liabilities of the parties to the present action.’” Comtide Holdings, LLC v. Booth

Creek Mgmt. Corp., No. 2:07-cv-1190, 2010 U.S. Dist. LEXIS 81511, at *12, 2010 WL 2670853,

at *4 (S.D. Ohio June 29, 2010) (quoting Vaughan v. Dickinson, 19 F.R.D. 323, 328 (W.D. Mich.

1955), aff’d Duffy v. Vaughan, 237 F.2d 168 (6th Cir. 1956)). That is the situation here. Gillispie’s

rights under his judgment will not be affected by the Township’s declaratory judgment action. The

declaratory judgment action is to determine whether the Township must indemnify Moore, not

whether Gillispie is entitled to the judgment or to determine the amount of the judgment. (Doc.

No. 397.) As shown above, Gillispie’s economic interests are not sufficient for the purposes of

Rule 24. Reliastar Life Ins. Co., 565 F. App’x at 372 (citing Blount-Hill, 195 F. App’x at 486).

In practical terms, Gillispie wants to intervene to “protect judgment funds that [he] wishes to

recover,” but this is an insufficient interest under Rule 24. Reliastar Life Ins. Co., 565 F. App’x

at 372 (citing Blount-Hill, 195 F. App’x at 486).

Furthermore, as with joinder, the Court has found that Ayers presently limits who may

bring a claim under Ohio Rev. Code § 2744.07(A)(2) to the employee seeking to be indemnified

by a political subdivision. Gillispie has no ability to enforce Moore’s indemnifications rights. His

rights will not be affected by the Court’s decision in the Township’s declaratory judgment action.

Finally, Gillispie briefly argues that he should be allowed to intervene under Rule 24(b)

“for the same equitable reasons this Court found justified the Township’s intervention in the first

place.” (Doc. No. 480 at PageID 15584.) However, Gillispie’s situation is markedly different

from what the situation was with the Township attempting to intervene in Gillispie’s action against

Moore; as shown in that order, the “Township has a claim or defense that shares with the main

action a common question of law or fact.” (Doc. No. 392 at PageID 13690.) Gillispie has not

even attempted to make the same showing. The Court will not permit Gillispie to intervene under

Rule 24(b).

III. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s Motion to be Joined as a

Necessary Party or Intervene in the Township’s Action Against Moore Within this Action.

DONE and ORDERED in Dayton, Ohio, this Monday, July 31, 2023.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE