Lee v. Jones et al

Filing 51

ORDER denying 49 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Jay C. Zainey on 12/18/12. (jrc, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROLYN LEE, INDIVIDUALLY
AND ON BEHALF OF HER MINOR
CHILD, TROYNESHA LEE

CIVIL ACTION

VERSUS

NO: 11-2678

DONALD W. JONES, ET AL.

SECTION: "A" (4)

ORDER AND REASONS
Before the Court is an Appeal of Magistrate Judge’s Order
(Rec. Doc. 49) filed by defendants Donald W. Jones, Herring
Transport, Inc., and National Interstate Insurance Co.
(collectively “Defendants”).
response to the motion.

Plaintiffs have not filed a

The motion, noticed for submission on

December 5, 2012, is before the Court on the briefs without oral
argument.
I.

Background
Plaintiffs seek an award of damages against Defendants for

injuries allegedly arising out of an automobile accident with a
tractor-trailer operated by defendant Donald W. Jones.

The

accident occurred on August 8, 2011, near the intersection of
Interstate 55 and Interstate 12 in Tangipahoa Parish.

The Lee

Plaintiffs filed suit in the 21st Judicial District Court for the
Parish of Tangipahoa.

In their original petition for damages,

Plaintiffs named Donald W. Jones (the driver), Herring Gas Co.,
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Inc. (Jones’ alleged employer and owner of the tractor-trailer),
and National Interstate (insurer).

Plaintiffs subsequently filed

their First Supplemental and Amending Petition for Damages in
which they joined Herring Transports, Inc. (another alleged
employer) as an additional defendant.

On October 26, 2011, Jones

and Interstate removed the suit to this Court citing diversity
jurisdiction, 28 U.S.C. § 1332(a)(1).
The George Plaintiffs-who were the passengers in the vehicle
and its owner--moved to intervene.

The assigned magistrate judge

ruled on the motion and granted the intervention.
47).
II.

(Rec. Doc.

Defendants now appeal that ruling.
Discussion
Because the George Plaintiffs (Louisiana citizens) agreed to

dismiss all of their claims against the non-diverse Lee
Plaintiffs, the Court finds no reversible error in the
magistrate’s ruling allowing the intervention.
The motion to intervene does not support the conclusion that
the George Plaintiffs can intervene as of right.

As permissive

intervenors, the George Plaintiffs cannot intervene if their
presence in the lawsuit would destroy diversity jurisdiction.
Therefore, in order to obtain intervention the George Plaintiffs
were willing to forego their claims against the non-diverse Lee
Plaintiffs–-a much less harsher outcome than having their entire
case dismissed based on prescription had they been required to
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file their lawsuit in state court after August 8, 2012 (1 year
anniversary of the accident).
The Court is not moved by Defendants’ argument that the
complaint in intervention cannot stand as filed because it
includes the George Plaintiffs’ claims against the Lees.

Again,

those claims over which the Court had no jurisdiction have been
withdrawn by the George Plaintiffs so the Court will simply
ignore the claims against the non-diverse parties.

If the Court

has been misinformed regarding the George Plaintiffs’ voluntary
withdrawal of the claims against the Lees, then naturally the
intervention will have been improvidently granted and will have
to be vacated.

But that will not affect the Lee case which will

remain in federal court.

Therefore, no motion to remand will be

forthcoming.
The Court also agrees with the magistrate’s analysis that
led to her conclusion that the intervention was timely for
purposes of prescription.

To be sure, the George Plaintiffs

should have acted more expeditiously to cure the deficiencies
that the Clerk was reporting with the George Plaintiffs’ efilings.

But Federal Rule of Civil Procedure 5(d)(4) works to

help prevent the type of injustice that might otherwise occur in
this case if the intervention were denied as untimely due to
technical violations of the Local Rules.
Accordingly, and for the foregoing reasons;

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IT IS ORDERED that the Appeal of Magistrate Judge’s Order
(Rec. Doc. 49) filed by defendants Donald W. Jones, Herring
Transport, Inc., and National Interstate Insurance Co. is DENIED;
The Case Manager for Section A is instructed to schedule a
preliminary scheduling conference as soon as practicable.
December 18, 2012
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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