5. Is the court likely to grant the employer's motion to intervene?

The clerk sued the building owner for negligence in a federal district court in State B, seeking $100,000 in personal-injury damages. The employer has filed a timely motion to intervene, asserting an $80,000 negligence claim against the building owner for the damage to its computer.

A mail clerk domiciled in State A slipped and fell on ice that had formed near the loading dock of the building in State B where the clerk's State B employer leased space for its headquarters. The building was owned and operated by a State C corporation. As a result of the fall, the clerk was injured and the employer's expensive computer he was carrying was badly damaged.

No, because although the employer has an interest in the clerk’s action, that interest is not likely to be impaired in the employer’s absence
No, because the clerk chose not to join the employer as a co-plaintiff in his action
Yes, because the employer is an indispensable party
Yes, because the employer’s claim shares common questions of law and fact with the clerk’s action

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D is correct. A third party may be granted intervention into a case by way of right or permissively. Intervention by a third party may be granted permissively when the applicant's claim has a common question of law or fact as the main action, and the claim does not destroy complete diversity. In this case, the employer is from State B and his claim exceeds $75,000. The employer's claim is also for negligence, the same as the mail clerk's, and arises from the same incident. Therefore, the claim will share common questions of law and fact and does not upset complete diversity.

A is incorrect. This is the incorrect conclusion, but the proper standard for intervention as of right. A third party is allowed to intervene as a right if the applicant has an interest in the subject matter of the action and the interest would be impaired in the applicant's absence. In this case, the employer does have an interest at stake, but the interest won't be impaired by his absence and could go on if he was not joined. However, just because the lawsuit could go on without the third party's involvement, does not mean the court will not grant an intervention. In this case, the third party's request will be granted because it is timely, shares a common question of law, and does not destroy diversity.

B is incorrect. Intervention is the mechanism by which a party can join an action, as by way of right or permissively, even if the party was not chosen by the plaintiff to join.

C is incorrect. An indispensable party is one whom, if absent, the court cannot grant complete relief to the other parties, or one who has such an interest in the subject matter of the suit that his absence will impair his ability to protect that interest. If the absentee can be properly joined, he must be. In this case, the employer is not an indispensable party. The employer's absence does not impede the mail clerk from obtaining relief, nor does it impair the employer's claim against the building owner.

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5. Is the court likely to grant the employer's motion to intervene?

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