Collins v. Cenac Marine Services, LLC et al

Filing 129

ORDER AND REASONS denying 115 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Lance M Africk on 12/20/2017. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID COLLINS

CIVIL ACTION

VERSUS

No. 16-16627

CENAC MARINE SERVICES, LLC ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion 1 filed by Charles C. Bourque, Jr. and the law firm
of St. Martin and Bourque, APLC (collectively, “proposed Intervenors”) requesting
that the Court review and reverse the decision of the U.S. Magistrate Judge denying
their motion to intervene. The U.S. Magistrate Judge determined that the proposed
Intervenors’ motion to intervene was untimely for reasons that he stated on the
record. 2

Plaintiff David Collins (“Collins”) opposes 3 the proposed Intervenors’

attempt to overturn the U.S. Magistrate Judge’s decision.
“A motion to intervene is considered a non-dispositive motion.” Johnson v.
Qualawash Holdings, LLC, No. 12-0885, 2013 WL 3050021, at *2 (W.D. La. June 17,
2013) (Minaldi, J.); see also Bd. of Trustees New Orleans Employers Int’l
Longshoremen’s Ass’n v. Gabriel, Roeder, Smith & Co., No. 05-1221, 2006 WL
2631946, at *1 (E.D. La. Sept. 13, 2006) (Feldman, J.) (treating a motion to intervene
as a non-dispositive motion). “A magistrate judge’s non-dispositive order may only
be set aside if it ‘is clearly erroneous or is contrary to law.’” Moore v. Ford Motor Co.,

R. Doc. No. 115.
See R. Doc. No. 100.
3 R. Doc. No. 124.
1
2

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755 F.3d 802, 806 (5th Cir. 2014) (quoting Fed. R. Civ. P. 72(a)).

“This highly

deferential standard requires the court to affirm the decision of the magistrate judge
unless ‘on the entire evidence [the court] is left with a definite and firm conviction
that a mistake has been committed.’” Benoit v. Nintendo of Am., Inc., No. 01-674,
2001 WL 1524510, at *1 (E.D. La. Nov. 28, 2001) (Vance, J.) (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (alteration in original). The
party challenging the magistrate judge’s non-dispositive order carries the burden of
establishing that the standard to set the order aside is met. Redmond v. Poseidon
Personnel Serv., S.A., No. 09-2671, 2009 WL 3486385, at *2 (E.D. La. Oct. 23, 2009)
(Fallon, J.).
The proposed Intervenors—who Collins had previously retained under a
contingency fee agreement to represent him in connection with the accident at the
center of this lawsuit—contend that they have a right to intervene in this case
pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. 4 Rule 24(a)(2)
provides:
On timely motion, the court must permit anyone to intervene who . . .
(2) 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.
The proposed Intervenors argue that “[i]t is well-settled that under Rule 24, a
discharged attorney seeking to protect his contingent fee contract is entitled to
intervene in the lawsuit brought on behalf of his former client.” 5

4
5

See R. Doc. No. 115-1, at 2.
Id.
2

On this point, the proposed Intervenors are correct: the Fifth Circuit has held
that “a discharged lawyer with a contingent fee agreement does have an ‘interest’ for
purposes of intervention.” Valley Ranch Dev. Co. v. F.D.I.C., 960 F.2d 550, 556 (5th
Cir. 1992).

However, the U.S. Magistrate Judge did not deny the proposed

Intervenors motion to intervene on the ground that they lacked an interest in the
case, but rather on the ground that the motion was untimely.
“In order to intervene as a matter of right under Fed R. Civ. P. 24(a)(2), a party
must meet ‘each of the four requirements of the rule.’” Skinner v. Weslaco Indep. Sch.
Dist., 220 F.3d 584 (5th Cir. 2000) (quoting Keith v. St. George Packing Co., Inc., 806
F.2d 525, 526 (5th Cir. 1986)). Rule 24(a)(2)’s four requirements are that
(1) the application for intervention must be timely; (2) the applicant
must have an interest relating to the property or transaction which is
the subject of the action; (3) the applicant must be so situated that the
disposition of the action may, as a practical matter, impair his ability to
protect that interest; (4) the applicant’s interest must be inadequately
represented by the existing parties to the suit.
Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001); cf. Fed. R. Civ. P. 24(a)(2).
With respect to the issue of timeliness, the Fifth Circuit has articulated four
factors that a court should consider to determine whether a motion to intervene is
timely:
(1) how long the potential intervener knew or reasonably should have
known of her stake in the case into which she seeks to intervene; (2) the
prejudice, if any, the existing parties may suffer because the potential
intervener failed to intervene when she knew or reasonably should have
known of her stake in that case; (3) the prejudice, if any, the potential
intervener may suffer if the court does not let her intervene; and (4) any
unusual circumstances that weigh in favor of or against a finding of
timeliness.

3

John Doe No. 1 v. Glickman, 256 F.3d 371, 376 (5th Cir. 2001). “These factors are a
framework and not a formula for determining timeliness.” Id. (internal quotation
marks omitted). The Court points out that the proposed Intervenors do not reference
the case law discussing these factors in their memorandum in support of their present
motion. 6
After questioning the proposed Intervenors as to why they were “so late in
filing” their motion to intervene, the U.S. Magistrate Judge denied the motion,
concluding that it was untimely. 7 After considering the four factors bearing on the
timeliness of a motion to intervene, the Court concurs with the U.S. Magistrate’s
Judge’s conclusion. 8
The Court puts particular weight on the first factor: “how long the potential
intervener knew or reasonably should have known of her stake in the case into which
she seeks to intervene.” 9

Id.

Collins terminated the services of the proposed

Intervenors on or about November 28, 2016, which was the same day that this lawsuit
was filed. 10 However, the proposed Intervenors did not file their motion to intervene

See id.
R. Doc. No. 100. The Court is aware of what transpired at the hearing at which the
U.S. Magistrate Judge denied the proposed Intervenors’ motion to intervene.
8 The Court is aware of discussions between the U.S. Magistrate Judge and the
proposed Intervenors regarding the appeal of the U.S. Magistrate Judge’s order and
how the Court should address the motion to intervene. However, the Court declines
to follow the path that the proposed Intervenors ask the Court to tread.
9 See Effjohn Int’l Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 558-59 (5th
Cir. 2003) (“Denial of a motion to intervene, based on its untimeliness, is reviewed
for abuse of discretion as long as the district court ‘articulate[s] the reason the motion
was untimely,’ including addressing the appropriate factors.” (alteration in original));
Glickman, 256 F.3d at 376 (“It appears that a court fails to articulate a reason [why]
a motion to intervene is untimely if it does not expressly reference any of the four
factors used to decide a motion to intervene’s timeliness.”).
10 See R. Doc. No. 115-1, at 1.
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until November 21, 2017 11—nearly one year later, and only about seven weeks prior
to trial. The proposed Intervenors have provided no explanation to the Court as to
why they waited almost a year to move to intervene in this case.
Further, the proposed Intervenors have not demonstrated that they would be
prejudiced in the event that they are unable to intervene, or that the parties would
not be prejudiced by such their intervention so late in the litigation. They also do not
identify “any unusual circumstances that weigh in favor of . . . a finding of timeliness.”
Id. The proposed Intervenors therefore have not met their burden of demonstrating
that the U.S. Magistrate Judge’s order was clearly erroneous or contrary to law. 12
Accordingly,
IT IS ORDERED that the motion is DENIED.

New Orleans, Louisiana, December 20, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

R. Doc. No. 89.
The Court notes that Collins’ current counsel has ensured the proposed Intervenors
that he “will protect [their] costs out of [a] favorable judgment or settlement.” R. Doc.
No. 93-3, at 1; see also R. Doc. No. 93-1, at 1 (“If you have costs or expenses, please be
assured that we will protect them out of a favorable judgment or settlement.”).
Moreover, the proposed Intervenors appear to have previously recognized that La.
R.S. § 37:218 provides a means for them to protect their interest in this case without
the need to intervene. See R. Doc. No. 93-2, at 1.

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