St. Bernard Parish v. Lafarge North America, Inc. et al

Filing 423

ORDER AND REASONS: IT IS ORDERED that the 407 , 409 motions to intervene are DENIED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 12/5/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ST. BERNARD PARISH

CIVIL ACTION

VERSUS

NO. 11-2350

LAFARGE NORTH AMERICA,
INC., ET AL.

SECTION "B"(2)

ORDER AND REASONS
Before the Court are a pair of motions to intervene from
attorneys Richard Seymour and Patrick Sanders. See Rec. Docs. 407,
409. Plaintiff filed an opposition to each motion. See Rec. Docs.
408, 411. For the reasons discussed below,
IT IS ORDERED that the motions to intervene (Rec. Docs. 407,
409) are DENIED.1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The underlying litigation involved claims between Plaintiff
St. Bernard Parish and Defendant Lafarge North America that arose
from damage caused by flooding during Hurricane Katrina. See Rec.
Doc. 1-1. The case was removed from Louisiana state court in
September 2011 and continued for almost six years. See Rec. Docs.
1-1, 397. In May 2017, Plaintiff and Defendant reached a compromise
and the case was dismissed without prejudice; the Court retained
jurisdiction for a reasonable period of time. Rec. Doc. 397. On
July 26, 2017, Plaintiff and Defendant filed a joint stipulation

1

Plaintiff’s request for sanctions (see Rec. Docs. 408 at 8, 411 at 11) is
dismissed without prejudice to be reurged if later warranted.

1

of dismissal with prejudice, pursuant to Federal Rule of Civil
Procedure 41. Rec. Doc. 398.
On September 17, 2017, movant Patrick Sanders filed a motion
to intervene under Federal Rule of Civil Procedure 24 to assert an
attorney charging lien.2 Rec. Doc. 407. Sanders was an attorney
for Plaintiff in the underlying litigation until he withdrew from
the case in 2014, preserving a claim for attorney’s fees and
expenses in the process. See Rec. Doc. 111. On September 25, 2017,
movant Richard Seymour similarly filed a motion to intervene to
assert an attorney charging lien.3 Rec. Doc. 409. Seymour was a
member

of

the

Barge

Plaintiffs

Subgroup

Litigation

Committee

(Barge PSLC) in related litigation that arose from the same
flooding during Hurricane Katrina. See Rec. Doc. 11527, In Re:
Katrina

Canal

Breaches

Consol.

Litig.,

No.

05-4182

and

consolidated cases (E.D. La. filed Mar. 4, 2008). Seymour withdrew
from the related litigation in 2011, also preserving a claim for
attorney’s fees and expenses. See Rec. Doc. 20400, In Re: Katrina

2

On August 14, 2017, Sanders initially filed a motion to enroll as counsel for
putative intervenors Patrick J. Sanders and the Law Office of Patrick J.
Sanders, with the intention to subsequently file a motion to intervene. Rec.
Doc. 404. The Court denied the Sanders motion without prejudice because it was
prematurely filed before the motion to intervene. Rec. Doc. 406. The Court
“strongly encouraged [Sanders] to reconsider the propriety of filing the motion
for leave to intervene” given that “[t]his is a closed case in which the parties
jointly stipulated to a dismissal with prejudice” and “there is a pending action
in New York state court designed to resolve the underlying dispute” over
attorneys’ fees. Id.
3 Seymour initially filed a motion to appear pro hac vice on August 9, 2017,
and intended to subsequently file a motion to intervene. Rec. Doc. 401. As with
the Sanders motion, the Court denied the Seymour motion without prejudice and
cautioned Seymour about filing a motion to intervene at this stage of the
litigation. See Rec. Doc. 406.

2

Canal Breaches Consol. Litig., No. 05-4182 and consolidated cases
(E.D. La. filed Aug. 23, 2011).
On

July

24,

2017,

Plaintiff’s

attorney

Craig

Sanders

initiated an interpleader action in New York state court to resolve
competing claims to the legal fee from resolution of the underlying
litigation. See Rec. Doc. 407-12 at 4-12. Both movants are named
as defendants in the interpleader action. See id. at 7-8. Seymour
moved to dismiss the action for lack of personal jurisdiction, but
his motion was denied; the New York state court concluded that it
has in rem jurisdiction. See Rec. Doc. 420. The state court ordered
that the legal fee be deposited with the state court. See id.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 24 provides two avenues for
intervention. The first is mandatory and applies when a movant
“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.” Fed. R. Civ. P. 24(a). The
second is permissive and applies when a movant has “a claim or
defense that shares with the main action a common question of law
or fact.” Fed. R. Civ. P. 24(b). Regardless of which avenue a
movant pursues, a motion to intervene must be timely. See Fed. R.
Civ. P. 24.
3

A court determines the timeliness of a motion to intervene by
weighing four factors:
(1) [t]he length of time during which the would-be
intervenor actually knew or reasonably should have known
of its interest in the case before it petitioned for
leave to intervene; (2) the extent of the prejudice that
the existing parties to the litigation may suffer as a
result of the would-be intervenor’s failure to apply for
intervention as soon as it knew or reasonably should
have known of its interest in the case; (3) the extent
of the prejudice that the would-be intervenor may suffer
if intervention is denied; and (4) the existence of
unusual circumstances militating either for or against
a determination that the application is timely.
Sommers v. Bank of America, 835 F.3d 509, 512-13 (5th Cir. 2016).
Here, the factors indicate that the motions to intervene were
untimely.
When assessing the first factor, “[w]hat matters is not when
[movants] knew or should have known that [their] interests would
be adversely affected, but, instead, when [they] knew that [they]
had an interest in the case.” Sommers, 835 F.3d at 513. Movants
have known about their attorney charging liens for years—Sanders
withdrew

from

the

underlying

litigation

in

2014

and

Seymour

withdrew from the related litigation in 2011. Rec. Doc. 111; Rec.
Doc. 20400, In Re: Katrina Canal Breaches Consol. Litig., No. 054182 and consolidated cases (E.D. La. filed Aug. 23, 2011). Movants
waited to intervene until after the parties reached settlement,
the

case

was

dismissed

without

prejudice,

and

the

parties

stipulated to dismissal with prejudice. This delay sets movants

4

apart from attorneys who have successfully intervened under Rule
24(a) by acting promptly after being removed from their respective
cases. See, e.g., Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 556
(5th Cir. 1992); Keith v. St. George Packing Co., 806 F.2d 525,
525-26 (5th Cir. 1986); Gaines v. Dixie Carriers, Inc., 434 F.2d
52, 53-54 (5th Cir. 1970).
The second factor turns on whether movant’s delay in seeking
to intervene prejudices the existing parties. See Stallworth v.
Monsanto Co., 558 F.2d 257, 265 (5th Cir. 1977). Years of active
litigation and trial preparation elapsed between when movants
learned of their interests in the litigation and when movants
sought to intervene. During that intervening time, and especially
when negotiating settlement of the case, the existing parties
operated under a certain understanding about who had a claim to
the legal fee. Allowing intervention at this late stage would cause
duplication of these efforts, which is prejudicial to the existing
parties. See Engra, Inc. v. Gabel, 958 F.2d 643, 645 (5th Cir.
1992).
The third factor also weighs against finding that the motions
were timely because movants will not suffer prejudice if they
cannot

intervene.

As

movants

repeatedly

acknowledge

in

their

briefing, they can litigate their attorney charging liens in other
fora.

See

Rec. Docs. 407-15 at 9, 409-1 at 8. In fact, an

interpleader action has already been initiated in New York state
5

court to adjudicate competing claims to the legal fee from the
underlying litigation.4 See Rec. Doc. 407-12 at 4-12. That movants
would prefer to resolve the attorney charging liens by intervening
in this case is not sufficient to warrant intervention.

See

Sommers, 835 F.3d at 513; Engra, 958 F.2d at 645.
Finally, the fact that movants waited until after the case
was

dismissed

with

prejudice

“is

a

factor

weighing

against

timeliness.” Sommers, 835 F.3d at 513. Because the motions to
intervene were untimely, movants cannot intervene under Rule 24.
New Orleans, Louisiana, this 5th day of December, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

4

Even if movants ultimately prevail on their argument that the New York state
court lacks personal jurisdiction over them, movants understand that the
competing claims to the legal fee from this case could be adjudicated in a
federal interpleader action. See Rec. Docs. 407-15 at 9, 409-1 at 8.

6