Gaddy v. Terex Corporation et al
Filing
248
ORDER AND OPINION. Proposed Intervenor Beatrice Boyd's Motion to Intervene 207 is DENIED. Signed by Judge William S. Duffey, Jr on 7/6/2016. (bgt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEFFREY GADDY,
Plaintiff,
v.
1:14-cv-1928-WSD
TEREX CORPORATION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Proposed Intervenor Beatrice Boyd’s
(“Proposed Intervenor”) Motion to Intervene [207] (“Motion”).
I.
BACKGROUND
On June 13, 2012, an individual named Loyd Boyd was operating a 1989
Hi-Ranger 5HA-55-PBI (“5HA”) boom when the boom snapped, causing Mr.
Boyd’s death. Proposed Intervenor filed a lawsuit, individually and as
administrator of Mr. Boyd’s estate, in the United States District Court for the
Eastern District of Arkansas, styled Beatrice Boyd v. Terex Utilities, Inc., et al.,
2:15-cv-43 (“Boyd Action”).
On February 22, 2016, Proposed Intervenor filed her Motion. In it, she
seeks to intervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure
“for the limited purpose of modifying the Protective Order so as to allow Beatrice
Boyd to obtain discovery documents produced in this matter . . . .” (Br. in Supp. of
Mot. (“Br.”) at 1).
On March 7, 2016, Defendants Terex Corporation, Terex South Dakota,
Inc., and Terex Utilities, Inc. (collectively, the “Terex Defendants”) filed their
Response [213]. In it, they argue the Motion should be denied, including because
there is no common question of law or fact between the two cases because
different machines are at issue—the 5HA in the Boyd Action and the Terex
XT60/70 (“XT”) in this action—and the alleged defects at issue are different.
They argue that the Motion is untimely, and that Terex Defendants will be unduly
prejudiced if it is granted.
II.
DISCUSSION
“A motion for permissive intervention under Rule 24(b) is the proper
method for seeking to modify a protective order.” In re Static Random Access
Memory (SRAM) Antitrust Litig., No. 07-md-01819 CW, 2011 WL 5193479, at
*2 (N.D. Cal. Nov. 1, 2011). “Whether to grant intervention and whether to grant
modification of a protective order are two separate issues,” and “[t]he decision to
allow a party to intervene for the limited purpose of modifying a protective order
does not automatically mean the court will grant the motion to modify the
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protective order.” In re Ethylene Propylene Diene Monomer (EPDM) Antitrust
Litig., 255 F.R.D. 308, 314 (D. Conn. 2009) (citation omitted); see also Int’l
Equity Invs., Inc. v. Opportunity Equity Partners Ltd., No. 05 Civ.
2745(JGK)(RLE), 2010 WL 779314, at *2 (S.D.N.Y. Mar. 2, 2010). Rather, “a
court will consider first whether a party has met the threshold criteria for
permissive intervention and then engage in a balancing test of the parties’ interests
to determine whether, in its discretion, the motion to intervene should be granted.”
In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. at
314 (citation omitted).
Rule 24(b) of the Federal Rules of Civil Procedure provides that the Court
may permit anyone to intervene who, on a timely motion, “is given a conditional
right to intervene by a federal statute; or [ ] has a claim or defense that shares with
the main action a common question of law or fact.” Fed. R. Civ. P.
24(b)(1)(A)-(B). “In exercising its discretion, a court should consider whether the
intervention will unduly delay or prejudice the adjudication of the original parties’
rights.” In re Static Random Access Memory (SRAM) Antitrust Litig., 2011 WL
5193479, at *2 (citation and internal marks omitted); see also Lancer Ins. Co.
v. Hitts, No. 5:09–CV–302 (CAR), 2010 WL 2867836, at *3 (M.D. Ga.
July 20, 2010) (citation omitted).
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Here, the Court is not required to consider whether permissive intervention
is warranted, because the Proposed Intervenor has not persuaded the Court that
modification of the protective order—the sole reason for intervention—is justified.
There is no definitive test to apply to an intervenor’s request to modify a protective
order in the Eleventh Circuit. In Boca Raton Cmty. Hosp., Inc. v. Tenet
Healthcare Corp., the court found the best practice is to apply “a balancing test to
determine whether any justification exists for lifting or modifying the protective
order.” 271 F.R.D. 530, 537 (S.D. Fla. 2010) (quoting SRS Techs., Inc.
v. Physitron, Inc., 216 F.R.D. 525, 530 (N.D. Ala. 2003)). The Court finds that
Proposed Intervenor has not shown that modifying the protective order would
prevent repetitive discovery, given the factual and legal differences between the
two cases. See Cunningham v. Subaru of Am., Inc., 155 F.R.D. 205, 207 (D. Kan.
1994). Proposed Intervenor’s request for XT documents exceeds the scope of
discovery in the Boyd Action. In this action, the boom at issue is the XT
truck-mounted boom. Plaintiff Jeffrey Gaddy (“Plaintiff”) fell after the boom arm
cracked in the steel boom tube of the lower boom stub. In the Boyd Action,
Mr. Boyd fell from a 5HA boom manufactured in 1989. Plaintiff fell when the
fiberglass insert cracked, causing the upper arm and attached bucket to collapse. In
addition, as the Terex Defendants note, the 5HA model was designed by
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Hi-Ranger, Inc. prior to 1983, while the XT model was designed by Simon
Telelect beginning in 1996, thirteen (13) years after the 5HA. (Resp. at 6-7). The
5HA machine in the Boyd Action was manufactured by Hi-Ranger, Inc. in 1989,
while the XT machine in this action was manufactured by Terex South Dakota in
2002, thirteen (13) years after the 5HA in the Boyd Action. The Terex Defendants
articulate over twenty (20) other substantial differences between the models. (Id.
at 6-9).1
The Court also finds modification of the protective order in this case would
invite plaintiffs from similar cases around the country to intervene in this and other
cases against the Terex Defendants and related entities, and “the scope of
discovery in suits against the Terex Defendants nationwide will lose all meaningful
limitations.” (Id. at 15). Proposed Intervenor is entitled to discovery in the Boyd
Action, but the Proposed Intervenor still is able to obtain those documents through
ordinary discovery procedures in the Boyd Action. Because modification of the
protective order is inappropriate here, the Court denies Proposed Intervenor’s
Motion.
1
These same considerations support that permissive intervention is not
warranted here because Proposed Intervenor fails to demonstrate a sufficient
“common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Proposed Intervenor Beatrice Boyd’s
Motion to Intervene [207] is DENIED.
SO ORDERED this 6th day of July, 2016.
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