Mack v. Herty Advanced Materials Development Center

Filing 12

ORDER dismissing as moot 6 Motion to Dismiss. The BOR is DIRECTED to file a motion to intervene or to substitute party-if it so desires-within 15 days from the date of this Order. Should the Court grant BOR's motion to intervene, the BOR shall have 30 days to re-file a motion to dismiss. Signed by Judge William T. Moore, Jr on 6/29/2016. (loh)

U. S. DSTICT COURT
IN THE UNITED STATES DISTRICT COURT FOR urn
Dlntrfcl of Ga.
THE SOUTHERN DISTRICT OF GEORGIA
Fi
SAVANNAH DIVISION

Lj
JILL E. MACK,

)
Deputy Clerk

Plaintiff,
V

CASE NO. CV415-196

.

HERTY ADVANCED MATERIALS
DEVELOPMENT CENTER,
Defendant.
ORDER

Before the Court is a Motion to Dismiss filed by the Board
of Regents of the University System of Georgia ("BOR"). (Doc.
6.) In the motion, the BOR alleges that it is "the successor to
and a continuation of the former board of trustees of the [Herty
Advanced Materials Development] center." (Doc. 6, Attach. ]. at
1.) However, the BOR has not filed a motion to intervene or to
substitute party, but is rather entered on the record merely as
an "interested party." A motion to intervene is the proper
method to assert an interest in a lawsuit. See Georgia v. U.S.
Army Corps of Eng'rs, 302 F.3d 1242, 1248 (11th Cir. 2002)
(denying non-party's motion to intervene and motion to dismiss
where non-party's motion had "no issues of law or fact in common
with [plaintiff's] claims"); see also MasterCard Int'l Inc. v.
Visa Int'l Serv. Ass'n, Inc., 471 F.3d 377, 382 (2c1 Cir. 2006)
(noting that Federal Rule of Civil Procedure 24 contemplates the

method "by which non-parties who believe they have a valid and
sufficient interest in a litigation can assert their rights").
Moreover, entities may file a motion to substitute party on the
basis that they are the real party in interest. See Acme Roofing
& Sheet Metal Co., Inc. v. Air Team USA, Inc., 2013 WL 3381372
(M.D. Ala. July 8, 2013). Because the BOR did not intervene or
file a motion to substitute party in this case, any motion to
dismiss filed by the BOR is improper. Accordingly, the Motion to
Dismiss (Doc. 6) filed by the BOR is DISMISSED AS MOOT. The BOR
is DIRECTED

to file a motion to intervene or to substitute

party—if it so desires—within

15 days

from the date of this

order. Should the Court grant the BOR's motion to intervene, the
BOR shall have 30 days refile a motion to dismiss.

if'

SO ORDERED this?day of June 2016.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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