Kelly et al v. Clean Harbors White Castle, LLC

Filing 15

RULING granting 10 Unopposed Motion for Leave to Intervene. The Clerk is ORDERED to file the Complaint of Intervention into the record. Signed by Magistrate Judge Erin Wilder-Doomes on 6/28/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ESTELLE KELLY, INDIVIDUALLY
AND o/b/o HER MINOR CHILDREN
CIVIL ACTION
VERSUS
NO. 18-359-JWD-EWD
CLEAN HARBORS WHITE CASTLE, LLC
RULING GRANTING UNOPPOSED MOTION FOR LEAVE TO INTERVENE
Before the court is an Unopposed Motion for Leave to Intervene (the “Motion for Leave to
Intervene”),1 filed by Kent & Smith Holdings, LLC (“KSH”) and HDI Global Insurance Company
(“HDI”) (collectively, “Proposed Intervenors”). On June 20, 2018, Proposed Intervenors filed an
Ex Parte Motion to Substitute Pleading,2 which was granted.3 Per the as-substituted Complaint of
Intervention, KSH is a limited liability company with two members, Gerald L. Smith and Kelly
Smith, who are both citizens of Louisiana.4 HDI is an insurance company incorporated in the State
of Illinois with its principal place of business in Illinois.5 Proposed Intervenors assert that they

1

R. Doc. 10.

2

R. Doc. 13.

3

R. Doc. 14.

4

R. Doc. 10-4, p. 1.

R. Doc. 10-4, p. 1. Per the Notice of Removal, “Plaintiff Estelle Kelly is domiciled in the Parish of Ascension, State
of Louisiana” and Defendant’s sole member, Clean Harbors Disposal, “is registered in Delaware, with its principal
place of business in Michigan.” R. Doc. 1, ¶ 5. The undersigned considers Proposed Intervenors to be aligned with
Plaintiff. See, Dushane v. Gallagher Kaiser Corp., No. Civ.A 05-171, 2005 WL 1959151, at *6 (W.D. La. Aug. 10,
2005) (“After careful consideration, the court finds GM is more properly considered an intervenor-plaintiff. If allowed
to intervene, GM no doubt will align itself with Plaintiffs, as it is in GM’s interest for Plaintiffs to maximize their
recovery against Defendants and thereby increase the potential for GM to recover all of the worker’s compensation
benefits it already has paid Plaintiffs. The less Plaintiffs recover, the less reimbursement GM will receive. If Plaintiffs
had not filed a suit at all, and GM filed its own suit against Defendants to seek reimbursement, GM would be
considered a plaintiff in every sense of the word.”). See also, Paxton v. Kirk Key Interlock Co., LLC, Civil Action
No. 08-583, 2008 WL 4977299, at * 7 n. 27 (M.D. La. Oct. 21, 2008) (“Since both Dow and the plaintiffs in this suit
share the same ultimate interest as against ABB, i.e., recovery of losses sustained (in the form of injuries and worker’s
compensation benefits paid or obligated to be paid in the future), as a result of ABB’s allegedly defective switchgear
equipment and since Dow offers no resistance to the substance of the plaintiffs’ claims against ABB and merely seeks
its statutorily-created right to reimbursement based upon the substance of plaintiffs’ claims, Dow should be realigned
as a party plaintiff herein.”) (report and recommendation adopted in part and rejected in part on other grounds, 2008
WL 5043428 (M.D. La. Nov. 21, 2008)); Head v. Chesapeake Operating, Inc., Civil Action No. 10-444, 2010 WL
5

1

seek to intervene as of right pursuant to Fed. R. Civ. P. 24(a) 6 and that they have received the
consent of all parties to this suit to file their Complaint of Intervention.7 For the reasons set forth
herein, the Motion for Leave to Intervene8 is GRANTED.9 The clerk is ORDERED to file the
Complaint of Intervention (R. Doc. 10-4) into the record.
I.

Background
Plaintiff, Estelle Kelly, proceeding individually and on behalf of her minor children

(“Plaintiff”), brought this survival and wrongful death action in state court against defendant,
Clean Harbors White Castle, LLC (“Defendant”).10

Plaintiff alleges that her husband

(“Decedent”) injured his leg while “unloading his work truck” at Defendant’s facility and that as
a result of the accident, Decedent suffered injuries leading to “a pulmonary embolis [sic] which
was caused by a blood clot from his injured knee which ultimately caused his death.”11 On March
29, 2018, Defendant removed this action to this court pursuant to 28 U.S.C. § 1332.12

2246394, at * 1 (W.D. La. May 26, 2010) (“The worker’s compensation intervenor in a case like this is aligned as a
plaintiff, so its citizenship must be diverse from that of all defendants or diversity will be destroyed.”). Accordingly,
while both Plaintiff and KSH are Louisiana citizens, that does not destroy the complete diversity required for this
court to exercise subject matter jurisdiction.
6

R. Doc. 10-4, ¶ 1.

7

R. Doc. 10, p. 1.

8

R. Doc. 10.

Magistrate judges may “hear and determine” non-dispositive pre-trial motions pursuant to 28 U.S.C. § 636(b)(1)(A).
“A motion to intervene is considered a non-dispositive motion.” Johnson v. Qualawash Holdings, LLC, No. 2:12CV885, 2013 WL 3050021, at *2 (W.D. La. June 17, 2013) (citing S.E.C. v. Koirnman, Civ.A. 3:04CV1803, 2006 WL
148733, at *2 (N.D. Tex. Jan. 18, 2006)). See also, Stephens v. State Farm and Cas. Co., Civil Action No. 07-2433,
2010 WL 1292719, at *3 (E.D. La. March 8, 2010) (“The portion of Road Home’s motion seeking leave to intervene
is a non-dispositive matter which I may address by order.”).
9

10

R. Doc. 1-2.

11

R. Doc. 1-2, ¶¶ II-IV.

12

R. Doc. 1.

2

On June 14, 2018, KSH and HDI moved to intervene in these proceedings. 13 Per their
proposed Complaint of Intervention, Proposed Intervenors allege that Decedent was injured while
he was in the course and scope of his employment with KSH and that HDI issued a worker’s
compensation insurance policy to KSH.14

Proposed Intervenors “adopt the allegations of

Plaintiff’s Complaint as to the liability of Defendant”15 and contend that they are “entitled to be
paid by preference and priority any such money paid out of any payment or settlement made in
favor of Plaintiff by any party, including Defendant, Clean Harbors, for any amounts which have
been paid to or on behalf of the Decedent for workers’ compensation benefits and/or medical
expenses, and death benefits paid to Plaintiff….”16 Additionally, KSH “as additional subrogee
and co-owner of the rights of Plaintiff” seeks “reimbursement for all those amounts paid to [sic]
on behalf of Decedent and/or Plaintiff in excess of the coverages provided by HDI.”17
II.

Law and Analysis
Proposed Intervenors seek to intervene as of right pursuant to Fed. R. Civ. P. 24(a).18

Pursuant to Fed. R. Civ. P. 24(a)(2), a party is entitled to intervene in a pending lawsuit when: (1)
the motion to intervene is timely; (2) the potential intervenor asserts an interest that is related to
the property or transaction that is the subject of the action in which he seeks to intervene; (3) the
potential intervenor is so situated that disposition of the case may as a practical matter impair or

13

R. Doc. 10.

14

R. Doc. 10-4, ¶¶ 2 & 4.

15

R. Doc. 10-4, ¶ 6.

16

R. Doc. 10-4, ¶ 9.

17

R. Doc. 10-4, ¶ 11.

18

R. Doc. 10-4, ¶ 1.

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impede his ability to protect his interest; and (4) the parties already in the action do not adequately
protect the potential intervenor’s interest.19
The timeliness of a motion to intervene is a matter committed to the sound discretion of
the trial court.20 Timeliness “is not limited to chronological considerations but ‘is to be determined
from all the circumstances.’”21 The Fifth Circuit has set forth four factors to consider when
evaluating whether a motion to intervene is timely: (1) the length of time during which the
proposed intervenor should have known of his interest in the case before he petitioned to intervene;
(2) the extent of prejudice that those parties already in the litigation would suffer “as a result of
the would-be intervenor’s failure to apply for intervention as soon as he actually knew or
reasonably should have known of his interest in the case;” (3) the extent of prejudice to the
proposed intervenor if he is not allowed to intervene; and (4) the existence of “unusual
circumstances militating either for or against a determination that the application is timely.”22
Here, Plaintiff filed suit on March 9, 2018 and the case was removed by Defendant on March 29,
2018.23 A Scheduling Order was entered on June 8, 2018 setting July 2, 2018 as the deadline to
join other parties24 The discovery deadline is April 1, 2019.25 Given the early procedural posture
of this suit, the lack of prejudice to the parties already in suit (as evidenced by their consent to this
intervention), and the prejudice to Proposed Intervenors (discussed below) that would occur if they
were not permitted to intervene, the Court finds that Proposed Intervenors’ intervention is timely.

19

Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001).

20

McDonald v. E.J. Lavino, 430 F.2d 1065, 1071 (5th Cir. 1970).

21

Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977).

22

Ross v. Marshall, 426 F.3d 745, 754 (5th Cir. 2005) (citing Stallworth, 558 F.2d at 264-266).

23

R. Doc. 1-2; R. Doc. 1.

24

R. Doc. 8.

25

R. Doc. 8.

4

Pursuant to the Louisiana Workers’ Compensation Act, “[i]f either the employee…or the
employer or insurer bring suits against a third person…he shall forthwith notify the other in writing
of such fact and of the name of the court in which the suit is filed, and such other may intervene
as party plaintiff in the suit.”26 “Although the statute provides that the other may intervene as a
party plaintiff if either the employee or the employer brings suit against a third person (tortfeasor),
the jurisprudence holds that an employer’s failure to intervene in a suit filed by the employee, after
proper notice, bars the employer from bringing a separate suit against a third party tortfeasor.”27
In light of this jurisprudence, district courts in this circuit have found that workers’ compensation
insurers and employers who have paid a plaintiff workers’ compensation benefits are intervenors
of right in a plaintiff’s action against alleged tortfeasors.28 Here, Proposed Intervenors assert they
have paid workers’ compensation benefits to Plaintiff and seeks reimbursement for same. Unless
allowed to intervene, they will lose their right to reimbursement. Accordingly, the Court finds
Proposed Intervenors to be intervenors of right under Fed. R. Civ. P. 24(a)(2).29

26

La. R.S. § 23:1102(A).

27

Houston General Ins. Co. v. Commercial Union Ins. Co., 649 So. 2d 776, 782 (La. App. 1 Cir. 1994) (citing Roche
v. Big Moose Oil Field Truck Service, 381 So. 2d 396, 401 (La. 1980) (“If an employee files suit for damages from a
third party tortfeasor, an employer seeking reimbursement of compensation paid must intervene in the pending
lawsuit….”)).
28

See, Johnson v. Qualawash Holdings, LLC, 990 F.Supp.2d 629, 640 (W.D. La. 2014) (dismissing action after finding
workers’ compensation insurer to be an indispensable non-diverse party and explaining that insurer “has already made
payments to the plaintiff in this matter pursuant to its policy of insurance….Under Louisiana law, if [insurer] does not
intervene in this suit, it loses its right to recover from any third party tortfeasors under Louisiana’s workers’
compensation scheme.”); Youngblood v. Rain CII Carbon, LLC, No. 12-cv-287, 2014 WL 2547588, at *3 (W.D. La.
June 4, 2014) (plaintiff’s statutory employer and workers’ compensation insurer were both intervenors of right
because, unless they were allowed to intervene, they would lose their right to reimbursement.).
No party contends, and the Court does not find, that Proposed Intervenors’ interests are adequately represented by
either Plaintiff or Defendant in this suit. Like Plaintiff, Proposed Intervenors have an interest in maximizing recovery
against Defendants. See, Dushane, 2005 WL 1959151, at *6. However, the recovery sought by Proposed Intervenors
(reimbursement for payments made to or on behalf of Decedent and/or Plaintiff through the date of judgment or
settlement) is separate from Plaintiff’s damage claim.
29

5

III.

Conclusion
For the reasons set forth herein, the Unopposed Motion for Leave to Intervene 30 is

GRANTED.
The clerk is ORDERED to file the Complaint of Intervention (R. Doc. 10-4) into the
record.
Signed in Baton Rouge, Louisiana, on June 28, 2018.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

30

R. Doc. 10.

6